Law

The issue of how patents impact medicine has increased in significance within the last decade. The conclusion of a landmark international agreement (TRIPS) has increased attention on how patents impact access to medicine, but this new focus has not always led to productive results. Discussions concerning the impact of access to medicine often degenerate into finger-pointing. Patent owning companies are often vilified as greedy corporations that place profits above people while those who advocate greater access to drugs are accused of stealing private property. These accusations seem to be based on deeply held views about the role of patents. On the one hand, patents are seen as a tool to promote innovation, and as such, they can (and should) be modified. On the other hand, patents are viewed as an important property right that should seldom be subject to exceptions, especially considering its limited term. This book explains how these competing views have led to confusion and obfuscation of the law. This book aims to clarify widely prevalent misconceptions as reflected both in reports from the popular press and by some academics in the field of intellectual property. The book has two goals: to provide an explanation of the current international infrastructure that requires most nations to provide patent and related rights regarding drugs, and to explain how competing patent perspectives play a thus far unacknowledged role in promoting distortion and confusion.

The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.

The digital era shows an unprecedented flow of data both within multinational companies as well as their external service providers. Binding Corporate Rules (BCR) are a form of corporate self-regulation designed to facilitate global inter-company data transfers in compliance with EU Data Protection Law. This book discusses the origins of the regime and the material requirements of Binding Corporate Rules (BCR), as well as how they should be applied in practice and made binding on the companies and employees. It includes a template BCR for employee data and a template BCR for customer data which have been approved by various EU data protection authorities, showing how the material requirements of the BCR regime may be implemented in practice. It also covers how BCRs may provide for enforceable rights for the beneficiaries of the regime, and how they should be brought in line with requirements of European rules on private international law. Furthermore, the book analyses a number of significant academic debates in the areas of transnational private regulation and data protection. It reflects on the legitimacy of transnational private regulation as a method of regulating corporate conduct, and also focuses on the merits and shortcomings of BCR as a method for regulating global data transfers.

When the British Empire enacted copyright law for its colonies, it called it colonial copyright, or imperial copyright, but it had only one kind of interest in mind: its own. This book deconstructs the imperial policy regarding copyright, by reversing the order and asking how British copyright was received in the colonies. Colonial copyright is told here from the point of view of the colonized, rather than the colonizer’s standpoint. The book suggests a general model of Colonial Copyright, understood as the intersection of legal transplants, colonial law, and the particular features of copyright, especially authorship. Mandate Palestine (1917–48) is the leading case study. The book tells a yet-untold history of copyright law that was the basis of Israeli law, and still is the law in the Palestinian Authority. The discussion is a critical cultural legal history, told from a postcolonial stance. It queries the British motivation in enacting copyright law, traces their first, indifferent reaction, and continues with the gradual absorption into the local legal and cultural systems. The story unfolded explores the emergence of local literary activities, the introduction of telegraph and radio, and the business models of the content industries. We shall meet many pioneers, in literature, music, film, and the law. The discussion is acutely aware of the role of identity politics, and of the meeting point of the foreign, colonial law with the local norms and cultures. It suggests that we view colonial copyright as an early case of globalization.

Mass digitization of texts, images, and other creative works promises to unprecedentedly enhance access to culture and knowledge. With the electronic ‘library of Alexandria’ having started to materialize, a number of legal and policy issues have emerged. The book develops an extended conceptual account of the ways in which mass digital projects challenge the established copyright norms through the wholesale copying of works, their storage in cloud environments, and their automated processing for purposes of data analytics and text mining. As individual licensing is not compatible with the mass scale of these activities, alternative approaches have gained momentum as effect of judicial interpretation, legislative initiative, and private-ordering solutions. The book queries the normative and policy implications of this newly emerging framework in copyright law. Adopting a cross-jurisdictional perspective, it concludes that lack of clarity as to the scope of authorial consent does not only bear the risk of legal uncertainty, but can also lead to the creation of new and not readily transparent monopolies on information and knowledge. In this respect, a new regulatory framework is outlined drawing from the insights developed in areas of law where the concept of consent in the use of data has been thoroughly elaborated. Illustrating how mass digitization unveils a number of unsettled theoretical issues within copyright, the book builds a sophisticated case that digital repositories in the mass digital age should be and remain fully-fledged public goods to the benefit of future generations.

Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.

Do broad, universal intellectual property rights bring the benefits of innovation, creativity, technical know-how, and foreign investment to developing countries? Or do treaties that require developing countries to grant greater intellectual property protection actually stifle development and impede access to the knowledge and essential medicines that the world's poor so desperately need? The debate over such questions has raged for decades, among scholars and diplomats, lawmakers and policy makers, nongovernmental organizations and international agencies, IP industries and development policy analysts. The Development Agenda is the fruition of developing countries' most recent campaign to ensure that the intellectual property treaty regime permits—and, indeed, empowers—developing countries to tailor their intellectual property laws as they deem necessary to promote development and serve the welfare of their citizens. The Agenda's adoption by the World Intellectual Property Organization (WIPO) in September 2007 is an historic watershed for that UN agency, which has long viewed its mandate as the promotion of greater intellectual property rights throughout the world. This book examines the Development Agenda and the broader issues it raises. Our contributors include leading scholars from various disciplines, including economics, political science, and law, and from countries at various stages of development, including China, India, Brazil, Argentina, Chile, Nigeria, Egypt, and Israel, in addition to the US, Canada, and EU. They also include experts from NGO-think tanks, UNCTAD, and two Brazilian diplomats who stood at the forefront of advocating for the Development Agenda's adoption at WIPO.

Over the past half century, western democracies have lead efforts to entrench the economic and political values of liberal democracy into the foundations of European and international public order. The relationship between the media and the state has been at the heart of those efforts. In this relationship, often framed in constitutional principles, the liberal democratic state has celebrated the liberty to publish information and entertainment content, while also forcefully setting the limits for harmful or offensive expression. It is thus a relationship rooted in the state’s need for security, authority and legitimacy as much as liberalism’s powerful arguments for economic and political freedom. In Europe, this long running endeavour has yielded a market based, liberal democratic regional order that has profound consequences for media law and policy in the member states. This book examines the economic and human rights aspects of European media law, which is not only comparatively coherent but also increasingly restrictive, rejecting alternatives that are well within the traditions of liberalism. Parallel efforts in the international sphere have been markedly less successful. In international media law, the division between trade and human rights remains largely unbridged and, in the latter field, liberal democratic concepts of free speech are influential but rarely decisive. States are moreover quick to assert their rights to autonomy. Yet the current communications revolution has overturned fundamental assumptions about the media and the state around the world, eroding the boundaries between domestic and foreign media as well as mass and personal communication. As this book explains, European and international media law are changing rapidly as states to attempt to manage the benefits and hazards of a globalised public information sphere.

In today's globalized economy, many inventors, investors, and businesses want their inventions to be protected in many, if not most, countries. However, there currently exists no single patent that will protect an invention globally, and despite the attempts in international treaties to simplify patenting, the process remains complicated, lengthy, and expensive. Furthermore, the necessity of enforcing patents in multiple countries exists without any possibility of concentrating in one location any parallel proceedings that concern the same invention and the same parties, thus making the maintenance of parallel patents infeasible. This book explains why the absence of a “global patent” persists and discusses the events in the 140-year history of patent law internationalization that have shaped the solutions. The book analyzes the ways in which patent holders attempt to mitigate the problems that arise from the lack of global patent protection. One way is to concentrate enforcement in one court of patents granted in multiple countries, which makes the enforcement of the patents less costly and more consistent. Another way is to attempt to use the litigation of a single country patent to reach acts that occur outside the country, which can mitigate the lack of patent protection outside the country. However, both the concentration of proceedings and extraterritorial enforcement suffer from significant limitations. This book explains these limitations and presents the solutions that have been proposed to address them. It includes a thorough comparative analysis of the extraterritorial features of U.S. and German patent laws, and original statistics on U.S. patent litigation. Based on a comprehensive treatment of the various facets of transnational enforcement challenges, the book proposes the next stage of patent law internationalization.

Written on the occasion of copyright's 300th anniversary, this book presents an analysis of the history and evolution of copyright law and its profound impact on the lives of ordinary individuals in the 21st century. Organized around the trope of the individual in five different copyright-related contexts—as an infringer, transformer, pure user, creator, and reformer—the book charts the changing contours of the United States copyright regime and assesses its vitality in the digital age. In the process, the book questions some of the most basic assumptions about copyright law by highlighting the unseemly amount of infringement liability an average person rings up in a single day, the counterintuitive role of the fair use doctrine in radically expanding the copyright monopoly, the important expressive interests at play in even the unauthorized use of copyright works, the surprisingly low level of protection that American copyright law grants many creators, and the broader political import of copyright law on the exertion of social regulation and control. Drawing upon both theory and personal experiences representing clients in various high-profile copyright infringement suits, the book supports its arguments with a rich array of diverse examples crossing various subject matters—from the unusual origins of Nirvana's “Smells Like Teen Spirit,” the question of numeracy among Amazonian hunter-gatherers, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Barbie's retroussé nose, the poisonous tomato, flag burning, music as a form of torture, the smell of rotting film, William Shakespeare as a man of the people, Charles Dickens as a lobbyist, Ashley Wilkes's sexual orientation, Captain Kirk's reincarnation, and Holden Caulfield's maturation.