Reworking the NAFTA: departures from traditional frameworks

This paper reviews the treatment of intellectual property rights in the North American Free Trade Agreement (NAFTA) and considers the welfare-theoretic bases for innovation transfer between member and nonmember states. Specifically, we consider the effects of new technology development from within the union and question whether it is efficient (in a welfare sense) to transfer that new technology to nonmember states. When the new technology contains stochastic components, the important issue of information exchange arises and we consider this question in a simple oligopoly model with Bayesian updating. In this context, it is natural to ask the optimal price at which such information should be transferred. Some simple, natural conjugate examples are used to motivate the key parameters upon which the answer is dependent

A copyright exception for private copying in the United Kingdom

This paper discusses the proposed copyright exception for private copying in the UK in the aftermath of the Hargreaves Review. It explores the options by which the exception shall retain a realistic scope without significantly impacting on the interests of the rightholders and addresses the concept of possible harm that may arise due to private copying. It concludes that an exception for copying of content legally owned by an individual to another medium or device for private use corresponds to consumers’ reasonable expectations without causing more than minimal harm to the rightholders’ interests and without requiring an accompanying introduction of a fair compensation scheme.

Reconstructing copyright exhaustion in the online world

According to the principle of copyright exhaustion, once a copy of a work is placed on the market, the right holder’s control over further distribution of that copy is exhausted. Unlike the distribution of hard copies of copyright works, however, the electronic dissemination of content is not subject to the exhaustion principle. This means that second-hand markets of digital goods cannot exist. Traditionally, exhaustion is premised on four assumptions that cannot be safely assumed in the online context: it applies to tangible copies only; it covers goods and not services; the goods should be sold but not licensed; and the property entitlement should be alienated upon transfer. After long jurisprudential silence, courts at worldwide level have revisited these normative impediments to affirm that exhaustion can apply online in specific instances. The article discusses the doctrinal norms that underpin exhaustion and determines the conditions under which online copyright exhaustion can apply.

Contractual restrictions on lawful use of information: sole-source databases protected by the back door?

This article is concerned with the risks associated with the monopolisation of information that is available from a single source only. Although there is a longstanding consensus that sole-source databases should not receive protection under the EU Database Directive, and there are legislative provisions to ensure that lawful users have access to a database’s contents, Ryanair v PR Aviation challenges this assumption by affirming that the use of non-protected databases can be restricted by contract. Owners of non-protected databases can contractually exclude lawful users from taking the benefit of statutorily permitted uses, because such databases are not covered from the legislation that declares this kind of contract null and void. We argue that this judgment is not consistent with the legislative history and can have a profound impact on the functioning of the digital single market, where new information services, such as meta-search engines or price-comparison websites, base their operation on the systematic extraction and re-utilisation of materials available from online sources. This is an issue that the Commission should address in a forthcoming evaluation of the Database Directive.

Search engine liability for autocomplete suggestions: personality, privacy and the power of the algorithm

This article is concerned with the liability of search engines for algorithmically produced search suggestions, such as through Google’s ‘autocomplete’ function. Liability in this context may arise when automatically generated associations have an offensive or defamatory meaning, or may even induce infringement of intellectual property rights. The increasing number of cases that have been brought before courts all over the world puts forward questions on the conflict of fundamental freedoms of speech and access to information on the one hand, and personality rights of individuals— under a broader right of informational self-determination—on the other. In the light of the recent judgment of the Court of Justice of the European Union (EU) in Google Spain v AEPD, this article concludes that many requests for removal of suggestions including private individuals’ information will be successful on the basis of EU data protection law, even absent prejudice to the person concerned.

Copyright exceptions and contract in the UK: the impact of recent amendments

In June and October 2014 a number of amendments to the Copyright, Designs and Patents Act 1988 came into effect, introducing new copyright exceptions and amending several existing exceptions. Whilst following recent judicial review the private copying exception has been quashed, many of the remaining new exceptions significantly alter the relationship between copyright exceptions and contract, making contractual terms unenforceable where those terms restrict users from taking advantage of an exception. This paper explores the rationale for the UK amendments and considers whether the changes, as implemented, prevent rightsholders from contracting out of exceptions and whether they increase the clarity of the copyright system.

What are the limitations on the wider therapeutic use of phage?

Bacterial resistance to antibiotics poses a serious health threat. Since research into new antibiotics is not progressing at the same rate as the development of bacterial resistance, widespread calls for alternatives to antibiotics have been made. Phage therapy is an ideal alternative candidate to be investigated. However the success of phage therapy may be hampered by a lack of investment support from large pharmaceutical companies, due to their narrow spectrum of activity in antibiotics, very large costs associated with clinical trials of the variety of phages needed, and regulatory requirements remaining unclear. Intellectual property is difficult to secure for therapeutic phage products for a variety of reasons, and patenting procedures vary widely between the US and the EU. Consequently, companies are more likely to invest in phage products for decontamination or veterinary use, rather than clinical use in humans. Some still raise questions as to the safety of phage therapy overall, suggesting the possibility of cytotoxicity and immunogenicity, depending on the phage preparation and route. On the other hand, with patients dying because of infections untreatable with conventional antibiotics, the question arises as to whether it is ethical not to pursue phage therapy more diligently. A paradigm shift about how phage therapy is perceived is required, as well as more rigorous proof of efficacy in the form of clinical trials of existing medicinal phage products. Phage therapy potential may be fulfilled in the meantime by allowing individual preparations to be used on a named-patient basis, with extensive monitoring and multidisciplinary team input. The National Health Service and academia have a role in carrying out clinical phage research, which would be beneficial to public health, but not necessarily financially rewarding.

The Nine Circles of Surveillance Hell: An Institutional View of Information Flows and Information Threats in Libraries

In the past few years, libraries have started to design public programs that educate patrons about different tools and techniques to protect personal privacy. But do end user solutions provide adequate safeguards against surveillance by corporate and government actors? What does a comprehensive plan for privacy entail in order that libraries live up to their privacy values? In this paper, the authors discuss the complexity of surveillance architecture that the library institution might confront when seeking to defend the privacy rights of patrons. This architecture consists of three main parts: physical or material aspects, logical characteristics, and social factors of information and communication flows in the library setting. For each category, the authors will present short case studies that are culled from practitioner experience, research, and public discourse. The case studies probe the challenges faced by the library—not only when making hardware and software choices, but also choices related to staffing and program design. The paper shows that privacy choices intersect not only with free speech and chilling effects, but also with questions that concern intellectual property, organizational development, civic engagement, technological innovation, public infrastructure, and more. The paper ends with discussion of what libraries will require in order to sustain and improve efforts to serve as stewards of privacy in the 21st century.

Some losses brought out by the WTO agreement for TRIPs

The WTO established two rules concerning the international protection of the TRIPs - trade related intellectual property rights, which includes patents and copyrights. One of these rules is the non-discrimination, which has shown to be efficiency-enhancing in the context of trade tariff reductions. The other is the national-treatment commitment rule. We develop in this paper a simple framework to show that the extended version of this rule - which is nowadays being imposed to members - brings out a loss of economic efficiency and a reduction in the levels of protection of intellectual property rights worldwide. As a consequence, it tends to reduce the investments on Research and Development throughout the world. This exactly contradicts the objectives of the Agreement.

From free software to free culture: the emergence of open business

This paper provides an examination of the emergence of open business models — entrepreneurial strategies that take advantage of the ease of digital reproduction to distribute free content, while earning money from the sale of related products and services. Locating the origins of open business in the open source software phenomenon, the authors suggest that the business strategies innovated there have broader economic relevance. Through a case study of the tecnobrega music scene in Belém, the paper illustrates how open business models can be applied to the production of cultural materials more generally

From legal commons to social commons: Brazil and the cultural industry in the 21st century

This article describes some of the current transformations regarding the processes by which information and culture are generated, from the point of view of developing countries. In this brief analysis, the article discusses the role of projects such as Creative Commons for developing countries. It also discusses the idea of legal commons and social commons. While the idea of legal commons can be understood as the voluntary use of licenses such as Creative Commons in order to create a “commons”, the idea of social commons has to do with the tensions between legality and illegality in developing countries. These tensions appear prominently in the so-called global “peripheries”, and in many instances make the legal structure of intellectual property irrelevant, unfamiliar, or unenforceable, for various reasons. With the emergence of digital technology and the Internet, in many places and regions in developing countries (especially in the “peripheries”), technology ended up arriving earlier than the idea of intellectual property. Such a de facto situation propitiated the emergence of cultural industries that were not driven by intellectual property incentives. In these cultural businesses, the idea of “sharing” and of free dissemination of the content is intrinsic to the social circumstances taking place in these peripheries. Also, the appropriation of technology on the part of the “peripheries” ends up promoting autonomous forms of bridging the digital divide, such as the “LAN house” phenomenon discussed below. This paper proposes that many lessons can be learned from the business models emerging from social commons practices in developing countries. The tension between legality and illegality in “peripheral” areas in developing countries is not new. The work of Boaventura de Sousa Santos and others in the 1970s was paradigmatic for the discussion of legal pluralism regarding the occupation of land in Brazil. This paper aims to follow in that same pioneer tradition of studies about legal pluralism, and to apply those principles to the discussion of “intellectual property” rather than the ownership of land.

BISA copyright review: Brazil

This paper is part of the Brazilian branch of the BISA Copyright Review, a research project focused on the intersection of copyright and public interest in Brazil, India and South Africa, funded by the Ford Foundation. The Brazilian contribution is based on interviews with some of the key actors involved with the process of copyright reform initiated by the Brazilian Ministry of Culture in 2007, and provides a thorough picture of the Brazilian copyright policy scenario as of 2008.