Access, progress, and fairness : rethinking exclusivity in copyright

This article provides a detailed critique of the incentives-access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. This Article argues that dominant copyright theory obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works. The abundance that the Internet allows suggests that increasing access to cultural works to enhance learning, sharing, and creative play should be a fundamental goal of copyright policy. This Article examines models of supporting and coordinating cultural production without exclusivity, including crowdfunding, tips, levies, restitution, and service-based models. In their current forms, each of these models fails to provide a cohesive and convincing vision of the two main functions of copyright: instrumentally (how cultural production can be funded) and fairness (how authors can be adequately rewarded). This article provides three avenues for future research to investigate the viability of alternate copyright models: (1) a better theory of fairness in copyright rewards; (2) more empirical study of commons models of cultural production; and (3) a critical examination of the noneconomic harm limiting function that exclusivity in copyright provides.

Economic return of clinical trials performed under the pediatric exclusivity program.

CONTEXT: In 1997, Congress authorized the US Food and Drug Administration (FDA) to grant 6-month extensions of marketing rights through the Pediatric Exclusivity Program if industry sponsors complete FDA-requested pediatric trials. The program has been praised for creating incentives for studies in children and has been criticized as a "windfall" to the innovator drug industry. This critique has been a substantial part of congressional debate on the program, which is due to expire in 2007. OBJECTIVE: To quantify the economic return to industry for completing pediatric exclusivity trials. DESIGN AND SETTING: A cohort study of programs conducted for pediatric exclusivity. Nine drugs that were granted pediatric exclusivity were selected. From the final study reports submitted to the FDA (2002-2004), key elements of the clinical trial design and study operations were obtained, and the cost of performing each study was estimated and converted into estimates of after-tax cash outflows. Three-year market sales were obtained and converted into estimates of after-tax cash inflows based on 6 months of additional market protection. Net economic return (cash inflows minus outflows) and net return-to-costs ratio (net economic return divided by cash outflows) for each product were then calculated. MAIN OUTCOME MEASURES: Net economic return and net return-to-cost ratio. RESULTS: The indications studied reflect a broad representation of the program: asthma, tumors, attention-deficit/hyperactivity disorder, hypertension, depression/generalized anxiety disorder, diabetes mellitus, gastroesophageal reflux, bacterial infection, and bone mineralization. The distribution of net economic return for 6 months of exclusivity varied substantially among products (net economic return ranged from -$8.9 million to $507.9 million and net return-to-cost ratio ranged from -0.68 to 73.63). CONCLUSIONS: The economic return for pediatric exclusivity is variable. As an incentive to complete much-needed clinical trials in children, pediatric exclusivity can generate lucrative returns or produce more modest returns on investment.

The psychology of exclusivity

L’amitié et l’amour romantique sont, de par leur nature, des relations exclusives. Cet article suggère que l’on peut mieux comprendre la nature de l’exclusivité dont il est question en comprenant l’erreur au coeur de la vision du raisonnement pratique que je nomme « le point de vue englobant » . Selon le PVE, pour que le raisonnement pratique soit rationnel, il doit s’agir d’un processus ayant pour but de choisir la meilleure alternative possible à partir d’une perspective qui est aussi détachée et objective que possible. Quoique cette vision cherche à être neutre à l’égard des porteurs de valeurs, elle incorpore en fait un biais contre les porteurs de valeurs qui ne peuvent être appréciés qu’à partir d’une perspective qui n’est pas détachée - qui ne peuvent être appréciés, par exemple, que par les agents qui sont engagés à long terme envers les valeurs en question. Dans le contexte des relations personnelles, de tels engagements tendent à donner naissance à la sorte d’exclusivité qui caractérise l’amitié et l’amour romantique ; ils empêchent l’agent d’être impartial entre les besoins, les intérêts, etc. de la personne qui lui est chère, d’une part, et ceux des autres, d’autre part. Je suggère que dans de tels contextes les besoins et les revendications des autres personnes peuvent être réduites au silence, de la même manière que, comme le suggère John McDowell, les tentations de l’immoralité sont, pour l’agent vertueux, réduites au silence.

Language experience shapes the development of the mutual exclusivity bias

Halberda (2003) demonstrated that 17-month-old infants, but not 14- or 16-month-olds, use a strategy known as mutual exclusivity (ME) to identify the meanings of new words. When 17-month-olds were presented with a novel word in an intermodal preferential looking task, they preferentially fixated a novel object over an object for which they already had a name. We explored whether the development of this word-learning strategy is driven by children's experience of hearing only one name for each referent in their environment by comparing the behavior of infants from monolingual and bilingual homes. Monolingual infants aged 17–22 months showed clear evidence of using an ME strategy, in that they preferentially fixated the novel object when they were asked to "look at the dax." Bilingual infants of the same age and vocabulary size failed to show a similar pattern of behavior. We suggest that children who are raised with more than one language fail to develop an ME strategy in parallel with monolingual infants because development of the bias is a consequence of the monolingual child's everyday experiences with words.

Accountancy and academic/professional inter-dependency (or mutual exclusivity?)

This paper is a report on an Accounting Education Symposium held during the 2009 Annual Congress of the EAA in Tampere, Finland. This was the fourth occasion on which there has been an Accounting Education Symposium (or similar) within an EAA Annual Congress. Previous events were as follows:

2005 (Gotenburg, Sweden) EAA Accounting Educators' Forum
2006 (Dublin, Ireland) 'Universities and Professional Bodies: Complementary or Colliding Roles in Educating and Training Future Accounting Practitioners?' (sponsored by the Irish Accountancy Educational Trust)
2008 (Rotterdam, the Netherlands) 'Accounting Education: The Common Content Project' (sponsored by Royal NIVRA).

Native title rights in the territorial sea and beyond: exclusivity and commerce in the Akiba decision

The principles that regulate the recognition and enforcement of native title rights and interests in both the territorial and the high seas are discussed. The context of the territorial and high seas, where a parallel structure provides a strong foundation for the promotion and recognition of co-coordinated practices, a far greater potential exists for the endorsement of native title rights which connect to evolving social and economic frameworks, as can be seen in the recent decision of Finn J in Akiba.

Who's cheating? Agreements about sexual exclusivity and subsequent concurrent partnering in Australian heterosexual couples

Background Concurrent relationships are a driver of generalised epidemics of sexually transmissible infections (STIs). In Australia, explicit negotiation of agreements about sex outside regular relationships has been recommended in health promotion for gay men but not for heterosexuals.

Exclusivity contracts and competition : the case of the Brazilian fuels market

Exclusivity contracts can help stations by providing brand-value that allows them to obtain higher profits, relative to unbranded retailers. However, branded retailers may have a stronger negative effect over its competitors’ profits. It is not clear which one of these two effects dominates (brand-value vs competition effect). Therefore, the impact of exclusivity over the number of participants in the downstream market is not determined. In this paper, I empirically study the effects of exclusivity agreements on competition in the Brazilian gasoline sector. In order to do so, I estimate an entry model of endogenous product-type choices using data of retailers’ locations and contract choices along with data from the 2010 Brazilian Census. I use my estimates to simulate entry decisions under two counterfactual scenarios: i) mandatory exclusivity and ii) no exclusivity.

Saving the Monopsony: Exclusivity, Innovation and Market Power in the Media Sector. Research Papers in Law, 7/2006

From the Introduction. The Media Sector has experienced a technological revolution in the last 15 years. Digital encoding of television signals made possible a more efficient use of the radiospectrum. Digital terrestrial television (hereinafter, “DTT”) allows now for the reception of a significant number of free-to-air channels.1 Moreover, the use of new transmission platforms (hereinafter,“platforms”), namely cable and direct-to-home satellite (hereinafter, “DTH”) paved the way for the arrival in Europe of pay-TV operators, which finance their activities mainly via subscription fees. This changing technological landscape is subject to further evolution in the near future, as incumbent telecommunications operators become increasingly interested in making available broadcasting content2 as part of their broadband offer and 3G mobile handsets can be used for the reception of TV signals....The present paper seeks to ascertain whether the Commission “regulatory approach” towards the exclusive sale of premium content is a sound one, in particular in view of the constant technological evolution outlined above. The assumptions underlying landmark Commission decisions will be compared with recent developments of the media sector in Italy. In the NewsCorp./Telepiù case, decided in 2003, the Commission imposed very strict conditions to allow the merger giving birth to Sky Italia, on the assumption that the operation created a lasting near-monopsony in the different upstream markets for the acquisition of premium intervened against the media conglomerate Mediaset (which controls, inter alia, the main three private free-to-air channels in Italy) for an alleged abuse of dominant position.17 In fact, and contrary to the forecasts made by the Commission, Mediaset was in a position to acquire the broadcasting rights of the main Italian football teams, thereby excluding the incumbent (and near-monopolist) pay-TV operator, Sky Italia. This may go to show that the reality of the sector is more complex and evolves faster than one may infer from the Commission practice, thus putting into question its stance regarding exclusivity. The experience of the evolution of the Italian media sector will be used as the starting point for the evaluation of alternative regulatory options.

'Looking good, feeling better': Consumption, Control and the Aesthetics of Exclusivity in the Service Encounter

The majority of ‘service’ literature has focused on the production side of service work (i.e. employees and management), while treating the role of the customer and/or consumer as secondary (Korczynski and Ott, 2004). Those authors who have addressed the role consumption plays in shaping and maintaining individuals' self- identity have tended to overemphasize the dominance of consumer culture in shaping ‘our consciousness’ (Ritzer, 1999), with little in the way of empirical evidence to support these assertions. This paper develops the conceptualization of service work and consumer culture literature, by placing more emphasis on the customer in the service encounter. Using an ethnographic study of a ‘high class’ department store, this paper addresses employee and customer identity and the nature of managerial, employee and customer control within this ‘exclusive’ context. Of particular interest is how employees and customer’s ‘embody’ this control. Using Bourdieu’s (1986) conception of class and habitus, the concept of exclusivity goes beyond the management /service worker dyad by providing a means of investigating identity control by the organization over both customers and service workers. However, an organization’s exclusivity is not a closed normative pursuit of control, and shows this enterprise is part of a contested terrain, while revealing the ambiguity and ‘openness’ of control practices and pursuits. In order to uphold the ideal of exclusivity, management, service workers and customers must all engage in a precarious quest for establishing and maintaining a sense of control and/or identity. This paper demonstrates the continuing contradiction between bureaucratic practices of control and consumer culture, and highlights the need for research that investigates the context -dependent nature of control in service-related and consumer studies.

Refocusing regulatory exclusivities: Regulatory data protection and marketing exclusivity as forms of pharmaceutical innovation policy

Protection of innovation in the pharmaceutical industry has traditionally been realised through protection of inventions via patents. However, in the European Union regulatory exclusivities restricting market entry of generic products confer tailored, industry specific protection for final, marketable products. This paper retraces the protection conferred by the different forms of exclusivity and assesses them in the light of recent transparency policies of the European Medicines Agency. The purpose of the paper is to argue for rethinking the role of regulatory data as a key tool of innovation policy and for refocusing the attention from patents to the existing regulatory framework. After detailed assessment of the exclusivity regime, the paper identifies key areas of improvement calling for reassessment so as to promote better functioning of the regime as an incentive for accelerated innovation. While economic and public health analysis necessarily provide final answers as to necessity of reform, this paper provides a legal perspective to the issue, appraising the current regulatory framework and identifying areas for further analysis.