Browse

India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.

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.

Algorithms have become a central theme in contemporary policy and public discussion. The varied and potentially profound social implications of our increasing reliance on algorithms in daily life has attracted considerable interest in recent years, especially with the rising awareness of ‘big data’ and predictive analytics. One of the most vivid examples is the widespread concern about the use of algorithms to manipulate information and affect political life, at least since the US elections and the Brexit referendum. This book offers a critical exploration of algorithmic regulation, understood both as a means of coordinating and regulating social action and decision-making, as well as the need for institutional mechanisms through which the power of algorithms and algorithmic systems might themselves be regulated.

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.

This book explores artificial intelligence (AI), which has become omnipresent in today's business environment: from chatbots to healthcare services to various ways of creating useful information. While AI has been increasingly used to optimize various creative and innovative processes, the integration of AI into products, services, and other operational procedures raises significant concerns across virtually all areas of intellectual property (IP) law. Thus, AI has drawn extensive attention from IP experts globally and there have been some works on specific issues in the intersection between AI and IP. Surprisingly, however, there has not been a book providing a broad and comprehensive picture from the perspectives of the very nature of AI technology, its commercial implications, its interaction with different kinds of IP, IP administration, software and data, its social and economic impact on the innovation policy, and ultimately AI's eligibility as a legal entity. The book aims to fill the gap.

Data privacy laws (also called ‘data protection’) are of increasing importance to both trade and human rights, and are now enacted in over 100 countries globally. This book covers data privacy developments in all 26 jurisdictions in Asia, from Japan to Afghanistan, more than half of which now have significant—though often incomplete—data privacy legislation, most of it very recent and untested by regulators or courts. This book provides the first benchmarking of Asia’s development of data privacy protections. As well as providing detailed analysis of all specialized data privacy laws in Asian countries, it considers constitutional and treaty protections, and protections found in the general civil and criminal law, which are particularly important in countries without specialized legislation. Brief background is included on the history, politics, and legal systems of each country. This book provides an explanation, comparison, and critique of the data privacy laws in Asia, with detailed analysis of the laws in 13 jurisdictions. In addition, it analyses the international agreements and standards concerning data privacy that are relevant to Asia, including those of the European Union (EU), the Organisation for Economic Co-operation and Development (OECD), and the Asia-Pacific Economic Cooperation (APEC). It proposes standards for comparing data privacy principles and privacy enforcement, and uses these to compare developments in Asian countries. The book concludes that the principles found in Asian data privacy laws generally exceed the minimum standards of the 1980s, and are often closer to the higher ‘European’ standards. Enforcement powers are also strengthening considerably. The trajectory of data privacy laws in Asia gives reasons for optimism.

This book focuses on the debates concerning aspects of intellectual property law that bear on access to medicines in a set of developing countries. Specifically, the chapters look at measures that regulate the acquisition, recognition, and use of patent rights on pharmaceuticals and trade secrets in data concerning them, along with the conditions under which these rights expire so as to permit the production of cheaper generic drugs. In addition, the book includes commentary from scholars in human rights, international institutions, and transnational activism. The case studies presented from eleven Latin American countries have many commonalities in terms of economics, legal systems, and political histories, and yet they differ in the balance each has struck between proprietary interests and access concerns. The book documents this cross-country variation in legal norms and practice, identifies the factors that have led to differences in result, and theorizes as to how differentials among these countries occur and why they endure within a common transnational regulatory regime. The work concludes by putting the results of the investigations into a global administrative law frame and offers suggestions on institutional mechanisms for considering the trade-offs between health and wealth.

Although the law of infringement is relatively straightforward on the copying of literal and textual elements of software, the copying of non-literal and functional elements poses complex and topical questions in the context of intellectual property protection. In most cases, such elements contain the real value of a software product. This book examines the copying of non-literal and functional elements of software in both the United States and the European Union, using a holistic approach to address the most topical questions facing experts concerned with legal protection of software products across a range of technological platforms. The book focuses on five distinct but interrelated areas: contract, copyright, patent, trade-mark and trade-dress laws, and trade secrets. It also considers the protection of designs, in the context of graphical user interfaces. The book looks at software as a multilayered functional product, setting the scene for other legal discussions by highlighting software’s unique characteristics. It analyses models for the provision of software, addressing licensing patterns and overall enforceability, as well as the statutory and judicial tools for regulating the use of such licences. Further, it explores the protection of non-literal and functional software elements under EU and US copyright law, with emphasis on internal architecture and behavioural elements. Finally, it describes the application of trade-dress protection to software’s ‘look and feel’, particularly relevant to the provision of software in the cloud environment.

To date, world antitrust and regulatory agencies have invariably described large technology companies—such as Google, Amazon, Microsoft, Apple, and Facebook—as dominant, bottleneck or gatekeeping companies comparable to the textbook monopolists of the early twentieth century. They have proceeded on this basis to discipline their business activities with unprecedented financial penalties and other regulatory obligations. This “techlash” is the subject of this book. Proceeding from the observation that big tech firms engage in both monopoly and oligopoly competition across digital markets, the book introduces a theory of moligopoly competition. It suggests that rivalry-spirited antitrust and regulatory laws are both conceptually and methodologically impervious to the competitive pressure that bears on big tech firms, resulting in a risk of well-intended but irrelevant policy intervention. The book proposes a refocusing of competition policy towards certain types of tipped markets where digital firms extract monopoly rents, and careful adoption of regulation toward other social harms generated by big tech’s business models.

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.

This book emphasizes that the privacy and autonomy concerns of consumers are indeed warranted, and the remedies deserve far greater attention than they have received from leading policymakers and experts to date. It offers a clear and accessible insight into how a few powerful firms, such as Google, Apple, Facebook, and Amazon, have used the same anticompetitive playbook and manipulated the current legal regime for their gain at people's collective expense. It also cites references from various prisms of economic theory, market data, policy, and law. The book addresses fundamental issues that confirm whether more competition necessarily promotes privacy and well-being. It discusses who owns personal data and what are the policy implications if personal data is non-rivalrous.

The Brussels Effect challenges the prevalent view that the European Union (EU) is a declining world power. It argues that notwithstanding its many obvious challenges, the EU remains an influential superpower that shapes the world in its image through a phenomenon called the “Brussels Effect.” The Brussels Effect refers to the EU’s unilateral power to regulate global markets. Without the need to resort to international institutions or seek other nations’ cooperation, the EU has the unique ability among nations today to promulgate regulations that shape the global business environment, elevating standards worldwide and leading to a notable Europeanization of many important aspects of global commerce. Different from many other forms of global influence, the Brussels Effect entails that the EU does not need to impose its standards coercively on anyone—market forces alone are often sufficient to convert the EU standard into the global standard as multinational companies voluntarily extend the EU rule to govern their global operations. In this way, the EU wields significant, unique, and highly penetrating power to unilaterally transform global markets, including through its ability to set the standards in diverse areas such as competition regulation, data protection, online hate speech, consumer health and safety, or environmental protection.

This book examines in detail the legal implications of cloud computing. In essence, 'the cloud' is a way of delivering computing resources as a utility service via the Internet. It is evolving very rapidly with substantial investments being made in infrastructure, platforms, and applications, all delivered 'as a service'. The demand for cloud resources is enormous, driven by such developments as the deployment on a vast scale of mobile apps and the rapid emergence of 'Big Data'. The book explains what cloud computing is and how it works; analyses contractual relationships between cloud service providers and their customers, as well as the complex roles of intermediaries; and explores specific arrangements for public sector cloud procurement and questions about ownership of data in clouds. It also studies the protection of personal data in clouds, governance challenges relating to access to data in clouds by law enforcement authorities, ways of facilitating competition between cloud service providers, and the consumer protection implications of cloud computing.

This book is about the legal implications of cloud computing. In essence, ‘the cloud’ is a way of delivering computing resources as a utility service via the internet. It is evolving very rapidly with substantial investments being made in infrastructure, platforms and applications, all delivered ‘as a service’. The demand for cloud resources is enormous, driven by such developments as the deployment on a vast scale of mobile apps and the rapid emergence of ‘Big Data’. Part I of this book explains what cloud computing is and how it works. Part II analyses contractual relationships between cloud service providers and their customers, as well as the complex roles of intermediaries. Drawing on primary research conducted by the Cloud Legal Project at Queen Mary University of London, cloud contracts are analysed in detail, including the appropriateness and enforceability of ‘take it or leave it’ terms of service, as well as the scope for negotiating cloud deals. Specific arrangements for public sector cloud procurement and questions about ownership of data in clouds are also explored. Part III focuses on protection of personal data in clouds and tackles these frequently asked questions: what information is protected, who is responsible, which law(s) apply, and how are international data transfers regulated? Finally, Part IV addresses governance challenges relating to access to data in clouds by law enforcement authorities, ways of facilitating competition between cloud service providers, and the consumer protection implications of cloud computing. The book concludes with an assessment of what needs to be done for effective cloud governance frameworks to be developed.

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.

Historically, likelihood of confusion has been the core infringement test for trade mark law, and it remains the most frequently applied test in infringement actions by far. However, there are noticeable differences in how it is applied by the Court of Justice of the European Union (CJEU), the General Court, and national courts; and questionable outcomes when it is applied in novel situations. This book is the first comprehensive and systematic account of the confusion test within the harmonised European trade mark system. It considers how the test is applied by national trade mark registries across EU member states, by the European Union Intellectual Property Office (EUIPO), by national courts, and by the CJEU. It offers practical guidance, while also evaluating the viability of more recent developments such as initial-interest confusion, post-sale confusion and consumer responses to uses of trade marks on the internet. The book analyses three distinct strata of legal doctrine: the decisions of the CJEU, including the General Court; the extensive body of decisions by EUIPO; and the application of harmonised trade mark law by courts of member states, focusing on leading decisions as well as wayward ones. It also draws upon the legal position in the US to illuminate these issues.

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.

This title focuses specifically on the role, action, and legacy of the Court of Justice of the European Union (CJEU) in the field of copyright, providing an exclusive survey that covers two decades (1998–2018) of decisions in this area. The main objective is to give a sense of the direction of EU copyright, by attempting to ‘tidy up’ and rationalize existing rulings. The book consists of three parts. The first part explores the role of the CJEU in copyright cases. Besides outlining the history of EU harmonization and providing data concerning the Court’s activity, it extracts the key standards employed in copyright case law, explains their meaning and significance, and undertakes a novel statistical analysis aimed at mapping relations between said standards. Following a discussion of the impact of CJEU interpretation of certain provisions (notably their preemptive force on Member States’ freedom), the second part concerns CJEU action (and vision) in respect of three key areas: economic rights, exceptions and limitations, and enforcement. The final part focuses on CJEU legacy broadly intended. It tackles the effect on national copyright laws and the current policy discourse around EU copyright reform. As regards the former, the book discusses the default consequences of the departure of a Member State from the EU, with a special focus on Brexit. In relation to the latter, attention turns to a number of areas which need to be considered in light, not just of existing legislation, but also—and perhaps most importantly—existing case law.

This book provides an article-by-article commentary to the provisions of the 2019 EU Directive on copyright in the Digital Single Market. It investigates the history, objectives, and content of Directive 2019/790's complex provisions as well as the relationship between some of those provisions and between the Directive and the pre-existing acquis. It explains why the EU Directive on copyright in the Digital Single Market is a significant and foundational part of the broader EU copyright architecture. The book aims to navigate the legislative provisions that were adopted in 2019 to make EU copyright fit for the Digital Single Market. It marks two important anniversaries in the EU copyright harmonization history: the thirtieth anniversary of the first ever adopted copyright directive, Software Directive 91/250, and the twentieth anniversary of InfoSoc Directive 2001/29, an ambitious legislative instrument.

In Ghana, adinkra and kente textiles derive their significance from their association with both Asante and Ghanaian cultural nationalism. Adinkra, made by stenciling patterns with black dye, and kente, a type of strip weaving, each convey, through color, style, and adornment, the bearer’s identity, social status, and even emotional state. Yet both textiles have been widely mass-produced outside Ghana, particularly in East Asia, without any compensation to the originators of the designs. This book focuses on the appropriation and protection of adinkra and kente cloth in order to examine the broader implications of the use of intellectual property law to preserve folklore and other traditional forms of knowledge. The book investigates the compatibility of indigenous practices of authorship and ownership with those established under intellectual property law, considering the ways in which both are responses to the changing social and historical conditions of decolonization and globalization. Comparing textiles to the more secure copyright protection that Ghanaian musicians enjoy under Ghanaian copyright law, it demonstrates that different forms of social, cultural, and legal capital are treated differently under intellectual property law. The book then moves beyond Africa, expanding the author’s analysis to the influence of cultural nationalism among the diaspora, particularly in the United States, on the appropriation of Ghanaian and other African cultures for global markets.