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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.

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.

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.

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 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.

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.

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.

This book explores the scope of copyright user rights through the lens of property, copyright, and contract law. It proposes a taxonomy and hierarchy of copyright user rights that makes a distinction between user property, user rights, and user privileges. The book looks at user rights from an international law and multijurisdictional perspective (including the European Union, United States, Canada, United Kingdom, France, and Australia) with a particular focus on Canada, given the significant amount of jurisprudence of the Supreme Court of Canada on copyright user rights. Unlike other works that look at copyright user rights through concepts of public law and policy, this book explores user rights through concepts of private law (personal property, goods, services, sales, licences) and copyright law (exceptions to copyright infringement such as fair dealing and fair use, the first sale or exhaustion doctrine, and the impact of technological protection measures on how users experience copyright works). The book develops a pluralistic theory of copyright user rights that recognizes their diversity and myriad ways users experience copyright works, while emphasizing the importance and role of copyright users within copyright law. The book calls for the re-evaluation of the dichotomy between tangibility and intangibility and for greater cohesion between copyright law and traditional concepts of private law.

In 1947, a newly independent India was saddled with a host of intellectual property (IP) laws left behind by the British. In the following decades, India broke away from colonial IP legacies, while navigating international treaty negotiations in the light of its redefined national interests. These changes affected ordinary lives—be it through medicines, music, movies, books, food, yoga, or the Internet—but have never been narrated to a larger audience. This book unravels the development of India’s IP law and policy in modern times, in a form and style designed for the general reader. The chapters in the book centre on different industries and sectors, such as pharmaceuticals, book publishing, cinema, music, the Internet, food, yoga, and traditional knowledge. Each chapter features a lively narrative that has been constructed from various sources, including parliamentary debates, expert reports, interviews, archival research, and case law. The book’s unique focus is on the politics and history of Indian IP, rather than the black letter of the law.

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.

Intellectual property (IP) law is premised on assumptions about creative behavior. Fundamentally, the case for regulation assumes that creators require a legal right to prevent copying, or they will under-invest in new works. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity. Equally importantly, it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation. This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses—sensitive to their particular cultural, competitive, and technological circumstances—to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer self-regulation to law. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.

Cryptoassets represent one of the most high-profile financial products in the world, and fastest growing financial products in history. From Bitcoin, Etherium, and Ripple’s XRP—so-called “utility tokens” used to access financial services—to initial coin offerings that in 2017 rivaled venture capital in money raised for startups, with an estimated $5.6 billion (USD) raised worldwide across 435 Initial Coin Offerings (ICOs). All the while, technologists have hailed the underlying blockchain technology for these assets as potentially game-changing applications for financial payments and record-keeping. At the same time, cryptoassets have produced considerable controversy. Many have turned out to be lackluster investments for investors. Others, especially ICOs, have also attracted noticeable fraud, failing firms, and alarming lapses in information sharing with investors. Consequently, many commentators around the world have pressed that ICO tokens be considered securities, and that concomitant registration and disclosure requirements attach to their sales to the public.

As newer forms of intellectual property—seeds, germplasm, genetic resources, plant varieties—materialize through advancements in biotechnology, a variety of entitlements, claims, and imaginations of citizenship are bred, mimicking the hybrid culture of genetic configurations. This book analyses the theoretical and philosophical frames of new (biotic) property, and assesses how its altered metaphysics inscribes itself in the politics of genetic resources. It probes how rights get ‘framed’ within and by law, in the diverse yet closely interrelated aspects of social, cultural, and biological life. In particular, the book focuses on biocultural entitlements of farming and indigenous communities—people who are at a distance from the global networks of trade, politics, science, and technology. It explores the terms on which the interests of these indigenous communities are included and institutionalized as well as the degrees of exclusion and stratification that accompany them. It attempts to uncover the ‘cunning’ or duplicitous nature of these rights—the chasm between their intended benefits and their actual outcomes.