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Although lay participation has long been a feature of scientific research, the past decades have seen an explosion in the number of citizen science projects. Simultaneously, the number of low-cost network connected devices collectively known as Internet of Things devices has proliferated. The increased use of Internet of Things devices in citizen science exists has coincided with a reconsideration of the right to science under international law. Specifically, the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights both recognise a right to benefit and participate in the scientific process. Whilst it is unclear whether this right protects participation by citizen scientists, it provides a useful framework to help chart the ethical issues raised by citizen science. In this chapter, we first describe the origins and boundaries of the right to science, as well as its relevance to citizen science. We then use the findings of a scoping review to examine three main ethical and legal issues for using Internet of Things devices in citizen science.
The current debate over the global distribution of COVID-19 vaccines once again highlights the many shortcomings of the modern intellectual property (IP) system, especially when it comes to equitable access to medicines. This essay argues that the (unspoken) conceptual center of struggles over access to new pharmaceuticals rests in the IP system's colonial legacy, which perceives the world as uncharted territory that is ripe for discovery and ownership. This vision of the world as a blank canvas, or terra nullius, sets aside any other models of ownership and devalues other traditional modes of relating to territory and nature. Several examples show the long-lasting exclusionary effects of this hidden legacy of colonial conquest in the field of public health, ranging from the spiraling price of insulin to the distribution of COVID-19 vaccines to the negotiation of sharing mechanisms for virus samples. In all of these cases, the continuing marginalization of other interests by the IP system can lead to exploitation, without either the “sources” of materials, such as those from whom the samples were taken, or the recipients of the eventual product having any say in matters of price and access. This legacy of fundamental exclusion needs to be recognized and addressed in order to arrive at more equitable solutions to public health emergencies such as the current pandemic.
This chapter analyzes the recent evolution of innovation in the mining sector. It characterizes the mining innovation global ecosystem by looking at the technologies, countries and stakeholders contributing to technological change in the sector. It provides a detailed description of private stakeholders, such as mining companies and mining equipment, technology and service firms (METS), and public ones such as universities and governmental institutions. The chapter brings together aggregated innovation data with a novel unit-record database containing comprehensive patent and firm level data for the mining sector from 1900 to 2016.
The WTO must have new rules that meets the needs of the new commercial economy that has arisen since the establishment of the WTO. New trade rules for the twenty-first century are necessary for digital trade, trade-related aspects of intellectual property, competition, and investment facilitation.
Professor Bill Cornish was a legal scholar of vision, who was well ahead of his time in two widely disparate areas, and in both he became a recognised leader and authority: legal history and intellectual property law. In the former he applied what was then the novel approach of stressing the contemporary social conditions to which the extant law had to apply - something that modern commentators could well ponder, but which he was honest enough to acknowledge was also criticised by some of his peers at the time. As for intellectual property law, his place as the ‘father of intellectual property teaching and scholarship in the UK’ was acclaimed by his admission as a Fellow of the British Academy in 1984, and his place as the inaugural occupant of the Herchel Smith Professor of Intellectual Property Law, at Cambridge (1995–2004). Both these activities had their origins in Bill's long stay (1970–1990) as professor of law at the London School of Economics, where he was influenced by their emphasis on societal tertiary education, and his friendship with the renowned Anglo-German scholar Otto Kahn-Freund, respectively. In reality, though, Bill's upbringing in the unique milieu of immediate post-War South Australia, which he describes as a backwater of tranquility, and his urge to see Europe were the roots of his expansive vision of the law. Lesley Dingle interviewed Bill for the Eminent Scholars Archive (ESA) in 2015, nine years after his retirement, and these observations of this remarkable scholar are based on those conversations, and her readings of his works.
This chapter describes how device makers try to leverage intellectual property (IP) rights to restrict repair and why those assertions are, as a general rule, inconsistent with a proper understanding of the law. IP—in the form of copyrights, patents, trademarks, and trade secrets—offers manufacturers an arsenal of weapons in the war on repair. From a practical perspective, IP law allows firms to credibly threaten to enjoin, silence, and ultimately bankrupt anyone with the audacity to repair a product without permission. That’s true despite the fact that IP claims against consumers and repair providers rest on questionable legal foundations.
In the twenty-first century, it has become easy to break IP law accidentally. The challenges presented by orphan works, independent invention or IP trolls are merely examples of a much more fundamental problem: IP accidents. This book argues that IP law ought to govern accidental infringement much like tort law governs other types of accidents. In particular, the accidental infringer ought to be liable in IP law only when their conduct was negligent. The current strict liability approach to IP infringement was appropriate in the nineteenth century, when IP accidents were far less frequent. But in the Information Age, where accidents are increasingly common, efficiency, equity, and fairness support the reform of IP to a negligence regime. Patrick R. Goold provides the most coherent explanation of how property and tort interact within the field of IP, contributing to a clearer understanding of property and tort law and private law generally.
This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in the field of public health. First, tribunals addressing the merits of health measures have exercised considerable deference to States under existing treaties. Second, the recent generation of treaties spells out health considerations to encourage respondents or tribunals to adopt broad interpretations of the right to regulate, general exceptions, or article-specific carve-outs. Clauses modelled on GATT exceptions may prove difficult to invoke due to the ‘necessity’ threshold. Finally, the Kyoto Protocol may serve as a model of incentivising private investment in the public health sector.
In recent decades, companies around the world have deployed an arsenal of tools - including IP law, hardware design, software restrictions, pricing strategies, and marketing messages - to prevent consumers from fixing the things they own. While this strategy has enriched companies almost beyond measure, it has taken billions of dollars out of the pockets of consumers and imposed massive environmental costs on the planet. In The Right to Repair, Aaron Perzanowski analyzes the history of repair to show how we've arrived at this moment, when a battle over repair is being waged - largely unnoticed - in courtrooms, legislatures, and administrative agencies. With deft, lucid prose, Perzanowski explains the opaque and complex legal landscape that surrounds the right to repair and shows readers how to fight back.
This chapter focuses on the scope and content of the Intellectual Property Chapter of the TPP, to examine how strict the new IP international protection and enforcement standard is, and to determine how far it goes beyond the existing FTAs and TRIPS. TPP provisions are compared with the “Pre-TPP relevant standards” (both intra-TPP and extra-TPP), and, of course, the WTO TRIPS Agreement. We looked at the NAFTA (the US, Canada, and Mexico) and the US agreements with Singapore, Chile, Australia, the CAFTA countries, Peru, and Korea (KORUS FTA). Some references were made to agreements signed by the European Union with Korea (EU--KOREA FTA) and the one with Canada, the Comprehensive Economic and Trade Agreement (CETA), as well as to the TPP predecessor -- the P4 Agreement -- signed between Brunei Darussalam, Chile, New Zealand, and Singapore. While reviewing the enforcement provisions, comparisons were made to the Anti-Counterfeiting Trade Agreement (ACTA).
It was early in the morning of October 5, 2015 when the trade ministers of twelve countries announced in Atlanta, Georgia, the successful conclusion of a seven-year, extremely complex negotiating effort known as the Trans-Pacific Partnership Agreement (TPP). The TPP was formally signed four months after its conclusion, on February 4, 2016, in Auckland, New Zealand, apparently heralding a new momentum for international trade and investment liberalization.
Traditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.
The growing adoption of artificial intelligence (AI), combined with advances in the technology and the recent denial of patents to an AI inventor by the European and American patent offices, are necessitating a critical examination of the profound role the IP system has on AI, not only because IP rights can protect AI-related inventions and creations, but also because they can block access to key AI technologies. But such a review raises complicated IP, technical, legal, data-related, social and philosophical issues. For example, if the IP system is designed to encourage creation and invention, in large part through the recognition and reward of creative and inventive endeavour, who or what should be allowed to benefit from it – a human with an artificial identity; a human enhanced with AI; or an AI itself? And if not an AI, then what types of inventions or creations, created with the assistance of AI, deserve IP protection? This chapter attempts to help readers better appreciate the emerging and complex questions regarding IP and AI including what IP is in the context of AI, why things have gotten so complicated and the conundrum we now face of whether to prioritise progress or human interests.
The relationship between business activity and human rights in the context of intellectual property (IP) is unique. First, it is an example of how national efforts to control the human rights impact of business activities can be frustrated by international agreements. Thus, the obligation under the Guiding Principles for states to maintain sufficient national policy space to address human rights impacts is particularly important in this area. Corporations also have a responsibility not to push for changes in domestic and international law that would enable them to maximize profits at the expense of human rights. Second, the case of human rights and IP provides an example of corporations taking advantage of legal rules that allow them to extract profits at the expense of human rights. These legal rules are directed toward a legitimate purpose, but they can also be abused in ways that harm human rights. Thus, the relationship between IP and human rights demonstrates that corporations may have a responsibility not to take maximal advantage of opportunities to make a profit where doing so would violate human rights. It also indicates that human rights law may constrain states in the choices they make about how to incentivize innovation.
This chapter explores distributive justice and beneficence. Justice involves giving individuals what they are due. Distributive justice governs the distribution of valuable resources and of burdens, and the granting of certain legal rights. Beneficence concerns agents’ duties to benefit other individuals. The chapter highlights distinctions (1) between the ideal and the nonideal and (2) between how institutions should be arranged and how individuals should act. We understand nonideal theory to address what particular actors – both states and persons – should do in the actual world today. Regarding institutions, domestically, we defend a liberal egalitarian view about distributive justice: unchosen differences in individual advantage within a society are prima facie unjust. Globally, we endorse cosmopolitanism: similar principles of justice apply internationally as apply domestically. Regarding individuals’ obligations, we defend moderately extensive duties of beneficence. We argue that national governments should ensure that all their residents have access to affordable health care and that the international community ought to amend the global intellectual property regime that governs pharmaceutical patents.
This chapter introduces the concept of standards-essential intellectual property (SEIP), including standards-essential patents (SEPs), standards-essential copyrights, and other applicable forms of IP. The chapter includes detailed consideration of SEPs – including a survey of scholarship of well-documented issues such as patent holdup, royalty stacking, component patenting and patent thickets – not neglecting also the availability of collective rights organizations, e.g. patent pools. Consideration is also given to applicable limiting doctrines in patent law such as defences for experimental use, as well as fundamental principles such as the requirement to publish. Detailed consideration is given to patent remedies, notably injunction and damages; compulsory licencing is also discussed. Likewise, copyright laws are considered carefully. Likewise, copyright laws are considered carefully. There is discussion of the particular situation of copyrights in relation to software and the structure of databases. There is also consideration of layout circuit and trade secret laws, as well as compulsory licensing.
As AI systems operate with greater autonomy, the idea that they might themselves be held responsible has gained credence. On its face, the idea of giving those systems a form of independent legal personality may seem attractive. Yet this chapter argues that this is both too simple and too complex. It is simplistic in that it lumps a wide range of technologies together in a single, ill-suited legal category; it is overly complex in that it implicitly or explicitly embraces the anthropomorphic fallacy that AI systems will eventually assume full legal personality in the manner of the ‘robot consciousness’ arguments mentioned earlier in the book. Though the emergence of general AI is a conceivable future scenario – and one worth taking precautions against – it is not a sound basis for regulation today.
As computer programs become ever more complex, the ability of non-specialists to understand them diminishes. Opacity may also be built into programs by companies seeking to protect proprietary interests. Both such systems are capable of being explained, albeit with recourse to experts or an order to reveal their internal workings. Yet a third kind of system may be naturally opaque: some machine learning techniques are difficult or impossible to explain in a manner that humans can comprehend. This raises concerns when the process by which a decision is made is as important as the decision itself. For example, a sentencing algorithm might produce a ‘just’ outcome for a class of convicted persons. Unless the justness of that outcome for an individual defendant can be explained in court, however, it is, quite rightly, subject to legal challenge. Separate concerns are raised by the prospect that AI systems may mask or reify discriminatory practices or outcomes.
Since computers entered the mainstream in the 1960s, the efficiency with which data can be processed has raised regulatory questions. This is well understood with respect to privacy. Data that was notionally public – divorce proceedings, say – had long been protected through the ‘practical obscurity’ of paper records. When such material was available in a single hard copy in a government office, the chances of one’s acquaintances or employer finding it were remote. Yet when it was computerized and made searchable through what ultimately became the Internet, practical obscurity disappeared. Today, high-speed computing poses comparable threats to existing regulatory models in areas from securities regulation to competition law, merely by enabling lawful activities – trading in stocks, or comparing and adjusting prices, say – to be undertaken more quickly than previously conceived possible. Many of these questions are practical rather than conceptual and apply to technologies other than AI. Nevertheless, current approaches to slowing down decision-making – through circuit-breakers to stop trading, for example – will not address all of the problems raised by the speed of AI systems.
Chapter 10 focuses on issues related to colonialism and commerce, examining how activities of colonizers have shaped opportunities, business institutions, and competitiveness throughout Africa. This chapter also discusses the implications of colonial portfolio approaches for law and commerce, as well as how attitudes about governance have shaped the construction of the public and private throughout former colonies in Africa.