Global Digital Governance Through the Back Door of Corporate Regulation

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive framework for imposing accountability standards on technology companies and on the operation of AI technologies, both traditional perceptions regarding the limits of intervention in the private sector and contemporary perceptions regarding the limits of antitrust tools hinder such legal moves. Given the obstacles inherent in the use of existing legal means for introducing a digital governance regime, this Article proposes a new path for corporate governance regulations. The proposal, part of a “second wave” of regulatory models for the digital sphere, is based on the understanding that the current complex technological reality requires sophisticated and pragmatic legal measures for establishing an effective framework for digital governance norms. Corporate governance is a system of rules and practices by which companies are guided and controlled. Because the digital sphere is governed by private corporations, it seems reasonable to introduce the desired digital governance principles through a framework that regulates corporations. The bedrock of corporate governance is promoting principles of corporate accountability, which are translated into a wide array of obligations. In the last two decades, corporate accountability has evolved into a new domain of corporate social responsibility (CSR), promoting environmental, social, and governance (ESG) goals not aimed at maximizing profits in the short term. The various benefits of the complex corporate governance mechanisms may be used to promote the desired digital governance regime that would be applied by the technology companies. A key advantage of the corporate governance mechanism is its potential to serve as a vehicle to promulgate norms in the era of multinational corporations. Because the digital sphere is governed by a few giant companies from the United States, corporate governance may be leveraged to promote digital governance principles with a global reach in a uniform manner. The proposed path for introducing global digital governance principles through the back door of U.S. corporate regulation has not been raised and discussed yet in the literature or by policymakers. This Article aims to explore this promising model for regulating the digital sphere in a globalized manner and provide a theoretical basis for it

Reconceptualizing Open Access to Theses and Dissertations

Theses and dissertations (TD) are academic research projects that are conducted by graduate students to acquire a high academic degree, such as a PhD. The perception of the written TD has evolved over the years, following changes concerning the purpose of advanced academic studies. Today, these academic fruits should meet a high standard of academic innovation, which is understood broadly as encompassing not only knowledge concerning basic science but also the knowledge that generates social and economic value for society. The modern perception of TD has generated a call for their greater accessibility, as part of the Open Science movement. Nevertheless, in many countries around the world TD are not published in an open access format. While the normative basis for open access approach to publicly funded academic research is extensively discussed in the literature, there is a lack of legal and normative discussion concerning the special case of TD. The present study aims at filling this gap. We argue that the essence of TD as unique outputs of academic research merits a special stance compelling the publication of these studies in open access format, subject to certain exceptions. This stance is underpinned by several arguments, which we develop in our study, based on historic and normative analysis. Moreover, we propose to establish a mandatory global policy and standardization regarding the publication of TD in designated repositories, open to the public, that would generate together an open world wide web of TD. Such a global framework will facilitate the progress of science and promote the public good worldwide

Reconceptualizing Open Access to Theses and Dissertations

The global COVID-19 crisis has turned public attention to the special need for accessing those cutting-edge studies that are needed for further scientific innovation. Theses and dissertations (TDs) are prominent examples of such studies. TDs are academic research projects conducted by graduate students to acquire a high academic degree, such as a PhD. They encompass not only knowledge about basic science but also knowledge that generates social and economic value for society. Therefore, access to TDs is imperative for promoting science and innovation. Open access to scientific publications has been in the focus of public policy discourse for two decades, but progress toward this end has been limited. As part of this discourse, there has been no systematic discussion of the special case of TDs and of the justification for adopting an open access publication policy toward them. The present study aims to fill this gap. We argue that the essence of TDs as unique outputs of academic research merits a special policy mandating the publication of these studies in open access format, subject to certain exceptions. This policy is underpinned by several arguments, which we develop in our study, based on historic and normative analysis. These considerations support reconceiving access to TDs using an open access approach designated particularly for them. To better understand current open access policies toward TDs, we conducted a limited semi-empirical investigation to collect information. Our findings confirm that–despite the growing awareness of the importance of an open access TDs policy–no standard policy exists. Therefore, we propose to establish a mandatory global policy and standardization regarding the publication of TDs in designated repositories, open to the public, that would generate together an “open world wide web of TDs.” Such a global framework would facilitate the progress of science and promote the public good worldwide. In the aftermath of the global COVID-19 crisis, it seems that the time is ripe for such a move at both international and national levels

The Global Contours of IP Protection for Trade Dress, Industrial Design, Applied Art, and Product Configuration

Before beginning, let me mention that I will confine myself to a limited number of arenas. Thus, for example, I\u27m not going to discuss design patents, which will be the focus of another speaker\u27s remarks. I will also not discuss the doctrine of aesthetic functionality. My primary goal will be to compare trademark\u27s doctrine of utilitarian functionality with copyright\u27s domain of separability, and to show how for at least two circuit court opinions, the two doctrines may be converging. I hope to stimulate discussion of whether such convergence would be a good idea