Trading Posts in Cyberspace: Information Markets and the Construction of Proprietary Rights

Technological innovation is a predominant source of persistent economic growth. Endogenous factors, principally human capital, financial capital, and government intervention play an important role in how the innovation process can enhance welfare through the grant of intellectual property rights. However, the expansive reacts of such proprietary interests in cyberspace has important implications for how e-commerce might contribute to overall economic growth. Thus far, the scope of intellectual property rights in cyberspace has been examined in isolation from empirical data reflecting how businesses seek to create value and effectively capture the benefits that the Internet offers over real-space markets. This Article argues that expansive construction of intellectual property rights distorts the informational properties of such rights and reintroduces high search and use costs to transactions in cyberspace. It also deters development and use of innovative business strategies that could generate greater value from e-commerce. Consequently, there is a need for more government intervention in regulating competition for markets in cyberspace

Government as Owner of Intellectual Property? Considerations for Public Welfare in the Era of Big Data

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created as a result of open data policies, governments may fail to appropriate optimal returns to the public for its investment in big data. This Essay argues for coherence between open data policies and rules governing government ownership of intellectual property. It highlights the rule in US copyright law proscribing copyright in federal government works, arguing that public domain status is not invariably welfare-enhancing. The rule is sufficiently malleable to permit the federal government to assert ownership over knowledge assets developed from access to data that it owns or controls. Claiming copyright to engineer greater protection of the public interest could foster economic growth and facilitate the distributive welfare goals of intellectual property law more effectively than the public domain status that presumptively attaches to federal government works

The Limits of International Copyright Exceptions for Developing Countries

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law\u27s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries. This Article argues that development interests require radically different kinds of limitations and exceptions to the copyright bargain than are reflected in international copyright law. The Article considers the design of the international copyright system in light of what economists have learned about the conditions necessary for economic development and examines what changes to international copyright L&Es those insights demand. It concludes that a more realistic dialogue about the relationship between copyright and economic development compels new types of L&Es, thus underscoring where developing and least-developed countries should sensibly invest their limited economic and political capital when engaging with the international copyright framework

Is the Public Domain Just?: Biblical Stewardship and Legal Protection For Traditional Knowledge Assets

The present debate over the legal treatment of traditional knowledge (TK) and genetic resources tends to rationalize the precarious conditions in which Indigenous peoples and local communities live.  The debate is organized around the question whether TK should be treated as part of the public domain or whether property rights should apply.  Both sides presuppose either a robust utilitarianism or else a narrow conception of historical redress for past injustices.  This Article argues that both property and the public domain depend on the disruption of places, people, and cultures that may stand in the way of the material conditions industrialized societies use as a proxy for human welfare.  The TK debate tends to avoid fundamental moral and justice-related aspects of TK protection, including the centrality of TK to Indigenous peoples’ cultural identities and ways (and quality) of life, as well as their long-term socioeconomic development.  The Article proposes a theological framework of “biblical stewardship” rooted in imago Dei—the foundational concept informing Jewish and Christian understandings of human nature and social interaction—to address the socio-moral dimensions that are constitutive of TK systems and the institutional context in which they unfold.  The biblical stewardship framework focuses on the cooperative and kinship arrangements that enable and sustain productive capacity for TK.  It centers the need for Indigenous peoples and local communities to be able to develop and protect their knowledge assets as a precondition for those communities’ thriving, both in the present and the future. Moreover, biblical stewardship supplies a basis for accountability by Indigenous peoples and local communities for how their TK is managed, shared, and utilized within a broader framework of progress and the public good—including obligations that foreclose access and benefit-sharing agreements that may undermine conditions for flourishing of plant, animal, or human life

Fostering Production of Pharmaceutical Products in Developing Countries

The ways in which pharmaceutical products are currently developed, manufactured, and distributed fail to meet the needs of developing countries. The recent emergence of new infectious diseases, the associated surge of healthcare nationalism, and the prevalence of substandard and falsified drugs have strengthened substantially the net benefits of augmenting the capacity of developing countries to produce such products locally. Most previous efforts to do so have foundered. The chance of success in the future would be maximized by the adoption of five strategies : (a) clarifying the zones of discretion created by the relevant treaties to ensure that local firms have the freedom to operate; (b) the use of “production triangles” (collaborations among developing-country governments, local firms, and developed-country pharmaceutical firms) to reduce regulatory impediments and to ensure that there exist adequate markets for locally produced products; (c) developing the human capital base in developing countries through initiatives such as an international apprenticeship system; (d) strengthening the legal and administrative apparatus for preventing the dissemination in developing countries of substandard and falsified drugs; and (e) reliance on regional economic communities to create economies of scale and to ensure that medicines are made available to all residents of all developing countries, while also stimulating competition among local firms. These strategies would both save many lives and strengthen the economic and social development of developing and least-developed countries

Copyright Exceptions Across Borders: Implementing the Marrakesh Treaty

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts