Hatch-Waxmanizing Copyright

This Essay presents a novel proposal for counter balancing copyright overspills. In the background of the discussion is the common reality of users succumbing to rights holders\u27 attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users\u27 risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the law is designed around the prevailing narrative of providing an incentive for innovation, it is quite oblivious to providing an incentive to challenge copyright overspills. The Essay argues, then, that users should be provided with an actual incentive to challenge undue attempts to broaden the scope of copyright. The proposal draws on the experience acquired in other branches of intellectual property. More specifically, it is inspired by the unique system of incentives created under the Hatch-Waxman Act in order to encourage generic pharmaceutical companies to challenge pharmaceutical patents. These incentives have led to a significant rise in the number of patent challenges in the pharmaceutical field. In the spirit of the Hatch-Waxman regime, the Essay discusses the introduction of an incentive to challenge into copyright law to offset copyright overspills. It then proposes to develop an affirmative copyright misuse doctrine, which would entitle successful challengers of copyright overspills to statutory damages. Beyond the doctrinal proposals, the Essay\u27s more fundamental conclusion is that, in order to achieve the desired access-incentive equilibrium, copyright law should not be concerned merely with providing an optimal degree of incentive to innovate but also with providing users with an adequate incentive to challenge

Connect the Dots: Patents and Interdisciplinarity

This Article unravels a troubling paradox in the ecosystem of innovation. Interdisciplinarity is widely recognized as a source of valuable innovation and a trigger for technological breakthroughs. Yet, patent law, a principal legal tool for promoting innovation, fails to acknowledge it in an explicit, consistent manner. Moreover, although the scientific understanding of the significance of interdisciplinarity for innovation increasingly relies on big data analyses of patent databases, patent law practically ignores patent data as a source of information about interdisciplinary innovation. This Article argues that patent law should connect the dots—explicitly recognize interdisciplinarity as a positive indication when deciding whether an invention deserves patent protection and use information derived from patent databases to evaluate the interdisciplinarity of inventions. Relying on cutting edge research in economics and network-science, this Article explores nuanced manners for implementing these proposals, calling, ultimately, for the development of an algorithmic “recombination metric” that would allow courts and patent offices to identify interdisciplinary inventions in an accessible, standardized manner. The adoption of this Article’s proposals would align patent doctrine with its ultimate goal of promoting high-risk, socially valuable, innovation; inject an objective and measurable criterion into various patent doctrines famously criticized for their ambiguity and unpredictability; and allow patent law to realize some of the enormous potential of patent data—a treasure that current patent doctrine leaves untapped

Databases and Dynamism

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static access to information story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions of the world in manners of which we are seldom aware. Relying on socio-psychological literature and communication theories concerning complexity, categorization, and stereotyping, this Article examines the dynamic dimension of databases. It argues that this narrative should direct legal attention toward the protection afforded by copyright not to contents of databases, but rather to their selection and arrangement -an element which has been largely ignored by legal scholarship. While the Article does not advocate a complete expiry of copyright in selections and arrangements, it does hope to spark a discussion with respect to their social and economic role, and add a new dimension to the copyright- database debate

Hatch-Waxmanizing Copyright

This Essay presents a novel proposal for counter balancing copyright overspills. In the background of the discussion is the common reality of users succumbing to rights holders\u27 attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users\u27 risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the law is designed around the prevailing narrative of providing an incentive for innovation, it is quite oblivious to providing an incentive to challenge copyright overspills. The Essay argues, then, that users should be provided with an actual incentive to challenge undue attempts to broaden the scope of copyright. The proposal draws on the experience acquired in other branches of intellectual property. More specifically, it is inspired by the unique system of incentives created under the Hatch-Waxman Act in order to encourage generic pharmaceutical companies to challenge pharmaceutical patents. These incentives have led to a significant rise in the number of patent challenges in the pharmaceutical field. In the spirit of the Hatch-Waxman regime, the Essay discusses the introduction of an incentive to challenge into copyright law to offset copyright overspills. It then proposes to develop an affirmative copyright misuse doctrine, which would entitle successful challengers of copyright overspills to statutory damages. Beyond the doctrinal proposals, the Essay\u27s more fundamental conclusion is that, in order to achieve the desired access-incentive equilibrium, copyright law should not be concerned merely with providing an optimal degree of incentive to innovate but also with providing users with an adequate incentive to challenge

Copyright and the Holocaust

This article explores the interface between copyright law and the Holocaust. The Holocaust\u27s duration and scope, its occurrence in the midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims\u27 part, many of those items-including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries-manifest an explicit act of real-time historical documentation for future generations. On the perpetrators\u27 side, some materials were produced as a result of organized documentation and others-such as Joseph Goebbels\u27 diaries or Hitler\u27s Mein Kampf--comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored

Robotic Collective Memory

The various ways in which robots and AI will affect our future society are at the center of scholarly attention. This Commentary, conversely, concentrates on their possible impact on humanity’s past, or more accurately, on the ways societies will remember their joint past. We focus on the emerging use of technologies that combine AI, cutting-edge visualization techniques, and social robots, in order to store and communicate recollections of the past in an interactive human-like manner. We explore the use of these technologies by remembrance institutions and their potential impact on collective memory. Taking a close look at the case study of NDT (New Dimensions in Testimony)—a project that uses ‘virtual witnesses’ to convey memories from the Holocaust and other mass atrocities—we highlight the significant value, and the potential vulnerabilities, of this new mode of memory construction. Against this background, we propose a novel concept of memory fiduciaries that can form the basis for a policy framework for robotic collective memory. Drawing on Jack Balkin’s concept of ‘information fiduciaries’ on the one hand, and on studies of collective memory on the other, we explain the nature of and the justifications for memory fiduciaries. We then demonstrate, in broad strokes, the potential implications of this new conceptualization for various questions pertaining to collective memory constructed by AI and robots. By so doing, this Commentary aims to start a conversation on the policies that would allow algorithmic collective memory to fulfill its potential, while minimizing its social costs. On a more general level, it brings to the fore a series of important policy questions pertaining to the intersection of new technologies and intergenerational collective memory

Constructive Ambiguity: IP Licenses as a Case Study

Ambiguity in contracts is often perceived as undesirable. A certain level of ambiguity, however, can have significant virtues: reducing transaction costs associated with foreseeing and negotiating remote contingencies; facilitating the closing of efficient transactions that would not otherwise close; increasing the adaptability and “anti-fragility” of contracts in the face of unforeseen developments; and preserving trust between the parties. Some contracts are more likely to benefit from a certain degree of ambiguity. Relying on multi-disciplinary literature, this Article systematically analyzes ambiguity’s merits and identifies three principal features of transactions that are positively correlated to the virtues of ambiguity: (1) long duration, (2) relational nature, and (3) complexity and uncertainty of the transaction and the relevant markets. As a case study, this Article considers intellectual property (IP) licenses negotiated between sophisticated parties. IP license agreements exhibit the above three transactional features, which are tightly linked to the unique attributes of intellectual property, including its non-rival nature, tacit knowledge surrounding formal IP rights, and significant uncertainty embedded in IP rights and markets. This Article thus concludes that IP licenses constitute paradigmatic candidates for “constructive ambiguity.” This Article further demonstrates that within a specific transaction ambiguity may be more effective for certain types of provisions and topics and proposes new guidelines for addressing ambiguity in a given contract. This Article’s proposal is based on a distinction between core and periphery issues, which it measures using three parameters: (1) probability, (2) significance, and (3) timing. When, from an ex ante perspective, the relevant provision concerns the core aspects of the transaction, ambiguity is generally unwarranted, and courts’ ex post treatment of it should be less tolerant. Yet, when the provision is closer to the periphery of the transaction, ambiguity is often efficient, and courts reviewing the contract should treat it more liberally. While the proposed model addresses ambiguity in IP licenses as its case study, it can have broader implications for contract law in general

Constructive Ambiguity: IP Licenses as a Case Study

Ambiguity in contracts is often perceived as undesirable. A certain level of ambiguity, however, can have significant virtues: reducing transaction costs associated with foreseeing and negotiating remote contingencies; facilitating the closing of efficient transactions that would not otherwise close; increasing the adaptability and “anti-fragility” of contracts in the face of unforeseen developments; and preserving trust between the parties. Some contracts are more likely to benefit from a certain degree of ambiguity. Relying on multi-disciplinary literature, this Article systematically analyzes ambiguity’s merits and identifies three principal features of transactions that are positively correlated to the virtues of ambiguity: (1) long duration, (2) relational nature, and (3) complexity and uncertainty of the transaction and the relevant markets. As a case study, this Article considers intellectual property (IP) licenses negotiated between sophisticated parties. IP license agreements exhibit the above three transactional features, which are tightly linked to the unique attributes of intellectual property, including its non-rival nature, tacit knowledge surrounding formal IP rights, and significant uncertainty embedded in IP rights and markets. This Article thus concludes that IP licenses constitute paradigmatic candidates for “constructive ambiguity.” This Article further demonstrates that within a specific transaction ambiguity may be more effective for certain types of provisions and topics and proposes new guidelines for addressing ambiguity in a given contract. This Article’s proposal is based on a distinction between core and periphery issues, which it measures using three parameters: (1) probability, (2) significance, and (3) timing. When, from an ex ante perspective, the relevant provision concerns the core aspects of the transaction, ambiguity is generally unwarranted, and courts’ ex post treatment of it should be less tolerant. Yet, when the provision is closer to the periphery of the transaction, ambiguity is often efficient, and courts reviewing the contract should treat it more liberally. While the proposed model addresses ambiguity in IP licenses as its case study, it can have broader implications for contract law in general

Non-Linear Innovation

Contemporary intellectual property theory concentrates on the cumulative and incremental nature of innovation and creation. A prevalent image depicts authors and inventors as “standing on the shoulders of giants.” This article focuses on a different type of innovation that has been largely overlooked by intellectual property theory and doctrine: innovation in the domains of science and art that breaks with convention, disputes existing paradigms, and “steps off” giants’ shoulders. I term it “non-linear innovation”.Drawing on multidisciplinary research ranging from the history of science, through network analysis of radical inventions, to studies of creativity, this article illuminates an embedded socio-cultural preference for incremental and linear novelty over paradigm-changing innovation. It then inquires whether intellectual property doctrine reflects this bias and whether the intellectual property regime can better foster non-linear innovation. The examination yields a series of counterintuitive recommendations concerning numerous patent and copyright law doctrines. More broadly, the analysis indicates that neither the “shoulders of giants” metaphor nor the opposite image of the “lone genius” adequately capture the dynamics of non-linear innovation. It further suggests that expanding intellectual property’s narrative of progress to accommodate non-linear innovation, alongside cumulative innovation, could significantly contribute to the ecosystem of innovation and creation.La théorie de propriété intellectuelle contemporaine se concentre sur le caractère cumulatif et incrémental de l’innovation et de la création. Les auteurs et inventeurs sont dépeints « debout sur les épaules de géants ». Cet article se penche sur un type d’innovation négligé par la théorie et la doctrine de la propriété intellectuelle : l’innovation, en science et en art, qui déroge aux conventions, remet en question les paradigmes dominants et descend des épaules des géants. L’auteure la qualifie d’ « innovation non-linéaire ».À partir de travaux multidisciplinaires allant de l’histoire des sciences aux études de la créativité, en passant par l’analyse de réseaux, l’article met en lumière un biais socio-culturel favorisant une conception linéaire du progrès. Il cherche ensuite à savoir si la doctrine en propriété intellectuelle reflète ce biais, et si la propriété intellectuelle pourrait stimuler davantage l’innovation non-linéaire. Une série de recommandations contre-intuitives quant aux doctrines du droit des brevets et des droits d’auteurs en découle. De façon générale, cette analyse indique que ni la métaphore des « épaules de géants » ni celle du « génie solitaire » ne saisissent adéquatement la dynamique de l’innovation non-linéaire. Selon notre analyse, étendre le concept de progrès à l’innovation non-linéaire, sans délaisser l’innovation cumulative, pourrait contribuer significativement à l’écosystème d’innovation et de création

Databases and Dynamism

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static access to information story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions of the world in manners of which we are seldom aware. Relying on socio-psychological literature and communication theories concerning complexity, categorization, and stereotyping, this Article examines the dynamic dimension of databases. It argues that this narrative should direct legal attention toward the protection afforded by copyright not to contents of databases, but rather to their selection and arrangement -an element which has been largely ignored by legal scholarship. While the Article does not advocate a complete expiry of copyright in selections and arrangements, it does hope to spark a discussion with respect to their social and economic role, and add a new dimension to the copyright- database debate