Law Commons^™

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

All Faculty Scholarship

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Data Privacy, Human Rights, And Algorithmic Opacity, Sylvia Lu

Fellow, Adjunct, Lecturer, and Research Scholar Works

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated. In many cases, AI systems have become “the power behind the throne,” tracking user activities and making fateful decisions through predictive analysis of personal information. Despite the growing power of AI, proprietary algorithmic systems can be technically complex, legally claimed as trade secrets, and managerially …

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

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.

Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

"Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in …

Copyright User Rights And Access To Justice (Introduction), Pascale Chapdelaine

Law Publications

This is an introduction to selected articles published in vol. 35 of The Windsor Yearbook of Access to Justice (2018) further to the Symposium: "Copyright User Rights and Access to Justice" hosted by Windsor Law on May 18-19 2017. It gives a brief overview of the concept of copyright user rights and access to justice, as well as of the main themes discussed in the articles and at the Symposium, including access to knowledge and human rights.

Socially Responsible Corporate Ip, J. Janewa Osei-Tutu

Faculty Publications

Many companies practice corporate social responsibility (CSR) as part of their branding and public relations efforts. For example, as part of their CSR strategies, some companies adopt voluntary codes of conduct in an effort to respect human rights. This Article contemplates the application of CSR principles to trade-related intellectual property (IP). In theory, patent and copyright laws promote progress and innovation, which is why IP rights are beneficial for both IP owners and for the public. Trademark rights encourage businesses to maintain certain standards and allow consumers to make more efficient choices. Though IP rights are often discussed in relation …

Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes?, Cynthia M. Ho

Faculty Publications & Other Works

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

Corporate "Human Rights" To Intellectual Property Protection?, J. Janewa Oseitutu

Faculty Publications

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major …

Agricultural Biotechnology: Drawing On International Law To Promote Progress, J. Janewa Oseitutu

Faculty Publications

In Bowman v. Monsanto, the Supreme Court declined to apply the principle of exhaustion to limit the patentee’s ability to control the reproduction of self-replicating inventions. This decision was justified from a patent law perspective on the basis that patent holder has a right to prevent others from making the invention. But what happens when we take other perspectives into account? For instance, a farmer might have human rights or other rights that may need to be balanced against the patentee’s right. Since globalized intellectual property standards were established through international agreements and much of the resistance to intellectual property …

Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Pharmaceutical Patents And The Human Right To Health The Contested Evolution Of The Transnational Legal Order On Access To Medicines, Laurence R. Helfer

Faculty Scholarship

Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs. This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs—one relating to …

The Growing Public Domain In Medicine, Saurabh Vishnubhakat

Faculty Scholarship

This essay describes the growing public domain of inventions associated with drugs and medicine, and geographies associated with identifiable shifts in the balance of innovation that may be especially favorable for promoting wider access to socially useful technologies. To do so, it departs from the largely ex ante perspective that currently informs the intersectional debate regarding human rights and patent rights and, instead, looks backward to inquire what innovations from past patents have already become publicly available in service of the human rights objective of greater access to technology. Ex post analysis of this kind may help public and private …

How Trade Law Changed: Why It Should Change Again, John Linarelli

Scholarly Works

No abstract provided.

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Akron Law Faculty Publications

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Law Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

Trademark Cosmopolitanism, Sonia K. Katyal

Faculty Scholarship

The world of global trademarks can be characterized in terms of three major shifts: first, a shift from national to global branding strategies; second, a shift from national and regional systems to harmonized international regimes governing trademark law; and third, a concurrent shift from local to transnational social movements that challenge branding and other corporate practices. The rise of transnational brands brings with it an attendant series of legal shifts in trademark law. Long considered the stepchild of intellectual property law, today, trademark law has morphed into a powerful global legal phenomenon, revealing a foundational shift from national and regional …

The Revolutionary Influence Of Low Enlightenment: Weakening Copyright In Developing Countries To Improve Respect For Human Rights And The Rule Of Law, Martin Skladany

Faculty Scholarly Works

Diverse groups have banded together to critique current intellectual property laws under the Access to Knowledge movement. The Geneva Declaration on the Future of the World Intellectual Property Organization, the Access to Knowledge Treaty, and the Adelphi Charter on Creativity, Innovation and Intellectual Property call for an end to further growth in intellectual property protection and demand that the World Intellectual Property Organization be more cognizant of the needs of developing countries in terms of expanding access to textbooks and other educational materials. However, the movement has yet to appreciate the value of significantly weakening copyright law in developing countries …

Get The Balance Right!: Squaring Access With Patent Protection, Kristen Jakobsen Osenga

Law Faculty Publications

Professor Osenga discusses the tensions between the interests of patent holders and patients worldwide in need of pharmaceutical treatments. Explaining the combination of exclusive patent and compulsory license approaches that govern access to intellectual property by statute and treaty, she urges that a carefully conceived balancing of these approaches will best serve both interests.

Special 301 Of The Trade Act Of 1974 And Global Access To Medicine, Sean M. Flynn

PIJIP Faculty Scholarship

Since its inception in 1988, the United States Trade Representative’s “Special 301” adjudication of foreign intellectual property law standards has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to “break the stranglehold that a few big drug and insurance companies have on these life-saving drugs” and pledged support for “the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs.” The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge into administration trade …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon

Faculty Scholarship

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …

Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter

Law Faculty Scholarship

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article …

Current Patent Laws Cannot Claim The Backing Of Human Rights - 2008, Wendy J. Gordon

Scholarship Chronologically

The majority of the world's countries (one exception being the United States) have undertaken a commitment at the level of human rights to protect the interests of persons who author 'scientific ... production[s]'. This commitment is embodied in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes in Article 15.1.(c) the rights of everyone 'to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.'

Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …