IP Across Disciplines (2)

Sun, 6/2: 8:00 AM  - 9:45 AM 
4158 
Paper Session 
Sunday Session 1 
Hyatt 
Room: Thornton Lounge 
IP law scholarship , whether focused on patent, copyright, trademark, or other types of intellectual property law, is increasingly interdisciplinary-although careful and deep doctrinal and policy analysis is also prominent in the field. These papers bring scholars from around the world to address issues and present results of studies of IP law, behavior, culture, and politics that draw on multiple disciplines and methodologies to explore the many dimensions of IP in everyday life and practice.

Chair/Discussant

Peter Yu, Texas A&M School of Law  - Contact Me

CRN

14: Culture, Society, and Intellectual Property

Primary Keyword

Intellectual Property, Culture, and Cultural Heritage

Presentations

Polish Discourses on Copyright – Between Cultural Policy, Creative Industry and "Copyright Populism"

Proposal

Copyright is widely discussed both in the academic community and public discourse. The main reason for that is urgent need to find a solution for the social conflict over intellectual property. The most important sides of this dispute are, apart from creators and users, so-called "intermediaries", which include not only publishers, producers and collective copyright management entities, but also owners of internet portals and providers of various types of services. Expressive manifestations of the conflict itself are social reactions to particular legal regulations (e.g. ACTA), examples of instrumental usage of copyright (e.g. copyright trolling), as well many well-known disputes, some of which were settled in court.

In Poland, protests against ACTA have greatly dynamized debate on the function and content of copyright law. This debate, like analogical discussions in other countries, was the result of the massive development of communication technologies. Nevertheless, Polish experiences from the communist period, especially the fact that the informal circulation of culture played important role in overthrowing the communist regime, caused that Polish users of content who demand free access to culture are very often generally dissatisfied with the social and economic system.

During the presentation, the results of the analysis of the Polish discourse on copyright as well findings from the nationwide survey examining social attitudes towards copyright will be provided. On the basis on such empirical material, an attempt will be made to answer the question about main causes of the Poles' involvement in public debate on copyright. In particular, three different perspective on ways in which Polish people communicate about copyright will be presented: economics of culture, cognitive capitalism and "solidarity in the net". 

Presenter

Ewa Radomska, Jagiellonian University  - Contact Me

Public Interest Challenges to Gene Patents: A Network Analysis Of Patent "Outsiders"

Proposal

In an op-ed piece for the New York Times, science fiction author Michael Crichton warns: "You, or someone you love, may die because of a gene patent." Although potentially hyperbolic, Crichton's warning encapsulates many of the concerns with gene patents; that they are unethical, prevent or stunt ongoing research into genetic diseases, and limit the ability for patients to access diagnostic tests and treatments for genetic diseases. NGO and civil society groups have attempted to challenge gene patents, highlighting these concerns, and were eventually successful in 2013 when the ACLU successfully sued the USPTO and Myriad Genetics, overturning a 30-year policy of granting patents over isolated DNA and representing the first time a public interest case had successfully been used to challenge the grant of a gene patent. Other groups have attempted to bring challenges against other controversial patents (see Consumer Watchdog v WARF) but have been unsuccessful.

Gene patent challenges present an avenue for public interest concerns to penetrate the closed network of patent communities – patentees, patent examiners and patent practitioners - whose focus is normally centred on patent holder's rights. Further, it presents an opportunity for the views of patients, donors, scientists, researchers and NGOs who are usually excluded from patent policy discussion and decision making to have their interests heard. This paper, using a network analysis, examines the barriers faced by public interest groups in attempting to invalidate gene patents based on social, ethical and economic concerns and will present the findings of interviews with those involved in gene patent challenges. 

Presenter

Louise Hatherall, University of Bristol  - Contact Me

When Should Intellectual Property be Protected as an Investment?

Proposal

The definition of what constitutes an investment typically entails a consideration of a subjective criteria and an objective criteria. To satisfy the subjective criteria, an asset must fall within the scope of what constitutes an 'investment' as defined in an international investment agreement. The objective criteria can be found in some international investment agreements that require an asset to possess 'the characteristics of an investment' or in the practice of ICSID tribunals based on Article 25 of the ICSID Convention to require an asset to possess some objective features (such as those enunciated in Salini) before it can be protected as an investment. There is however a divergence of opinion as to whether or not 'contribution to the economic development of the host state' should be a determining factor in deciding whether or not an asset should be protected as an investment under the objective criteria.

The question of when an intellectual property right should be protected as an investment has recently been addressed by investment tribunals in two recent cases (firstly in the decision on jurisdiction in Philip Morris v Uruguay in 2013 and secondly in the decision on expedited objections in Bridgestone v Panama in 2017). In this regard, using these two recent decisions as case studies, this paper seeks to address two key questions. One, in deciding whether or not an intellectual property right should be protected as an investment, should contribution to the economic development of the host state be part of the objective criteria? Furthermore, what role, if any, can Articles 7 and 8 of the TRIPS Agreement play in the determination of whether an intellectual property right should be protected as an investment pursuant to the objective criteria? 

Presenter

Emmanuel Kolawole Oke, University of Edinburgh  - Contact Me

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