Search

Begin New Search Topic Intellectual Property/Copyright Political Geography North America

1. Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional

Author:
Devlin Hartline
Publication Date:
10-2023
Content Type:
Policy Brief
Institution:
Hudson Institute
Abstract:
There has been a coordinated push over the past few years for states to enact legislation that would regulate the marketplace for licensing copyrighted ebooks to public libraries. The supporters of these bills argue that publishers offer ebook licenses that are too costly and restrictive, making it difficult for libraries to provide adequate access to their patrons. The gist of these complaints is that the market for digital ebooks should mirror the one for physical books, in which libraries pay the same price as everyone else and set their own rules for making loans. In essence, they want states to step in to remedy the perceived disparity with ebooks, which they blame on the allegedly abusive trade practices of publishers. But the reality is that publishers treat the two markets differently because they are fundamentally different, and there is nothing abusive about it. Moreover, publishers are merely doing what federal copyright law encourages them to do, and states are powerless to enact overbroad laws that would unconstitutionally punish them for doing so. While these concerns with the ebook licensing marketplace may be relatively new, the legal issues presented by the proposed state regulations to address them are not. Many states already have laws on copyright licensing in other contexts, and the extent of a state’s limited capacity to regulate in this area has been long-settled by the courts. Nevertheless, supporters of the new ebook licensing bills appear uninterested in the clear legal implications of their favored policy position. Shortly after the first such ebook law went into effect in Maryland, a federal district court struck it down as unconstitutional because it forced publishers to grant licenses. Other states have since moved forward with new ebook legislation based on the model text provided by Library Futures, a policy organization, that purports to solve the constitutional issue by merely dictating the terms of the licenses. However, Library Futures makes no real effort to defend the legality of its proposed legislation, and the truth is that it suffers the same constitutional defect. This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.
Topic:
Intellectual Property/Copyright, Domestic Policy, and Libraries
Political Geography:
North America and United States of America

2. Unreliable Data Have Infected the Policy Debates Over Drug Patents

Author:
Adam Mossoff
Publication Date:
01-2022
Content Type:
Special Report
Institution:
Hudson Institute
Abstract:
The COVID-19 pandemic has vividly brought to the public’s attention the key role of medical innovation in saving lives and increasing the quality of daily life. The pandemic has also precipitated an international debate over the role of patents and other intellectual property rights in the discovery, manufacture, and distribution of drugs and vaccines to patients. Even before COVID-19, there has been an ongoing policy debate in Washington, D.C., over drug prices and patents with congressional hearings, proposed legislation, and antitrust enforcement actions. The pandemic has thus made apparent what reliable data have already shown: poorly crafted legislation or antitrust enforcement actions could have a tremendous negative impact on the innovation economy in general and on healthcare specifically by undermining the incentives that drive the billions invested annually in the research and development of life-saving drugs and other medical treatments. Congress and regulators should engage in evidence-based policymaking on these important issues, which have far-reaching implications for economic growth and quality of life. This policy memo identifies a serious concern about the data in these discussions.
Topic:
Science and Technology, Intellectual Property/Copyright, Innovation, Data, and Pharmaceuticals
Political Geography:
North America and United States of America

3. State Right-to-Repair Laws Need to Respect Federal Copyright Laws: A Constitutional, Legal, and Policy Assessment

Author:
Devlin Hartline and Adam Mossoff
Publication Date:
08-2022
Content Type:
Special Report
Institution:
Hudson Institute
Abstract:
Various states are considering laws that would mandate that producers of electronic devices provide consumers and repair shops with all the tools and know-how necessary to repair these devices. Proponents of these “right-to-repair laws” argue that consumers should be able to do whatever they want with their devices, whether a smartphone, a smart TV, or a gaming console. Right-to-repair advocates, however, ignore inconvenient facts. These state laws conflict with federal copyright law and are unconstitutional, and they are bad policy as well. First, as a simple legal matter, the proposed right-to-repair laws are unconstitutional. These laws mandate the disclosure and distribution of the code in the computer programs that make our devices work, such as operating systems, apps, and the “digital locks” that protect these computer programs from unauthorized access and copying. Federal copyright law protects all these computer programs and “preempts” any conflicting state laws under the Constitution. Second, state right-to-repair laws are wrong as a matter of policy. These laws upset the long-standing balance of rights implemented by federal copyright law. For over 200 years, Congress has enacted copyright laws to secure to authors and innovators the fruits of their creative labors. These laws have properly balanced the rights of creators, the rights of companies that produce and distribute their copyrighted works, and the rights of consumers and the public. As a result, federal copyright law has been a launching pad for the economic and cultural revolutions in books, movies, music, and now digital games and the internet of things. Everyone values their electronic devices because copyright law provides the legal foundation for today’s thriving digital marketplace. Consumers have access to an incredible selection of movies, music, games, and many other previously unimagined digital goods and services. The same is true for products that consumers have long used and that have become “smart” today, such as phones, TVs, automobiles, and other devices. Overbroad right-to-repair laws fail to acknowledge the legal rights and the underlying policies in federal copyright law that have made all this possible.
Topic:
Economics, Science and Technology, Intellectual Property/Copyright, and Innovation
Political Geography:
North America and United States of America

4. Renew SBIR, Just Defend the Recipients against China

Author:
Charles Wessner and Sujai Shivakumar
Publication Date:
09-2022
Content Type:
Special Report
Institution:
Center for Strategic and International Studies (CSIS)
Abstract:
An April 2021 internal report by the Department of Defense (DOD) found that companies funded by the DOD’s Small Business Innovation Research (SBIR) program are being targeted by state-sponsored Chinese firms. Based on an examination of a sampling of SBIR award recipients, the Pentagon study concluded that “nearly all cases show that China, not the U.S., is the ultimate beneficiary of DoD and other U.S. government research investments, some of which are significant in size.” The study’s authors cautioned that the study sample was small and that their methodologies warrant review, but their findings are clearly a matter of concern for U.S. policymakers. This justified concern, however, seems to have morphed into quite a different approach. Citing the Pentagon study’s findings, Senator Rand Paul (R-KY), the senior Republican on the Senate Small Business and Entrepreneurship Committee, said in June 2022 that he would not support reauthorizing the SBIR program “without reforms to strengthen research security and stop abusive behavior by bad actors lining their pockets with taxpayer dollars.” In a move unrelated to national security, Senator Paul and several other lawmakers are also seeking limits on the number of awards that can be made to individual SBIR companies. (There is no empirical basis for such a restriction, nor could it be effectively implemented, but the proposed measure emerges anew as SBIR comes up for reauthorization.) The risks, however, are real. The Wall Street Journal reported in July that SBIR and the related Small Business Technology Transfer (STTR) program face “an overhaul or outright extinction” if Congress does not renew their budgets and funding runs out at the end of September. The DOD has already canceled a round of SBIR award solicitations “because of uncertainty over the program’s future.”
Topic:
Security, Defense Policy, Intellectual Property/Copyright, Business, and Rivalry
Political Geography:
China, Asia, North America, and United States of America

5. U.S.-China Technological “Decoupling”: A Strategy and Policy Framework

Author:
Jon Bateman
Publication Date:
04-2022
Content Type:
Special Report
Institution:
Carnegie Endowment for International Peace
Abstract:
A partial “decoupling”2 of U.S. and Chinese technology ecosystems is well underway. Beijing plays an active role in this process, as do other governments and private actors around the world. But the U.S. government has been a primary driver in recent years with its increased use of technology restrictions: export controls, divestment orders, licensing denials, visa bans, sanctions, tariffs, and the like. There is bipartisan support for at least some bolstering of U.S. tech controls, particularly for so-called strategic technologies, where Chinese advancement or influence could most threaten America’s national security and economic interests. But what exactly are these strategic technologies, and how hard should the U.S. government push to control them? Where is the responsible stopping point—the line beyond which technology restrictions aimed at China do more harm than good to America? These are vexing questions with few, if any, clear answers. Yet the United States cannot afford simply to muddle through technological decoupling, one of the most consequential global trends of the early twenty-first century. The U.S. technology base—foundational to national well-being and power—is thoroughly enmeshed with China in a larger, globe-spanning technological web. Cutting many strands of this web to reweave them into new patterns will be daunting and dangerous. Without a clear strategy, the U.S. government risks doing too little or—more likely—too much to curb technological interdependence with China. In particular, Washington may accidentally set in motion a chaotic, runaway decoupling that it cannot predict or control. Sharper thinking and more informed debates are needed to develop a coherent, durable strategy. Today, disparate U.S. objectives are frequently lumped together into amorphous constructs like “technology competition.” Familiar terms like “supply chain security” often fail to clarify such basic matters as which U.S. interests must be secured and why. Important decisions are siloed within opaque forums (like the Committee on Foreign Investment in the United States [CFIUS]), narrow specialties (like export control law), or individual industries (like semiconductors), concealing the bigger picture. The traditional concerns of “tech policy” and “China policy” receive outsized attention, while second-order implications in other areas (such as climate policy) get short shrift. And as China discourse in the United States becomes more politically charged, arguments for preserving technology ties are increasingly muted or not voiced at all. This report aims to address these gaps and show how American leaders can navigate the vast, perilous, largely unmapped terrain of technological decoupling. First, it gives an overview of U.S. thinking and policy—describing how U.S. views on Chinese technology have evolved in recent years and explaining the many tools that Washington uses to curb U.S.- China technological interdependence. Second, it frames the major strategic choices facing U.S. leaders—summarizing three proposed strategies for technological decoupling and advocating a middle path that preserves and expands America’s options. Third, it translates this strategy into implementable policies and processes—proposing specific objectives for U.S. federal agencies and identifying the technology areas where government controls are (or are not) warranted. The report also highlights many domestic investments and other self-improvement measures that must go hand in hand with restrictive action.
Topic:
National Security, Science and Technology, Intellectual Property/Copyright, Authoritarianism, Economy, Espionage, Military, and Interdependence
Political Geography:
China, Asia, North America, and United States of America

6. The Digital Economy Partnership Agreement: Should Canada Join?

Author:
Dan Ciuriak and Robert Fay
Publication Date:
01-2022
Content Type:
Policy Brief
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
The Digital Economy Partnership Agreement (DEPA) provides the most comprehensive template yet for a regional trade agreement tailored for the digitally transformed economy. The DEPA lays groundwork for discussions on critical areas that go beyond the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. This policy brief makes the case that joining the DEPA early would allow Canada to develop it so that it meets small, open economies’ needs and so that new provisions meet the values that Canada holds, and recommends areas for attention and collaboration with like-minded countries.
Topic:
International Cooperation, International Trade and Finance, Intellectual Property/Copyright, and Digital Economy
Political Geography:
Canada and North America

7. Securing Intellectual Property for Innovation and National Security

Author:
Sujai Shivakumar
Publication Date:
03-2022
Content Type:
Special Report
Institution:
Center for Strategic and International Studies (CSIS)
Abstract:
The United States is engaged in a global competition for innovation, with critical implications for the nation’s continued technological leadership, competitiveness, and security. To win, the United States will need to leverage its advantages at home, including its robust intellectual property (IP) rights system and the innovative zeal of its entrepreneurs. It should also look abroad—setting the pace for scientific cooperation with allies and strategic partners, as well as developing shared international technical standards through the contributions of experts from around the globe. Most pressingly, the United States should not adopt policies that weaken protection of U.S.-owned patents—which would both disincentivize innovation in the United States and support Chinese efforts to dominate critical standards and other advanced technologies. Yet a recent proposal of the Antitrust Division of the U.S. Department of Justice (DOJ) does just that. Launched as a consultation, its Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments is promoted as an effort to encourage good-faith licensing negotiations and to address the scope of remedies available to patent owners who have agreed to license their essential technologies on fair, reasonable, and non-discriminatory (F/RAND) terms. While this draft policy seems like an innocuous administrative change, it has the potential to do significant damage to the United States’ innovation engine and, by extension, to its national security.
Topic:
Security, Intellectual Property/Copyright, Innovation, and Strategic Competition
Political Geography:
North America and United States of America

8. US-ROK Cooperation Can Improve IP Protection in Southeast Asia by a Strategic Focus on Online Counterfeiting

Author:
Seth Hays
Publication Date:
01-2022
Content Type:
Special Report
Institution:
East-West Center
Abstract:
Mr. Seth Hays, Chief Representative, Asia-Pacific, at the International Trademark Association, explains that “both the US and ROK cooperate with ASEAN countries to improve IP protections, including on the issue of online counterfeits, most notably through their respective IP offices: the United States Patent and Trademark Office and the Korean Intellectual Property Office.”
Topic:
Bilateral Relations, Intellectual Property/Copyright, Cooperation, and Counterfeiting
Political Geography:
Asia, South Korea, North America, and United States of America

9. International Intellectual Property after the New NAFTA

Author:
Jeremy de Beer
Publication Date:
01-2020
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
The Canada-United States-Mexico Agreement (CUSMA) is the new high-water mark in international intellectual property (IP) law. CUSMA includes most of the Trans-Pacific Partnership provisions that were suspended in the Comprehensive and Progressive Trans-Pacific Partnership, except for a few pharmaceutical-related provisions amended after signing. Canada will be required to make meaningful changes to domestic IP laws, including copyright term extension, criminal penalties for tampering with digital rights management information, restoration of patent terms to compensate for administrative and regulatory delays, broader and longer protection for undisclosed testing data and other data, new civil and criminal remedies for the misappropriation of trade secrets, and additional powers for customs officials to seize and destroy IP-infringing goods.
Topic:
International Trade and Finance, Regional Cooperation, Intellectual Property/Copyright, NAFTA, and USMCA
Political Geography:
United States, Canada, North America, and Mexico

10. Ensuring Respect for Indigenous Cultures: A Moral Rights Approach

Author:
Brigitte Vézina
Publication Date:
05-2020
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
From commercials to movies to fashion, Indigenous artworks have been misused in ways that are offensive to the artists who created them and disrespectful of the cultures that inspired them. Using Indigenous traditional cultural expressions (TCEs) without acknowledging their sources or providing financial compensation to the artists undermines the TCEs' traditional value and amounts to cultural theft. This paper looks at protecting TCEs using copyright's moral rights approach, which provides intellectual property protection based on acknowledgement, respect and integrity.
Topic:
Arts, Intellectual Property/Copyright, Culture, and Indigenous
Political Geography:
Canada and North America