Expansion Of Intellectual Property Research Articles

The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Cannibalizing copyright? Vernacularizing open intellectual property in Brazil (Respond to this article at http://www.therai.org.uk/at/debate)

With the expansion of intellectual property and its policing multinationally, Brazil gained a reputation for actively supporting and pursuing more “open” alternatives. In 2004 Brazil became one of the first countries to ‘port’ Creative Commons alternative licensing there with then Minister of Culture, Gilberto Gil, lending his support as both a politician and a renowned musician. In this article I show how global and local media heralded Brazil as the model for alternative copyright, frequently citing a poem, “The cannibalist manifesto” (DeAndrade 1928)—which proposed cannibalism as a metaphor for Brazilian national identity–as evidence of its long‐standing creative appropriation. Allusions to ‘anthropophagy’ have vernacularized alternative copyright and open intellectual property practices as particularly ‘Brazilian’ by constructing narratives hinging on imagined indigenous Brazilians. Furthermore, the search for contemporary Brazilian models of creative economies seemingly without intellectual property has focused on tecnobrega, a copyright‐flaunting, seemingly pro‐piracy electronic music from the Amazonian region. Yet discourses celebrating Brazil as the model for life without private property also echo profoundly ambivalent colonial era discourses without problematizing their legacies. Not only did writings on indigenous Brazilians – seemingly lacking any concept of property – inspire French humanists' revolutionary political philosophies, but also justified colonization of the ‘commons.’ In addition to drawing from my larger ethnographic research project in Brazil beginning in 2008, this article analyzes relevant media including documentary films, popular magazine articles, and websites.

The 'Unexceptional Circumstances' Test: Implications for FRAND Commitments from the Essential Facilities Doctrine Under Article 102 TFEU

Concerns over the global expansion of intellectual property (IP) rights and the notorious practice of tactical maneuvering on behalf of dominant undertakings in standard setting processes have placed talks about “fair, reasonable and nondiscriminatory” (FRAND) licensing terms at the heart of the current competition law regime. The acronym FRAND, also referred to as RAND in the United States (without the “fair” requirement), has been infamously difficult to define especially in relation to compulsory licensing and royalties determination. The concept gained excessive attention with the start of the Microsoft litigation in 2004. There, the EU competition authorities investigated, inter alia, whether the software giant had provided access to its interoperability information, i.e. its essential facility, on “fair, reasonable and nondiscriminatory” terms. Despite the wide attention paid to the issue in the legal and academic circles, clarifications from the courts and the Commission on the actual meaning of a FRAND commitment have been rather limited. Due to its apparent vagueness and lack of a well-established method for calculating licensing fees, the existing literature has been predominantly economics-oriented.In an attempt to solve this fundamental ambiguity problem, the thesis fills an existing gap in the literature on “fair, reasonable and non-discriminatory” terms by drawing on a fundamental feature that a FRAND violation and a refusal to license share. Due to the indispensability of the intellectual property held by the inventor and the indispensability of the essential facility in refusal to license IP right cases, the technological creations (or information as was the case in Microsoft) appear to be vital for the survival of both the standardization process in the first case and the competitors in the second case. Drawing on this link, the thesis investigates the competition authorities’ reading of the essential facilities doctrine in an effort to extrapolate a meaningful guidance as regards a future FRAND violation. The present thesis therefore centers on the unduly benign approach towards the rivals of dominant undertakings evident in the present reading of the “exceptional circumstances” test. Furthermore, it assesses the overly aggressive application of Article 102 TFEU and the gradual shift in priorities and in balancing of efficiencies in the decisions of the competition authorities.

Canadian Copyright: History, Change, and Potential

The first part of this article reviews Canada’s international copyright history and the role Canada has played in international copyright from the nineteenth century to the present day. In the part two, the author asks whether we can be optimistic or pessimistic about Canada’s role, and the role of international institutions more generally, in promoting solutions to the social policy and social justice concerns raised by the expansion of intellectual property. The author argues that Canada’s history, while demonstrating Canada’s potential to support progressive change, has not borne out certain middle power ideals.

The Expansion and Restructuring of Intellectual Property and Its Implications for the Developing World

In this paper we begin with a reference to the work of Hernando de Soto The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, and his characterization of the Western institution of formal property . We note the linkages that he sees between the institution and successful capitalist enterprise. Therefore, given the appropriateness of his analysis, it would appear to be worthwhile for developing and less developed countries to adjust their systems of ownership to conform more closely to the Western system of formal property. However, we go on to point out that property relationships within the Western system have become subject to redefinition through the expansion of Intellectual Property (IP) rights in ways that ultimately work to the disadvantage of the developing and less developed countries. We point out that this restructuring has been given global application through the implementation of the TRIPS agreement by the WTO. In the final section of the paper I suggest ways in which IP rights and relevant institutions can be reformed in order to avoid the disadvantages to the developing and less developed countries.

INFORMATIONAL CAPITALISM AND U.S. ECONOMIC HEGEMONY: Resistance and Adaptations in East Asia

This article promotes a “cultural international political economy” approach to globalization in East Asia in the so-called information age. It emphasizes the inherently discursive as well as material character of economic relations and their embedding in a complex web of different scales of action from local to global. Thus it introduces the policy discourses related to two major components in recent efforts to renew U.S. hegemony: promotion of the Global Information Infrastructure and the global expansion of intellectual property rights through the Trade-Related Intellectual Property Rights agreement. This initiative has enabled the emergence of a hegemonic GII-IPR-TRIPs complex supported by transnational informational capital, trade-related committees, and state agencies. This complex has triggered several forms of resistance and adaptation in East Asia. Targets of this resistance have been the Internet Corporation for Assigned Names and Numbers and the GII-IPR-TRIPs complex itself. Modes of counterhegemonic resistance have included state strategic support for the Linux movement as well as everyday tactics of software piracy. In addition, subhegemonic forces (e.g., APEC and national governments) have been acting as translating centers that help shape responses to efforts to consolidate the hegemony of the GII-IPR-TRIPs complex at regional levels.