Non-exclusive Rights Research Articles

Accounting of payments under a commercial concession agreement

In accordance with the Program for the Development of Federal Accounting Standards, Federal Accounting Standard 14/2022 “Intangible Assets” entered into force on January 1, 2024. At the same time, many questions arise about the application of this standard in various and frequently encountered situations, in particular, when concluding commercial concession (franchising) agreements, under which lump-sum payments and royalties are paid. Using the example of various practical situations, the article considers the procedure for recording non-exclusive rights to use the trademark of another franchisor organization in the accounting of a franchisee organization. During the research, such methods as analysis and synthesis, the method of comparison, grouping, analogy, logical and systematic approaches were used. The research results obtained in this article can be applied in the practical work of modern organizations, in the educational process of higher educational institutions and in the development and reform of regulatory documents on accounting, reporting and auditing. The results presented in this paper will also be useful to a wide range of readers interested in modern problems of accounting, reporting and auditing at the domestic and international levels.

Examining the US amateur-radio community through a polycentricity lens

Amateur radio (AR) operators provide societal services in public safety, spectrum applications, and training future experts. However, benefits derived from these services are challenging to define formally or contractually, resulting in potential under-provisioning in traditional market economies. We propose that communities like AR that aim to promote such open-ended innovation may not benefit from exclusive-resource rights and trading. Instead of market mechanisms, non-exclusive rights regimes can be analyzed through a lens of polycentricity, but such regimes require consensus on adaptable non-market governance rules and incentive-compatible mechanisms for monitoring, sanctioning, and exclusion of nonmembers. Our AR case study exemplifies stakeholders replacing market governance with nonexclusive property-rights models to harmonize diverse autonomous entities in producing open-ended societal services.

Court Disputes of Determining the Scope of Copyright and Related Rights to Works and Phonograms Acquired by Inheritance

The article analyzes the features of inheritance of exclusive rights to works and phonograms as the results of intellectual activity belonging to the testator. The author points out the difficulties that arise when proving by the heirs the fact of the inclusion of copyright and related rights in the mass of the succession and their volume since exclusive rights to such objects are not subject to registration. The author cites as an example the alienation by heirs of rights in respect of musical works, the exclusive rights to which belonged to the testator, provided that the heirs did not know that the testator, as the right holder, during his lifetime, such rights had already been alienated in favor of third parties (for example, on the basis of a license agreement on the rights of an exclusive license) that as a result, it generates a transaction of heirs for the disposal of intellectual property rights that do not belong to the heirs, that is, an insignificant transaction. At the same time, there is no bad faith on the part of the heirs when making such an insignificant transaction. The author concludes that the protection of the rights of heirs will be facilitated by the establishment of a presumption of ownership of copyrights to the results of intellectual activity to heirs in relation to the results of intellectual activity of the testator, in respect of which state registration of such a result is not required by law. At the same time, the existence of any restriction in the use of exclusive rights to the results of intellectual activity must be proved to third parties to whom exclusive or non-exclusive rights to the corresponding result of intellectual activity were transferred by the testator based on relevant contracts. The above, therefore, will lead to the ordering and accounting of contracts on the transfer of rights to such results of intellectual activity in order to avoid proving by the acquirer of such rights under the contract in court each time the fact of alienation of his rights by the right holder. It is concluded that when establishing the presumption of ownership of copyrights to the results of intellectual activity to heirs in respect of the results of intellectual activity of the testator, in respect of which state registration of such a result is not required by law, to persons to whom the rights to the relevant objects were transferred by the testator during his lifetime on the basis of transactions on the disposal of such rights, the burden of proving the ownership of such rights will be assigned to the acquirer, to which it will be necessary to challenge the rights of the heirs in respect of the relevant works, however, in order to avoid a plurality of lawsuits by third parties to challenge transactions on the disposal of copyright and related rights concluded by the heirs in respect of the same amount of intellectual property rights that the testator did not have at the time of death due to their alienation to third parties, it seems most appropriate to file the right holder of the claim at the place of the opening of the inheritance to the heirs on the exclusion of rights to specific works, phonograms from the inheritance.

Author rights and the Harvard open access policies: a response to Patrick Alexander

In his opinion piece criticizing the open access (OA) policies at Harvard University, Patrick Alexander makes several factual errors about the policies themselves and Harvard’s experience under them. In response, I discuss several relevant facts about Harvard OA policies, among them that the policies were adopted by faculty votes, not imposed by administrators; that under the policies, faculty only grant Harvard nonexclusive rights to new faculty articles, not exclusive rights or full copyright; that the policy-created Harvard OA license is merely a default that authors can easily waive for any given article; that the policies do not hinder Harvard faculty in publishing and do not limit their freedom to publish in the venues of their choice; and that the policies give Harvard faculty more rights, not fewer rights, over their own work than they typically get from their publishing contracts.

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

Fortnite Is ‘Dropping’ Into Legal Land: A Proposal to Amend the Copyright Act to Address Artists’ and Game Developers’ Concerns Over Dance Moves As Purchasable Emotes in Video Games

Copyright affords subject matter like choreography exclusive rights. If you own a copyright to a work, you may exclude others from making, selling, distributing, performing, etc., the work. The lawsuits against Epic Games alleging copyright infringement for use of the plaintiffs’ dance moves in “Fortnite” reveal the doctrine’s inadequacy to balance the interests between parties today. Exclusive rights in dance moves is flawed. But there is a sense of unfairness in the Fortnite Lawsuits. A narrowed amendment is necessary to grant non-exclusive rights in an artist’s commercially exploited work not currently subject to copyright protection.

Bruker bolts on new capabilities

Instrument maker Bruker has completed transactions to advance its position in nanomaterials and biomedical imaging. In one deal, Bruker acquired Minnesota-based Hysitron, a maker of nanomechanical test equipment with annual sales of about $20 million. Separately, Bruker entered a multiyear agreement giving it nonexclusive rights to Tomography Corp.’s imaging algorithms. Bruker says the software will expand applications for its micro- and nanotomography scanners.

The Nature of the Corporation: A Tale of Economic Complexity

This book is about the modern corporation. It is a tale of self-organizing complexity, morality, efficiency, property rights, knowledge, and freedom. One of the most intriguing questions that never gets properly answered by modern economics is this: if blind market forces are able to overcome human fallibility, why do we need to prescribe so many efficiency-maximizing norms? Our conventional wisdom is imbued with three myths stemming from our inability to reconcile the so-called invisible hand with the unwavering belief in optimization by design.The first myth would have us believe that the modern corporation, based on property rights and enforceable contracts, is reducing transaction costs, minimizing risk, and maximizing wealth. While economists credit corporate managers with devising clever profit maximization schemes, the real consequences of human agency can be hardly understood or predicted. Like any other self-referential, complex system, society has a natural tendency to develop nested hierarchical structures, and the modern corporation is but a living proof of this implacable reality. It learns to adapt to its environment in order to survive, and then it withers away; not by design, but by inevitability.The second myth would have us believe that profits and morality are disconnected from each other because they are subject to different constraints. It would appear that maximizing profits says nothing about fairness, and maximizing fairness says nothing about profits. This belief is based on a fundamental fallacy that views morality as the process of choosing between right and wrong based on rational debates and logical arguments. Because social systems are self-referential, logic and rationality alone cannot cope with the undecidable consequences of our actions; to spare us form severe mental distress, evolution has endowed us with cognitive biases and social emotions to assist our decisions making. More specifically, we are equipped with strong instincts to play an iterated TIT FOR TAT that in the long run engenders group cohesion. The apparent conflict between profits and ethics is due to the difficulties we have in reconciling the rich and intense emotions we experience when engaging in tribal collaboration, and the lame performance metrics we devise to account for this experience.The third myth would have us believe that expanding the dominance of private ownership over knowledge will continue to ensure unabated economic growth, just as it happened during and after the industrial revolution. Exclusive ownership rights and the smokestack corporation represent social adaptations to an economy dominated by goods that are mostly tangible. Knowledge, communication, and culture are intangible, public goods that require a new paradigm. Self-organizing, peer-production networks and non-exclusive rights are more suitable adaptations because they are better at capturing the creative potential of the entire society, and deliver higher quality products. When human capital becomes the most important economic resource, the separation between ownership and control is no longer tenable, unless we revert to slavery and servitude. In order to thrive, peer-production needs a robust public domain and a strong civil society from which to draw its strength and resources. As long as we need to sleep, eat, dress, and drive, the industrial-era corporation and the traditional manager will still endure. Allowing them to control knowledge and culture, however, will interfere with our self-ownership and will undermine our most basic liberties and freedoms.This book presents a bold vision of the modern corporation, one that some might find unsettling, for it calls into question the real implications of human agency, and the very notion of economic efficiency.

Institutional arrangements in mutually beneficial grazing systems: an example from herding communities in Ethiopia

This article identifies factors that determine households’ participation in institutional arrangements that permit reciprocal resource sharing in risky semi-arid environment. It explores the emerging challenges to clans’ institutions in governing such arrangements. On the basis of evidence from eastern Ethiopia, the article indicates that expansion in enclosure of the commons and private water points have increasingly become barriers in facilitating cooperation. To the contrary, lineage-based social capital and establishment of interclan council play a crucial role in negotiation for non-exclusive rights. Attributes of grazing resources also reinforce the continuity of such practice. The policy environment that fails to provide special attention to the nature of land use and property rights to the grazing commons undermines herders’ participation in reciprocal grazing resource sharing. This suggests that tenure policies supporting customary governance of the grazing commons enable herders to sustain their livelihoods.

Impax In-Licenses US Commercial Rights to AstraZeneca’s Migraine Drug Zomig®

Impax Laboratories has licensed US commercial rights to the tablet, orally disintegrating tablet and nasal spray formulations of AstraZeneca’s migraine drug Zomig® (zolmitriptan) for a total of US$130 M in quarterly payments plus tiered royalties on future sales. The deal also provides Impax with non-exclusive rights to develop new products containing zolmitriptan and market them using the Zomig brand name. The addition of Zomig will support the commercial growth of Impax’s branded products business.

Newspaper Sponsorship for Municipal VoterMedia

This paper proposes an experiment in political media reform, in which competing newspapers would jointly sponsor a blogging contest to cover a city government and community issues. The goal is to test whether the VoterMedia design for a blog contest will generate enough public interest journalism to make it worthwhile for municipal taxpayers to fund such competitions in the future. This could become a new source of revenue supporting journalism that covers not only cities, but also other voter communities, including democracies and corporations.To give newspapers a near-term incentive to sponsor (in addition to the long-term incentive of a potential future revenue source), the competing blogs would be required to grant the sponsors non-exclusive rights to publish their blog posts, with attribution and link-back. To simulate a taxpayer-funded competition, entry would be as open as possible, admitting any individual, group, or organization. This would include amateur bloggers and professional journalists, whether free-lance or on staff of a sponsoring (or non-sponsoring) newspaper. So for example, sponsors could enter the competition and try to win some of their money back. The contest should therefore be administered independently from the sponsors.VoterMedia.org (a nonprofit project) is offering to administer the proposed competition for free, including hosting the voting. The VoterMedia contest design has been tested and refined for the past five years at the University of British Columbia's student union, and in some municipal elections in Metro Vancouver, Canada. Experimental results at UBC are discussed by participants in video interviews on the VoterMedia website.

Cyberscience and the Knowledge-Based Economy. Open Access and Trade Publishing: From Contradiction to Compatibility with Non-Exclusive Copyright Licensing

Open source, open content and open access are set to fundamentally alter the conditions of knowledge production and distribution. Open source, open content and open access are also the most tangible result of the shift towards e-science and digital networking. Yet, widespread misperceptions exist about the impact of this shift on knowledge distribution and scientific publishing. It is argued, on the one hand, that for the academy there principally is no digital dilemma surrounding copyright and there is no contradiction between open science and the knowledge-based economy if profits are made from non-exclusive rights. On the other hand, pressure for the ‘digital doubling’ of research articles in open access repositories (the ‘green road’) is misguided and the current model of open access publishing (the ‘gold road’) has not much future outside biomedicine. Commercial publishers must understand that business models based on the transfer of copyright have not much future either. Digital technology and its economics favour the severance of distribution from certification. What is required of universities and governments, scholars and publishers, is to clear the way for digital innovations in knowledge distribution and scholarly publishing by enabling the emergence of a competitive market that is based on non-exclusive rights. This requires no change in the law but merely an end to the praxis of copyright transfer and exclusive licensing. The best way forward for research organisations, universities and scientists is the adoption of standard copyright licences that reserve some rights, namely Attribution and No Derivative Works, but otherwise will allow for the unlimited reproduction, dissemination and re-use of the research article, commercial uses included.

Cyberscience and the Knowledge-Based Economy, Open Access and Trade Publishing: From Contradiction to Compatibility with Nonexclusive Copyright Licensing

Open source, open content and open access are set to fundamentally alter the conditions of knowledge production and distribution. Open source, open content and open access are also the most tangible result of the shift towards e-Science and digital networking. Yet, widespread misperceptions exist about the impact of this shift on knowledge distribution and scientific publishing. It is argued, on the one hand, that for the academy there principally is no digital dilemma surrounding copyright and there is no contradiction between open science and the knowledge-based economy if profits are made from nonexclusive rights. On the other hand, pressure for the `digital doubling' of research articles in Open Access repositories (the `green road') is misguided and the current model of Open Access publishing (the `gold road') has not much future outside biomedicine. Commercial publishers must understand that business models based on the transfer of copyright have not much future either. Digital technology and its economics favour the severance of distribution from certification. What is required of universities and governments, scholars and publishers, is to clear the way for digital innovations in knowledge distribution and scholarly publishing by enabling the emergence of a competitive market that is based on nonexclusive rights. This requires no change in the law but merely an end to the praxis of copyright transfer and exclusive licensing. The best way forward for research organisations, universities and scientists is the adoption of standard copyright licenses that reserve some rights, namely Attribution and No Derivative Works, but otherwise will allow for the unlimited reproduction, dissemination and re-use of the research article, commercial uses included.

Looking for Mr. Schumpeter: Where Are We in the Competition--Innovation Debate?

The effect of competition on innovation incentives has been a controversial subject in economics since Joseph Schumpeter advanced the theory that competitive markets are not necessarily the most effective organizations to promote innovation. The incentive to innovate is the difference in profit that a firm can earn if it invests in research and development compared to what it would earn if it did not invest. The concept is straightforward, yet differences in market structure, the characteristics of innovations, and the dynamics of discovery lead to seemingly endless variations in the theoretical relationship between competition and expenditures on research and development or the outputs of research and development (R&D). This paper surveys the economic theory of innovation, focusing on market structure and its relationship to competition, the distinction between product and process innovations, and the role of exclusive and nonexclusive rights to innovation, and draws conclusions from the different mo...

Clindamycin/Tretinoin

Connetics Corporation (USA) has licensed a first-in-class, dual-action 1% clindamycin/0.025% tretinoin aqueous gel [Clindamycin phosphate/tretinoin gel, Velac, Velac Gel] from Yamanouchi Europe BV. The product combines the anti-inflammatory and antibacterial properties of clindamycin with the beneficial effects of tretinoin [all-trans-retinoic acid], and is in phase III trials for the treatment of acne. On 1 April 2005, Yamanouchi merged with Fujisawa to form Astellas Pharma. Connetics has exclusive development and commercialisation rights for clindamycin/tretinoin gel in the US and Canada, and has non-exclusive rights to the product in Mexico. Under the licensing agreement terms, Connetics initially paid Yamanouchi a dollar US 2 million licensing fee, as well as milestone payments and royalties on future products. In the fourth quarter of 2002, a dollar US 2 million milestone payment was made to Yamanouchi following the initiation of pivotal phase III trials in the US and Canada, and in the third quarter of 2004 a dollar US 3 million milestone payment was made to Yamanouchi following the filing of an NDA to the US FDA. In March 2004, Connectics reported that clindamycin/tretinoin is approved in Europe. It appears that this approval was specifically for France. In October 2004, Connetics announced that the US FDA has accepted its NDA filing for clindamycin/tretinoin. Two pivotal phase III trials of clindamycin/tretinoin have been conducted in the US and Canada. These trials included 2219 patients with acne who received 12 weeks' treatment in the double-blind, placebo- and active-controlled trials. Results of these trials were reported in March 2004. Connetics anticipates launch of the product during mid-2005. An action date of 25 June 2005 has been given by the FDA for it to respond to the NDA submission. Phase III trials in patients with acne in Europe have shown clindamycin/tretinoin gel to be as effective and safe as other leading topical therapies. Data from a combined analysis of six controlled efficacy and safety trials of clindamycin/tretinoin have been reported. The patent for clindamycin/tretinoin gel is held by Yamanouchi in the US and internationally. Other analysts, at CIBC World Markets, were quoted saying that Evoclin represents Connetics' 'first foray' into the acne market (followed by others, such as Velac), a market that has been valued at dollar US 1.7 billion, of which that for topical antibiotics is worth approximately dollar US 500 million.

Federally Funded Stem Cell Research: A Good Deal for the Taxpayer and Consumer?

In my article Federally Funded Stem Cell Research: A Good Deal for the Taxpayer and Consumer?, 14 Loy. Consumer L. Rev. 36-56 (2001) I focus on pragmatic taxpayer and consumer issues. Particularly, if government owned or funded patents result from stem cell research, should private companies get exclusive rights to develop the government patents? The article questions whether it is good policy for the government to selectively fund research leading to patents that are turned over to some companies for exclusive commercial development. My article includes an introductory discussion of relevant stem cell science and the law of technology transfer, and then moves to discussion of controversies relevant to issues of regulation of price and patent rights. One controversy has concerned AZT and other anti-aids drugs. These drugs, developed with substantial government participation, have presented perhaps the best known poster child story for those who believe private commercialization of government funded research leads to drugs that are too scarce and too costly, and who advocate government price regulation as a response. Another controversy involved patents for separating stem cells most useful for medical treatment. Patent holder Cellpro supplemented its defense of patent litigation by complaining to the federal government, which had funded a competing Johns Hopkins patent. Cellpro requested that the government use its march-in authority under the Bayh-Dole Act and require that the federally funded Hopkins stem cell separation technology be made more freely available to others, including itself. Cellpro's rationale was that Hopkins and its commercial partner were laggards in exploiting their federally funded patent. I next review comments of leading commentators like Professor Rebecca Eisenberg concerning federal technology transfer policy. Much of that comment is critical. I suggest that AZT and Cellpro type issues of regulation of price and patent rights follow the most basic analytical question: whether rights to government owned or funded patents should be transferred to private companies for exclusive exploitation. It is only if the answer is yes to the transfer question that companies can rely on exclusivity and resulting market power to charge high prices, or get away with being overly cautious in commercially developing government patents. If the answer is no, and companies get exclusive rights, then there are diminished opportunities for companies to charge high prices and go slowly in developing products, in part because there may be competition between companies with non-exclusive rights. A benefit of saying no to transfers of exclusive patent rights to private companies is that complex and undesirable regulation is avoided. Government price regulation can be complex and unfair. Government regulation of the timeliness of a company's product development and commercial exploitation is more difficult yet. Where possible, exclusivity should be avoided and competitive forces relied on to determine price and the speed of commercialization of government owned and funded patents involving stem cell research. The views expressed do not purport to reflect those of the United States Department of Justice, where the author was employed when the article was first published, or the Government of the District of Columbia, Office of the Corporation Counsel, where the author is employed now.