The 19th Annual Conference of European Policy for Intellectual Property (EPIP) Association will take place between Wednesday 11 and Friday 13, September 2024 (with the preceding PhD workshop in the afternoon of Tuesday 10 September 2024) in beautiful Pisa, Italy. The conference – hosted by Scuola Superiore Sant’Anna, in cooperation with University of Pisa – will bring together both young and senior scholars in the fields of economics, law, management and political science, as well as stakeholders and policymakers for theoretical, empirical and policy-oriented presentations and discussions on intellectual property protection, science and innovation.
There has always been a strong connection between EPIP and CREATe, not only for the interesting themes discussed at the conference, such as this year’s one: ‘Intellectual property and the future of the data economy’, but also because CREATe had the honour to host EPIP’s 10th annual conference in 2015 at the University of Glasgow, where the role of Intellectual Property in the Creative Economy was explored.
As in previous years, CREATe members will present their research at the annual conference, on different topics, from pharmaceutical patents to transparency obligations and technological protection measures (TPMs), that are all part of the current work conducted by the research centre in the fields of intellectual property, technology and markets.
On 11 September, Gabriele Cifrodelli will present his recent paper ‘Can you patent the sun? Towards a sui generis Inclusive Right to manage the relationship between Intellectual Property and Commons’. Moreover, CREATe Director Martin Kretschmer and Thomas Margoni will chair a special session on ‘Lawful Access in EU (copyright) law’.
On 12 September, Martin Kretschmer will chair a session on ‘Remunerating creators: recent reforms and policy recommendations’. Moreover, Ula Furgal and Aline Iramina are going to present their work on ‘Investigating transparency: the screenwriters edition’.
On 13 September, CREATe Deputy Director Kristofer Erickson will present his research on ‘The Ghost of Technological Protection Measures Past: Empirical evidence on TPMs in Preservation and Research’. In addition, Martin Kretschmer will join a roundtable discussion named ‘Blurred lines: data governance, data ownership and intellectual property rights’.
More information about EPIP 2024 and access to the full programme here and here.
Check out the abstracts of CREATe members’ presentations below and come say hello in Pisa.
Can you patent the sun? Towards a sui generis Inclusive Right to manage the relationship between Intellectual Property and Commons
Gabriele Cifrodelli
This paper, by adopting the Covid-19 vaccine as a case study, argues that some pharmaceutical drugs should be considered as Commons, i.e. goods that are managed and owned by the public at large, and not as private property – exclusivity – of pharmaceutical companies. The reasons of such a strong argument are, on the one side, the conspicuous public funding contribution to develop Covid-19 vaccines and other essential life-saving treatments, and, on the other side, the search for a human and equity-oriented Global Health Security. It is true that, from a legal perspective, vaccines can be patented, leading to questionable practices in the pharmaceutical industry, such as patent thickets. However, an alternative and fairer path, which would result in the theorization of a Commons for the vaccine, can be pursued. In particular, the actual types of Commons in the intellectual property law field – the public domain, exceptions/limitations to patents, and open innovation instruments such as IP pledges – present some issues in relation to enforceability. By forwarding the concept of ‘negative spaces’ to the patent realm, these spaces should not only claim to not enforce IP but also be able to ‘enforce that non-enforcement’. Therefore, this paper, by building on the work of Séverine Dusollier, advances the idea that from the inclusivity, which is the typical feature of every Commons, a sui generis inclusive right can be envisaged and applied in the context of the vaccine, by rethinking the relationship between intellectual property and Commons.
Investigating transparency: the screenwriters edition
Ula Furgal and Aline Iramina
Traditionally, copyright discourse shied away from private dealings between authors and third parties, focusing on the illusive rightsholder, oftentimes in opposition to the public or the user. The narrative, however, is changing. The 2019 Copyright in the Digital Single Market (CDSM) Directive introduced new rules to strengthen authors and performers’ bargaining position. The development of new technologies undermines the creative industries’ business and remuneration models. Authors and performers demand recognition of their creative labour, as the 2023 Hollywood strikes have shown.
The movie and TV industry has undergone considerable changes following the launch of Netflix and similar platforms. While more series and movies are being produced, screenwriters no longer benefit from the stability of network TV schedules, writing for much shorter series and receiving smaller residuals. This is why, among others, the Writers Guild of America went on strike in 2023, after failing to reach an agreement on minimum working conditions with the Alliance of Motion Picture and Television Producers. Collective bargaining plays a significant role in the audiovisual sector not only in the US, but also in Europe.
While the principle of appropriate and proportionate remuneration and contract adjustment mechanism have received the most attention among Chapter 3 CDSM provisions, it is the transparency obligation (art. 19) which equips creators with knowledge to exercise these rights. However, art. 19 does not provide sufficient detail about what information they should expect to receive. The question of whether the introduction of a new transparency obligation has brought any change to the sectorial practices remains open.
This paper will analyse the practical operation of the law in relation to transparency, focusing on the industry standards, as expressed in the collective agreements, and interviews with the representatives of screenwriters’ associations and writers. The core dataset consists of the collective bargaining agreements identified by the Federation of Screenwriters in Europe (FSE). We enquire whether and to what extent transparency is incorporated into collective bargaining, and whether the standards are stricter than the general provisions of the CDSM.
The Ghost of Technological Protection Measures Past: Empirical evidence on TPMs in Preservation and Research
Kristofer Erickson
There is limited understanding and empirical evidence of the impacts of technological protection measures (TPMs) on activities permitted by exceptions to copyright in Europe. TPMs present obstacles to research, education and preservation, representing a legal and technical hindrance to productive uses. The precise scope and scale of ongoing effects are not yet understood. This research takes place in the context of previous empirical study of the impact of TPMs on privileged beneficiaries of copyright exceptions (Akester, 2009; Favale, 2011; Livermore, 2015; Kampen, 2016). The paper presents on two related empirical studies: (1) A survey approach interrogating current practices among library institutions from selected territories across Europe and reporting about encounters with TPMs across the range of digital content (eBooks, e-journals, film, videos, games, sound recordings, databases, streaming services). The survey reveals current practices and points of frustration encountered by research, education and preservation institutions when dealing with TPMs in the course of fulfilling their public roles. This report will also investigate the possibility for institutions to request removal of TPMs through legal means, and the costs and challenges involved in making those requests.
A second related study (2) examines the social and economic effects of TPMs specifically in video game preservation. Using machine learning to analyse 25 years of development of the open-source MAME emulator project, we assess the economic costs of TPMs, in terms of delayed compatibility and in some cases unavailability of TPM-protected games for preservation. Copy and access control mechanisms can be circumvented in various ways, including via reverse-engineering, or “de-capping” microprocessors to extract binary data about protection systems, enabling them to be emulated accurately. However, difficulties and delays in successfully reverse-engineering TPMs mean that some significant number of works remain unavailable for research and preservation. This statistical approach enables estimation of losses (including research and preservation uses) from TPMs, highlighting differences between what the law permits and what informal preservation communities are doing with TPMs. Relevance to institutional users and policy are discussed.
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