Issues

Blockchain technology is mainly discussed in connection with cryptocurrencies such as Bitcoin. However, blockchain is a multipurpose technology with many other potential applications. This article analyzes how blockchain technology can be used in relation to copyright, especially the administration and distribution of copyright protected works. It also examines the questions and challenges that may arise from such use.

The patent system has long been criticized for limiting access to pharmaceuticals. Patents grant inventors a limited period of exclusivity with an attempt to allow recoupment of investments in the invention process. In the pharmaceutical industry, this exclusivity and the resulting lack of competition leads to exorbitant prices. High prices limit access to potentially life-saving medicines and hinder achievement of the “highest attainable standard of health,” which several international instruments recognize as a human right.

The pharmaceutical industry claims patents are essential to encourage innovation in risky, lengthy and costly research and development (R&D) processes. But it has yet to put forward indisputable evidence to the actual effects of patents on innovation.

Increasing use of artificial intelligence (AI) in research intensifies the existing debates on pharmaceutical patents. Inventions created or enabled by AI raise questions about patentability and patent policy in general. Faster and more efficient R&D weakens justifications for pharmaceutical patents.

While continued incentivization is essential, lawmakers must consider alternative systems, which prioritize access alongside incentivization in order to advance health care as a human right. One way to increase access while maintaining the necessary incentives for innovation is to reform standards of patentability, leaving some essential medicines enabled by AI outside the sphere of patent protection, and fund R&D through prize funds and tax incentives in the absence of patents. Alternatively, a shorter exclusivity term, followed by a licensing period allowing competitors to make and sell the related medicines against a licensing fee, will enable competing products to enter the market earlier and drive prices down and provide innovating companies a method to recoup investments.

In recent years, much discussion in patent law has revolved around granting tailored protection to provide better incentives to inventors in different industries and to increase patent quality. For example, the deliberations that led to the enactment of the Leahy-Smith America Invents Act (AIA) focused specifically on the role of the patent system in different industries as well as on modifying remedies and patent terms to reflect the needs of distinct technology sectors. Whereas in the literature there seems to be substantial agreement on the fact that tailored protection would be beneficial for the effectiveness of the patent system, there is no consensus with respect to which entity should be vested with the authority to produce tailored patent policies, standards, and rules based on the needs of the various industries. Currently, the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office (USPTO) are the two principal candidates for this role. Some of this debate is connected to the broader issue in legal academia of granting general regulatory authority to administrative agencies with highly specialized knowledge. Contrary to other administrative agencies, such as the United States Environmental Protection Agency (EPA), the Securities and Exchange Commission (SEC) or the Occupational Safety and Health Administration (OSHA), Congress has never granted such authority to the USPTO; scholars have criticized this inconsistency. The strongest argument that patent experts, such as Jonathan Masur and Sarah Tran, have used to question the current status of the USPTO refers to the fact that much could be gained from the information that this agency has accumulated through years of experience working with inventors in different industries, particularly with respect to tailoring patent protection.

Historically, the Venetian Republic provided tailored patent protection based on the characteristics of the invention. In that context, the entity entrusted with the power to tailor the protection granted in each case was the Senate, the issuing authority. Moreover, although the Venetian Republic enacted what is widely recognized as the first Patent Act in the world in 1474, the Venetian Senate continued its practice of granting tailored patents until the end of the Republic in 1797. In fact, as explained by Luigi Sordelli in 1974, following the enactment of the 1474 Act, inventors could obtain protection in Venice in two ways: through the newly created statutory system or through the much older customary system of senatorial grants. Conclusive evidence that Sordelli’s view was correct is provided in a separate paper that I co-authored with Ted Sichelman and Toni Veneri, in which we shed important new light on the true origin of patent law. In this article, I focus instead on tailoring patent protection. Specifically, I use original documents from the Venetian State Archives to present a detailed account of how the Venetian Republic used itscustomary patent system to tailor protection to the unique characteristics of an invention.

Furthermore, I provide a full analysis of what can be learned from the Venetian experience to inform the modern debate on tailoring patent protection. Until now, only two other legal scholars have conducted extensive examinations of the original Venetian patents: Ted Sichelman and Sean O’Connor. The Venetian patent system appears to have been a very successful one; it operated for more than 300 years and during the 16th century helped Venice to transform itself from being a nation of sailors to being a nation of artisans and engineers, and ultimately the center of technological development in Europe. Thus, the Venetian customary patent system offers important lessons on how tailored patent protection and higher patent quality can be achieved. An accurate description of this system is crucial to further understanding the specific steps that we should take to reach these goals today.

The contractual relationship between author and intermediary—be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works—is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. This outcome is perceived by many scholars and policymakers as undesirable. Thus, in an effort to protect the authors’ wellbeing in their contractual dealings, legislatures from around the world are increasingly keen to adopt regulatory measures that limit the menu of options the parties can adopt contractually. Specifically, these instruments endeavor to offset author’s weak bargaining position either by ensuring a minimum level of remuneration to authors’ ex-ante or providing them with an inalienable right to ask for a modification of the com-sensation stipulated in the contract ex-post or by granting them an inalienable right to regain control of their previously transferred rights. Overall, these legislative interventions are seemingly based on the assumption that regulating author-intermediary transactions ex ante and ex post will invariably improve the financial situation of authors as a whole. This assumption is mistaken. Drawing on insights from neoclassical and behavioral economics, the benefits and drawbacks of these interventions are narrated throughout this paper. It is further demonstrated that while these legislative interventions were adopted with the best possible intentions, they ultimately prove ineffective in meeting their own objective of securing authors a more favorable distribution of wealth. In fact, they occasionally harm the very group of beneficiaries they were designed to help. Particularly, the different forms of interventions into the author-intermediary contractual relationships create an inter-author redistribution of wealth and redistribution over time, which largely harm the most vulnerable groups of authors. These findings illustrate the limitations of the current legislative interventions that were designed to strengthen the position of authors vis-àvis their counterparties and emphasize that the structural disparities in bargaining powers cannot be easily remedied by legal intervention alone.

Algorithmic collusion has the potential to transform future markets, leading to higher prices and consumer harm. And yet, algorithmic collusion may remain undetected and unchallenged, in particular, when it is used to facilitate conscious parallelism. The risks posed by such undetected collusion have been debated within antitrust circles in Europe, the US, and beyond. Some economists, however, downplay algorithmic tacit collusion as unlikely, if not impossible. “Keep calm and carry on,” they argue, as future prices will remain competitive. This paper explores the rise of algorithmic tacit collusion and responds to those who downplay it, by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion is not only possible but warrants the increasing concerns of many enforcers.