Covid-19 and the Role of Intellectual Property, Position Statement of the Max Planck Institute for Innovation and Competition of 6 May 2021 on the Current Debate , Reto M. Hilty,  Pedro Henrique D. Batista, Suelen Carls, Daria Kim,Matthias Lamping, Peter R. Slowinski
Opinion  |  05/12/2021

Covid-19 and Intellectual Property: 10 Arguments Against a Waiver of Intellectual Property Rights

Are patents hindering the global availability of vaccines against Covid-19? In a ten-point Position Statement a Research Group of the Institute shows why a suspension of intellectual property rights would neither foster vaccine production nor lead to a more equitable distribution of vaccines.

Covid-19 and the Role of Intellectual Property, Position Statement of the Max Planck Institute for Innovation and Competition of 6 May 2021 on the Current Debate , Reto M. Hilty,  Pedro Henrique D. Batista, Suelen Carls, Daria Kim,Matthias Lamping, Peter R. Slowinski
The Research Group with Peter R. Slowinski, Daria Kim, Reto M. Hilty, Matthias Lamping, Pedro Henrique D. Batista und Suelen Carls (f.l.t.r.)

Nearly half a year after the first Covid-19 vaccines became available on the market, they remain in short supply. In October 2020, India and South Africa submitted a proposal to the World Trade Organization (WTO) to temporarily waive intellectual property rights related to the prevention, containment or treatment of Covid-19 during the pandemic. The application proposes that the waiver should continue until the majority of the world’s population has been immunized against the virus. A decision in the WTO Council would have to be unanimous. In the meantime, the US has announced its support for the initiative; nevertheless, there are also powerful dissenting voices.


With their proposal, India and South Africa are undoubtedly pursuing objectives that deserve support as such. An effective response to the pandemic indeed requires “rapid access to affordable medical products” and global cooperation. Yet a waiver of all intellectual property rights regulated within the framework of the TRIPS Agreement is unlikely to be a necessary or a suitable measure towards the pursued objectives.


“Requiring patents on Covid-19 vaccines to be suspended would not only fail to provide relief from the current vaccine shortage, it would even be a highly dangerous experiment”, says Reto M. Hilty, Director of the Institute and Lead of a Research Group that has examined among other things how intellectual property rights affect the production and distribution of vaccines and medicines against Covid-19 and what impact these rights can have on their prices.


In a Position Statement, the group summarized ten arguments why intellectual property rights so far have played an enabling rather than hindering role in overcoming the pandemic and why the international community will not benefit from a waiver either during or after the pandemic.


The full text of the Position Statement is available here.


List of Supporters



Signing the Position Statement


If you want to sign the position statement as a supporter, please send us your name, title, affiliation and function to
covid(at)ip.mpg.de

Autorinnen und Autoren der Stellungnahme
Opinion  |  05/07/2021

Covid-19 and the Role of Intellectual Property

Position Statement of the Max Planck Institute for Innovation and Competition of 7 May 2021

Authors of the Position Statement
Authors of the Position Statement (f.l.t.r.): Peter R. Slowinski, Daria Kim, Reto M. Hilty, Matthias Lamping, Pedro Henrique D. Batista, Suelen Carls


Signing the Position Statement


If you want to sign the position statement as a supporter, please send us your name, title, affiliation and function to
covid(at)ip.mpg.de

Forschungsgruppe „Regulierung der digitalen Wirtschaft“, Position Statement „Artificial Intelligence and Intellectual Property Law“ Max Planck Institut für Innovation und Wettbewerb, Reto M. Hilty, Josef Drexl, Daria Kim
Study  |  04/21/2021

Research Group Develops Analysis on Artificial Intelligence and IP Rights

The increasing use of Artificial Intelligence (AI) has the potential to alter the parameters of the existing IP system. In an in-depth study, a Research Group of the Institute’s legal departments presents a broad overview of issues arising at the intersection of AI and IP law.

Research Group “Regulation of the Digital Economy”, Position Statement „Artificial Intelligence and Intellectual Property Law“ Max Planck Institut für Innovation und Wettbewerb, Reto M. Hilty, Josef Drexl, Daria Kim
The Research Group “Regulation of the Digital Economy” is investigating the effects of Artificial Intelligence on Intellectual Property Law, Photo: Myriam Rion

The more Artificial Intelligence (AI) shapes the digital economy, the more insistently questions arise on the interplay of AI and intellectual property rights. To fully realize its potential for fostering innovation and welfare, AI needs an appropriate legal framework, which also includes property rights.


So far, the political and legal discussion has focused primarily on the output; more precisely, what is generated by the use of, or at least with the support of, Artificial Intelligence. To evaluate whether the existing IP system can still fulfill its function within the parameters of this fast-moving technology, a more holistic view is necessary. Particular consideration must be given to the individual steps of an AI-driven innovation cycle in which IP rights may play a role.


Comprehensive analysis


Against this backdrop, the Research Group “Regulation of the Digital Economy” of the Institute’s legal departments led by the two Directors Josef Drexl and Reto M. Hilty has developed a comprehensive analysis. The paper identifies potential issues that could arise at the intersection of Artificial Intelligence and IP rights and introduces different directions in which solutions can be found.


The structure of the analysis is based on the three levels that need to be distinguished with regard to innovation or creation processes. First, issues related to the input required for the development of AI systems are investigated. The second part of the paper examines protection of AI Tools, while the third part focuses on property rights for AI-generated or AI-aided output.


Focus von European IP law


The analysis focuses on substantive European IP law, in particular on copyright, patents and designs, as well as on the sui-generis protection for databases and the protection of trade secrets. The latter can already play a role on the input side, but are especially important with regard to AI as a tool since the traditional IP systems hardly appear to be suitable for the particularities that need to be considered. However, property rights play a role primarily with regard to what is generated using AI; this also includes aspects such as the allocation of rights and, if applicable, the scope of protection.


The paper builds on insights that the Research Group has already gained in previous studies, especially with regard to the technical context. On this basis, it identifies those questions that require further – especially interdisciplinary – research. Overall, the paper emphasizes the need for a more holistic view, especially with regard to the fact that various IP rights play a role and may overlap in IP-driven innovation or creation.


The complete Position Statement “Artificial Intelligence and Intellectual Property Law” can be found here.

Study  |  02/26/2021

Find Your Academic Doppelgänger! How to Build Scientists Control Groups With Sosia

Econometric analysis in Economics of Science and Innovation often requires control groups. The identification of such a population often constitutes a daunting data effort. The python package sosia simplifies and automates the search in the Scopus database.

Michael E. Rose und Stefano H. Baruffaldi

Econometric analysis in Economics of Science and Innovation often requires control groups. These control groups need to have similar observable characteristics to a sample of researchers of interest. There are specific methodologies and tools to assist Econometricians in the matching exercise. However, the identification of such a population often constitutes a daunting data effort, which may turn impossible for samples of scientists spanning multiple fields, institutions, or countries. The python package sosia – Italian for Doppelgänger – intends to simplify and automate the search for comparable researchers in the Scopus database.


See the publication by

Michael E. Rose and Stefano H. Baruffaldi
Finding Doppelgängers in Scopus: How to Build Scientists Control Groups Using Sosia
Max Planck Institute for Innovation & Competition Research Paper No. 20-20

Miscellaneous  |  02/23/2021

International Law Association Adopts “Kyoto Guidelines”

A research group of the International Law Association (ILA) with the participation of Max Planck researchers has developed guidelines for the interplay of intellectual property and private international law. The “Kyoto Guidelines” are the first model law developed jointly by experts from all over the world.

The research group, that developed the “Kyoto Guidelines”, during a meeting in Geneva in 2015, Photo: ILA

Despite increasing international and European harmonization, the design of IP protection systems remains subject to the laws of individual states. The internationally accepted principle of territoriality limits the scope of application of the law to the territory of the legislating state. This also applies to cases involving intellectual property issues.


The increasing integration of the global economy and the potentially worldwide dimension of even the simplest acts of communication over the internet, have called into question the existing conflict-of-laws systems for quite some time. Especially at the start of the new millennium, this situation led to several scholarly initiatives aiming at the development of more suitable and internationally aligned principles. Among them were the so-called “CLIP Principles for Conflict of Laws in Intellectual Property”of 2011, initiated by today’s Max Planck Institute for Innovation and Competition and the Max Planck Institute for Comparative and International Private Law, which received worldwide attention. However, all these initiatives were of regional character (USA, Europe, and Asia) and they differ in several regards, such as in particular the conflict rule for initial ownership. Furthermore, they do not provide solutions for all issues that should be addressed.


International research group develops extensive guidelines


To fill these gaps the International Law Association in 2010 established the “Committee on Intellectual Property and Private International Law”. This research group, with its almost 30 experts, among them the Managing Director of the Institute, Josef Drexl, has developed the Kyoto Guidelines. The guidelines, which were adopted during the 79th Biennial Conference of the ILA in December 2020, comprise 35 model provisions. In addition to questions of applicable law, the guidelines address matters of international jurisdiction of the courts and cross-border enforcement of judgments. The scope of the guidelines is not limited to classical intellectual property rights like copyright, patent and trademark law, but can be applied to related areas such as unfair competition law and the protection of trade secrets. The final text is divided into four sections: General Provisions (Guidelines 1-2), Jurisdiction (3-18), Applicable Law (19-31), and Recognition and Enforcement of Judgments (32-35).


The Kyoto Guidelines aim to propose specific provisions to national legislatures for the design of private international law on intellectual property issues to achieve a substantively balanced and internationally coordinated system in the long term. Judicatures can now begin using the guidelines as interpretive aid if their national system allows for such interpretation. Besides well-established and widely discussed issues at the interface of intellectual property and private international law such as the determination of initial ownership and multi-state infringements, the guidelines address new phenomena like cross-border collective copyright management.


Conflict-of-laws rules for CMOs


Though cross-border activities of collective rights management organizations (CMOs) are increasingly gaining relevance, the question of conflict-of-laws rules for CMOs has hardly been discussed so far. In 2015, in the course of the implementation of the Collective Rights Management Directive of the European Union (Directive 2014/26/EU), the Institute was alone in pointing out unresolved questions of private international law; it developed principles that have now been included in the Kyoto Guidelines.


The Kyoto Guidelines were adopted by the ILA at the end of last year. The Fifth Committee Report, which is already available to the public, contains basic comments for a better understanding of the provisions. The guidelines are scheduled for publication as a book including detailed commentary later this year.


The text of the Kyoto Guidelines can be found here.

Opinion  |  01/18/2021

Position Paper on the Draft of a Second Open Data Act and a Data Usage Act (DNG)

The position paper of Heiko Richter welcomes the high ambitions of the legislative proposal, but criticizes its failure to completely fulfill them, as the draft hardly goes beyond the requirements of EU Directive 2019/1024, and Section 12a of the E-Government Act falls short of its potential. In addition, the position paper also makes specific suggestions for improvement for the further legislative process.

“International Instrument on Permitted Uses in Copyright Law” hat eine Gruppe, koordiniert vom Max-Planck-Institut für Innovation und Wettbewerb ein Regelwerk für den Interessenausgleich im Urheberrecht entwickelt
Miscellaneous  |  12/18/2020

Permitted Uses in Copyright Law: Research Team Develops “International Instrument”

With the “International Instrument on Permitted Uses in Copyright Law”,  a group of renowned copyright experts has developed a set of rules intended to promote a more balanced reconciliation of interests in copyright law. The project, which aims at a new international copyright treaty, was coordinated by the Institute.

The "International Instrument on Permitted Uses in Copyright Law" has been developed by a group coordinated by the Max Planck Institute for Innovation and Competition to provide a set of rules for balancing interests in copyright law
The work on the "International Instrument on Permitted Uses in Copyright Law" was coordinated by the Institute

With the aim of creating at international level a more balanced system regarding the scope of copyright protection, an academic initiative coordinated by the Max Planck Institute for Innovation and Competition developed the “International Instrument on Permitted Uses in Copyright Law” . This project, bringing together a group of 20 internationally renowned copyright specialists from different countries, was originated by some members of the expert group working on the “Declaration for a balanced Interpretation of the Three-Step Test in Copyright Law”, which was concluded in 2008. The Declaration advocates a more flexible application of the three-step test by means of interpretative guidelines in order to take account of legitimate user interests.  


The Instrument goes one step further than the Declaration. Rather than stating mere recommendations, the Instrument includes concrete provisions to form an international treaty establishing a core of minimum permitted uses of works. By signing such a treaty, prospective Contracting Parties would be obliged to implement the minimum permitted uses in their national legislations.


With this “minimum permitted uses approach” the Instrument aims at counterbalancing the traditional “minimum protection approach” of international copyright legislation. The Instrument is meant to function as a lever for Contracting Parties to address the political pressure in international negotiations of bilateral or regional agreements in particular. Once in place, the Instrument will ideally facilitate cooperation amongst countries and help them to assert their common interests on a level playing field with countries trying to impose higher standards of protection in international negotiations. At the same time, implementing the Instrument in binding international legislation might foster a certain harmonization with regard to the limits of copyright protection.


The Instrument is composed of three parts. In Part A five groups of permitted uses are specified on the basis of the objectives pursued by each group of permitted uses: I. Freedom of expression and information; II. Social, political and cultural objectives; III. Use of software; IV. Uses with minimal significance; and V. Free circulation. Part B defines general principles aimed at guiding contracting parties in the implementation of permitted uses in their national legal orders. Contracting parties are obliged to implement effectively the permitted uses laid down in the Instrument but are free to determine the method of implementation: explicitly enumerating such permitted uses, creating general clauses or basing them on a fair use or fair dealing legislation are all matters for the national legal systems. Also, Contracting Parties are free to permit further uses of copyright-protected works, should their domestic needs require such national legislation. Part C deals with competition law as an external limit to copyright and is based on the modern understanding that competition law and copyright law are complementary legal fields, pursuing the objective of increasing the market offer of creative works.


You can find the International Instrument here:
International Instrument on Permitted Uses in Copyright Law


An article by Reto M. Hilty and Valentina Moscon about the International Instrument can be found in the recently published book The Cambridge Handbook of Copyright Limitations and Exceptions.


The current issue of IIC also dedicates its Editorial to the International Instrument.

Opinion  |  12/08/2020

Position Paper on the Draft Bill for an Act to Strengthen Consumer Protection

The position paper relates to the changes to German unfair competition law (UWG) resulting from Directive 2019/2161/EU. Although they undermine the approach of the UWG (claim for damages of the individual consumer), the 1:1 implementation of the draft bill is to be approved - after an influence in advance was obviously impossible. It is suggested, however, that the Directive's opening clauses should be used more extensively and that guidelines not conditioned by them, such as influencer marketing, should be waived.

Opinion  |  11/11/2020

Position Paper on the Draft Bill for a Copyright Service Provider Act

In a position paper on the draft bill for an "Act to adapt copyright law to the requirements of the digital single market", the Institute provides suggestions in particular for the design of the planned Copyright Service Provider Act (UrhDaG).

Eine Projektgruppe bestehend aus Reto M. Hilty, Valentina Moscon, Heiko Richter, Moritz Sutterer, Ansgar Kaiser und Aaron Stumpf haben eine Stellungnahme zum Urheberrechts-Diensteanbieter-Gesetz (UrhDaG) abgegeben
Research News  |  11/10/2020

Position Paper on the Copyright Law Reform: Liability for Online Service Providers

The Federal Ministry of Justice and Consumer Protection has presented a draft bill for the implementation of the new Directive on Copyright in the Digital Single Market into national law. In a position paper, the Institute provides suggestions for the design of the planned Copyright Service Provider Act.

A project group consisting of Reto M. Hilty, Valentina Moscon, Heiko Richter, Moritz Sutterer, Ansgar Kaiser and Aaron Stumpf issued a position paper on the  Copyright Service Provider Act
The project group with Aaron Stumpf, Moritz Sutterer, Reto M. Hilty, Heiko Richter, Valentina Moscon and Ansgar Kaiser (l. to r.).

The controversial Directive 2019/790 on Copyright and Related Rights in the Digital Single Market caused severe protests prior to its adoption, particularly in Germany. It was, above all, today’s Article 17 on the responsibility of online content-sharing service providers that was harshly criticized. In the context of the vote by the EU Council on April 15, 2019, the German government felt compelled to issue a protocol declaration according to which the controversial upload filters should be largely dispensed within the national implementation of the Directive.


The Member States must now transpose this EU Directive into national law by June 7, 2021. In October 2020, the Federal Ministry of Justice and Consumer Protection (BMJV) presented a draft bill for an "Act to adapt copyright law to the requirements of the digital single market", which has not yet been coordinated with other ministries. Above all, it was eagerly awaited how the Federal Government's protocol declaration can be actually implemented.


The copyright responsibility of online content-sharing service providers in Germany is to be regulated in future by an independent act, the Copyright Service Provider Act (UrhDaG). According to this, online content-sharing service providers are - as required by the Directive - generally responsible for the content uploaded by their users. However, they can exempt themselves from their liability by complying with specifically stipulated duties of care. The UrhDaG is intended to specify what these obligations are.


New act regulates copyright responsibility


The Max Planck Institute for Innovation and Competition accompanied the adaptation of copyright law to the requirements of the digital age already with regard to the EU Directive. A project group commented in great detail on the drafts of the EU Commission. The Institute now also issued a position paper on the current draft bill. The focus of this paper lies on the UrhDaG.


In principle, the six-person project group welcomes the establishment of the UrhDaG. The draft adopted "with innovative proposals a path that is fundamentally suitable for achieving the necessary balance of copyright interests in the distribution of copyright content via online platforms," the position paper states. On some points, however, the authors provide suggestions for the further legislative process, especially with regard to the planned licensing mechanism (Sec. 4 UrhDaG), the obligation to pay remuneration for legally permitted uses (Sec. 5 UrhDaG) and the consideration of minor uses (Sec. 6 UrhDaG). 


Overview of the suggestions in the position paper


According to the project group, Section 4 UrhDaG is likely to have a positive effect on the licensing market as it creates a regulation that sensibly shapes the requirements for action of online content-sharing service providers and rights holders in the licensing process. However, the position paper suggests some improvements and specifications in order to avoid legal uncertainties in the case of licensing through individual rights holders.


The project group welcomes the fact that in Section 5 UrhDaG the draft bill clarifies the applicability of the copyright limitations for the regulatory area of the UrhDaG in order to capture as many forms of "user generated content" as possible and make them legally accessible online. It expresses criticism, however, that online content-sharing service providers should be subject to an obligation to pay remuneration exclusively for the use of works for the purpose of a pastiche (Sec. 7(2) UrhDaG). "In view of the functional logic of the UrhDaG and the special interests of online content-sharing service providers, rights holders and users, as well as expected problems of demarcation, all uses pursuant to Section 5 UrhDaG should be remunerated by the online content-sharing service providers," the position paper states.


The planned facilitation of minor uses according to Section 6 UrhDaG is also appreciated by the position paper in principle. However, since there are doubts regarding the conformity of the concrete design with EU law, it is suggested that the objective should be implemented by means of a different legislative solution. The project group makes specific proposals for this.


Read the full text of the Institute's position paper (in German) here


The e-book "Modernisation of the EU Copyright Rules", edited by Reto M. Hilty and Valentina Mocson, can be found here