Research News

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.

A brief summary of the arguments can be found here.

A YouTube video of the discussion “Vaccine for all! What can be done?”, which took place on July 1 for the Max Planck Forum with the participation of Reto M. Hilty, can be found here (in German).

List of Supporters

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.

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

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 79^th 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.

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.