Study  |  02/04/2022

Does Copyright in the Academic Sector Need to be Redefined?

In a new comparative study, Valentina Moscon and Marco Bellia examine the copyright regulations for academic publishing in Italy, Germany and the USA. In their work, they introduce well-known approaches and arrive at a proposal to make the scientific publication system fairer and more efficient.

A long-running discussion about copyright in academic publishing has shown the role of copyright and its dysfunctional effects.

The interests of commercial publishers and other information providers differ from those of academic authors, with the former usually pursuing a strategy of profit maximization, while the latter want to ensure broad access, open and timely dissemination, and reuse of scientific results. Moreover, third parties usually fund research, so academic authors do not primarily rely on income from publications – researchers publish primarily to enhance their reputation and advance their careers.

In this context, the contribution by Valentina Moscon (Max Planck Institute for Innovation and Competition) and Marco Bellia (Università Cattolica del Sacro Cuore) draws attention to new models that promise a fairer and more efficient scholarly publishing system. After reviewing the legal background in Italy, Germany, and the United States, the authors consider various possible interventions, some of which have already been adopted at the national level. These measures may be private interventions, such as university contracts and policies, or public, i.e., legislative interventions. The latter include measures outside or inside the copyright system.

“International Instrument” as a model for a fair solution

The authors conclude that the best solution is to redefine the boundaries of copyright by broadening the scope of permitted uses while defining them more precisely. This would lead to a more balanced functioning of the academic publishing system. One proposal in this direction comes from a group of copyright experts, including Valentina Moscon, who have drafted the International Instrument on Permitted Uses in Copyright Law. This instrument, conceived in the form of an international treaty, aims to create a more balanced system for the scope of international copyright protection. Among other provisions, it contains explicit rules for permissible uses in academia, including uses in the context of research, data analysis, educational purposes, and for the processing of works by libraries, museums, and archives.

To the publication:

Marco Bellia, Valentina Moscon
Academic Authors, Copyright and Dissemination of Knowledge: A Comparative Overview
Max Planck Institute for Innovation & Competition Research Paper No. 21-27

What Do Lab Disasters Tell Us about the Importance of Physical Capital in Knowledge Production?
Study  |  10/01/2021

What Do Lab Disasters Tell Us about the Importance of Physical Capital in Knowledge Production?

Prior research has largely focused on the important role of human capital in the production of knowledge. Now, a new study investigates the role of physical capital in knowledge production using lab disasters, like explosions, fires, and floods, as a natural experiment. The results provide important insights for science and innovation policy.

The authors establish the importance of physical capital in knowledge production. To this end, they exploit adverse events (explosions, fires, floods, etc.) at research institutions as exogenous physical capital shocks. Scientists experience a substantial and persistent reduction in research output if they lose specialized physical capital, that is, equipment and material they created over time for a particular research purpose. In contrast, they quickly recover if they only lose generic physical capital. Affected scientists in older laboratories who presumably lose more obsolete physical capital, are more likely to change their direction of research and recover in scientific productivity. These findings suggest that a scientist’s investments into their own physical capital yield lasting returns but also create path dependence in relation to research direction.

The study suggests that science and innovation policy should give more consideration to the role of physical capital in knowledge production.

Directly to the publication by
Stefano Baruffaldi and Fabian Gaessler
The Returns to Physical Capital in Knowledge Production: Evidence from Lab Disasters
Max Planck Institute for Innovation & Competition Research Paper No. 21-19

Decorative picture
Opinion  |  09/09/2021

Artificial Intelligence Systems as Inventors?

The question of whether an Artificial Intelligence system can or should be recognised as an inventor has been debated world-wide. The Institute has issued a position statement in view of the emerging case-law on this issue.

In particular, the position statement critically views the arguments to do so provided in a recent decision by the Australian Federal Court and highlights that they are based on questionable assumptions, first, regarding the technical capabilities of AI and, second, concerning the ostensibly positive impact of such recognition on innovation. Overall, it is emphasised that the question that should be addressed in the first place is whether inventions allegedly generated by AI should merit patent protection at all.

Position Statement

Opinion  |  09/08/2021

Artificial Intelligence Systems as Inventors?

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

Miscellaneous  |  08/30/2021

Power in the Digital Realm: Verfassungsblog and Institute Host Online Symposium

Are the Digital Services Act and the Digital Markets Act suitable instruments to regulate private power in the digital arena? An Online Symposium by Verfassungsblog and the Institute addresses this question. August 30 marks the launch of a series of 15 blog posts that will bring the scientific discourse on the topic to a wider audience.

The concentration of private power in the digital realm is not tenable – on this there is transatlantic consensus. But how to regulate forms of power like power over markets or over opinion? Though there is no transatlantic consensus on suitable solutions, clear trends towards regulatory intervention are visible. With the Digital Services Act (DSA) and the Digital Markets Act (DMA) the European Commission published in December 2020 two legislative proposals that represent landmark pieces of digital policy this legislature.

On the occasion of the proposals, the Institute is joining Verfassungsblog to host an Online Symposium on the topic “To Break Up or Regulate Big Tech? Avenues to Constrain Private Power in the DSA/DMA Package“. In 15 blog posts, a diverse field of scholars discusses different facets of the topic. The contributions address a wider audience and will be published successively on the website of Verfassungsblog beginning on August 30.

All blog posts can be found here.

Max-Planck-Institut for Innovation and Competition, GI Project, Geographical Indications, GI
Study  |  08/03/2021

Protection of Geographical Indications: Further Steps in the GI Research Agenda of the Institute

Since the effects of Geographical Indications (GIs) have not been sufficiently researched so far, the Institute launched a GI Initiative in 2018. Since then, a Research Group has been investigating different approaches to the protection of GIs in the European Union and in Latin American countries.

Max-Planck-Institut for Innovation and Competition, GI Project, Geographical Indications, GI
Since 2018 a Research Group of the Institute is investigating the effects of Geographical Indications in the EU and in Latin America

Geographical Indications are designations for products from certain geographical areas that owe their quality or reputation to their geographical origin. Because they indicate specific products’ qualities, they tend to receive more attention in the market and command higher prices. Thus, Geographical Indications are important tools to promote economic development, especially in rural areas.

Despite increased attention to GIs from politics as well as from the economy, there has been little legal research on the topic so far. The Institute, which has been researching the subject for many years, in 2018 launched a research agenda that is dedicated to exploring Geographical Indications in-depth. The initiative looks in two directions: the overall functioning of the GI system in the European Union and the potential of GI systems in Latin America.

Overall EU System Assessment

A unitary protection scheme for Geographical Indications for agricultural products and foodstuffs has existed in the European Union since 1992. Two types of Geographical Indications are distinguished: So-called Protected Geographical Indications (PGIs) and Protected Designations of Origin (PDOs). Both types of designations enjoy the same scope of protection, but have different registration and maintenance requirements.

Although the European GI system has proven itself in practice, there is a need to better understand its overall functioning during the last three decades. For that purpose, a Research Team consisting of five scholars undertook a comprehensive quantitative and qualitative analysis of available data.

First, the team conducted a statistical analysis of all PGIs and PDOs registered between 1996 and 2019 under the EU protection scheme for agricultural products and foodstuffs. The data source for this analysis was the so-called “Single Document”. As the core of every protection application it includes, inter alia, a description of the definition of the geographical area, a description of the method of production and details on the so-called origin link - that is the causal link between the product and the geographical area. Further research on bakery products and potatoes from selected countries also dealt with the full specification. The research revealed a significant improvement in the quality and accuracy of information provided in these documents, in particular about the link between the geographical region and the product.

Though the requirements for obtaining GI protection and the main procedural rules are unified within the EU, the national authorities are also involved in the registration process. Further investigation on selected countries’ national rules and related procedures revealed that national approaches and idiosyncrasies could impair the functioning of a uniform protection system.

In  2018  the  European  Commission  announced  its  intention  to  extend  the  current  EU GI protection system to non-agricultural products. However, for the time being, protection for those products is only granted at the national level. In anticipation of an EU proposal, the researchers looked into some of the national protection schemes, in order to investigate whether the current EU system with its distinction of PGIs and PDOs would also be a good fit for the non-agri sector. The findings indicate that an expansion of the current system - with some procedural adaptations - might work.

As the next step of the Research Project, it is planned - in cooperation with the University of Alicante and the EUIPO - to investigate the interface between the GI system and the trademark system, including collective and certification marks.

Survey on GI Systems in Latin America

Because of their potential to promote economic and social development, quality differentiation systems are particularly important for Latin American countries. Origin-based production, including manufacturing, handicraft, and especially food production is essential to their economies, in particular, to small producers, craftspeople, and family farmers. In this regard, though many products from Latin America are well-suited for GI protection, integration of local needs, cultural tradition, and social aspects require further research. To identify other available distinctive signs, and to investigate the interface, strengths and weaknesses of each one would help to better understand the overall system.

Moreover, the fact that the protection of GIs has been increasingly the subject of Free Trade Agreements (FTAs) involving Latin American countries may restrict their leeway for the determination of national and regional policies. Thus, further investigation on FTA commitments may reveal implementation challenges at the national level.

The Institute’s “Smart IP for Latin America” (SIPLA) Initiative, launched in 2018, defined GIs as an area in need of investigation. Therefore, the first step within the SIPLA research project on “Collective Distinctive Signs” was an investigation of GIs in a comparative legal assessment of the systems of nine selected countries in the region. Because of the amount of information the team was interested in, a comprehensive questionnaire was designed by the SIPLA team and was answered by representatives from Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Paraguay, Peru, and Uruguay. The questionnaire was focused mainly on the GI protection systems and other distinctive signs available. It included a request for information regarding national, regional and local legislation if applicable, and case law.

A comprehensive “General Comparative Report” has been built on the information obtained via the questionnaire and the analysis of the FTAs signed by the selected countries. Finally, common elements have been identified in the different national and regional systems. From those elements, at least two possible areas of research emerge to be developed in the future. The first one refers to distinctive signs different from GIs - especially signs for collective use that can benefit family farmers and small producers. The second one considers further research on GIs’ level of protection focusing on the incorporation of TRIPS standards and FTAs commitments at the national and the regional level.

More information on the Research Initiative can be found in the ePaper of the actual Activity Report.

Study  |  07/29/2021

Truly Standard-Essential Patents? An Automated Semantics-Based Analysis

The identification of standard-essential patents (SEPs) poses a considerable challenge for scholars, practitioners, and policymakers. A new study introduces a semantics-based approach to evaluate the claimed standard essentiality of declared patents.

Automated analysis of text similiarity between patents and standards

SEPs have become a key element of technical coordination in standard-setting organizations. Yet, it remains unclear whether a declared SEP is truly standard-essential. Strategic incentives may influence patent holders in their decision to claim standard essentiality. This may cause legal and contractual frictions during standard-setting and subsequent licensing negotiations. The new study by Lorenz Brachtendorf, Fabian Gaessler and Dietmar Harhoff addresses this issue and introduces an automated semantics-based method to approximate the standard essentiality of patents.

Manual assessments of SEPs typically require substantial technical knowledge and effort. In contrast, the introduced method is simple and inexpensive in use. The scalable, objective, and replicable approach allows for various practical applications. The authors illustrate its usefulness in estimating the share of true SEPs in firm patent portfolios for several mobile telecommunication standards. The results reveal firm-level differences that are statistically significant and economically substantial.

Beyond practical applications, the method may also provide insights of policy relevance. For instance, it can be used to examine whether certain policies achieve their goal of mitigating patent-related frictions in the standard-setting and implementation process.

This study makes an important contribution towards facilitating the ex ante coordination between technology contributors and implementers of technical standards. This is of particular relevance as standardized solutions for the information and communications technologies have become an important aspect of technological innovation and are ubiquitous in many industries of our economy. The study will be presented soon at the USPTO 14th Annual Conference on Innovation Economics and at EPIP 2021.

See the project poster.

See the detailed project description in the Activity Report 2018 - 2020.

Hear the EPO Podcast – Talk Innovation “Research into Patents – Drilling Deeper on the Standard Essentiality of Patents” with Dietmar Harhoff.


Brachtendorf, Lorenz; Gaessler, Fabian; Harhoff, Dietmar (2020). Approximating the Standard Essentiality of Patents – A Semantics-Based Analysis. Final Report for the European Patent Office Academic Research Programme.

Brachtendorf, Lorenz; Gaessler, Fabian; Harhoff, Dietmar (2020). Truly Standard-Essential Patents? A Semantics-Based Analysis. CEPR Discussion Paper No. DP14726 and CRC Discussion Paper No. 265.

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 position to covid(at) or you can use the following form.

With your support you agree to the publication of your information (with the exception of your email address) on our website. You can withdraw your consent at any time.

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  |  05/07/2021

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.

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

Signing the Position Statement

If you want to sign the position statement as a supporter, please send us your name, title, affiliation and position to covid(at) or you can use the following form.

With your support you agree to the publication of your information (with the exception of your email address) on our website. You can withdraw your consent at any time.

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
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.