Opinion  |  04/09/2021

Artificial Intelligence and Intellectual Property Law

Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate

View the statement (pdf)

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.

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
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).

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
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

[Translate to english:]
Miscellaneous  |  10/23/2020

Evaluation of the Munich Proceedings in Patent Litigation – The Results Are Now Available

The regional court Munich I is one of only 12 German courts responsible for patent matters, along with Mannheim and Düsseldorf. For the past ten years, the „Münchner Verfahren“ (Munich Proceedings in Patent Litigation), which has now been evaluated in a research project at the Institute, has been an important factor for Munich as a patent location.

[Translate to english:]
Photo: Justiz Bayern.

With the European Patent Office (EPO), Federal Patent Court (BPatG), German Patent and Trademark Office (DPMA), institutions of the new Unified Patent Court (UPC), the Patent Attorney Chamber, numerous lawyers and patent attorneys, patent services as well as many innovative Bavarian companies with large patent portfolios, Munich applies as the “European Patent Capital”.

The regional court Munich I is one of only 12 German courts responsible for so-called patent matters, in particular patent infringement cases. As a rule, the plaintiff has the choice of which court to call. The regional court Munich I is third in terms of the number of entries behind Düsseldorf and Mannheim. An important factor for the patent location Munich is the „Münchner Verfahren“ (Munich Proceedings in Patent Litigation).

The strict deadlines of the procedure ideally lead to a first-instance ruling after 12 months. In contrast to other courts, Munich has a detailed first hearing, where the court discusses critical issues with the parties. Then, the parties have to make further written statements until the second hearing.

Scientific Evaluation By Max Planck Researchers – The Results

Ten years after its introduction, the procedure has been evaluated in order to gain knowledge for future improvements. The scientific evaluation was carried out by the Max Planck Institute for Innovation and Competition as part of a research project.

For the evaluation, representatives of parties to the litigation – mostly patent attorneys, and lawyers from law firms and companies – were interviewed through a structured questionnaire. In addition, case data on the length and outcome of litigation proceedings were systematically collected. On Thursday, 22 October 2020, the results were presented in an online event at the Palace of Justice in Munich.

“The participation in our survey was remarkably good. Those surveyed appreciate the fact that with this evaluation, the court calls on the legal profession to make suggestions for improvements,” reports Dietmar Harhoff.

The synopsis of the answers received in the survey shows that the procedure is seen as an outstanding locational advantage of the Munich court. Nearly 80 percent of the respondents believe that the introduction of the Munich Proceedings has considerably increased Munich’s attractiveness as a location for patent litigation.

Dietmar Harhoff emphasizes: “In patent litigation, attorneys appreciate first and foremost predictability and qualitatively well-founded decisions. Accordingly, they recommend in particular continuity in the composition of the chambers and a stronger specialization of the judges in patent law for the further development of the Munich location. Such measures could still increase the attractiveness of the location.”

The survey also showed possible approaches for a further improvement of the so-called „Hinweise zum Münchner Verfahren“ (Notes and Instructions on the Munich Proceedings in Patent Litigation), which the two chambers want to examine and update, if necessary.

A detailed report on the evaluation results will be presented by the end of the year.

More information:
Interview with Dr. Andrea Schmidt, President of the regional court Munich I, in JUVE-Patent (in English)
Press Release of the regional court Munich I on the results of the evaluation (10/22/2020) (in German)
Press Release of the regional court Munich I on the establishment of a new chamber for copyright law (10/01/2020) (in German)

Study  |  07/28/2020

Identifying and Measuring Artificial Intelligence – Making the Impossible Possible

Researchers of the Institute and the OECD have published a new study on how to identify and measure AI-related developments in science, algorithms and technologies. Using information from scientific publications, open source software (OSS) and patents, they find a marked increase in AI-related developments over recent years. The growing role of China in the AI space emerges throughout.

Artificial Intelligence (AI) is a term commonly used to describe machines performing human-like cognitive functions (e.g., learning, understanding, reasoning, and interacting). AI is expected to have far-ranging economic repercussions, as it has the potential to revolutionize production, to influence the behavior of economic actors and to transform economies and societies.

The vast potential of this (now considered) general purpose technology has led OECD countries and G20 economies to agree on key principles aimed at fostering the development of ethical and trustworthy AI. The practical implementation of such principles nevertheless requires a common understanding of what AI is and is made of, in terms of both scientific and technological developments, as well as possible applications.

Addressing the challenges inherent in delineating the boundaries of such a complex subject matter, the study proposes an operational definition of AI, based on the identification and measurement of AI-related developments in science, algorithms and technologies. The analysis draws on information contained in scientific publications, open source software and patents.

Approach of the study

The three-pronged approach of the study relies on an array of established bibliometric and patent-based methods, and is complemented by an experimental machine learning (ML) approach implemented on purposely collected open source software data:

  • The identification of the science behind AI developments builds on a bibliometric two-step approach, whereby a first set of AI-relevant keywords is extracted from scientific publications classified as AI in the Elsevier’s Scopus® database. This set is then augmented and refined using text mining techniques and expert validation.
  • As AI is ultimately implemented in the form of algorithms, the authors use open-source software’s information about software commits (i.e., contributions) posted on GitHub (an online hosting platform) to track AI-related software developments and applications. Such data are combined with information from papers presented at key AI conferences to identify “core” AI repositories. Machine learning techniques trained using information for the thus identified core set are used to explore the whole set of software contributions in GitHub to identify all AI-related repositories.
  • Information contained in patent data serves to identify and map AI-related inventions and new technological developments embedding AI-related components. Text mining techniques are used to search abstracts and patent documents referring to AI-related papers.

Selected findings of the study

  • The authors find an acceleration in the number of publications in AI in the early 2000s, followed by a steady growth of 10% a year on average until 2015, before accelerating again at a pace of 23% a year since then. The share of AI-related publications in total publications increased to over 2.2% of all publications in 2018.
  • 28% of the world AI-related papers published in 2016-18 belongs to authors with affiliations in China. Over time, the share of AI publications originating from EU28, the United States and Japan has been decreasing, as compared to the levels observed ten years earlier.
  • Since 2014, the number of open-source software repositories related to AI has grown about three times as much as the rest of open-source software.
  • There is a marked increase in the proportion of AI-related inventions over the total number of inventions after 2015. This ratio averaged to more than 2.3% in 2017.
  • “Neural networks” and “image processing” are the most frequent terms appearing in the abstracts of AI-related patents.
  • In AI-related patents, the contribution of China-based inventors multiplied more than six fold since the mid-2000s, reaching nearly 13% in the mid-2010s.

For more facts and detailed information, see the publication:

Stefano Baruffaldi, Brigitte van Beuzekom, Hélène Dernis, Dietmar Harhoffi, Nandan Rao, David Rosenfeld, Mariagrazia Squicciarini (2020).
Identifying and Measuring Developments in Artificial Intelligence: Making the Impossible Possible.
OECD Science, Technology and Industry Working Papers No. 2020/05.

Stefano Baruffaldi is Affiliated Research Fellow in the department Innovation and Entrepreneurship Research and Assistant Professor at the University of Bath.

Dietmar Harhoff is director at the Max Planck Institute for Innovation and Competition.