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Michael J. Madison

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or its natural, factual or ideational properties. Access questions are, accordingly, diverse. That diversity is compounded by the proposition that access is itself a property of a resource, in the sense that resource characteristics are, to a substantial extent, socially and culturally constructed. Social construction means not only that boundaries among properties of a resource may be blurred but also that those properties and boundaries may change over time. By virtue of that diversity, investigating access to knowledge resources creates the risk of producing a conceptually fragmented and unhelpful landscape of theory and application on a resource-by-resource basis. This chapter suggests that the investigation of access to knowledge resources may be unified under the umbrella concept of knowledge commons, the study of governance of shared knowledge resources. It presents a framework for understanding knowledge commons and illustrates its application to several questions of access to the material and immaterial dimensions of specific knowledge resources.
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Susy Frankel

International trade up until the late twentieth century usually was primarily about trade in tangible goods and not the cross-border flow of intangible intellectual property, or even intangible intellectual property goods (such as digital works). The piracy possibilities that can arise as a result of the increase in the trade of goods incorporating intellectual property became a substantial concern in the nineteenth century and resulted in the 1883 Paris Convention and 1886 Berne Convention. The relationship between intellectual property and international trade was extended when the TRIPS Agreement was adopted as part of the WTO in 1994. This chapter examines that relationship, in particular by addressing the TRIPS Agreement and its aims in comparison to – and as a subset of – the WTO GATT and GATS constellation. The chapter discusses the exhaustion of intellectual property (and accordingly parallel importing) within the international trade law context and why there is confusion or conflation of intellectual property with its physical embodiments in the international trade context. The final part of the chapter addresses how understanding the intangible nature of intellectual property might assist in untangling the uses of intellectual property law in trade to control tangibles that arguably have negligible trade benefits and may in fact be more trade distorting than trade enhancing.
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Jessica C. Lai

One of the first things we teach students when introducing patent law is that patents protect applied ideas. What we often fail to acknowledge is that what we deem to be capable of being an “invention” is that which has some kind of physical embodiment or physical effect. This chapter takes a historical approach to highlight that patent law has never been purely about the intangible. It does so by telling two histories. The first history concerns the development of patent law theory and policy. It discusses how changes and developments in patent-law reasoning and policy show the importance of the tangible and intangible aspects of inventions. The second history addresses the progression of the understanding of the patentable “invention”. More concretely, it looks at the terms “invention” and “manner of new manufacture”, and how their judicial interpretation over the years has developed away from, but not quite shaken off, the connection to the physical.
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Aisling McMahon

This chapter examines downstream patents on inventions developed as a result of research on specimens stored by publicly funded human biobanks. Examples of such patents may include: patents for new medicines or further applications of existing medicines and patents for diagnostic tests. A tension can arise in this context between public and private interests. Individuals donate to such biobanks often on the basis of providing physical samples for the benefit of broader scientific and medical research. However, downstream inventions may subsequently become subject to patent protection thereby placing such inventions outside the public domain, as access becomes dictated by the patent holder. This creates a potential tension between the donation of physical bio-specimens as an altruistic act to benefit public health and the use of intangible patent rights, which limit access to downstream benefits arising from such research for the duration of patent protection. This chapter examines this tension, focusing on three questions, namely: whether and to what extent should research generated in this context be subject to downstream patents? If patents are granted to what extent should biobanks, donors of bio-specimens and/or the public share in these rights? And, finally, what mechanisms should be employed to ensure the public interest in accessing benefits generated by such research is safeguarded? The chapter argues that intellectual property rights should be maintained in order to encourage innovation but, alongside this, further dialogue is needed to develop a stronger culture that fosters broader dissemination of research findings. Furthermore, greater emphasis should be placed on benefit sharing to ensure access to downstream inventions. Taken together, these mechanisms would promote health research and foster innovation whilst also strengthening benefits for the public.
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Michael Blakeney

This chapter looks at the agitation surrounding the commodification of the knowledge and cultural expressions of traditional and indigenous peoples. One of the difficulties in fitting traditional knowledge and cultural expressions into the intellectual property paradigm is that traditional peoples do not distinguish between the tangible and intangible, but take a holistic view in which these concepts are merged, as is the past with the future. This has generated the argument that some other form of law might be more appropriate for its protection. These conceptual difficulties for intellectual property lawyers explains, in part, the tortured negotiations within WIPO’s Intergovernmental Committee (IGC) since its creation in 2000 concerning the formulation of international conventions to protect traditional knowledge and cultural expressions
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Jessica C. Lai

This chapter examines modern case law to show that patent law continues to be interested in the tangible physical embodiment of inventions as well as the intangible idea and information behind them. Focusing on information-based technologies, it analyses the different ways that Europe, the US and Australasia have recently dealt with software, business methods, biotechnology and methods of medical treatment or diagnosis. The cross-jurisdictional overview underscores the importance of physical embodiment or physical effects when it comes to identifying an “invention” or “manner of new manufacture”, even with these more informational kinds of developments. The chapter highlights the inconsistency between the arguments that such technologies cannot constitute patentable subject matter because they are information-based and have no corresponding physical embodiment or observable physical effects, on the one hand, and the concept that patent law is about the intangible, on the other hand. Finally, the chapter questions patent law’s ties to the physical and whether it is desirable or not.
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Catherine E. Bell, Jessica C. Lai and Laura K. Skorodenski

Issues around defining respectful relationships, and within those relationships, reconciling laws and values concerning use and control of intangible indigenous heritage, arise in numerous museum contexts including: repatriation of material culture and associated information; co-management of information or cultural expressions that were (and often still are) considered sensitive or sacred by an Aboriginal community; data and products of research derived from Aboriginal peoples or conducted within their territories; and digital images and multimedia processes designed to enhance exhibits or access to information and participation of Aboriginal peoples in interpretation and control of collections and/or a broader public through use of contemporary technologies (for example, “virtual museums”). However, the particular nature of western intellectual property norms (largely dictated by international obligations) and the intangible/tangible divide in western property complicate the matter. This chapter will introduce the current legal and policy environment for addressing intangible heritage in museum contexts and how intellectual property law, in particular trade mark and copyright law, and its relationship with chattel property and contract law, offer opportunities and challenges for policy implementation respectful of indigenous laws and relationships.
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Edited by Jessica C. Lai and Antoinette Maget Dominicé

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Susan Corbett

For cultural heritage institutions (CHIs) the divide between material and immaterial is epitomised by the impact of digital technologies. Ideally, in line with theories of cultural property and the objectives of CHIs, CHIs should be able to make use of the enhanced opportunities provided by digital technologies for effective archiving and preservation and for increased public accessibility to their collections. In practice, however, due to large numbers of works in their collections that are copyright orphan works, CHIs are legally unable to do this because effective digital archiving requires that many copies be made of the physical item. The orphan works problem is particularly serious for “born-digital” works, such as computer software, whose material platforms are in danger of physical deterioration or commercial obsolescence before the copyright expires on the digital creative work. Permitted uses for archiving and preservation in copyright laws generally permit only a limited category of CHIs to make a single copy of a work for preservation purposes. Furthermore, the permitted uses strictly limit the availability of such a copy to the public. In essence, a value judgment has been made concerning the kinds of culture that are worthy of preservation and the institutions that may preserve them. For example, many institutions that tend to collect early “born digital” works are excluded from the permitted uses for archiving and preservation. A similar value judgment is made by CHIs themselves. Wary of the unsupportive legal environment for digitisation, some CHIs have adopted a policy of accepting works for their collections only if the copyright owner of the work signs a release permitting the CHI to digitise the work for its objectives. Arguing that such a policy creates a gate-keeping role which cannot be justified by cultural heritage theories, the chapter describes and critiques recent proposals and initiatives to address the orphan works problem more generally. It explains why they may not be practicable for budget-constrained CHIs and argues that solutions for orphan works that adhere rigorously to existing interpretations of the three-step test in the TRIPS agreement are never going to be suitable for CHIs. The chapter concludes with a reminder that a solution for “born-digital” orphan works is urgently needed.