Jessica C. Lai and Antoinette Maget Dominicé
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.
Dan L. Burk
During the past several years, an increasing number of scholars in a variety of fields have begun to re-emphasise the centrality of matter in their exploration of the world. This “new materialism” seems in part a reaction to the “discursive turn” during the latter years of the twentieth century which over-emphasised the cultural and semiotic dimensions in our understanding of the universe. Drawing on multiple theorists from Deleuze to Latour, scholars in disciplines across the humanities and social sciences have begun rejecting the physical dualisms that pervade even postmodern analyses, in order to develop a coherent understanding of observed phenomena. This approach has become particularly important in the area of “digital humanities”, where the digitisation of traditional expressive forms, or the development of new digital expressive forms, fundamentally implicates the connectivity of the virtual and the material. Copyright has long rested upon a series of dualistic doctrinal structures, including the fundamental dichotomy between the immaterial “work” and its fixation in a physical “copy.” This distinction, which was never entirely coherent even in traditional media, has broken down in the face of digital instantiations of creativity. The disconnection between legal doctrine and new media has now resulted in decades of incomprehensible decisions regarding the fixation of works in computer circuitry or the transmission of works across telecommunications media, particularly the internet. New materialism might offer copyright a path out of such unsustainable distinctions, by providing a viewpoint that traverses the artificial opposition of work and copy, recognising the primacy of matter in the development of creative expression.
Peter K. Yu
Since its inception, copyright law has been developed around the concept of “copy”. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms “copy” and “copies” have also been slowly re-conceptualised to respond to changing technology and to expand the scope of copyright protection. The first half of this chapter takes a historical perspective. It recounts the use of the concept of “copy” by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept: (1) the US Supreme Court case of White-Smith Music Publishing Co v Apollo Co and (2) the efforts in the mid-1990s to update the concept to meet the needs of the digital environment. The second half of this chapter is forward-looking. It examines four areas in which digital technology has posed major challenges to the concept of “copy”: reproduction, distribution, public performance and making available. The chapter concludes with six observations concerning the future development of copyright law in the digital environment.
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.
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.
The lending of books in electronic format by public libraries (digital lending) is gaining increasing importance both in the US and in the EU. Digital lending involves a number of acts that are subjected to the copyright holders’ exclusive rights, but – unlike in the case of the loan of physical books – a general consensus has emerged that no exception or limitation provided by copyright law may be applied to such activities. Thus, public libraries are currently offering to their patrons digital lending services based not on copyright limitations or exceptions, but on contractual arrangements among the parties concerned. Quite interestingly, despite the fact that they are aimed at regulating digital objects, many of such agreements provide solutions that intentionally mimic some of the “frictions” of the physical world (for example, distance between users and libraries, rivalry in consumption and deterioration of physical books and so on). Private-ordering models have proven to be satisfactory for copyright holders, who object to the introduction of a specific exception in copyright law and argue that “frictions” are needed for digital lending not to interfere with the market for the sale of e-books. On the other hand, however, many librarians consider such “frictions” to be nonsensical in the digital environment and point out that contract-based solutions for digital lending have led to unnecessarily high prices and, in some cases, a refusal to supply e-books to libraries. Although many limitations that are inherent in the use of physical books may seem absurd when applied to intangible copies, this chapter argues that incorporating a number of “frictions” into digital lending models may be a fair price to pay in exchange for its judicial (or, in a next future, legislative) recognition as an activity not subjected to the copyright holders’ exclusive rights.
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.