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1. Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional

Author:
Devlin Hartline
Publication Date:
10-2023
Content Type:
Policy Brief
Institution:
Hudson Institute
Abstract:
There has been a coordinated push over the past few years for states to enact legislation that would regulate the marketplace for licensing copyrighted ebooks to public libraries. The supporters of these bills argue that publishers offer ebook licenses that are too costly and restrictive, making it difficult for libraries to provide adequate access to their patrons. The gist of these complaints is that the market for digital ebooks should mirror the one for physical books, in which libraries pay the same price as everyone else and set their own rules for making loans. In essence, they want states to step in to remedy the perceived disparity with ebooks, which they blame on the allegedly abusive trade practices of publishers. But the reality is that publishers treat the two markets differently because they are fundamentally different, and there is nothing abusive about it. Moreover, publishers are merely doing what federal copyright law encourages them to do, and states are powerless to enact overbroad laws that would unconstitutionally punish them for doing so. While these concerns with the ebook licensing marketplace may be relatively new, the legal issues presented by the proposed state regulations to address them are not. Many states already have laws on copyright licensing in other contexts, and the extent of a state’s limited capacity to regulate in this area has been long-settled by the courts. Nevertheless, supporters of the new ebook licensing bills appear uninterested in the clear legal implications of their favored policy position. Shortly after the first such ebook law went into effect in Maryland, a federal district court struck it down as unconstitutional because it forced publishers to grant licenses. Other states have since moved forward with new ebook legislation based on the model text provided by Library Futures, a policy organization, that purports to solve the constitutional issue by merely dictating the terms of the licenses. However, Library Futures makes no real effort to defend the legality of its proposed legislation, and the truth is that it suffers the same constitutional defect. This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.
Topic:
Intellectual Property/Copyright, Domestic Policy, and Libraries
Political Geography:
North America and United States of America

2. Renew SBIR, Just Defend the Recipients against China

Author:
Charles Wessner and Sujai Shivakumar
Publication Date:
09-2022
Content Type:
Special Report
Institution:
Center for Strategic and International Studies
Abstract:
An April 2021 internal report by the Department of Defense (DOD) found that companies funded by the DOD’s Small Business Innovation Research (SBIR) program are being targeted by state-sponsored Chinese firms. Based on an examination of a sampling of SBIR award recipients, the Pentagon study concluded that “nearly all cases show that China, not the U.S., is the ultimate beneficiary of DoD and other U.S. government research investments, some of which are significant in size.” The study’s authors cautioned that the study sample was small and that their methodologies warrant review, but their findings are clearly a matter of concern for U.S. policymakers. This justified concern, however, seems to have morphed into quite a different approach. Citing the Pentagon study’s findings, Senator Rand Paul (R-KY), the senior Republican on the Senate Small Business and Entrepreneurship Committee, said in June 2022 that he would not support reauthorizing the SBIR program “without reforms to strengthen research security and stop abusive behavior by bad actors lining their pockets with taxpayer dollars.” In a move unrelated to national security, Senator Paul and several other lawmakers are also seeking limits on the number of awards that can be made to individual SBIR companies. (There is no empirical basis for such a restriction, nor could it be effectively implemented, but the proposed measure emerges anew as SBIR comes up for reauthorization.) The risks, however, are real. The Wall Street Journal reported in July that SBIR and the related Small Business Technology Transfer (STTR) program face “an overhaul or outright extinction” if Congress does not renew their budgets and funding runs out at the end of September. The DOD has already canceled a round of SBIR award solicitations “because of uncertainty over the program’s future.”
Topic:
Security, Defense Policy, Intellectual Property/Copyright, Business, and Rivalry
Political Geography:
China, Asia, North America, and United States of America

3. Unreliable Data Have Infected the Policy Debates Over Drug Patents

Author:
Adam Mossoff
Publication Date:
01-2022
Content Type:
Special Report
Institution:
Hudson Institute
Abstract:
The COVID-19 pandemic has vividly brought to the public’s attention the key role of medical innovation in saving lives and increasing the quality of daily life. The pandemic has also precipitated an international debate over the role of patents and other intellectual property rights in the discovery, manufacture, and distribution of drugs and vaccines to patients. Even before COVID-19, there has been an ongoing policy debate in Washington, D.C., over drug prices and patents with congressional hearings, proposed legislation, and antitrust enforcement actions. The pandemic has thus made apparent what reliable data have already shown: poorly crafted legislation or antitrust enforcement actions could have a tremendous negative impact on the innovation economy in general and on healthcare specifically by undermining the incentives that drive the billions invested annually in the research and development of life-saving drugs and other medical treatments. Congress and regulators should engage in evidence-based policymaking on these important issues, which have far-reaching implications for economic growth and quality of life. This policy memo identifies a serious concern about the data in these discussions.
Topic:
Science and Technology, Intellectual Property/Copyright, Innovation, Data, and Pharmaceuticals
Political Geography:
North America and United States of America

4. State Right-to-Repair Laws Need to Respect Federal Copyright Laws: A Constitutional, Legal, and Policy Assessment

Author:
Devlin Hartline and Adam Mossoff
Publication Date:
08-2022
Content Type:
Special Report
Institution:
Hudson Institute
Abstract:
Various states are considering laws that would mandate that producers of electronic devices provide consumers and repair shops with all the tools and know-how necessary to repair these devices. Proponents of these “right-to-repair laws” argue that consumers should be able to do whatever they want with their devices, whether a smartphone, a smart TV, or a gaming console. Right-to-repair advocates, however, ignore inconvenient facts. These state laws conflict with federal copyright law and are unconstitutional, and they are bad policy as well. First, as a simple legal matter, the proposed right-to-repair laws are unconstitutional. These laws mandate the disclosure and distribution of the code in the computer programs that make our devices work, such as operating systems, apps, and the “digital locks” that protect these computer programs from unauthorized access and copying. Federal copyright law protects all these computer programs and “preempts” any conflicting state laws under the Constitution. Second, state right-to-repair laws are wrong as a matter of policy. These laws upset the long-standing balance of rights implemented by federal copyright law. For over 200 years, Congress has enacted copyright laws to secure to authors and innovators the fruits of their creative labors. These laws have properly balanced the rights of creators, the rights of companies that produce and distribute their copyrighted works, and the rights of consumers and the public. As a result, federal copyright law has been a launching pad for the economic and cultural revolutions in books, movies, music, and now digital games and the internet of things. Everyone values their electronic devices because copyright law provides the legal foundation for today’s thriving digital marketplace. Consumers have access to an incredible selection of movies, music, games, and many other previously unimagined digital goods and services. The same is true for products that consumers have long used and that have become “smart” today, such as phones, TVs, automobiles, and other devices. Overbroad right-to-repair laws fail to acknowledge the legal rights and the underlying policies in federal copyright law that have made all this possible.
Topic:
Economics, Science and Technology, Intellectual Property/Copyright, and Innovation
Political Geography:
North America and United States of America

5. Patents, Pandemics, and the Private Sector: The Battle Over Public Health Norms During COVID-19

Author:
Vartika Neeraj
Publication Date:
05-2022
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
The COVID-19 pandemic has revealed the influence that private pharmaceutical companies and philanthropic foundations have on global health governance. Private actors have been able to maintain the norm of intellectual property rights, despite opposition from developing countries and growing opposition from powerful actors in developed countries. This article examines how private actors have wielded their material resources, expert authority, and discursive powers to overrule the wishes of governments. It concludes by exploring the public health consequences of their growing hold on international governance and offers some policy recommendations to mitigate distorted public health outcomes.
Topic:
International Relations, Intellectual Property/Copyright, International Development, Public Health, Vaccine, and COVID-19
Political Geography:
Global Focus

6. Securing Intellectual Property for Innovation and National Security

Author:
Sujai Shivakumar
Publication Date:
03-2022
Content Type:
Special Report
Institution:
Center for Strategic and International Studies
Abstract:
The United States is engaged in a global competition for innovation, with critical implications for the nation’s continued technological leadership, competitiveness, and security. To win, the United States will need to leverage its advantages at home, including its robust intellectual property (IP) rights system and the innovative zeal of its entrepreneurs. It should also look abroad—setting the pace for scientific cooperation with allies and strategic partners, as well as developing shared international technical standards through the contributions of experts from around the globe. Most pressingly, the United States should not adopt policies that weaken protection of U.S.-owned patents—which would both disincentivize innovation in the United States and support Chinese efforts to dominate critical standards and other advanced technologies. Yet a recent proposal of the Antitrust Division of the U.S. Department of Justice (DOJ) does just that. Launched as a consultation, its Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments is promoted as an effort to encourage good-faith licensing negotiations and to address the scope of remedies available to patent owners who have agreed to license their essential technologies on fair, reasonable, and non-discriminatory (F/RAND) terms. While this draft policy seems like an innocuous administrative change, it has the potential to do significant damage to the United States’ innovation engine and, by extension, to its national security.
Topic:
Security, Intellectual Property/Copyright, Innovation, and Strategic Competition
Political Geography:
North America and United States of America

7. Strategic Autonomy and Long-term Innovation Competitiveness: On the Importance of Intellectual Property Rights for the Production of High-Value Medicines in the EU

Author:
Matthias Bauer
Publication Date:
02-2022
Content Type:
Working Paper
Institution:
European Centre for International Political Economy (ECIPE)
Abstract:
Europe’s political leaders have in recent months called for “European industrial autonomy”. Notions of dependency, sovereignty and resilience are now also referred to in policy proposals targeted at pharmaceutical companies, with “strategic autonomy” being the ultimate political ambition. The precise meaning of strategic autonomy in biopharmaceutical industries remains yet to be defined, although the current Pharmaceutical Strategy only refers to “open strategic autonomy” in the context of dependencies and supply chains. This is regrettable, as it does not take into account the importance of strategic research and innovation autonomy, allowing the EU to ensure a high degree of autonomy in innovative medicines and therapies. Current policy conceptions fail to account for businesses’ long-term international innovation competitiveness and Europe’s capability to attract investments in pharmaceutical research and cutting-edge production technologies. Present conceptions of strategic autonomy of Europe’s pharmaceutical industry disregard the fact that the EU is substantially lagging the USA and, increasingly, other parts of the word in pharmaceutical innovation. Clinical trials’ pipeline data shows that, in the future, EU Member States will very likely become increasingly dependent on innovative medicines that are temporarily protected by patents and market exclusivity rights held by non-EU rights holders in many therapeutic areas. This gives some urgency to Commission President von der Leyen ensuring that the European industry remains an “innovator” and “world leader” (Mission Letter by Commission President von der Leyen to Commissioner Kyriakides). The European Commission’s current understanding of sovereignty in pharmaceutical industries centres around one core theme: the reduction of dependencies from pharmaceutical suppliers outside the EU. At the same time, in an effort to achieve equitable access to affordable medicines and to foster research into unmet medical needs, it considers changes in the incentive structure for research in medicines for children and rare diseases, and new obligations for companies to achieve a more equitable access to medicines across Member States. While these objectives are generally merited, the Commission has established a narrow perspective about a concept that is aiming for ambitious long-term achievements for Europe’s pharmaceutical industry. The industry’s future innovation competitiveness and the capacity to develop and produce high value-added medicines, which should be at the core of any concept of long-term autonomy, have largely been ignored.
Topic:
Intellectual Property/Copyright, European Union, Innovation, Medicine, Strategic Autonomy, and Economic Competition
Political Geography:
Europe

8. Difficult Debate on an Intellectual Property Protection Waiver to Fight COVID-19

Author:
Szymon Zaręba
Publication Date:
01-2022
Content Type:
Special Report
Institution:
The Polish Institute of International Affairs
Abstract:
The negotiations currently taking place at the WTO on the suspension of, among others, patent protection for vaccines and medicines against COVID-19, are at a standstill. This creates a risk of widening the rift between developing countries, which mostly support the idea, and some developed countries, which oppose it. It also makes it more difficult to increase the supply of patented items, particularly of vaccines, to an extent undermining other efforts by countries and international organisations to contain the pandemic. It is in the interest of Poland and the EU to overcome this impasse.
Topic:
Intellectual Property/Copyright, European Union, Vaccine, COVID-19, and WTO
Political Geography:
Europe, Poland, and Global Focus

9. US-ROK Cooperation Can Improve IP Protection in Southeast Asia by a Strategic Focus on Online Counterfeiting

Author:
Seth Hays
Publication Date:
01-2022
Content Type:
Special Report
Institution:
East-West Center
Abstract:
Mr. Seth Hays, Chief Representative, Asia-Pacific, at the International Trademark Association, explains that “both the US and ROK cooperate with ASEAN countries to improve IP protections, including on the issue of online counterfeits, most notably through their respective IP offices: the United States Patent and Trademark Office and the Korean Intellectual Property Office.”
Topic:
Bilateral Relations, Intellectual Property/Copyright, Cooperation, and Counterfeiting
Political Geography:
Asia, South Korea, North America, and United States of America

10. Proceed with Caution: Israeli Research Collaboration with China

Author:
Casey Babb
Publication Date:
09-2022
Content Type:
Working Paper
Institution:
Institute for National Security Studies (INSS)
Abstract:
For Israel, warming relations with China has, in large part, been driven by pragmatic and enticing economic prospects, with policies focused on seizing the economic opportunity. For Xi and the Chinese Communist Party, the rationale for strengthening relations with Israel has been equally pragmatic, if of a different nature. China has long sought access to Israel’s vaunted innovation and technology sector – one of the most advanced in the world. For these reasons, China-Israel relations have accelerated dramatically, in areas ranging from trade in goods, to investment deals, to diplomatic relations, and beyond. However, over the last few years, and partly in response to mounting US pressure on Israel to reconsider its relations with China, there has been a noticeable cooling of economic activity between the two countries. That being said, if Israel wants to solidify its relationship with the US while limiting the gateways China could conceivably use to access or acquire the country’s technology and innovation in certain dual-use domains, it must also ensure the country’s research, intellectual property, and expert knowledge in these areas is sufficiently protected.
Topic:
Security, Science and Technology, Bilateral Relations, Intellectual Property/Copyright, Innovation, and Strategic Interests
Political Geography:
China, Middle East, Israel, and Asia