tag:theconversation.com,2011:/us/topics/intellectual-property-rights-19120/articlesIntellectual property rights – The Conversation2024-03-05T16:10:04Ztag:theconversation.com,2011:article/2243022024-03-05T16:10:04Z2024-03-05T16:10:04ZKylian Mbappé has trademarked his iconic goal celebration – why a pose can form part of a player’s protected brand<figure><img src="https://images.theconversation.com/files/578872/original/file-20240229-30-v6whau.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5978%2C3982&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kylian Mbappé celebrating a goal with his trademark celebration. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/kylian-mbappe-celebrates-goal-after-scoring-2313795107">Victor Velter/Shutterstock</a></span></figcaption></figure><p>French football superstar Kylian Mbappé celebrates most of his goals by crossing his arms and tucking his hands underneath his armpits. It has become one of the most iconic goal celebrations in the world. </p>
<p>Mbappé, who is due to <a href="https://www.bbc.co.uk/sport/football/68346321">move</a> to Spanish giants Real Madrid at the end of this season, has already taken steps to <a href="https://en.as.com/soccer/kylian-mbappe-takes-steps-to-protect-name-and-brand-n/">register</a> a logo depicting his celebration as a trademark in several countries, as well as in the <a href="https://euipo.europa.eu/eSearch/#basic/1+1+1+1/100+100+100+100/017157355">European Union</a>. He has done the same for his <a href="https://www.tmdn.org/tmview/#/tmview/results?page=1&pageSize=30&criteria=C&basicSearch=Mbapp%C3%A9%20">surname</a>, <a href="https://branddb.wipo.int/en/quicksearch/brand/EM500000017157348?sort=score%20desc&start=0&rows=30&asStructure=%7B%22_id%22:%22af5d%22,%22boolean%22:%22AND%22,%22bricks%22:%5B%7B%22_id%22:%22af5e%22,%22key%22:%22applicant%22,%22value%22:%22Mbappe%22,%22strategy%22:%22Simple%22%7D%5D%7D&_=1708963392591&searchBy=applicant&fg=_void_&i=7">initials</a> and most famous <a href="https://branddb.wipo.int/en/quicksearch/brand/EM500000018326248?sort=score%20desc&start=0&rows=30&asStructure=%7B%22_id%22:%22af5d%22,%22boolean%22:%22AND%22,%22bricks%22:%5B%7B%22_id%22:%22af5e%22,%22key%22:%22applicant%22,%22value%22:%22Mbappe%22,%22strategy%22:%22Simple%22%7D%5D%7D&_=1708963392591&searchBy=applicant&fg=_void_&i=12">quotes</a>.</p>
<p>The black-and-white <a href="https://twitter.com/EU_IPO/status/1758470179686604921?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1758470179686604921%7Ctwgr%5E6632f5e3550abb68ddc2bb93edd8d49fad4dccf5%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fen.as.com%2Fsoccer%2Fkylian-mbappe-takes-steps-to-protect-name-and-brand-n%2F">logo</a> depicts a smiling Mbappé, celebrating in his usual fashion. </p>
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<p>Mbappé is not the only famous athlete who has looked to secure exclusive rights to their signature celebration. In 2022, Jamaican sprinter Usain Bolt applied to trademark a <a href="https://tsdr.uspto.gov/#caseNumber=97552042&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch">logo</a> in the US showing his victory celebration pose – an application with the US trademark office that is still pending.</p>
<p>The reason well-known athletes look to trademark these poses, and other aspects of their image, is obvious. They wish to turn them into successful brands that can be used commercially in a wide range of markets. </p>
<p>Among the products covered by Mbappé’s trademark registrations are clothes, textiles, footwear, toys, video games, umbrellas, bags, jewellery, perfumery, cosmetics and toothpastes. Any products or brands that wish to use his specific logo, name or quotes will need to pay Mbappé or be granted permission by Mbappé himself.</p>
<p>But how can even the celebratory pose of a sporting star become a brand? To answer this question, we need to look at the nature and function of trademarks. </p>
<h2>What trademark law says</h2>
<p>A trademark is used in the course of trade to distinguish the goods and services of a company from those of competitors. The key, though not only, function is to indicate the commercial origin of a product.</p>
<p>Logos representing a famous athlete’s iconic pose may satisfy this requirement. Such postures can create a stronger association between the player and the products to which their image is affixed, offering a more distinctive characterisation compared with a traditional portrait-style image. Such branding allows consumers to distinguish the products from the goods sold by others, effectively functioning as an indication of commercial source.</p>
<p>For example, if we see a <a href="https://www.amazon.co.uk/Saint-Germain-Collectable-Football-Collect-Favourite/dp/B0BJ2X2PK3/ref=sr_1_6?dib=eyJ2IjoiMSJ9.GG1cGhqjdxGCbbyM2RboACiXMD-QZ8LDKRRNro-Mv2y0n8N_T03Mk_-Hvf0edLUlOaLOrj22wTkcdWxmU5bhD4D7aCCpjqXRXyOwtxd6I2CU0qgeYAzPHkbqktN9fYgleTcbRsxLNPdBqd-JVKey-dv8mUplHkVz95fEFPTf18WIexAgZc5Y9o4q0bAA8tQxDSKNmJfpKXubWDSGyzHvWWrpcDev6PpsfQOuh66ZlnKog3FosnXDkj3ldaOX8cxRoBfVZPVVl3lGqkOQSN_uDs118QGAMCaBkl1aktkW4dc.L1hJr0klWKPAdOknhxw1gUFY6OSLcQW3EKBbYod9Xow&dib_tag=se&keywords=mbappe&qid=1709104613&sr=8-6">toy</a>, <a href="https://www.amazon.co.uk/World-Soft-Fleece-Blanket-Skin-friendly/dp/B0BL2SN57B/ref=sr_1_23_sspa?dib=eyJ2IjoiMSJ9.GG1cGhqjdxGCbbyM2RboACiXMD-QZ8LDKRRNro-Mv2y0n8N_T03Mk_-Hvf0edLUlOaLOrj22wTkcdWxmU5bhD4D7aCCpjqXRXyOwtxd6I2CU0qgeYAzPHkbqktN9fYgleTcbRsxLNPdBqd-JVKey-dv8mUplHkVz95fEFPTf18WIexAgZc5Y9o4q0bAA8tQxDSKNmJfpKXubWDSGyzHvWWrpcDev6PpsfQOuh66ZlnKog3FosnXDkj3ldaOX8cxRoBfVZPVVl3lGqkOQSN_uDs118QGAMCaBkl1aktkW4dc.L1hJr0klWKPAdOknhxw1gUFY6OSLcQW3EKBbYod9Xow&dib_tag=se&keywords=mbappe&qid=1709104613&sr=8-23-spons&sp_csd=d2lkZ2V0TmFtZT1zcF9tdGY&th=1">blanket</a>, <a href="https://www.amazon.co.uk/Mbapp%C3%A9-Football-Birthday-Card-Anniversary/dp/B0CJYL8BNZ/ref=sr_1_27?dib=eyJ2IjoiMSJ9.GG1cGhqjdxGCbbyM2RboACiXMD-QZ8LDKRRNro-Mv2y0n8N_T03Mk_-Hvf0edLUlOaLOrj22wTkcdWxmU5bhD4D7aCCpjqXRXyOwtxd6I2CU0qgeYAzPHkbqktN9fYgleTcbRsxLNPdBqd-JVKey-dv8mUplHkVz95fEFPTf18WIexAgZc5Y9o4q0bAA8tQxDSKNmJfpKXubWDSGyzHvWWrpcDev6PpsfQOuh66ZlnKog3FosnXDkj3ldaOX8cxRoBfVZPVVl3lGqkOQSN_uDs118QGAMCaBkl1aktkW4dc.L1hJr0klWKPAdOknhxw1gUFY6OSLcQW3EKBbYod9Xow&dib_tag=se&keywords=mbappe&qid=1709104613&sr=8-27">birthday card</a> or <a href="https://www.amazon.co.uk/Decorative-Painting-Posters-Picture-08x12inch/dp/B0CJS1HH6K/ref=sr_1_104?dib=eyJ2IjoiMSJ9.J38YBIPs5sgfYm5fJl_5IXO57eQa-d1JvSIEpEQ_SoKyEQxQaQkmRvfXZtvLWkSFqJOeapgyHqDz7WhgEsenLzr1hvHZWzTK3SU6b3wzYntbmHEg0AVDj5j0B3eCesn84wHee9kGkEFYprsqf9elUDHpV4cJStV6pfz4utYwmh8MTRQm9hscQLi8QO0f7bhrkTqt1Rq53B4o7-mbXDTNM1Z2LSUMt7E0fFZF2jiIQuWh3kjkl98DpHHMeBhqG58tTD8WiXky4eBd6td2G20VVI1VHUiDBXMHgHEwZYhGxnw.uZd71RzvHyyd1WMKQ-2E4P7RVJ0GeAdcG84Jib86ILw&dib_tag=se&keywords=mbappe&qid=1709104845&sr=8-104&th=1">poster</a> in a shop that features Mbappé’s trademarked celebration logo (or any other trademarks incorporating his image, name and initials), we will probably think those products are marketed by Mbappé himself. </p>
<p>So, if a business sells such branded goods without his authorisation, it will probably be a trademark infringement. This is because consumers would buy the product in the erroneous belief that they are official Mbappé merchandise.</p>
<p>Mbappé is a sports icon with hundreds of millions of fans and followers, including 112 million on <a href="https://www.instagram.com/k.mbappe/">Instagram</a>. Thus, his trademarks may soon become notorious to a large range of consumers, especially if he ramps up the manufacture, sale and promotion of a variety of products bearing his brand. Owners of famous brands have a higher chance of prevailing in trademark infringement cases.</p>
<p>It would then be enough for Mbappé to show that a business which has sold a replica product incorporating his pose wants to take unfair advantage of the reputation of such a trademark. The same outcome would materialise if he could show that such a product is detrimental to his brand – for example, if the replica product bearing his brand is of poor quality.</p>
<p>Other celebrities have done the same. In 2016, Australian popstar Kylie Minogue <a href="https://theconversation.com/kylie-vs-kylie-who-will-win-the-legal-battle-between-minogue-and-jenner-55682">started a battle</a> with TV personality Kylie Jenner over the trademarking of their shared first name. Minogue claimed that her Kylie brand would be tarnished if Jenner were allowed to register an identical or similar trademark, describing her as a “secondary reality TV personality”.</p>
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Read more:
<a href="https://theconversation.com/kylie-vs-kylie-who-will-win-the-legal-battle-between-minogue-and-jenner-55682">Kylie vs Kylie – who will win the legal battle between Minogue and Jenner?</a>
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<img alt="Kylie Minogue posing for a photo in front of a large crowd of cameramen." src="https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578873/original/file-20240229-28-zfu1pd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Kylie Minogue complained when Kylie Jenner filed a trademark application for her first name.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cannes-france-may-27-kylie-minogue-200809382">Andrea Raffin/Shutterstock</a></span>
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<h2>Protecting free speech</h2>
<p>But there are also downsides to a trademark protection strategy based on the registration of every aspect of an athlete’s image and personality. It may limit the freedom of the public – and especially sports fans – to celebrate or criticise their icons.</p>
<p>Take, for instance, a website dedicated to Mbappé that serves as a forum where fans can exchange opinions about the player’s sporting performance and marketing activities. And let’s imagine that the website’s homepage features Mbappé’s trademarked celebration pose, his name or a famous quote prominently, and hosts fan commentaries that are highly critical of any of his activities.</p>
<p>Mbappé could, in theory, enforce his trademark rights to stop what he may consider a use of his trademark that tarnishes or even takes advantage of its reputation. This would be even more applicable if the website hosts advertising banners and sponsored sections, as Mbappé could claim that his brands are being somewhat exploited commercially.</p>
<p>But such an enforcement would unduly restrict the right of football fans to free speech. It would also unjustifiably allow trademark owners to stop their brands being used for purposes that are not strictly commercial. We should all be entitled to celebrate or criticise our favourite players by posting commentaries about their behaviour on and off the pitch, and including their iconic pose.</p>
<p>Mbappé’s trademark protection strategy is certainly legitimate and in line with the <a href="https://www.forbes.com/sites/forbesbusinesscouncil/2022/07/13/the-power-of-celebrity-brands/?sh=739fb0a4d30d">current branding trends</a> of most celebrities. But the French football star would be better advised not to enforce his trademarks against whoever simply expresses opinions and ideas about him without a strict economic purpose. </p>
<p>The risk is not only to lose the legal case, but also alienate fans who may end up disappointed about their idol’s willingness to be overly litigious.</p><img src="https://counter.theconversation.com/content/224302/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Kylian Mbappé has secured a commercial trademark for his celebration pose, and is looking to protect his name and quotes too.Enrico Bonadio, Reader in Intellectual Property Law, City, University of LondonAndrea Zappalaglio, Lecturer in Intellectual Property Law, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217172024-01-25T13:18:54Z2024-01-25T13:18:54ZCould a court really order the destruction of ChatGPT? The New York Times thinks so, and it may be right<figure><img src="https://images.theconversation.com/files/571252/original/file-20240124-29-abie1d.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4985%2C3196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Old media, meet new.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-the-new-york-times-logo-is-seen-news-photo/1894336797">Idrees Abbas/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>On Dec. 27, 2023, The New York Times <a href="https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf">filed a lawsuit</a> against OpenAI alleging that the company committed willful copyright infringement through its generative AI tool ChatGPT. The Times claimed both that ChatGPT was unlawfully trained on vast amounts of text from its articles and that ChatGPT’s output contained language directly taken from its articles.</p>
<p>To remedy this, the Times asked for more than just money: It asked a federal court to order the “destruction” of ChatGPT.</p>
<p>If granted, this request would force OpenAI to delete its trained large language models, such as GPT-4, as well as its training data, which would prevent the company from rebuilding its technology. </p>
<p>This prospect is alarming to the <a href="https://www.theverge.com/2023/11/6/23948386/chatgpt-active-user-count-openai-developer-conference">100 million people</a> who use ChatGPT every week. And it raises two questions that interest me as a <a href="https://law.indiana.edu/about/people/details/marinotti-jo%C3%A3o.html">law professor</a>. First, can a federal court actually order the destruction of ChatGPT? And second, if it can, will it?</p>
<h2>Destruction in the court</h2>
<p>The answer to the first question is yes. Under <a href="https://www.law.cornell.edu/uscode/text/17/503">copyright law</a>, courts do have the power to issue destruction orders. </p>
<p>To understand why, consider vinyl records. Their <a href="https://www.theverge.com/2023/3/10/23633605/vinyl-records-surpasses-cd-music-sales-us-riaa">resurging popularity</a> has attracted <a href="https://fortune.com/2023/04/06/punk-rock-fan-uncovers-six-year-scam-that-sold-1-6-million-worth-of-counterfeit-vinyl-records-to-collectors/">counterfeiters who sell pirated records</a>. </p>
<p>If a record label sues a counterfeiter for copyright infringement and wins, what happens to the counterfeiter’s inventory? What happens to the master and stamper disks used to mass-produce the counterfeits, and the machinery used to create those disks in the first place?</p>
<p>To address these questions, copyright law grants courts the power to destroy infringing goods and the equipment used to create them. From the law’s perspective, there’s no legal use for a pirated vinyl record. There’s also no legitimate reason for a counterfeiter to keep a pirated master disk. Letting them keep these items would only enable more lawbreaking.</p>
<p>So in some cases, destruction is the only logical legal solution. And if a court decides ChatGPT is like an infringing good or pirating equipment, it could order that it be destroyed. In its complaint, the Times offered arguments that ChatGPT fits both analogies.</p>
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<figcaption><span class="caption">NBC News reports on The New York Times’ lawsuit.</span></figcaption>
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<p>Copyright law has never been used to destroy AI models, but OpenAI shouldn’t take solace in this fact. The law has been increasingly open to the idea of targeting AI. </p>
<p>Consider the Federal Trade Commission’s recent use of <a href="https://www.jdsupra.com/legalnews/ftc-coppa-settlement-requires-deletion-1217192">algorithmic disgorgement</a> as an example. The FTC has forced companies <a href="https://www.dwt.com/-/media/files/blogs/privacy-and-security-blog/2022/03/weight-watchers-kurbo-stipulated-order.pdf">such as WeightWatchers</a> to delete not only unlawfully collected data but also the algorithms and AI models trained on such data. </p>
<h2>Why ChatGPT will likely live another day</h2>
<p>It seems to be only a matter of time before copyright law is used to order the destruction of AI models and datasets. But I don’t think that’s going to happen in this case. Instead, I see three more likely outcomes.</p>
<p>The first and most straightforward is that the two parties could settle. In the case of a successful settlement, which <a href="https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use">may be likely</a>, the lawsuit would be dismissed and no destruction would be ordered.</p>
<p>The second is that the court might side with OpenAI, agreeing that ChatGPT is protected by the copyright doctrine of “<a href="https://www.copyright.gov/fair-use/#:%7E:text=Fair%20use%20is%20a%20legal,protected%20works%20in%20certain%20circumstances.">fair use</a>.” If OpenAI can argue that ChatGPT is transformative and that its service does not provide a substitute for The New York Times’ content, it just might win. </p>
<p>The third possibility is that OpenAI loses but the law saves ChatGPT anyway. Courts can order destruction only if two requirements are met: First, destruction must not prevent lawful activities, and second, it must be “<a href="https://casetext.com/case/hounddog-prods-llc-v-empire-film-grp-inc">the only remedy</a>” that could prevent infringement. </p>
<p>That means OpenAI could save ChatGPT by proving either that ChatGPT has legitimate, noninfringing uses or that destroying it isn’t necessary to prevent further copyright violations. </p>
<p>Both outcomes seem possible, but for the sake of argument, imagine that the first requirement for destruction is met. The court could conclude that, because of the articles in ChatGPT’s training data, all uses infringe on the Times’ copyrights – an argument put forth in <a href="https://copyrightalliance.org/current-ai-copyright-cases-part-1/">various other lawsuits</a> against generative AI companies. </p>
<p>In this scenario, the court would issue an injunction ordering OpenAI to stop infringing on copyrights. Would OpenAI violate this order? Probably not. A single counterfeiter in a shady warehouse might try to get away with that, but that’s less likely with a <a href="https://www.reuters.com/technology/openai-talks-raise-new-funding-100-bln-valuation-bloomberg-news-2023-12-22/">US$100 billion company</a>.</p>
<p>Instead, it might try to retrain its AI models without using articles from the Times, or it might develop other software guardrails to prevent further problems. With these possibilities in mind, OpenAI would likely succeed on the second requirement, and the court wouldn’t order the destruction of ChatGPT. </p>
<p>Given all of these hurdles, I think it’s extremely unlikely that any court would order OpenAI to destroy ChatGPT and its training data. But developers should know that courts do have the power to destroy unlawful AI, and they seem increasingly willing to use it.</p><img src="https://counter.theconversation.com/content/221717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>João Marinotti does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It may seem extreme, but there’s a reason the law allows it.João Marinotti, Associate Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2184992023-12-03T13:27:47Z2023-12-03T13:27:47ZCanada’s Fall Economic Statement signals the ‘right to repair’ your tech devices<figure><img src="https://images.theconversation.com/files/562810/original/file-20231130-19-4lzp9h.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3000%2C1998&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Copyright and intellectual property laws protect manufacturers, but can also affect consumers' right to repair.</span> <span class="attribution"><span class="source">(Blaz Erzetic/Unsplash)</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canadas-fall-economic-statement-signals-the-right-to-repair-your-tech-devices" width="100%" height="400"></iframe>
<p>On Nov. 23, the Government of Canada released the <a href="https://www.canada.ca/en/department-finance/news/2023/11/government-of-canada-releases-2023-fall-economic-statement.html">2023 Fall Economic Statement</a>. In a bold move toward empowering consumers, reducing costs and promoting sustainability, the Canadian government has <a href="https://www.budget.canada.ca/fes-eea/2023/report-rapport/chap2-en.html">reiterated its commitment to the ‘right to repair</a>.’ </p>
<p>The right to repair is a public interest movement seeking greater parts, tools, information and software necessary to repair and maintain the devices and technologies that surround us. Advocates for the right to repair point to the need to reduce <a href="https://www.sciencedirect.com/topics/computer-science/planned-obsolescence">planned obsolescence</a>, increase consumer choice and market competition and offer greater social understanding and technological literacy.</p>
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<figcaption><span class="caption">The right to repair movement advocates for consumers to be able to repair their goods.</span></figcaption>
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<p>In setting sights on amending the Competition Act, the Fall Economic Statement signals a decisive step by the federal government to prevent manufacturers from refusing to provide the “means of repair of devices and products in an anti-competitive manner.” </p>
<p>This is welcome news for repair advocates, but making sure that manufacturers are compliant will pose some challenges.</p>
<h2>Intellectual property rights</h2>
<p>Bill C-244 <a href="https://www.parl.ca/legisinfo/en/bill/44-1/c-244">amends the Copyright Act to allow access to device software for repair-related purposes</a>. With Bill C-244 receiving unanimous support in the House of Commons and now before the Senate, the focus on competition law reforms signals that the government has taken a broad view of their legislative strategy for the right to repair. </p>
<p>But, <a href="https://www.law360.ca/articles/28188/one-person-s-trash-interaction-between-intellectual-property-right-to-repair">as many have observed</a>, the approaches taken by manufacturers to refuse access to the “means of repair” are often enabled by a number of different intellectual property (IP) rights. </p>
<p>Copyright in software is just one of many IP rights that can be leveraged to keep a tight leash on repair. Addressing these issues at the market competition level will require a more comprehensive view of the IP dynamics at play when crafting new policy.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a screen showing code" src="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562862/original/file-20231130-29-ryzcsg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bill C-244 allows access to device software for repair-related purposes.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Competition and intellectual property</h2>
<p>Manufacturers attempting to restrict access to repair often rely on a combination of copyright, software protection, patent law, industrial design, trademark law, contractual terms of use and warranties to maintain a tight grip on repair processes. A key challenge in recalibrating Canada’s competition rules will be in navigating this often overlapping and complex network of rights.</p>
<p>Any renewed competition policy to promote repair will need to distinguish between the legitimate application of IP rights, and the laws used to prevent independent repair.</p>
<h2>Applicable laws</h2>
<p>The intersection between IP rights and repair is quite broad. Patent rights can be asserted to safeguard the technical aspects of manufacturers’ devices and products. This includes intricate components and proprietary technologies that are integral to the functionality of devices. In some cases, the line between repairing or “remaking” a product or device with patented components is not entirely clear.</p>
<p>Industrial designs are lesser-known IP rights that can also impact repair. These rights focus on <a href="https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/industrial-designs/industrial-designs-guide">the esthetic elements of products or their components</a>. Manufacturers often use distinctive designs as a means of product differentiation. </p>
<p>In these types of situations, the lines between form and function become blurry, as the distinctive design of parts or components may be the only one that will fit or work properly for repair purposes. </p>
<p>This is an issue that has been <a href="https://www.dyoung.com/en/knowledgebank/articles/acacia-designs-repairs">well discussed in the European Union</a>, and Canadian policymakers should take note. Of particular concern is the ability for industrial design rights to prevent others from manufacturing or selling replacement parts.</p>
<p>Trademark law, which safeguards brand identity and prevents consumer confusion in the marketplace, is also used by manufacturers to control repair avenues. In some cases, refurbished or replacement parts will bear small trademarks of the original manufacturer.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a person's hand revealing the inside of a mobile phone" src="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562863/original/file-20231130-27-7pi5n8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Intellectual property rights can be applied to industrial design.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p><a href="https://repair.eu/news/apple-crushes-one-man-repair-shop/">As a small iPhone repair shop owner in Norway learned</a>, these often microscopic trademarks can offer enormous downstream control by original manufacturers. </p>
<p>Even if these logos are not visible after the part has been installed into the device, their existence on the part itself may be enough to <a href="https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/corporate-information/intellectual-property-blog/how-stop-counterfeit-products-border">empower the Canada Border Services Agency</a> to deem them “counterfeit goods,” requiring their destruction or issuance of fines. </p>
<p>A challenge for Canada’s competition authorities lies in crafting amendments that prevent abusive uses of trademark rights without diluting their essential protection or the legitimate need to combat counterfeit goods.</p>
<h2>Amending the Competition Act</h2>
<p>The government is chartering new waters in addressing the right to repair as a market competition issue.</p>
<p>The challenge for policymakers will be in preventing abusive practices while not compromising the exclusive rights guaranteed by various IP statutes. It would certainly not be the first time that policymakers have put their mind to these issues, however. </p>
<p>Canada’s <a href="https://ised-isde.canada.ca/site/competition-bureau-canada/en/how-we-foster-competition/education-and-outreach/intellectual-property-enforcement-guidelines#sec07">Intellectual Property Law Enforcement Guidelines</a> acknowledge the intricate relationship between intellectual property and competition law. Any approach to recalibrate Canada’s competition rules to embrace repair will need to revisit (and likely significantly add to) these guidelines. </p>
<p>Any proposed amendments to the Competition Act must not only uphold national guarantees, but reconcile with these and other international obligations. Canada’s commitments under various international agreements, including the <a href="https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/ip-pi/trips-adpic.aspx?lang=eng">Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)</a>, require that Canada guarantee a certain level of protection for various forms of IP rights. </p>
<p>Even beyond IP rights, Canada <a href="https://www.theglobeandmail.com/business/commentary/article-right-to-repair-movement-digital-trade/">has agreed to safeguard the secrecy of source code and diagnostic software</a> as part of the Canada-United States-Mexico Agreement (CUSMA). Unless revisited and renegotiated, this obligation alone could limit the government’s wiggle room to create new competition remedies addressing repair, straining the ability of the Competition Bureau to intervene in anti-competitive situations.</p>
<p>As challenging as it may be to wade into these waters, the government’s commitment is welcome news. The intricate dance between competition law and guaranteeing protection for various intellectual property rights signals an opportunity to create a more level playing field for independent repair businesses across the country.</p>
<p>The Fall Economic Statement signifies a recognition and willingness to see the right to repair as a broad-based policy initiative, and this gives reason for much hope and optimism.</p><img src="https://counter.theconversation.com/content/218499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony D Rosborough is the recipient of a Doctoral Award from the Social Sciences and Humanities Research Council of Canada (SSHRC), and volunteers with the Canadian Repair Coalition.</span></em></p>In the Fall Economic Statement, the Canadian government signalled its commitment to the right to repair.Anthony D Rosborough, Assistant Professor of Law & Computer Science, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2155382023-10-19T23:59:48Z2023-10-19T23:59:48ZDressing up for Halloween? You could be in breach of copyright law, but it’s unlikely you’ll be sued<figure><img src="https://images.theconversation.com/files/554433/original/file-20231018-19-u84nxj.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C994%2C577&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-halloween-group-children-suits-pumpkins-1175523997">Shutterstock</a></span></figcaption></figure><p>Love it or loathe it, it’s almost Halloween.</p>
<p>While it’s traditionally seen as an American holiday, <a href="https://www.roymorgan.com/findings/ara-roy-morgan-media-release-halloween-2023">more Australians are preparing to celebrate it</a> this year.</p>
<p>Many jump at the chance to dress up as their favourite fictional character, but have you ever stopped to wonder whether you could be breaking copyright law?</p>
<p>Here’s what we know about costumes, cosplay and copyright.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/books-3-has-revealed-thousands-of-pirated-australian-books-in-the-age-of-ai-is-copyright-law-still-fit-for-purpose-214637">Books 3 has revealed thousands of pirated Australian books. In the age of AI, is copyright law still fit for purpose?</a>
</strong>
</em>
</p>
<hr>
<h2>What is copyright?</h2>
<p><a href="https://www.infrastructure.gov.au/sites/default/files/short_guide_to_copyright.pdf">Copyright is a legal right</a> that grants the creator of an original creative work exclusive rights over the way their work is used or distributed. </p>
<p>The idea of the author holding exclusive rights is to encourage the creation of new works. </p>
<p>Importantly, copyright does not exist in the <em>idea</em> of a character, but in <a href="https://www.theipmatters.com/post/the-concept-of-idea-expression-dichotomy-under-copyright-law#:%7E:text=Idea%2DExpression%20Dichotomy%20means%20that,expressions%20of%20these%20ideas%20are.">its <em>expression</em> in tangible form</a>. </p>
<p>For example, copyright cannot exist in the general idea of a young wizard who attends a magical school and embarks on adventures. </p>
<p>However, copyright can exist in the expression of the specific details, characters and descriptions J.K. Rowling used to bring Harry Potter to life in her books. </p>
<p>Whether copyright exists depends on two things: the expression of the character, and the type of work that has been created.</p>
<p>Under the <a href="https://www.legislation.gov.au/Details/C2022C00192">Copyright Act 1968</a>, copyright applies to various categories of original authored works, provided they meet specific criteria. These works include:</p>
<ul>
<li><p>a literary, artistic, or dramatic work</p></li>
<li><p>a sound recording</p></li>
<li><p>a film.</p></li>
</ul>
<p>Taking Harry Potter films as an example, Warner Bros. could assert copyright in several aspects of their films as separate works. </p>
<p>These could be the original written screenplay as a literary work, the musical score as a musical work, the recorded music as sound recordings and the films as cinematographic works.</p>
<p>The initial design sketches and photographs of costumes in the Harry Potter films could qualify as artistic works. </p>
<p>In 2011, a <a href="https://www.bailii.org/uk/cases/UKSC/2011/39.html">UK court case</a> considered whether a Star Wars stormtrooper helmet was a sculpture (artistic work) for the purposes of copyright protection. </p>
<p>The case involved one of the craftsmen who helped design the stormtrooper costume. He used his original tools to make stormtrooper helmets and sold them to the general public. Lucasfilm alleged infringement on the basis the helmets were copyrightable sculptures. </p>
<p>However, the UK court rejected this argument. It found that while the helmets had practical functionality, they didn’t have an artistic purpose and therefore were not covered by copyright.</p>
<p>While this issue has not been tested under Australian law, the ruling might be similar.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of small children in Halloween costumes run towards the camera smiling" src="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/little-kids-halloween-party-1173596917">Shutterstock</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-was-halloween-invented-once-a-celtic-pagan-tradition-the-holiday-has-evolved-to-let-kids-and-adults-try-on-new-identities-192379">How was Halloween invented? Once a Celtic pagan tradition, the holiday has evolved to let kids and adults try on new identities</a>
</strong>
</em>
</p>
<hr>
<h2>How can copyright be infringed?</h2>
<p>Infringement is found when a person uses either the entire or a “substantial part” of an original copyrighted work.</p>
<p>The Australian courts have found the idea of a “substantial part” to be a significant, important or distinctive part of the copyrighted material. </p>
<p>That part doesn’t have to be big. <a href="https://austlii.community/foswiki/NTLawHbk/Infringementsubstantialpartrequirement">Even a tiny part</a> can infringe copyright if it’s distinctive enough.</p>
<h2>How does this all apply to costumes?</h2>
<p>Along with Halloween dress-ups, <a href="https://theconversation.com/explainer-what-is-cosplay-20759">cosplay</a> – the hobby of replicating and embodying a wide range of characters through detailed costumes – is another increasingly popular activity.</p>
<p>For cosplayers if the expression of the character is distinctly reproduced, then this might be deemed a “substantial part” of an original work and could therefore be a breach of copyright.</p>
<p>Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet. </p>
<p>However, the greater the differences between the costume and the original work, the less likely a finding of infringement. </p>
<p>This means relatively small differences in costume elements and features could make a big difference to the outcome.</p>
<h2>Costumes as promotional material</h2>
<p>But even if a costume is technically infringing copyright, are you really going to get sued? Is J.K. Rowling really going to sue a fan for making a Harry Potter costume at Halloween? </p>
<p>This is highly unlikely, particularly when there is no commercial activity involved.</p>
<p>Many authors and artists are proud of the fact their characters are so celebrated through costumes, cosplay and fandom. Homage to creative works plays a vital part of modern pop culture. </p>
<p>For example, as seen with the Game of Thrones, <a href="https://theconversation.com/after-8-years-of-memes-videos-and-role-playing-what-now-for-game-of-thrones-multimedia-fans-117254">fandom</a> can have a significant influence on the success and longevity of the work. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dolls-and-dollars-why-small-businesses-should-be-wary-of-cashing-in-on-barbiemania-with-their-branding-210875">Dolls and dollars: why small businesses should be wary of cashing in on Barbiemania with their branding</a>
</strong>
</em>
</p>
<hr>
<p>And ultimately, this can help to promote sales of the original work.</p>
<p>If, however, a person engages in commercial activity, they are more likely to be sued for infringement. </p>
<p>In <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/944.html">2016, an Australian Federal Court</a> case addressed copyright infringement of J.R.R. Tolkien’s “one ring” inscription from Lord of the Rings. Over eight years, the respondent’s jewellery websites sold about 1,300 rings with this inscription. </p>
<p>The court ruled the inscription was an artistic work and was therefore protected by copyright. Through the respondent’s commercial activity, they had reproduced and sold a substantial part of the inscription, without licence or consent and were found liable.</p>
<p>So if you create your favourite character’s costume this Halloween, even if you are technically infringing copyright, the chances of you being sued are low. </p>
<p>If, however, you engage in commercial activities, your chances of being sued are much higher.</p><img src="https://counter.theconversation.com/content/215538/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wellett Potter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Traditionally seen as an American holiday, more Australians are preparing to celebrate Halloween. Here’s what we know about costumes, cosplay and copyright, just in time for the spooky season.Wellett Potter, Lecturer in Law, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2064962023-06-04T20:04:20Z2023-06-04T20:04:20ZHow NZ’s own law helped Australia win the Manuka Honey trademark war<figure><img src="https://images.theconversation.com/files/529475/original/file-20230531-25431-xt3dun.jpg?ixlib=rb-1.1.0&rect=0%2C26%2C3489%2C2300&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>The recent decision in “one of the most complex and long running” <a href="http://www.nzlii.org/nz/cases/NZIPOTM/2023/19.html">trademark cases</a> in New Zealand was a loss for the country’s mānuka honey producers. But it also served to highlight just how ill-equipped our laws are for protecting Māori taonga (treasures) and mātauranga Māori (traditional knowledge).</p>
<p>The case, decided by the Intellectual Property Office of New Zealand (IPONZ), centred on whether the term “Manuka Honey” could be registered by the Mānuka Honey Appellation Society as a certification trademark in Aotearoa New Zealand. The society represents a group of New Zealand producers.</p>
<p>Registration would have allowed the society to exclusively use the Manuka Honey name (without the tohutō or macron over the “a”) when marketing honey made from the nectar of the mānuka (<em>Leptospermum scoparium</em>) plant. Honey producers in Australia opposed any such move. </p>
<p><a href="https://www.iponz.govt.nz/about-ip/trade-marks/practice-guidelines/current/certification-marks/">Certification marks</a> are a type of trademark where the owner independently certifies that their goods possess certain defined characteristics. The marks enable owners to commercialise products that are sourced from specific geographical areas or produced using particular methods. </p>
<p>If it had been successful, the society would have only allowed New Zealand-based producers to use the trademark on their products. </p>
<h2>The question of distinctiveness</h2>
<p>The mānuka case dates back to 2015, when New Zealand honey producers lodged an application for the Manuka Honey trademark. The <a href="https://manukaaustralia.org.au/">Australian Manuka Honey Association</a> opposed the application, arguing the proposed trademark was merely descriptive and not distinctive. </p>
<p>In other words, the Australian producers claimed the trademark simply described honey sourced from the nectar of the mānuka tree. This is important, because one of the key requirements to receive a certification trademark in New Zealand is that the mark must distinguish the goods of one producer from those of another. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/manuka-honey-who-really-owns-the-name-and-the-knowledge-105508">Mānuka honey: who really owns the name and the knowledge</a>
</strong>
</em>
</p>
<hr>
<p>The <a href="https://www.iponz.govt.nz/about-ip/trade-marks/practice-guidelines/current/absolute-grounds-%20distinctiveness/#jumpto-4__002e-section-18__00281__0029__0028c__00293">distinctiveness test</a> involves assessing whether the “average consumer” would regard the certification mark as a normal way of designating characteristics of the goods in question. </p>
<p>IPONZ concluded that the average consumer would not find the proposed Manuka Honey mark to be distinctive. This was largely because this term was already used extensively by both New Zealand and Australian honey producers before the application was lodged. </p>
<h2>Mānuka as taonga</h2>
<p>Although mānuka is a kupu (word) sourced from te reo Māori, the <em>Leptospermum</em> plant is also native to Australia, where it is commonly known as “tea tree”. <a href="https://www.stuff.co.nz/waikato-times/news/8764343/Medicinal-manuka-not-all-equal-research">Some scientists believe</a> that <em>Leptospermum scoparium</em> likely originated in Australia and travelled to New Zealand before the last ice age, probably with the assistance of birds. </p>
<p>Today, over 80 different <em>Leptospermum</em> species <a href="https://www.anbg.gov.au/leptospermum/">grow in Australia</a>. All of these can provide a honey source. </p>
<p>Although Australian <em>Leptospermum scoparium</em> is the same species as mānuka in Aotearoa, there are differences between the plants, the honey produced from them and their cultural significance. </p>
<p>Mānuka, as both kupu and plant, is regarded as a taonga by Māori. Significant mātauranga Māori exists in relation to mānuka. Māori have long used the plant for <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3209589">various purposes</a>, including in medical treatments, the fabrication of objects such as waka, and for cosmetic reasons. </p>
<p>Much of the knowledge about the unique characteristics of mānuka is directly <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3209589">derived from mātauranga Māori</a>. However, Māori rarely, if ever, benefit from the commercialisation of mānuka honey, especially by overseas businesses. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1662006147384000513"}"></div></p>
<h2>Limitations of New Zealand IP law</h2>
<p>The mānuka case reveals some of the gaps in the intellectual property system in Aotearoa, especially in relation to the protection of taonga plants and mātauranga Māori. </p>
<p>Assistant Commissioner of Trade Marks Natasha Alley said she “<a href="http://www.nzlii.org/nz/cases/NZIPOTM/2023/19.html">carefully considered</a>” the taonga status of mānuka, in addition to tikanga Māori and Te Tiriti o Waitangi/Treaty of Waitangi in deciding the case. Alley also acknowledged the “critical importance” of Māori intellectual property rights. </p>
<p>But she concluded that these factors did not outweigh the “clear provisions” of the <a href="https://www.legislation.govt.nz/act/public/2002/0049/latest/DLM164240.html">Trade Marks Act</a> which does not require IPONZ to consider the taonga status of kupu or plants, or the existence of mātauranga Māori, when evaluating certification mark applications. </p>
<h2>Protection of taonga and mātauranga Māori</h2>
<p>The need to provide legal protection for taonga and mātauranga Māori – including through the intellectual property system – has been long discussed in Aotearoa. The 1991 <a href="https://www.wai262.nz/">Wai 262 claim</a> asked the Waitangi Tribunal to redress Crown laws and policies that denied Māori control over taonga, in violation of Te Tiriti. </p>
<p>In 2011, the Waitangi Tribunal issued a <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68356054/KoAotearoaTeneiTT1W.pdf">report</a> containing specific recommendations about how New Zealand intellectual property laws should be reformed to ensure that taonga and mātauranga are protected. </p>
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Read more:
<a href="https://theconversation.com/science-or-snake-oil-is-manuka-honey-really-a-superfood-for-treating-colds-allergies-and-infections-78400">Science or Snake Oil: is manuka honey really a 'superfood' for treating colds, allergies and infections?</a>
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<p>Although the Wai 262 report was published a dozen years ago, some of its recommendations remain unfulfilled. For instance, the law does not provide any form of protection for mātauranga Māori specifically. The government is <a href="https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/matauranga-and-taonga-maori-and-the-intellectual-property-system/">considering a number of reforms</a> to respond to Wai 262 concerns, but these will take years to fully implement. </p>
<p>In the meantime, mānuka producers in New Zealand could consider alternative certification trademarks or forms of cultural branding to distinguish their products from Australian-made <em>Leptospermum</em> honey. </p>
<p>While any new certification marks would need to pass the distinctiveness test, they should also require businesses that market mānuka to meet culturally appropriate standards, especially where mātauranga is involved. </p>
<p>Kiwis may have lost the naming battle, but it may still be possible to win over consumers who are looking for products that embody the uniquely bicultural character of Aotearoa.</p><img src="https://counter.theconversation.com/content/206496/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Jefferson has funding from the Borrin Foundation and from the University of Canterbury Vision Mātauranga Development Fund.</span></em></p>The mānuka honey trademark case shows how Aotearoa New Zealand’s law lacks substantive protections for Māori intellectual property rights.David Jefferson, Senior Lecturer Above the Bar, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005072023-04-11T14:35:53Z2023-04-11T14:35:53ZNollywood could see a major boost from Nigeria’s new copyright law - an expert explains why<figure><img src="https://images.theconversation.com/files/519669/original/file-20230405-22-qvwbqt.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4913%2C3231&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The digital era contributed immensely to the growth of Nollywood, Nigeria's film industry.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">Pius Utomi Ekpei/AFP via Getty Images</a></span></figcaption></figure><p>Nigeria has finally <a href="https://infojustice.org/archives/45182">updated its 2004 copyright law</a>, bringing it into the digital era – where the entertainment industry has been for decades already.</p>
<p>Before the late 1990s, it was difficult even to get telephone services in Nigeria. And it was very expensive for private enterprises to make films. Since then, digital technology has unleashed a multitude of ways to receive information and entertainment. </p>
<p>With the arrival of digital technology, all a filmmaker needed was a simple video recorder and a group of talented creatives. Thus modern Nollywood – the Nigerian film industry – was born.</p>
<p>Nollywood employs <a href="https://www.imf.org/en/Publications/fandd/issues/2021/06/streaming-video-services-flood-emerging-markets-behsudi">more than a million people</a> directly or indirectly, making the sector Nigeria’s second largest employer after agriculture. In 2022, <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,when%20it%20reached%200.3%20percent.">Nollywood’s contribution to Nigeria’s GDP stood at 0.1%</a>. It’s <a href="https://www.theguardian.com/world/2014/apr/10/nigeria-africa-biggest-economy-nollywood">Africa’s most successful film industry</a> and the third largest globally after Hollywood and Bollywood in terms of the number of movies produced <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,0.21%20percent%20of%20Nigeria's%20GDP">annually</a>. </p>
<p>But Nigeria’s copyright regime lagged behind the industry’s technological and business developments. The biggest issue was piracy, that it was easy to copy and sell other people’s work without their consent. The courts found themselves with new intellectual property problems to deal with and it was clear a new copyright regime was needed.</p>
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<img alt="A man looking at some movies in a store filled with shelfs stacked with DVDs." src="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The new copyright law make provision for the digital rights of Nollywood creatives. Photo by Cristina Aldehuela/AFP via Getty Images.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">from www.gettyimages.com</a></span>
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<p>I have spent much of my career <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1390877">researching copyright law in Africa</a> and the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">connection between copyright and the economic growth</a> of Africa’s creative industries – films, fashion, music, literature and others. </p>
<p>I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4228165">written specifically about Nollywood</a>, arguing that it needs a new copyright regime if it is to thrive. And I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">researched the kind of copyright curriculum</a> that law schools in Nigeria need in order to make the amended copyright law effective in growing its creative industries. My research supports the idea that Nigeria should deliberately include digital copyright regimes in its laws and strengthen the institutions that put them into effect. </p>
<p>And the new copyright law in Nigeria does fill gaps. Nigerians will now have a legal regime that can protect their creativity within the technological space. The new law will be useful to combat online film piracy and loss of revenue from the illegal use of copyrighted works.</p>
<p>The new law has the potential to create stability and predictability in industries like Nollywood. This is a positive step towards a more diversified national economy – and economic growth. </p>
<p>But it will be important to allow the courts to do their job. Trying to settle disputes through the Nigerian Copyright Commission – which is a new option – could complicate and prolong the litigation. That might discourage investment in the creative industry.</p>
<h2>Key benefits of the new law</h2>
<p>Nigeria’s <a href="https://www.adams.africa/africa-general/nigeria-enacts-new-copyright-act/#:%7E:text=Nigeria%20enacts%20Copyright%20Act%2C%202022,the%20Copyright%20Act%20of%202004">new</a> copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops. </p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">The law now provides</a> anti-circumvention devices. It is now a copyright infringement to illegally circumvent a computer program, software or a technical protection measure created to protect a copyrighted work. Film piracy is both a criminal offence and a civil wrong, with severe punishment and consequences. This now applies to new forms of online film piracy too. </p>
<p>The new copyright law also includes a “safe harbour” provision which protects Nollywood entrepreneurs from unnecessary legal suits. For example, online service provider business is an emerging technology that requires huge investment and is vulnerable to illegal actions. People upload unauthorised content on an online platform and this can result in lawsuits which affect investors in this sector. The safe harbour comes with responsibility on the part of the online service provider: it must quickly remove unauthorised content and must not benefit financially from it. </p>
<p>The new law gives copyright owners ways to resolve disputes over ownership of online content without necessarily going to court. </p>
<h2>Five other new aspects</h2>
<p>The new law has five more aspects that will help sustain the creative economy and promote access to knowledge and education.</p>
<ol>
<li><p><strong>Alternative dispute resolution system.</strong> This mechanism can be used to settle issues surrounding creative rights within contemporary digital platforms. The process will be organised by the Nigerian Copyright Commission, the regulator. </p></li>
<li><p><strong>Register of works.</strong> Creators are required to register their created works. Although creators of works like Nollywood films automatically own their copyright, the register – if well executed – may help with rights management and be a resource for potential investors in the industry. </p></li>
<li><p><strong>User generated content.</strong> When you take a photo of yourself and upload it on platforms like Facebook, YouTube, Instagram or TikTok, what you have done is upload content on an online service provider. You may have copyright over that content. The new copyright law clearly defines your rights and regulates infringement of such rights. </p></li>
<li><p><strong>Copyright exceptions.</strong> Sometimes a copyrighted work can be used without the copyright owner’s authorisation. The new law seems to take the approach that the public has a right to use a copyrighted work if it’s good for society. For example, anyone can use a copyrighted work for educational purposes – to teach in a classroom, for news reporting, criticism, or parody. People can also use the underlying idea in the copyrighted work (ideas aren’t protected by copyright) to create a new, “derivative” work. </p></li>
<li><p><strong>Copyright management organisation</strong>. Another new aspect is that regulators can appoint more than one copyright management organisation to serve a specific class of creative work. This will potentially further liberalise and democratise creativity. </p></li>
</ol>
<h2>The cautions</h2>
<p>Laws ought to be effective in action. If the new law is to benefit Nollywood and other digital industries, government institutions and policies will need revamping.</p>
<p>The <a href="https://www.eregistration.copyright.gov.ng/">Nigerian Copyright Commission</a> should use its new administrative powers carefully. It should be sensitive to the fact that only the courts can judge disputes of property rights.</p>
<p>The commission must stop licensing only one collective management organisation per creative category. Currently, for example, in the musical works category the commission has granted only one copyright management organisation the licence to collect royalties on behalf of creators. This has resulted in court <a href="https://ssrn.com/abstract=3260555">battles for sole control</a> over royalties. If the commission makes rights management more competitive, there may be less tension in the sector. Creatives should have more choice.</p>
<p>Nigeria will also need to pay more attention to training experts with knowledge of the digital era laws. The <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">university creative and legal curriculum</a> needs reform along with the new law. </p>
<p>If the new law is to benefit Nollywood, it will have to be properly implemented. </p>
<h2>Why this matters</h2>
<p>The updated Nigerian copyright law recognises how a contemporary creative system can encourage investment in the Nigerian film industry.</p><img src="https://counter.theconversation.com/content/200507/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samuel Samiái Andrews. does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nigeria’s president, Muhammadu Buhari, recently signed the copyright law. Its provisions will be beneficial only if it is well implemented.Samuel Samiái Andrews., Professor, University of GondarLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2015952023-03-17T13:15:38Z2023-03-17T13:15:38ZAn international battle over cheese has left European producers feeling bitter<figure><img src="https://images.theconversation.com/files/516024/original/file-20230317-2279-s4e9bx.jpg?ixlib=rb-1.1.0&rect=126%2C99%2C5912%2C3911&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/july-11-2022-lyon-france-switzerland-2225136575">ventdusud/Shutterstock</a></span></figcaption></figure><p>For most cheese lovers, taste is the thing. Whether it’s a tangy blue stilton or a creamy oozing camembert, the most important element is the eating. </p>
<p>But cheese has profound political and economic properties too, with implications for international trade deals and commerce.</p>
<p>The taste of gruyere, for example, can depend on where you eat it. In Europe, it has a particular taste that comes from being a Swiss cheese (a French version is also available) made by heating Swiss cow’s milk in a copper vat and then ripening the cheese in Swiss cellars with the humidity of a natural cave. </p>
<p>In the US though, gruyere means any nutty, pale yellow cheese made from cow’s milk, and it can be produced anywhere in the world. That definition was recently <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/jnpwyakwnpw/GRUYERE%20TRADEMARKS%20opinion.pdf">given legal weight</a> by the US court system after representatives of Swiss and French manufacturers tried to win <a href="https://www.uspto.gov/trademarks/apply/certification-mark-applications">protected status</a> for the word “gruyere”. This would have restricted the use of the term in the US for cheeses produced in particular parts of Switzerland and France.</p>
<p>The European consortiums’ aim was to extend the kind of prize status grueyere enjoys <a href="https://europa.eu/youreurope/business/running-business/intellectual-property/geographical-indications/index_en.htm">closer to home</a>. For in Switzerland and the EU, gruyere is protected by a <a href="https://www.ige.ch/en/protecting-your-ip/indications-of-source/protecting-geographical-indications">geographical label</a> which certifies that production, including the sourcing of the raw materials, takes place in a specific geographical area. It is a means of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4272893">preserving</a> cultural heritage and expertise, which in the case of gruyere, is said to go back to <a href="https://www.gruyere.com/en/le-gruyere-aop/the-history">the 12th century</a>.</p>
<p>In the US however, the <a href="https://www.usdec.org/">Dairy Export Council</a> argued that vast quantities of cheese made in all kinds of places have been labelled and sold as gruyere for decades. They argued that the name “gruyere” is generic and cannot be owned by anyone. The US court sided with them.</p>
<p>The case highlights the clear difference between the ways Europeans and Americans regulate geographical names of traditional foods. The contrasting views had already been a <a href="https://www.cato.org/cato-online-forum/geographical-indications-ttip-impossible-task">tricky element</a> in recent negotiations for a proposed trade deal between the US and the EU. </p>
<p>For in Europe, many products – including hams, cheese and wines – receive strong levels of legal protection to preserve the reputations and traditions that have sometimes been built over centuries. They are considered “<a href="https://theconversation.com/why-europe-and-the-us-are-locked-in-a-food-fight-over-ttip-45279">products with a story</a>” and the names of the geographical locations where they are produced are given intellectual property rights.</p>
<p>The US follows a very different set of rules. There, firms use European geographical names (not only gruyere, but also parmesan, asiago, feta and <a href="https://h2o.law.harvard.edu/cases/4997/export">fontina</a>, among others) to label cheeses that have been produced far from their original homes. The reason is that most US consumers view these names as generic – to them they just describe the features of the product, like whether it melts well, or has a salty taste. </p>
<p>The economic stakes are high on both sides of the Atlantic. To Europeans, the absence of legal protection in the US leads to unacceptable exploitation of Europe’s cultural legacy and costs manufacturers of cheese a lot of money, as they can’t rely on exclusive rights over names which attract customers.</p>
<p>On the other hand, American cheese producers are concerned that caving into Europeans’ demands to monopolise such names would be unfair as they wouldn’t be able to continue using terms that they perceive as generic. Introducing legal protection would offer European cheese producers an unfair competitive edge.</p>
<p>It would, in American eyes, essentially be a trade barrier that would drive up customer prices by forcing many US producers to undergo an expensive rebranding process. According to one <a href="https://eu.wisfarmer.com/story/news/2019/03/06/tremendous-losses-face-u-s-dairy-over-eu-cheese-names/3071424002/">study</a>, the American dairy industry could lose as much as US$20 billion (£16 billion) if the Europeans were successful in restricting the use of common cheese names.</p>
<h2>Hard cheese</h2>
<p>A US <a href="http://www.commonfoodnames.com/">Consortium for Common Food Names</a> has even been set up specifically to represent the interests of American producers and farmers to lobby US lawmakers into denying legal protection for numerous European geographical terms, not only for cheeses. It obviously <a href="http://www.commonfoodnames.com/court-of-appeals-extends-huge-victory-for-worldwideproducers-of-gruyere/">welcomed</a> the gruyere decision enthusiastically.</p>
<figure class="align-center ">
<img alt="Swiss mountain landscape." src="https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/516025/original/file-20230317-14-3xknih.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Swiss cheese, (almost) as old as the hills.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/landscape-regional-park-paysdenhaut-switzerland-1810833901">Pawel Piotr/Shutterstock</a></span>
</figcaption>
</figure>
<p>The group backs up its <a href="https://www.foodingredientsfirst.com/news/us-dairy-sector-celebrates-ruling-on-gruyere-as-generic-cheese-term.html">stance</a> by arguing that the US was founded on the work of immigrants who brought authentic and artisan traditions from around the world, including many of the processes protected in Europe. </p>
<p>And it is no doubt true that when Europeans emigrated to the US in the 19th and 20th centuries, many continued to produce the delicacies they had made back home. They brought with them traditional manufacturing techniques and the names they were used to. </p>
<p>But surely this argument cannot be stretched to the point of denying Europeans all rights over geographical terms which still have a reputation further afield. Not all of the US businesses which use famous European geographical names were founded by European migrants.</p>
<p>One possible compromise might be to attempt to reach bilateral agreements allowing only those US producers created by European migrants to use the labels in question. </p>
<p>But for the time being, the impasse continues. European producers will strive to get the protection in the US that they think their delicacies deserve – and their American counterparts will fiercely reject any move to restrict their freedom to use the labels they wish to use. There is still a hearty appetite for this trans-Atlantic food fight.</p><img src="https://counter.theconversation.com/content/201595/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For some producers, the American approach to EU delicacies really grates.Enrico Bonadio, Reader in Intellectual Property Law, City, University of LondonAndrea Zappalaglio, Lecturer in Intellectual Property Law, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2006242023-03-05T17:20:15Z2023-03-05T17:20:15ZCanada needs a strategic plan to safeguard consumers against counterfeit and pirated goods<figure><img src="https://images.theconversation.com/files/513290/original/file-20230302-17-u4h5cy.jpg?ixlib=rb-1.1.0&rect=13%2C17%2C2982%2C1980&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Counterfeiting has become a billion-dollar problem for countries all around the world.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Counterfeiting is a chronic problem faced by Canadian consumers. According to Canadian manufacturers
and exporters, counterfeiting — or the sale of products that purport to be something they are not — <a href="https://bc.ctvnews.ca/crime-stoppers-warns-tens-of-billions-of-dollars-in-counterfeit-goods-imported-into-canada-every-year-1.5348127">costs Canada between $20 billion and $30 billion annually</a>. </p>
<p>Canada is not the only country struggling with counterfeiting — the practice is prevalent in many other countries and across different industries. A 2017 World Health Organization study found that <a href="https://www.who.int/news-room/detail/28-11-2017-1-in-10-medical-products-in-developing-countries-is-substandard-or-falsified">around 10 per cent of medicines sold in developing countries may be deceptively counterfeit</a>. </p>
<p>Similarly, the U.S. Government Accountability Office found that 20 of 47 items purchased from third-party sellers such as Amazon, eBay and Sears Marketplace <a href="https://www.gao.gov/assets/gao-18-216.pdf">were counterfeits</a>. Examples included <a href="https://www.wsj.com/articles/3m-files-lawsuit-against-merchant-selling-masks-on-amazon-for-18-times-list-price-11591642637">counterfeit versions of 3M N95 masks on Amazon</a>.</p>
<p>Given the scale of this ongoing issue, Canadian governments and industries must come together to design new strategies that will protect Canadians while maintaining <a href="https://www.international.gc.ca/trade-commerce/economist-economiste/analysis-analyse/key_facts-2022-01-faits_saillants.aspx?lang=eng">the country’s competitive advantage</a> in the global marketplace.</p>
<h2>Contributing factors</h2>
<p>Several diverse factors contribute to the persistence of counterfeit goods in Canada. The first relates to consumer behaviour, as some buyers may intentionally buy (or fail to avoid) counterfeit goods out of shrewdness or economic necessity. </p>
<p>Second, in terms of product quality, fakes can be very similar to the real thing. For example, the Canadian Intellectual Property Council reported that <a href="https://silo.tips/download/counterfeiting-in-the-canadian-market-how-do-we-stop-it-june-2012">a counterfeit version of a particular Procter & Gamble shampoo was so close to the original</a> even the company’s own sales force couldn’t tell the difference.</p>
<figure class="align-center ">
<img alt="A row of sneakers sitting on a table" src="https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/513284/original/file-20230302-1990-23hdik.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Seized counterfeit footwear, including copies of Adidas and Kanye West Yeezy Boost trainers, are displayed at U.K. Border Force offices in London in February 2017.</span>
<span class="attribution"><span class="source">(AP Photo/Matt Dunham)</span></span>
</figcaption>
</figure>
<p>Third, <a href="https://www.macleans.ca/economy/why-canada-is-a-haven-for-knock-off-goods/">Canadian laws on counterfeit goods are notoriously lax</a>, hindering effective enforcement. In fact, <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2022/april/ustr-releases-2022-special-301-report-intellectual-property-protection-and-enforcement">the Office of the United States Trade Representative has placed Canada on its watchlist</a> of countries offering the weakest intellectual property (IP) protections.</p>
<p>A fourth factor stems from outsourcing production to overseas suppliers. This leads to a form of counterfeiting called the “third shift.” After a business outsources production, the supplier uses the business’ IP rights to produce counterfeit products in the same factory the original product is made.</p>
<p>Canadian home product manufacturer <a href="https://www.theglobeandmail.com/report-on-business/international-business/umbra-struggles-with-copycats-worldwide/article24863725/">Umbra has been plagued by numerous suppliers</a> using a third shift to reproduce its products.</p>
<p>Finally, although some customers may rely on review systems to assess the authenticity of items they buy online, these systems are far from reliable. Counterfeit sellers have found ways to manipulate the review system — <a href="https://hbr.org/2020/11/how-fake-customer-reviews-do-and-dont-work">by purchasing fraudulent five-star reviews</a>, for example.</p>
<p>In light of these difficulties, Canada needs a carefully thought-out approach to mitigate counterfeiting.</p>
<h2>Combating counterfeits</h2>
<p>Because the source of counterfeit products is often the same factory that produces the original product, one remedy is to provide supplier factories with limited quantities of raw materials. Hewlett-Packard does this by <a href="https://www.bbc.com/news/business-21407916">providing its suppliers with a certain number of printheads</a> that are used to manufacture ink cartridges for the company.</p>
<p>Another solution is to allocate parts to different suppliers so that no one supplier has all the parts needed to build a particular product.</p>
<figure class="align-center ">
<img alt="A hand peels down the tread on the sole of a boot to reveal a second tread beneath" src="https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/513288/original/file-20230302-16-ag2qer.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A U.S. Customs and Border Protection deputy chief officer shows how a Timberland brand on a counterfeit boot is hidden at a warehouse in Kearney, N.J. in 2015.</span>
<span class="attribution"><span class="source">(AP Photo/Richard Drew)</span></span>
</figcaption>
</figure>
<p>At the same time, many emerging market governments are stepping up enforcement efforts to strengthen IP protections. In 2020, China’s State Administration for Market Regulation released an <a href="https://research.hktdc.com/en/article/NDM0NjM2NzQ2">IP enforcement plan called Iron Fist</a> to better protect the IP rights of various manufacturers. </p>
<p>Similarly, <a href="https://economictimes.indiatimes.com/news/company/corporate-trends/e-commerce-battling-over-%20copycat-brands-and-trademarks/articleshow/67399720.cms">India’s IP strategy</a> is to “put greater emphasis on trademark enforcement.” </p>
<p>The <a href="https://www.ipophil.gov.ph/news/supreme-courts-revised-rules-on-ip-cases-improves-litigation-driving-innovation-and-creativity/">Philippine government’s recent IP legislation</a> aims to “ensure efficient and expeditious adjudication of IP cases” and make “IP litigation less costly and faster.”</p>
<p>For these governments, addressing IP protection is critical to ensuring manufacturers continue to feel comfortable outsourcing operations to their countries. As such, Canada should prioritize and incentivize outsourcing to countries that embrace IP protections.</p>
<h2>Using technology</h2>
<p>Businesses can also use technologies, such as radio-frequency identification or holograms, on their products to help customers identify counterfeits. </p>
<p>Recently, <a href="https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/use-blockchain-protect-against-counterfeiting-2022-09-16_en">blockchain technology has been considered as a promising solution</a> to counterfeiting. Several blockchain-based applications have been launched with the aim of tagging products with unique identifiers that can’t be duplicated. </p>
<p><a href="https://ceur-ws.org/Vol-3067/paper18.pdf">Blockchain solution provider BlockPharma</a> helps patients check the authenticity of their medicines, while luxury goods giant <a href="https://consensys.net/blog/press-release/lvmh-microsoft-consensys-announce-aura-to-power-luxury-industry/">LVMH Group has partnered with blockchain firm ConsenSys and Microsoft</a> to authenticate products. </p>
<p>This tech-focused strategy aligns with the fact that governments around the world are increasingly encouraging blockchain adoption. The U.K. government, through Innovate UK, has <a href="https://cointelegraph.com/news/innovate-uk-offers-15-mln-grants-to-develop-blockchain-solutions">pledged the equivalent of C$24 million to fund blockchain companies</a> and the <a href="https://www.ledgerinsights.com/eu-intellectual-property-office-euipo-blockchain-anti-counterfeit/">European Union Intellectual Property Office uses blockchain for anti-counterfeit</a>.</p>
<h2>A joint approach is key</h2>
<p>The many factors that increase Canada’s risk concerning counterfeits, including weak laws and IP protections, make this a challenging policy issue. </p>
<p>However, anti-counterfeit strategies and the advent of new technologies like blockchain present opportunities for Canadian policymakers and industry leaders to develop an effective plan to combat counterfeiting. </p>
<p>Together, Canada’s business and political leaders can build consumer trust while further building Canada’s global advantage.</p><img src="https://counter.theconversation.com/content/200624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hubert Pun receives funding from Social Sciences and Humanities Research Council (SSHRC) Grants (No. 430-2022-00517 and No. 435-2022-0271)</span></em></p>The global trade of counterfeit and pirated products costs countries like Canada billions a year. Governments and industries must come together to protect Canadians.Hubert Pun, Professor, Ivey Business School, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1998822023-02-28T02:26:13Z2023-02-28T02:26:13ZIs there a way to pay content creators whose work is used to train AI? Yes, but it’s not foolproof<figure><img src="https://images.theconversation.com/files/512148/original/file-20230224-22-j2ktnx.jpeg?ixlib=rb-1.1.0&rect=26%2C53%2C4466%2C2937&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Is imitation the sincerest form of flattery, or theft? Perhaps it comes down to the imitator.</p>
<p>Text-to-image artificial intelligence systems such as DALL-E 2, Midjourney and Stable Diffusion are trained on huge amounts of image data from the web. As a result, they often generate outputs that resemble real artists’ work and style.</p>
<p>It’s safe to say artists <a href="https://www.theguardian.com/australia-news/2022/dec/12/australian-artists-accuse-popular-ai-imaging-app-of-stealing-content-call-for-stricter-copyright-laws">aren’t impressed</a>. To further complicate things, although intellectual property law guards against the misappropriation of individual works of art, this doesn’t extend to emulating a person’s style. </p>
<p>It’s becoming difficult for artists to promote their work online without contributing infinitesimally to the creative capacity of generative AI. Many are now asking if it’s possible to compensate creatives whose art is used in this way. </p>
<p>One approach from photo licensing service Shutterstock goes some way towards addressing the issue.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-the-lensa-ai-app-technically-isnt-stealing-artists-work-but-it-will-majorly-shake-up-the-art-world-196480">No, the Lensa AI app technically isn’t stealing artists' work – but it will majorly shake up the art world</a>
</strong>
</em>
</p>
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<h2>Old contributor model, meet computer vision</h2>
<p>Media content licensing services such as Shutterstock take contributions from photographers and artists and make them available for third parties to license. </p>
<p>In these cases, the commercial interests of licenser, licensee and creative are straightforward. Customers pay to license an image, and a portion of this payment (in Shutterstock’s <a href="https://support.submit.shutterstock.com/s/article/How-much-will-I-be-paid-as-a-contributor-to-Shutterstock?language=en_US">case</a> 15-40%) goes to the creative who provided the intellectual property. </p>
<p>Issues of intellectual property are cut and dried: if somebody uses a Shutterstock image without a licence, or for a purpose outside its terms, it’s a clear breach of the photographer’s or artist’s rights. </p>
<p>However, Shutterstock’s terms of service also allow it to pursue a new way to generate income from intellectual property. Its current contributors’ site has a large focus on <a href="https://support.submit.shutterstock.com/s/article/Shutterstock-ai-and-Computer-Vision-Contributor-FAQ?language=en_US">computer vision</a>, which it defines as:</p>
<blockquote>
<p>a scientific discipline that seeks to develop techniques to help computers ‘see’ and understand the content of digital images such as photographs and videos.</p>
</blockquote>
<p>Computer vision isn’t new. Have you ever told a website you’re not a robot and identified some warped text or pictures of bicycles? If so, you have been <a href="https://apnews.com/article/technology-technology-issues-digitization-spamming-artificial-intelligence-9e2aec49792c3a1e31c1f94f1a5e7ede">actively</a> <a href="https://www.google.com/recaptcha/intro/?hl=es/index.html#:%7E:text=reCAPTCHA%20makes%20positive%20use%20of,and%20solve%20hard%20AI%20problems.">training AI-run</a> computer vision algorithms. </p>
<p>Now, computer vision is allowing Shutterstock to <a href="https://www.shutterstock.com/generate">create</a> what it calls an “ethically sourced, totally clean, and extremely inclusive” <a href="https://www.shutterstock.com/generate?kw=shutterstock">AI image generator</a>.</p>
<h2>What makes Shutterstock’s approach ‘ethical’?</h2>
<p>An immense amount of work goes into classifying millions of images to train the large language models used by AI image generators. But services such as Shutterstock are uniquely positioned to do this. </p>
<p>Shutterstock has access to high-quality images from some <a href="https://investor.shutterstock.com/news-releases/news-release-details/shutterstock-reports-fourth-quarter-and-full-year-2021-financial">two million contributors</a>, all of which are described in some level of detail. It’s the perfect recipe for training a large language model. </p>
<p>These models are essentially vast multidimensional neural networks. The network is fed training data, which it uses to create data points that combine visual and conceptual information. The more information there is, the more data points the network can create and link up.</p>
<p>This distinction between a collection of images and a constellation of abstract data points lies at the heart of the issue of compensating creatives whose work is used to train generative AI. </p>
<p>Even in the case where a system has learnt to associate a very specific image <a href="https://arxiv.org/pdf/2301.13188.pdf">with a label</a>, there’s no meaningful way to trace a clear line from that training image to the outputs. We can’t really see what the systems measure or how they “understand” the concepts they learn.</p>
<p>Shutterstock’s solution is to compensate every contributor whose work is <a href="https://www.shutterstock.com/developers/computer-vision-at-shutterstock">made available</a> to a commercial partner for computer vision training. It describes the approach on its site:</p>
<blockquote>
<p>We have established a Shutterstock Contributor Fund, which will directly compensate Shutterstock contributors if their IP was used in the development of AI-generative models, like the OpenAI model, through licensing of data from Shutterstock’s library. Additionally, Shutterstock will continue to compensate contributors for the future licensing of AI-generated content through the Shutterstock AI content generation tool.</p>
</blockquote>
<h2>Problem solved?</h2>
<p>The amount that goes into the Shutterstock Contributor Fund will be proportional to the value of the dataset deal Shutterstock makes. But, of course, the fund will be split among a large proportion of Shutterstock’s <a href="https://investor.shutterstock.com/news-releases/news-release-details/shutterstock-reports-fourth-quarter-and-full-year-2021-financial#:%7E:text=ABOUT%20SHUTTERSTOCK&text=Working%20with%20its%20growing%20community,24%20million%20video%20clips%20available.">contributors</a>.</p>
<p>Whatever equation Shutterstock develops to determine the fund’s size, it’s worth remembering that any compensation isn’t the same as <em>fair</em> compensation. Shutterstock’s model sets the stage for new debates about value and fairness. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512149/original/file-20230224-22-seebuv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The LLM process is a bit like an impartial art student learning about techniques and genres by wandering through a gallery of millions of captioned paintings. Can we say any individual painting added more to their generalised knowledge? Probably not.</span>
<span class="attribution"><span class="source">Shutterstock AI</span></span>
</figcaption>
</figure>
<p>Arguably the most important debates will focus on the amount of specific individuals’ contributions to the “knowledge” gleaned by a trained neural network. But there isn’t (and may never be) a way to accurately measure this. </p>
<h2>No picture-perfect solution</h2>
<p>There are, of course, many other user-contributed media libraries on the internet. For now, Shutterstock is the most open about its dealings with computer vision projects, and its terms of use are the most direct in addressing the ethical issues.</p>
<p>Another big AI player, Stable Diffusion, uses an open source image database called <a href="https://laion.ai/blog/laion-5b/">LAION-5B</a> for training. Content creators can use a service called <a href="https://haveibeentrained.com/">Have I Been Trained?</a> to check if their work was included in the dataset, and opt out of it (but this will only be reflected in future versions of Stable Diffusion).</p>
<p>One of my popular CC-licensed photographs of a young girl reading shows up in the database several times. But I don’t mind, so I’ve chosen not to opt out.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=275&fit=crop&dpr=1 600w, https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=275&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=275&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=346&fit=crop&dpr=1 754w, https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=346&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/511894/original/file-20230223-349-twcyqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=346&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Have I Been Trained? results turn up a CC-licensed photo I uploaded to Flickr about a decade ago.</span>
<span class="attribution"><span class="source">Author provided</span></span>
</figcaption>
</figure>
<p>Shutterstock <a href="https://support.submit.shutterstock.com/s/article/Shutterstock-ai-and-Computer-Vision-Contributor-FAQ?language=en_US">has promised</a> to give contributors a choice to opt out of future dataset deals. </p>
<p>Its terms make it the first business of its type to address the ethics of providing contributors’ works for training generative AI (<a href="https://support.submit.shutterstock.com/s/article/Shutterstock-ai-and-Computer-Vision-Contributor-FAQ?language=en_US">and other</a> computer-vision-related uses). It offers what’s perhaps the simplest solution yet to a highly fraught dilemma. </p>
<p>Time will tell if contributors themselves consider this approach fair. Intellectual property law may also evolve to help establish contributors’ rights, so it could be Shutterstock is trying to get ahead of the curve. </p>
<p>Either way, we can expect more give and take before everyone is happy. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-to-perfect-your-prompt-writing-for-chatgpt-midjourney-and-other-ai-generators-198776">How to perfect your prompt writing for ChatGPT, Midjourney and other AI generators</a>
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<img src="https://counter.theconversation.com/content/199882/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brendan Paul Murphy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Artists and photographers have strongly opposed their distinct styles being replicated by AI image generators. And the law has yet to catch up with this issue.Brendan Paul Murphy, Lecturer in Digital Media, CQUniversity AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1993722023-02-22T12:55:04Z2023-02-22T12:55:04ZIn rural America, right-to-repair laws are the leading edge of a pushback against growing corporate power<figure><img src="https://images.theconversation.com/files/510919/original/file-20230217-18-bzd402.jpg?ixlib=rb-1.1.0&rect=140%2C101%2C5052%2C3355&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Waiting for repairs can cost farmers time and money.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/combine-harvester-moves-through-a-field-of-barley-grains-news-photo/1162778105">VW Pics/Universal Images Group via Getty Images</a></span></figcaption></figure><p>As tractors became more sophisticated over the past two decades, the big manufacturers allowed farmers fewer options for repairs. Rather than hiring independent repair shops, farmers have increasingly had to wait for company-authorized dealers to arrive. Getting repairs could take days, often leading to lost time and high costs.</p>
<p>A new <a href="https://www.fb.org/news-release/afbf-signs-right-to-repair-memorandum-of-understanding-with-john-deere">memorandum of understanding</a> between the country’s largest farm equipment maker, John Deere Corp., and the American Farm Bureau Federation is now raising hopes that U.S. farmers will finally regain the right to repair more of their own equipment. </p>
<p>However, supporters of right-to-repair laws suspect a more sinister purpose: <a href="https://www.npr.org/2023/01/10/1147934682/john-deere-right-to-repair-farmers-tractors">to slow the momentum</a> of efforts to secure right-to-repair laws around the country. </p>
<p>Under the agreement, John Deere promises to give farmers and independent repair shops access to manuals, diagnostics and parts. But there’s a catch – the agreement isn’t legally binding, and, as part of the deal, the influential Farm Bureau promised not to support any federal or state right-to-repair legislation.</p>
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<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/in-rural-america-right-to-repair-laws-are-the-leading-edge-of-a-pushback-against-growing-corporate-power-199372&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation <a href="https://theconversation.com/us/topics/audio-narrated-99682">narrated by Noa</a>.</em></p>
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<p>The right-to-repair movement has become the leading edge of a pushback against growing corporate power. Intellectual property protections, whether patents on farm equipment, crops, computers or cellphones, have become more intense in recent decades and cover more territory, giving companies more control over what farmers and other consumers can do with the products they buy. </p>
<p>For farmers, few examples of those corporate constraints are more frustrating than repair restrictions and patent rights that prevent them from saving seeds from their own crops for future planting.</p>
<h2>How a few companies became so powerful</h2>
<p>The United States’ market economy requires competition to function properly, which is why U.S. <a href="https://www.hbs.edu/faculty/Pages/item.aspx?num=56116">antitrust policies were strictly enforced</a> in the post-World War II era.</p>
<p>During the 1970s and 1980s, however, political leaders began following the advice of a <a href="https://www.antitrustlawsource.com/2021/06/1990s-to-the-present-the-chicago-school-and-antitrust-enforcement/">group of economists</a> at the University of Chicago and relaxed <a href="https://www.jstor.org/stable/j.ctv1fx4h9c">enforcement of federal antitrust policies</a>. That led to a concentration of economic power in many sectors.</p>
<p>This concentration has become especially pronounced in agriculture, with a few companies <a href="https://farmaction.us/concentrationreport/">consolidating market share</a> in numerous areas, including seeds, pesticides and machinery, as well as commodity processing and meatpacking. One study in 2014 estimated that Monsanto, now owned by Bayer, was responsible for approximately <a href="https://fortune.com/2014/06/26/monsanto-gmo-crops/">80% of the corn and 90% of the soybeans</a> grown in the U.S. In farm machinery, John Deere and Kubota account for about a third of the market.</p>
<figure class="align-center ">
<img alt="A tractor with several computer screens in the cab on the floor of a convention, with several people in the background." src="https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/510917/original/file-20230217-28-unn1iv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New tractors are increasingly high-tech, with GPS, 360-degree camera and smartphone controls.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/inside-the-cab-of-the-deer-co-john-deere-8r-fully-news-photo/1237542314">Patrick T. Fallon/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Market power often translates into political power, which means that those large companies can influence regulatory oversight, legal decisions, and legislation that furthers their economic interests – including securing more expansive and stricter intellectual property policies.</p>
<h2>The right-to-repair movement</h2>
<p>At its most basic level, right-to-repair legislation seeks to protect the end users of a product from anti-competitive activities by large companies. New York <a href="https://www.natlawreview.com/article/new-york-enacts-first-state-right-to-repair-law">passed the first broad right-to-repair law</a>, in 2022, and <a href="https://www.repair.org/stand-up">nearly two dozen states</a> have active legislation – about half of them <a href="https://apnews.com/article/agriculture-colorado-business-d5ea466725328d965a85a62130503d49">targeting farm equipment</a>.</p>
<p>Whether the product is an automobile, smartphone or seed, companies can extract more profits if they can force consumers to purchase the company’s replacement parts or use the company’s exclusive dealership to repair the product.</p>
<p><iframe id="yk0ep" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/yk0ep/7/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>One of the <a href="https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=4247&context=law_lawreview">first cases</a> that challenged the right to repair equipment was in 1939, when a company that was reselling refurbished spark plugs was sued by the Champion Spark Plug Co. for violating its patent rights. The <a href="https://www.lexisnexis.com/community/casebrief/p/casebrief-champion-spark-plug-co-v-sanders">Supreme Court agreed</a> that Champion’s trademark had been violated, but it allowed resale of the refurbished spark plugs if “used” or “repaired” was stamped on the product.</p>
<p>Although courts have often sided with the end users in right-to-repair cases, large companies have vast legal and lobbying resources to argue for stricter patent protections. Consumer <a href="https://pirg.org/california/media-center/california-right-repair-bill-dies-senate-committee/">advocates contend</a> that these protections prevent people from repairing and modifying the products they rightfully purchased.</p>
<p>The ostensible justification for patents, whether for equipment or seeds, is that they provide an incentive for companies to invest time and money in developing products because they know that they will have exclusive rights to sell their inventions once patented.</p>
<p>However, <a href="https://doi.org/10.7916/d8-xg80-ct59">some scholars claim</a> that recent legal and legislative changes to patents are instead limiting innovation and social benefits. </p>
<h2>The problem with seed patents</h2>
<p>The extension of utility patents to agricultural seeds illustrates how intellectual property policies have expanded and become more restrictive.</p>
<p>Patents have been around since the founding of the U.S., but agricultural crops were initially considered natural processes that couldn’t be patented. That changed in 1980 with the U.S. Supreme Court decision <a href="https://www.oyez.org/cases/1979/79-136">Diamond v. Chakrabarty</a>. The case involved genetically engineered bacteria that could break down crude oil. The court’s ruling allowed inventors to secure patents on living organisms.</p>
<p>Half a decade later, the U.S. Patent Office extended patents <a href="https://doi.org/10.3109/10731198909118281">to agricultural crops generated</a> through transgenic breeding techniques, which inserts a gene from one species into the genome of another. One prominent example is the insertion of a gene into corn and cotton that enables the plant to produce its own pesticide. In 2001, the Supreme Court <a href="https://www.oyez.org/cases/2001/99-1996">included conventionally bred crops</a> in the category eligible for patenting.</p>
<figure class="align-center ">
<img alt="Seeds grow in segmented compartments of petri dishes. The dishes have writing in marker on the top." src="https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/510918/original/file-20230217-364-qm2ktu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Genetically modified seeds, and even conventionally bred crops, can be patented.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/petri-dishes-containing-sprouting-embryos-of-an-news-photo/1314013422">Sean Gallup/Getty Images</a></span>
</figcaption>
</figure>
<p>Historically, farmers would save seeds that their crops generated and replant them the following season. They could also sell those seeds to other farmers. They lost the right to sell their seeds in 1970, when Congress passed the <a href="https://www.ams.usda.gov/services/plant-variety-protection">Plant Variety Protection Act</a>. Utility patents, which grant an inventor exclusive right to produce a new or improved product, are even more restrictive.</p>
<p>Under a utility patent, farmers can no longer save seed for replanting on their own farms. University scientists even face <a href="https://doi.org/10.1002/9780470752555">restrictions on the kind of research</a> they can perform on patented crops.</p>
<p>Because of the clear changes in intellectual property protections on agricultural crops over the years, researchers are able to evaluate whether those changes correlate with crop innovations – the primary justification used for patents. The short answer is that they do not.</p>
<p>One study revealed that companies have used intellectual property to enhance their market power more than to enhance innovations. In fact, some vegetable crops with <a href="https://illinoislawreview.org/print/volume-2012-issue-4/veggie-tales-pernicious-myths-about-patents-innovation-and-crop-diversity-in-the-twentieth-century/">few patent protections had more varietal innovations</a> than crops with more patent protections.</p>
<h2>How much does this cost farmers?</h2>
<p>It can be <a href="https://nap.nationalacademies.org/catalog/23395/genetically-engineered-crops-experiences-and-prospects">difficult to estimate</a> how much patented crops cost farmers. For example, farmers might pay more for the seeds but save money on pesticides or labor, and they might have higher yields. If market prices for the crop are high one year, the farmer might come out ahead, but if prices are low, the farmer might lose money. Crop breeders, meanwhile, <a href="https://doi.org/10.1007/978-3-319-06892-3">envision substantial profits</a>.</p>
<p>Similarly, it is difficult to calculate the costs farmers face from not having a right to repair their machinery. A machine breakdown that takes weeks to repair during harvest time could be catastrophic.</p>
<p>The nonprofit U.S. Public Interest Research Group calculated that <a href="https://pirg.org/resources/repair-saves-families-big/">U.S. consumers could save</a> US$40 billion per year if they could repair electronics and appliances – about $330 per family.</p>
<p>The memorandum of understanding between John Deere and the Farm Bureau may be a step in the right direction, but it is not a substitute for right-to-repair legislation or the enforcement of antitrust policies.</p><img src="https://counter.theconversation.com/content/199372/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leland Glenna does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Corporations restrict what farmers can do with their own seeds, as well as their farm equipment when it breaks down.Leland Glenna, Professor of Rural Sociology and Science, Technology, and Society, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1991692023-02-13T20:26:45Z2023-02-13T20:26:45ZContent creators and corporations clash in Dungeons & Dragons licensing fiasco<figure><img src="https://images.theconversation.com/files/509530/original/file-20230210-28-ub9f7y.jpg?ixlib=rb-1.1.0&rect=227%2C117%2C3628%2C2469&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wizards of the Coast's Open Game License has allowed companies to build hugely successful franchises based on the Dungeons & Dragons tabletop role-playing game.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>The tabletop role-playing game community took a keen interest in intellectual property law in January when <a href="http://ogl.battlezoo.com/">changes to the Dungeons & Dragons Open Game License (OGL) were leaked</a>.</p>
<p><a href="https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf">The OGL</a> is a public copyright licence that allows the general public — anyone from small companies to independent authors — to create content for Dungeons & Dragons under an approachable set of guidelines.</p>
<p>Traditionally, creating content for an existing game means negotiating finances, creative freedom and content distribution with the game’s owner. While commonplace, these negotiations <a href="https://www.powellgroupconsulting.com/finding-and-acquiring-an-intellectual-property-for-your-next-game/">take time and can be challenging for smaller creators</a> who don’t have the administrative knowledge or corporate reputation to get a deal done.</p>
<p>In contrast, the OGL allows anyone to modify, copy and redistribute aspects of Dungeons & Dragons without gaining permission or paying licensing fees to Wizards of the Coast, the owner of the ubiquitous role-playing game. </p>
<p>These aspects are divided into two categories: game rules (such as combat mechanics) that can be used freely, and narrative elements (such as characters and settings) that remain off limits.</p>
<p>OGL-licensed works typically build upon Dungeons & Dragons’ rules and incorporate them into new settings, such as Paizo’s popular <a href="https://paizo.com/"><em>Pathfinder</em> and <em>Starfinder</em></a> tabletop role-playing games.</p>
<p>With the latest changes to the OGL, third-party publishers and content creators have been trying to unpack how the latest iteration of OGL could affect their livelihood and leisure.</p>
<h2>Why is the OGL making headlines?</h2>
<p>OGL-licensed content is undoubtedly prevalent, popular and profitable.</p>
<p>Since 1999, there has been a wealth of content created under the OGL: companies like Paizo have built successful tabletop role-playing game franchises, major brands (<em>Star Wars</em>, <em>Hellboy</em>, <em>Lord of the Rings</em>) have adopted it for their own needs, and web series such as <em>Critical Role</em> have made <a href="https://www.washingtonpost.com/video-games/2021/10/06/twitch-hack-pay-xqc-pokimane-summit1g/">millions streaming Dungeons & Dragons on Twitch</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1611021434553339906"}"></div></p>
<p>So when a new version of the OGL <a href="https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634">leaked in January 2023</a>, dubbed OGL 1.1, it was naturally met with some skepticism. Wizards of the Coast ostensibly designed the new licence to recognize emerging digital platforms, dissuade bigoted or toxic content, and, most controversially, to introduce anti-competitive measures. </p>
<p>In addition to putting into question the ownership of past and future products, these measures included:</p>
<ul>
<li>De-authorizing and replacing the original OGL</li>
<li>Requiring OGL creators to register new products with Wizards of the Coast</li>
<li>Mandating royalties for companies earning more than $750,000 yearly</li>
<li>Removing perpetual rights, meaning OGL 1.1 could be changed down the line</li>
</ul>
<p>These proposed changes were met with widespread opposition from players and businesses, many of whom felt its restrictive parameters would be unlawful, unfair or damaging to the hobby. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1613576298114449409"}"></div></p>
<p>Fans <a href="https://gizmodo.com/dungeons-dragons-wizards-hasbro-ogl-open-game-license-1849981136">campaigned to unsubscribe from D&D Beyond</a>, Wizards of the Coast’s digital toolset, Paizo <a href="https://paizo.com/community/blog/v5748dyo6si7v">announced its own Open RPG Creative License</a>, and news outlets reported that Wizards of the Coast staff <a href="https://www.dexerto.com/gaming/fans-crash-dd-beyond-after-leaked-wotc-email-sparks-outrage-2031896/">condemned the company’s actions and their callous attitude toward Dungeons & Dragons players</a>.</p>
<p>Following this sustained public pressure, Wizards of the Coast <a href="https://www.dndbeyond.com/posts/1423-an-update-on-the-open-game-license-ogl">issued a public apology</a> and <a href="https://www.theverge.com/2023/1/20/23563712/dnd-wotc-dungeons-and-dragons-ogl-ccl-license-feedback">reconfigured the licence to address criticisms</a>.</p>
<h2>The history of OGL</h2>
<p>It may seem strange that Wizards of the Coast would renounce any control over Dungeons & Dragons, but the reasons behind this change are tied into the history of the game and informed by how tabletop role-playing games are structured.</p>
<p>While Dungeons & Dragons currently enjoys estimated yearly earnings of <a href="https://www.forbes.com/sites/brettknight/2022/10/11/could-dungeons--dragons-be-the-next-harry-potter-stranger-things-have-happened/">$100 to 150 million</a>, the brand’s outlook has not always been bright. </p>
<p>In the late 1990s, Dungeons & Dragons was owned by American game publishing company TSR, which built up <a href="https://sites.google.com/a/unreason.com/blank/">$30 million in debt</a> due to low sales, an inflexible business structure and market oversaturation. At the brink of bankruptcy, <a href="https://nerdist.com/article/the-story-of-dd-part-two-how-wizards-of-the-coast-saved-dungeons-dragons/">TSR was acquired by Wizards of the Coast</a>, which wasted no time in developing a new version of Dungeons & Dragons.</p>
<p>Much of this transition was orchestrated by Ryan Dancey, who managed TSR’s role-playing properties and envisioned the OGL as a way to make Dungeons & Dragons profitable once more. <a href="https://web.archive.org/web/20000511083122/http://www.rpgplanet.com/dnd3e/interview-rsd-0300.htm">Inspired by the open-source software movement</a>, Dancey felt the OGL would help establish Dungeons & Dragons as the default tabletop role-playing game. </p>
<figure class="align-center ">
<img alt="Seven red dice sit on top of a tabletop role-playing game character sheet" src="https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509531/original/file-20230210-23-5okkmd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Wizards of the Coast’s OGL allows anyone to modify, copy and redistribute aspects of Dungeons & Dragons without gaining permission or paying licensing fees.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>Dancey hoped third-party publishers would take the risk of creating niche products for small audiences, allowing Wizards of the Coast to focus more on its profitable core products. These predictions were mostly proven true, <a href="https://www.enworld.org/threads/ryan-dancey-on-the-goals-of-the-open-gaming-license.662351/">as third-party publishers flourished and helped re-popularize the game</a>.</p>
<p>The OGL was also a legal manoeuvre, as Dancey was aware that <a href="https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2014-15/march-april/its_how_you_play_game_why_videogame_rules_are_not_expression_protected_copyright_law/">game rules typically don’t enjoy copyright protection in North America</a>. For example, while many video games feature a jumping mechanic, no one can own the idea of jumping to navigate a level. </p>
<p>Legal troubles only arise if a game designer uses recognizable aspects of another game: say, <a href="https://mario.nintendo.com/">a plumber in overalls leaping over green pipes</a>. With the OGL, Wizards of the Coast drew a circle around aspects of Dungeons & Dragons it felt were protectable, while relinquishing its hold on the more ambiguous ones.</p>
<h2>What’s next for the OGL?</h2>
<p>The OGL controversy seems to be winding down, with Wizards of the Coast <a href="https://www.dndbeyond.com/posts/1439-ogl-1-0a-creative-commons">releasing Dungeons & Dragons’ core mechanics under a Creative Commons licence</a> that, similar to OGL 1.0a, will allow creators to freely use game mechanics but not narratives, characters and settings. </p>
<p>Importantly, this new arrangement will not supplant or nullify the OGL 1.0a, which remains a key sticking point for companies that have built upon the licence for decades.</p>
<p>Still, the future of the OGL seems unsettled. Recent events have forced fans to reconcile their love of Dungeons & Dragons with the reality that Wizards of the Coast, which is owned by Hasbro, is a large corporation with commercial interests at heart. </p>
<p>While the rebuke of the new OGL was certainly a victory for publishers and creators, Dungeons & Dragons seems more precarious than it has been in years. What was once simply fun and games has turned into a shared struggle for ownership over the world’s most popular role-playing game.</p><img src="https://counter.theconversation.com/content/199169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Iantorno does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Recent events have forced fans to reconcile their love of Dungeons & Dragons with the reality that the game’s owner, Wizards of the Coast, is a large corporation with commercial interests at heart.Michael Iantorno, PhD Candidate, Department of Communication Studies, Concordia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1993272023-02-10T17:29:30Z2023-02-10T17:29:30ZDungeons & Dragons licence changes threaten the fan community the game relies upon – legal expert explains<p><a href="https://dnd.wizards.com/">Dungeons & Dragons</a> has a longstanding appeal as a role-playing game – or as some players prefer to call it, <a href="https://lovethynerd.com/dungeons-and-dragons-unique-storytelling-medium/">a storytelling medium</a>. But retaining users in the face of competition is far from easy, despite a <a href="https://www.cnbc.com/2018/07/23/hasbro-ceo-dungeons--dragons-is-having-its-best-year-ever.html">recent resurgence</a> thanks to Netflix hit <a href="https://collider.com/stranger-things-season-4-dungeons-and-dragons-dnd-storytelling-explained/">Stranger Things</a>, the <a href="https://www.bbc.co.uk/news/uk-wales-57636378">uptake in remote activities</a> sparked by COVID lockdowns and an <a href="https://www.dungeonsanddragons.movie">upcoming film adaptation</a>.</p>
<p>To maintain its competitive edge, the owner of Dungeons & Dragons – <a href="https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634">Wizards of the Coast</a> – is proposing changes to the ownership of the game’s intellectual property and the way it makes money.</p>
<p>The <a href="https://www.thearcanelibrary.com/blogs/news/how-to-use-the-open-game-license">original Dungeons & Dragons gaming licence</a> meant that players could create unique content, such as story lines or maps, which would be developed over several sessions (sometimes years) of play.</p>
<p>The original licence encouraged “dungeon masters” (the players responsible for guiding groups through Dungeons & Dragons sessions) to lead players on creative adventures and to share their story lines with a wider community.</p>
<p>The enduring appeal of Dungeons & Dragons has been the ability to pick up adventures written decades ago and play them while adding unique twists. This could mean a steampunk take on an official story line, for example, or changing the setting from a medieval fantasy to outer space.</p>
<p>Any time these creative versions of the game were shared or produced for profit under the original licence, Wizards of the Coast went uncompensated.</p>
<p>Its original Open Gaming License, published in 2000, ran to around 900 words, and is basic compared to most other game licences.</p>
<p>The new, <a href="https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf">leaked Open Gaming License Version 1.0a</a> in contrast, runs to 398 pages, and seeks to introduce a set of rules controlling – in the words of <a href="https://www.dndbeyond.com/posts/1410-ogls-srds-one-d-d">Dungeons & Dragons staff</a> – the way large businesses “exploit” the company’s intellectual property.</p>
<h2>It’s not ‘just a game’</h2>
<p>The owner of Dungeons & Dragons first made changes to the Open Gaming License in late December 2022. This proved hugely controversial, driving some players to <a href="https://www.theguardian.com/games/2023/jan/12/dungeons-and-dragons-wizards-of-the-coast-ogl">leave the game entirely</a>, objecting to this attempt to generate greater revenues by claiming rights over the creativity of Dungeons & Dragons players.</p>
<p>Under the terms of the revised Open Gaming License, the characters developed and storylines created by players could become the property of the game, rather than the community who made them.</p>
<p>Players who have particularly lucrative content creation activities could also now be responsible for compensating Wizards of the Coast for a share of their profits.</p>
<p>Worse still, the new Open Gaming License limits the creation of new content, restricting both play and profit. Players who want to add their own characters and stories have a lot less incentive under the new licence. While the licence lets players create their own storylines and characters, it also renders them responsible for reporting any revenue they make off them. </p>
<p>The new licence imposes “sharing” requirements – what is created by a player becomes licensed to Wizards of the Coast to profit from too. If you created a new dwarf character, for example, it would no longer be yours. You agree by playing the game that Wizards of the Coast can both use it and commercialise it for profit.</p>
<p>This is especially worrying for players who rely on their creations for a revenue stream, such as <a href="https://www.wired.com/story/dungeons-and-dragons-tiktok/">Dungeons & Dragons influencers</a>.</p>
<p>While these changes may sound restrictive, Wizards of the Coast is clear that <a href="https://www.dndbeyond.com/posts/1410-ogls-srds-one-d-d">little is changing for most players</a>. The reality is that the alterations to revenue reporting will affect only those making over US$750,000 (£613,000) a year from the game. This clarification highlights the distinction between when Dungeons & Dragons is “just” a game, and when it is not.</p>
<h2>Aligning Dungeons & Dragons with other games</h2>
<p>While controversial, this move aligns Dungeons & Dragons more closely with other interactive games.</p>
<p>For most games, End User Licence Agreements (EULAs) include clauses outlining that users and <a href="https://ejlt.org/index.php/ejlt/article/view/119/194">players have no rights</a> to any of the intellectual property. Commercialisation of game-related content is therefore usually quite difficult.</p>
<p>The changes also reinforce that Wizards of the Coast is stepping up commercialisation and seeking to protect its intellectual property – steps likely to be reflected in developments elsewhere, including a <a href="https://www.thebrickpost.com/news/lego-ideas-dungeons-dragons-set-has-been-chosen/">forthcoming Dungeons & Dragons-themed Lego set</a>.</p>
<p>With films and a TV series to follow, it seems that the Open Gaming License revision is the first step in taking control of revenue streams.</p>
<h2>Hard to read but easy to ignore</h2>
<p>Gamers often invest heavily in the titles they play without realising that the companies who develop the games are the ultimate owners. <a href="https://www.theguardian.com/technology/2015/jun/15/i-read-all-the-small-print-on-the-internet">Licence agreements are rarely read</a>.</p>
<p>Game licences are hard to read, easy to ignore and often painful for those they seek to control. Handled badly, they can cause more harm than good and destroy the relationship a game owner has with the community it relies upon.</p>
<figure class="align-center ">
<img alt="A hand writes on a sticky note next to the player's handbook." src="https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508342/original/file-20230206-27-1sdsvu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A typical Dungeons & Dragons player set up.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/role-playing-tabletop-board-games-hobby-2228464571">dodotone / Shutterstock</a></span>
</figcaption>
</figure>
<p>Without the Open Gaming License first published in 2000, Dungeons & Dragons would probably not have experienced the <a href="https://analoggamestudies.org/2018/06/telling-stories-of-dungeons-dragons-a-chronology-of-representations-of-dd-play/">loyal following</a> of its player community. The attraction of the game – and the licence – lies in the ability to experience it through your own imagination.</p>
<p>The unprecedented alteration in the Open Gaming License signifies that Wizards of the Coast has put profits before players. The owner of Dungeons & Dragons acted to protect its own interests, but in doing so has damaged – perhaps irreparably – the relationship it has enjoyed with its player community.</p><img src="https://counter.theconversation.com/content/199327/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kim Barker receives funding from UKRI (ESRC and EPSRC), and the British & Irish Law, Education & Technology Association (BILETA).
Kim Barker is a Visiting Professor at the CTS-FGV Law School and think tank, Rio De Janeiro. </span></em></p>To maintain its competitive edge, the owners of Dungeons & Dragons are proposing changes to the ownership of the game’s intellectual property and the way it makes money.Kim Barker, Senior Lecturer in Law, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1954352022-12-01T01:58:23Z2022-12-01T01:58:23ZA new law offers better protection for indigenous plants of significance to Māori, but no requirement to share profits<figure><img src="https://images.theconversation.com/files/498351/original/file-20221130-18-yjbbq9.jpg?ixlib=rb-1.1.0&rect=20%2C321%2C6689%2C4013&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/Fabrizio Guarisco</span></span></figcaption></figure><p>New Zealand law has generally treated agriculture, biodiversity conservation and the protection of Indigenous knowledge (mātauranga Māori) as separate areas. </p>
<p>This changed last month when parliament passed a major reform of the <a href="https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_111271/plant-variety-rights-bill">law covering plant variety rights</a>.</p>
<figure class="align-right ">
<img alt="Red kiwifruit" src="https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=560&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=560&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=560&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=704&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=704&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=704&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The red kiwifruit is protected under intellectual property rights.</span>
<span class="attribution"><span class="source">Shutterstock/Tommy Atthi</span></span>
</figcaption>
</figure>
<p>Plant Variety Rights (PVR) are a form of intellectual property designed to encourage innovation in plant breeding and to reward breeders for these efforts. In Aotearoa, popular examples of plants protected under the PVR system include the red kiwifruit and Honeycrisp apples. </p>
<p>The <a href="https://www.legislation.govt.nz/bill/government/2021/0035/latest/LMS352239.html">reform</a> continues to offer this kind of intellectual property to plant breeders, but the law now also extends new protections for the guardian (kaitiaki) relationships Māori have with taonga plant species, as well as for mātauranga Māori. But it stops short of requiring that any benefits from the commercial use of these plants be shared.</p>
<h2>What are taonga plants?</h2>
<p>The new act defines taonga plants as those Māori have special relationships with, either because they are indigenous to Aotearoa or because they are believed to have been brought to the country before European settlement from other parts of the Pacific region. </p>
<p>Iwi, hapū and whānau have kaitiaki relationships with many plant species, grounded in reciprocal and mutual obligations. Māori consider taonga plants as tūpuna (ancestors) and kaitiaki have direct whakapapa (genealogical) connections to them. Mātauranga Māori forms the basis of these kaitiaki relationships, encompassing inter-generational knowledge about how to care for and sustainably use these plants. </p>
<p>For example, Ngāi Tahu has long used taramea (<em>Aciphylla</em> or speargrass) as a fragrance. Historically, taramea resin was extracted through cuttings or fire, processed and preserved, and rubbed on the hair and body. Taramea was also a valuable item in trade between Ngāi Tahu and northern tribes.</p>
<figure class="align-center ">
<img alt="Close-up of the native speargrass taramea." src="https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The native speargrass taramea is a traditional source of fragrance.</span>
<span class="attribution"><span class="source">Shutterstock/Molly NZ</span></span>
</figcaption>
</figure>
<p>The protection of taonga plants, kaitiaki relationships and mātauranga Māori is required under the Treaty of Waitangi, which was signed between the British Crown and Māori rangatira (chiefs) in 1840 and guarantees Māori will retain rangatiratanga (chieftainship) over their taonga. </p>
<p>Throughout the 20th century, it was clear this promise was not being upheld. After the original Plant Variety Rights Act was passed in 1987, claimants representing various iwi and hapū brought a legal action (<a href="https://www.wai262.nz/">Wai 262</a>) before the Waitangi Tribunal, alleging the Crown had failed to respect Māori rangatiratanga over indigenous biodiversity. </p>
<p>After 20 years of weighing evidence, the tribunal published a <a href="https://waitangitribunal.govt.nz/news/ko-aotearoa-tenei-report-on-the-wai-262-claim-released/">report</a> in 2011, recommending a “<a href="https://www.tpk.govt.nz/en/a-matou-whakaarotau/te-ao-maori/wai-262-te-pae-tawhiti">whole-of-government</a>” approach to protect taonga flora and fauna, and mātauranga Māori. This law reform is the most significant legal development to date.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-plants-and-animals-have-long-been-used-without-indigenous-consent-now-queensland-has-taken-a-stand-144813">Australia's plants and animals have long been used without Indigenous consent. Now Queensland has taken a stand</a>
</strong>
</em>
</p>
<hr>
<h2>Preventing misappropriation</h2>
<p>Legal issues aside, it is important to protect taonga plants and mātauranga Māori for ethical reasons. For years, kaitiaki relationships have been threatened as non-Māori have benefited from the use of indigenous plants and knowledge. </p>
<figure class="align-right ">
<img alt="Detail of a flowering kōwhai." src="https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Kōwhai varieties are sold commercially through nurseries.</span>
<span class="attribution"><span class="source">Shutterstock/patjo</span></span>
</figcaption>
</figure>
<p>Nurseries and other non-Māori entities have claimed intellectual property rights over improved varieties of taonga species. Examples include harakeke (flax; <em>Phormium tenax</em>), kāpuka (broadleaf; <em>Griselinia littoralis</em>), korokio (wire-netting bush; <em>Corokia cotoneaster</em>), kōwhai (<em>Sophora microphylla</em>), and tī rākau/tī kōuka (cabbage tree; <em>Cordyline australis</em>). </p>
<p>In most (maybe all) cases, kaitiaki do not receive any direct financial or other benefits from the commercialisation and sale of taonga plants where plant variety rights are owned by non-Māori organisations.</p>
<h2>Protection under the new act</h2>
<p>The reformed act contains several new protections. When plant breeders apply for plant variety rights for taonga plants, they now need to meet certain requirements. </p>
<p>For example, if the breeder is aware that a kaitiaki relationship with the plant has been asserted, the breeder must engage directly with the kaitiaki.</p>
<p>If the kaitiaki finds that granting plant variety rights for the breeder’s variety would have adverse effects on the kaitiaki relationship, the breeder and kaitiaki must agree on how to mitigate these effects.</p>
<p>The law also creates a new Māori plant varieties committee, which holds the power to make binding decisions to nullify or cancel or impose conditions on any grants of plant variety rights for taonga species that may have adverse effects on kaitiaki relationships.</p>
<p>The new protections are commendable, but there are some gaps in the law. </p>
<h2>No shared benefits from commercial use</h2>
<p>The PVR Act allows plant breeders to bring legal actions against those who infringe their intellectual property rights. But the law does not contain similar enforcement mechanisms where mātauranga Māori is misappropriated. </p>
<p>The act does not require plant breeders who obtain PVR for varieties of taonga plants to share any benefits they receive from commercial uses of these plants with kaitiaki.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/returning-the-three-sisters-corn-beans-and-squash-to-native-american-farms-nourishes-people-land-and-cultures-149230">Returning the 'three sisters' – corn, beans and squash – to Native American farms nourishes people, land and cultures</a>
</strong>
</em>
</p>
<hr>
<p>Another issue is that the new law adopts the narrow, species-based approach common to intellectual property laws for plant varieties worldwide. The powers of the Māori plant varieties committee only apply to taonga plant species. Kaitiaki have no say over whether exotic plant varieties are introduced into Aotearoa and protected with PVR, which fails to take into account the effects non-taonga plants could have on the whenua (land) and taiao (environment) should they become invasive.</p>
<p>Overall, the reformed PVR Act is an important step in addressing the recommendations of the Waitangi Tribunal on how the Crown should protect taonga plants and mātauranga Māori. But there is still much work to do to ensure that tangata whenua may exercise rangatiratanga over their taonga. </p>
<p>Time will tell whether other <a href="https://www.beehive.govt.nz/release/new-funding-protecting-and-enabling-m%C4%81tauranga-m%C4%81ori">proposed changes</a> – such as the development of a stand-alone intellectual property framework for mātauranga Māori and the creation of a bioprospecting regime – are sufficient to fulfil the promises of Te Tiriti.</p><img src="https://counter.theconversation.com/content/195435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research is generously supported by the University of Canterbury Vision Mātauranga Development Fund. </span></em></p>Plant breeders must now engage with kaitiaki if special relationships with a plant have been asserted. But Māori have no say on the introduction of exotic plants that could become invasive.David Jefferson, Lecturer, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1825752022-06-28T16:03:30Z2022-06-28T16:03:30ZCanada needs to invest more money into science innovation to help prevent the next global crisis<figure><img src="https://images.theconversation.com/files/470375/original/file-20220622-26-15d611.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5074%2C2851&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If Canada wants to establish itself as a leading country in innovation, it has to invest in scientist-entrepreneurs and their projects.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Canada has <a href="https://www.conferenceboard.ca/focus-areas/innovation-technology/innovation-report-card">lagged behind its peer nations in innovation</a> for decades. Currently, Canada is ranked 11th out of the 16 similarly developed countries assessed. While our “C” grade is a moderate improvement over our previous “D” grade, innovation still remains a barrier to high-quality job creation and economic prosperity in Canada.</p>
<p>It’s not that Canadians aren’t creative and inventive — Canadian science was able to rapidly deliver the medical technology needed to provide the first FDA-approved COVID-19 treatment and enabled the most effective COVID-19 vaccines. The problem is that Canada <a href="https://www.youtube.com/watch?v=BLG4e57cIMw">doesn’t convert enough inventions into patents, products and science-based ventures</a>. </p>
<p>While Canada’s COVID-19 breakthroughs are a feat worthy of celebration, other innovative breakthroughs still remain underdeveloped, languishing away in research labs. In innovation circles, this purgatory of untapped science innovation is commonly <a href="https://doi.org/10.1016/j.drudis.2013.01.012">referred to as the “valley of death.”</a> </p>
<h2>University scientists are key innovators</h2>
<p>Innovation in lipid nanoparticle drug delivery — a key component of the mRNA COVID-19 vaccines — was led by <a href="https://www.cbc.ca/radio/quirks/jun-12-missions-to-venus-learning-instant-replay-wrens-spectacular-duet-and-more-1.6061094/meet-the-canadian-scientist-who-paved-the-way-for-groundbreaking-mrna-covid-vaccines-1.6061099">Canadian scientist and entrepreneur Pieter Cullis</a>, a professor who reduced his tenured appointment to half-time decades ago to take on a leadership role in his co-founded ventures and innovation initiatives. </p>
<p>Thanks to Cullis, <a href="https://doi.org/10.1038/s41578-021-00379-9">the potential of lipid nanoparticles was unlocked and commercialized over several years</a> with partners and founders from both Moderna and Pfizer-BioNTech. </p>
<p>One of his ventures, <a href="https://acuitastx.com/company/">Acuitas</a>, manufactures the lipid nanoparticle technology used in the Pfizer BioNTech vaccine. Without these earlier commercialization efforts, the novel COVID-19 vaccine would not have been developed. Similarly, the first FDA-produced treatment for COVID-19 <a href="https://www.theglobeandmail.com/business/rob-magazine/article-the-innovator-carl-hansen-abcellera-biologics/">was developed in the lab of then University of British Columbia professor</a> and <a href="https://www.abcellera.com/technology">AbCellera</a> CEO Carl Hansen. </p>
<figure class="align-center ">
<img alt="Close up shot of a woman in a hijab holding a vaccine vial" src="https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470372/original/file-20220622-3417-d955d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A volunteer holds a vial of the Pfizer-BioNTech COVID-19 vaccine.</span>
<span class="attribution"><span class="source">(AP Photo/Maya Alleruzzo)</span></span>
</figcaption>
</figure>
<p>Hansen is a key example of a <a href="https://doi.org/10.1038/s41565-022-01103-6">university scholar who demonstrated entrepreneurial capabilities</a> while still in the research lab, as well as later within the new science-based venture. Without Hansen and his lab researchers’ entrepreneurship, much social and economic benefit would have been lost.</p>
<p>Given that we heavily rely on entrepreneurial scientists to initiate breakthrough invention, and that <a href="https://www.sfu.ca/research/scholarly-impacts/support-scientist-entrepreneurs-crucial-rapid-crisis-response">science-based spinoffs have been a crucial component of global responses to crises</a>, it is surprising <a href="https://techtransfercentral.com/marketplace/innovosource/mind-the-gap-report/">how little is done to support the development</a> of entrepreneurial capabilities in scientists or their science-based ventures. </p>
<h2>The role of university spinoffs</h2>
<p>During the global COVID-19 pandemic, the <a href="https://doi.org/10.1038/s41565-022-01103-6">rapid development and commercialization of highly efficacious vaccines and treatments</a> was unprecedented, and university spinoff ventures played a critical role in their success. </p>
<p>Companies founded by professors or spun out of university research labs include <a href="https://www.gene.com/about-us">Genentech</a>, <a href="https://en.wikipedia.org/wiki/Genzyme">Genzyme</a>, <a href="https://www.biontech.com/int/en/home/about/who-we-are/history.html">BioNTech</a> and <a href="https://en.wikipedia.org/wiki/Google#Early_years">Google</a>. These companies impact their regions and countries by providing high-skilled and high-paying jobs. They export products and services globally. Even when small, such ventures also serve as a bridge between university research labs and established industry.</p>
<figure class="align-right ">
<img alt="A building that has a logo on the front that says 'MDA'" src="https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470374/original/file-20220622-17-n6zzcc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">MacDonald-Dettwiler is one of many university spinoff companies in Canada that provide high-quality and high-paying jobs and contribute to the regional and national economy.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Richard Lam</span></span>
</figcaption>
</figure>
<p>In Canada, university spinoff companies include <a href="https://mda.space/en/fifty-years">MacDonald-Dettwiler</a>, <a href="https://www.stemcell.com/about-us">STEMCELL Technologies</a>, <a href="https://carbonengineering.com/our-story/">Carbon Engineering</a> and the previously mentioned AbCellera and Acuitas. These companies also provide high-quality and high-paying jobs, help solve pressing global scientific challenges — like the pandemic — and contribute to the regional and national economy.</p>
<p>The <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html">most novel, highly efficacious and rapidly developed vaccines</a> — both incorporating mRNA and delivered by lipid nanoparticles — were driven by BioNTech, Moderna and Acuitis, working in partnership with the large pharmaceutical firm <a href="https://www.pfizer.ca/">Pfizer</a>. </p>
<p>Critically, <a href="https://www.theglobeandmail.com/canada/article-mrna-technology-vaccines/">no mRNA product had ever been developed and approved</a> anywhere in the world <a href="https://publichealth.jhu.edu/2021/the-long-history-of-mrna-vaccines">before the COVID-19 vaccine was developed</a>. This kind of breakthrough invention <a href="https://doi.org/10.1038/nmat4625">rarely originates in large incumbent firms, but rather in science-based university spinoff ventures</a>. </p>
<h2>Innovation gaps</h2>
<p>The current Canadian innovation ecosystem does a good job supporting innovations that can reach market success in three to five years, like software. But it is not conducive for slower-developing innovations like vaccine development or biomedical treatments. Canada needs to support the slower, more complex ones because having a development pipeline enables us to <a href="https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-insights/innovation-in-a-crisis-why-it-is-more-critical-than-ever">rapidly respond to global crises and emerging needs</a>. </p>
<p>Currently, the biggest gap in science innovation support <a href="https://techtransfercentral.com/marketplace/innovosource/mind-the-gap-report/">occurs when the researcher is still in the lab</a> developing their invention. Scientist researchers are being asked to swim upstream for too long, instead of being given the support they need. Thus too many potentially impactful ventures are never founded, and too many breakthrough inventions remain within university walls rather than out in the world. </p>
<p>Founding and growing an impactful science-based company takes persistence, determination, skill — and some luck — and more scientists will embark on the innovation journey if they have a better chance of a positive outcome. </p>
<h2>A new innovation strategy</h2>
<p>The key to better supporting science innovation is funding and <a href="https://www.sciencedirect.com/science/article/pii/S0166497218307302">shaping it at its earliest stages</a>, while innovative ventures are still housed within universities — and even before the ventures are founded. </p>
<p>Known as a <a href="https://researchmoneyinc.com/articles/canadas-university-science-innovation-ecosystem-needs-a-build-for-scale-strategy/">build-for-scale strategy</a>, this approach would involve more flexible funding, <a href="https://www.mitacs.ca/en/invention-to-innovation">skills training</a>, stipends for post-doctoral fellows, intellectual property protection, incubation and acceleration services, enhanced access to prototyping, scale-up, and living lab facilities and government investment.</p>
<figure class="align-center ">
<img alt="A man in a suit standing behind a podium" src="https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470373/original/file-20220622-17-6u37es.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Minister of Innovation, Science and Industry, Francois-Philippe Champagne, participates in a press conference. The Canadian government announced in April that it will create a funding agency focused on innovation in science and technology.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Justin Tang</span></span>
</figcaption>
</figure>
<p>If we <a href="https://beedie.sfu.ca/ideas/2022/05/from-spinal-cord-research-to-circular-plastics-mitacs-i2i-skills-training-finale-celebrates-scientist-innovators/">train scientists to have an entrepreneurial mindset while still in the research lab</a>, their innovation decisions will give subsequent spinoff ventures a far better chance of success. These nascent science-based ventures can then be scaled by existing university accelerators, by a <a href="https://www.iincanada.ca/">continuum of science entrepreneurship programming</a> and by <a href="https://creativedestructionlab.com/">investor-focused mentoring and venture building programs</a>.</p>
<p>If Canada <a href="https://ised-isde.canada.ca/site/innovation-better-canada/en">truly wants establish itself as a leading country in innovation</a>, it will have to purposefully support scientist-entrepreneurs as they seek to translate their research into impactful innovation.</p>
<p>Canada’s <a href="https://doi.org/10.1038/d41586-022-01190-4">newly announced innovation agency</a> could play an important role in enabling universities and scientist-entrepreneurs to be more successful in bridging the “valley of death” with breakthrough science innovation. </p>
<p>Investing in <a href="https://researchmoneyinc.com/articles/canadas-university-science-innovation-ecosystem-needs-a-build-for-scale-strategy/">build-for-scale</a> supports will strengthen the Canadian economy by creating good jobs and knowledge-intensive export companies, and benefit our health, the environment and society as a whole. Such “<a href="https://link.springer.com/article/10.1007/s10961-018-09714-9">high quality</a>” university spinoff ventures will also be key to responding to — or helping prevent — future global crises.</p><img src="https://counter.theconversation.com/content/182575/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elicia Maine does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The key to supporting science innovation is funding and shaping it at its earliest stages, while innovative ventures are still housed within universities — and even before the ventures are founded.Elicia Maine, Van Dusen Professor of Innovation and Entrepreneurship , Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1792602022-03-18T11:23:05Z2022-03-18T11:23:05ZHow Russia is using intellectual property as a war tactic<figure><img src="https://images.theconversation.com/files/452883/original/file-20220317-25-1hr7nnr.jpg?ixlib=rb-1.1.0&rect=667%2C171%2C3418%2C2548&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/03052022russiarussian-president-vladimir-putin-speaks-during-2132517573">ApostolisBril / Shutterstock</a></span></figcaption></figure><p>As part of its deadly assault on Ukraine, Russia has taken the rare step to use intellectual property rights as a war tactic. In early March, the Russian government <a href="http://publication.pravo.gov.ru/Document/View/0001202203070005?index=0&rangeSize=1">issued a decree</a> saying that Russian companies are no longer obliged to compensate owners of patents, utility models and industrial designs from <a href="http://publication.pravo.gov.ru/Document/View/0001202203070001?index=1&rangeSize=1">“unfriendly” countries</a>. These are the western states who have issued sanctions against Russia, including the UK and US. </p>
<p>This means that Russian businesses can use intellectual property, such as patented inventions or fashion designs, without having to pay or seek the consent of the rights holders. Affected companies cannot enforce their patents and designs against Russian imitators.</p>
<p>This effectively legalises intellectual piracy in a country already known for failing to adequately protect intangible assets. Last year, <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/april/ustr-releases-annual-special-301-report-intellectual-property-protection#:%7E:text=Nine%20countries%20%E2%80%94%20Argentina%2C%20Chile%2C,engagement%20during%20the%20coming%20year">Russia was added</a> to a US government “priority watch list” of countries which do not sufficiently protect US intellectual properties.</p>
<p>Vladimir Putin’s move is clearly a reaction to the west’s <a href="https://www.bbc.co.uk/news/world-europe-60125659">economic sanctions</a> and suspension of Russia’s <a href="https://www.politico.eu/article/remove-russia-trade-privilege-what-need-know/">trade privileges</a>. It is also an answer to many multinational companies’ decisions to <a href="https://theconversation.com/shell-bp-and-exxonmobil-have-done-business-in-russia-for-decades-heres-why-theyre-leaving-now-178269">cease doing business</a> with Russian companies. </p>
<p>Sanctions and boycotts have massively affected the Russian economy to the extent that the country is now <a href="https://theconversation.com/the-cost-of-war-how-russias-economy-will-struggle-to-pay-the-price-of-invading-ukraine-178826">on the verge of bankruptcy</a> with interest <a href="https://www.wsj.com/livecoverage/russia-ukraine-latest-news-2022-02-28/card/russia-s-central-bank-more-than-doubles-interest-rates-in-response-to-sanctions-p7602Gbo1YpFdLBardRo">rates having doubled</a>. The stock market has remained <a href="https://markets.businessinsider.com/news/stocks/russia-stock-market-closed-bonds-default-sovereign-debt-deadline-2022-3">closed</a> for weeks and the rouble has <a href="https://www.economist.com/finance-and-economics/2022/02/28/the-roubles-collapse-compounds-russias-isolation">fallen dramatically</a>.</p>
<h2>Unprecedented attack on intellectual property</h2>
<p>The suspension of intellectual property rights as an economic weapon in the context of a conflict is unprecedented, at least in recent decades. Historical examples date back to the first world war, when the US introduced the <a href="https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter53&edition=prelim">Trading With the Enemy Act</a>. This act seized copyright and patents owned by enemy countries, including the patent to aspirin, famously a German invention.</p>
<p>Following the war, the Aspirin trademark owned by the German pharmaceutical company Bayer was <a href="http://www.ipdigit.eu/2011/10/bayers-aspirin-a-lasting-success-without-patent-and-trademark-protection/?pdf=1059">given up to</a> the US, France, UK and Russia, as part of Germany’s war reparations agreed in the Treaty of Versailles. </p>
<p>Russian officials have <a href="https://tass.ru/ekonomika/13982403">hinted</a> that other intellectual property rights owned by western countries may be soon restricted, including software and trademarks. This could allow local entrepreneurs to appropriate and exploit – without permission and for free – brands such as <a href="https://nypost.com/2022/03/11/russia-could-reopen-mcdonalds-stores-by-scrapping-trademark-protections-expert/">McDonald’s</a>. One Russian restaurant chain has even recently adopted, and applied to register locally, a <a href="https://www.washingtonpost.com/world/2022/03/18/uncle-vanya-russian-mcdonalds-replacement-logo">logo</a> very similar to the famous golden arches.</p>
<figure class="align-center ">
<img alt="A McDonald's restaurant in Russia, with the golden arches and company name in Cyrillic." src="https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453010/original/file-20220318-21-kq2gkt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">McDonald’s, perhaps the most famous western trademarks, now at risk of intellectual piracy in Russia.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/krasnoyarsk-russia-march-10-2022-closed-2134722073">Al.geba / Shutterstock</a></span>
</figcaption>
</figure>
<p>The sanctions have also led a Russian judge to dismiss a copyright and trademark infringement lawsuit brought by the British company that produces animated series Peppa Pig. Andrei Slavinsky <a href="https://www.independent.co.uk/news/world/europe/peppa-pig-russia-trademark-ukraine-b2034842.html">said in court</a> that the “unfriendly actions of the United States of America and affiliated foreign countries” influenced his decision. </p>
<p>Ukraine, for its part, has not been inactive in this intellectual property battle. Its ministry of defence <a href="https://www.scmagazine.com/analysis/breach/in-a-first-ukraine-leaks-russian-intellectual-property-as-act-of-war">recently</a> hacked and leaked confidential documents it claimed to have taken from a Russian nuclear power station.</p>
<h2>Does it violate international law?</h2>
<p>Russia’s suspension of patents and other intellectual property rights owned by western companies may violate <a href="https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm">international treaties</a> which protect these assets at global level. All countries of the World Trade Organization (WTO) need to respect these laws and guarantee that foreign businesses can enforce intellectual property rights against imitators.</p>
<p>Countries damaged by the Russian measure may bring Russia to a WTO court and ask for additional sanctions to be imposed. This would again hit Russian businesses, especially those which rely on brands and patented technology, as well as the creative industry sector.</p>
<p>The only way Russia could justify the measure would be to rely on a <a href="http://www.cptech.org/ip/texts/trips/73.html">security exception</a> made available by the WTO itself. This exception allows countries to take any action they consider necessary to protect their essential security interests in times of war. But it has never been invoked by any state in the context of an armed conflict, and therefore never tested before the WTO judges.</p>
<p>If Russia is expelled from the WTO club, as has been <a href="https://www.washingtonpost.com/politics/2022/03/11/russia-wto-penalize-ukraine-conflict/">proposed</a>, that would, paradoxically, insulate it from global intellectual property challenges. No country would be able to bring Russia before a court of an organisation it is no longer a member of.</p>
<p>These are predictions of what could happen if the war continues. It goes without saying that a prompt end to the conflict may instead relax the tension between the west and Russia, and put an end to the current intellectual property battle.</p><img src="https://counter.theconversation.com/content/179260/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Russian government has essentially legalised intellectual piracy as a response to sanctions.Enrico Bonadio, Reader in Intellectual Property Law, City, University of LondonAlina Trapova, Assistant Professor in Law and Autonomous Systems, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1732982022-02-14T18:13:29Z2022-02-14T18:13:29ZHow the intellectual property monopoly has impeded an effective response to Covid-19<p>In an interconnected world, a pandemic can be overcome only when it is overcome everywhere – no one is safe until everyone is safe. Vaccination delays and supply shortages in protective equipment and treatments increase the possibility of the virus mutating. This undermines our ability to control the pandemic, even in highly vaccinated countries. And yet two years into the pandemic, vaccine doses are highly concentrated in rich countries.</p>
<p>As of <a href="https://webassets.oxfamamerica.org/media/documents/A_Dose_of_Reality-Briefing_Note_kOW1yUs.pdf">October 2021</a>, only 0.7% of all manufactured vaccine doses had gone to low-income countries. Manufacturers had delivered 47 times as many doses to high-income countries as they had to low-income countries.</p>
<p>Since its inception, <a href="https://www.who.int/initiatives/act-accelerator/covax">COVAX</a>, the UN-backed initiative dedicated to promoting access to Covid vaccines, has struggled to obtain doses. It recently passed the <a href="https://www.reuters.com/world/global-vaccine-sharing-programme-reaches-milestone-1-billion-doses-2022-01-15/">1 billion doses delivered</a> – half way to its goal of delivering 2 billion doses by the end of 2021. Indeed, AstraZeneca, Pfizer/BioNTech, Moderna, and Johnson & Johnson <a href="https://webassets.oxfamamerica.org/media/documents/A_Dose_of_Reality-Briefing_Note_kOW1yUs.pdf">have delivered</a> between 0% and 39% of their already inadequate commitments to COVAX in 2021.</p>
<p>The <a href="https://globalcommissionforpostpandemicpolicy.org/home/vaccine-countdown/">Global Commission for Post-Pandemic Policy</a>, meanwhile, estimates that while Asia and Europe will be able to fully vaccinate 80% of their populations by March 2022 and North America by May 2022, Africa will not reach 80% at current rates until April 2025.</p>
<h2>Intellectual monopoly capitalism</h2>
<p>The unequal distribution of vaccines is partly due to insufficient production. This <a href="https://www.project-syndicate.org/onpoint/big-pharma-blocking-wto-waiver-to-produce-more-covid-vaccines-by-joseph-e-stiglitz-and-lori-wallach-2021-05">scarcity of supply</a> is due to intellectual property rights, which give pharmaceutical companies a monopoly on production and exclusive rights to license their technology to other companies.</p>
<p>India and South Africa, co-sponsored by more than 100 other countries, initiated a campaign in the World Trade Organization to <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">waive intellectual property rights</a> to ensure the necessary production of vaccines, PPE, diagnostics, ventilators and medication. A waiver would ensure necessary production by allowing companies to produce Covid-related products.</p>
<p>Six months later, the United States surprisingly <a href="https://www.nature.com/articles/d41586-021-01224-3">supported the waiver for vaccines</a>, but not for other medical materials as advanced by the patent waiver initiative. Yet to date, Washington has not employed its political clout to apply the waiver globally, and Europe has refused the initiative.</p>
<p>Curiously, Brussels <a href="https://trade.ec.europa.eu/doclib/docs/2021/june/tradoc_159606.pdf">proposes</a> to use the very flexibilities of Trade-Related Aspects of Intellectual Property Rights agreement (<a href="https://en.wikipedia.org/wiki/TRIPS_Agreement">TRIPS</a>), that it resisted and even undermined through its trade agreements. As Nobel Prize–winning economist Joseph Stiglitz <a href="https://www.project-syndicate.org/onpoint/big-pharma-blocking-wto-waiver-to-produce-more-covid-vaccines-by-joseph-e-stiglitz-and-lori-wallach-2021-05">argues</a> these flexibilities are not helpful.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Map showing the share of people who received at least one dose of Covid-19 vaccine, Jan 18, 2022" src="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://ourworldindata.org/covid-vaccinations">Our World in Data</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Intellectual property rights are political creature as they profit specific social interests and were <a href="https://books.google.fr/books?id=B81qmONSs9cC&lpg=PR10">lobbied</a> for by them, especially the pharmaceutical, agrochemical, entertainment and media industries.</p>
<p>The signature of what is known as the TRIPS agreement at the World Trade Organization in 1994 was a <a href="https://www.tandfonline.com/doi/abs/10.1080/14649880120067293">historic turning point</a> for intellectual property rights, and is today exacerbated by more stringent <a href="https://ageconsearch.umn.edu/record/15577?ln=en">US</a> and <a href="https://link.springer.com/chapter/10.1007/978-3-642-39097-5_13">EU</a> bilateral trade agreements.</p>
<p>These were key steps in the enforcement of <a href="https://academic.oup.com/cje/article-abstract/38/6/1409/2875367?redirectedFrom=fulltext">“intellectual monopoly capitalism”</a> which has transformed a world mainly based on open science into a world of closed science, and led to the concentration of knowledge into a few hands to an unprecedented degree.</p>
<p>The legal monopoly over knowledge, which extends well beyond national boundaries, enables owners of intellectual property rights (IPR) to exclude others from using new inventions, reduce competitive supply and increase prices. The control of IPRs is a central element in <a href="https://www.tandfonline.com/doi/abs/10.1080/00213624.2017.1320916">transnational corporation strategies</a> of accumulating intangible assets to extract absolute rents.</p>
<p>In an increasingly <a href="https://www.sciencedirect.com/science/article/abs/pii/S0277953620303154">financialised health sector</a>, where the priority is to increase profits for creditors and shareholders, the accumulation of a portfolio of intellectual property rights <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1758-5899.12911">allows</a> for the extraction of monopoly profits.</p>
<p>In 2019, investment management corporations such as BlackRock, Vanguard, and State Street were the <a href="https://www.sciencedirect.com/science/article/abs/pii/S0277953620303154">majority shareholders</a> in firms involved in vaccine development including Pfizer (75.1%) and Johnson & Johnson (68.1%). This is problematic, as research shows that a key determinant of innovation in the health sector could become <a href="https://academic.oup.com/spp/article-abstract/43/3/375/2363402">generating returns on investment</a>, not protecting health.</p>
<p>Therefore, some economist argues that the global economic system is <a href="https://www.tandfonline.com/doi/full/10.1080/09692290.2019.1659842">“structurally pathogenic”</a>, with negative rather than positive impacts on human health.</p>
<h2>The public pays twice</h2>
<p>A <a href="https://webassets.oxfamamerica.org/media/documents/The_Great_Vaccine_Robbery_Policy_Brief.pdf">July 2021 analysis</a> by the <a href="https://peoplesvaccine.org/">People’s Vaccine Alliance</a> shows that
Pfizer/BioNTech and Moderna are charging governments as much as 41 billion US dollars above the estimated cost of production for vaccines. The EU, meanwhile, may have paid 31 billion euros more than the estimated cost for its mRNA doses.</p>
<p>The same analysis shows that countries are generally paying between 4 and 24 times more than they could be for Covid-19 vaccines. But a recent <a href="https://www.citizen.org/article/how-to-make-enough-vaccine-for-the-world-in-one-year/">report</a> by the consumer advocacy group Public Citizen suggests that setting up regional hubs to manufacture 8 billion doses in one year would cost about $23 billion for the Moderna vaccine, and $9.4 billion for the Pfizer/BioNTech vaccine.</p>
<p>Put simply, without intellectual property monopolies, the money already spent by COVAX would have been enough to fully vaccinate the entire population of low-income and middle-income countries.</p>
<p>Moreover, citizens are paying the pharmaceutical industry twice: first because they are paying monopoly profit, and second because vaccines were developed with <a href="https://www.theindiaforum.in/article/political-economy-covid-19-vaccines">public funding</a> through large subsidies for research and development, and through public pre-orders of vaccines.</p>
<h2>Adverse effects of IPR on innovation</h2>
<p>The proponents of tight intellectual property rights argue that in their absence, inventions would be accessible to third parties without ensuring enough compensation for inventors, thus discouraging investment in innovation. But Joseph Stiglitz argues that there is <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199660759.001.0001/acprof-9780199660759-chapter-1">no evidence supporting this mainstream view</a>.</p>
<p>Indeed, intellectual property rights establish distorted incentives to create market power. Monopolists use their power to block innovators who endanger their dominant position, and try to maintain their position by getting only a little bit ahead of their rivals – which has an adverse effect on innovation.</p>
<p>This became clear during the Covid-19 pandemic. <em>The New York Times</em> <a href="https://www.nytimes.com/2020/03/29/business/coronavirus-us-ventilator-shortage.html">reported</a> suspicions that one company, Covidien, had acquired another, Newport, to “prevent it from building cheaper products that would undermine Covidien’s profits from its existing ventilator business”, despite the fact that the Newport ventilator was developed with <a href="https://www.ineteconomics.org/uploads/papers/WP_127-Lazonick-and-Hopkins.pdf">public funding</a>.</p>
<p>As knowledge has been subdivided into separate property claims, we have seen the rise of <a href="https://www.nber.org/system/files/chapters/c10778/c10778.pdf">patent thickets</a> – dense webs of overlapping intellectual property rights claims that a company must use to actually commercialise a new invention. In this context, greater intellectual property rights lead to <a href="https://www.science.org/doi/10.1126/science.280.5364.698">fewer useful health products</a>.</p>
<p>A <a href="https://www.nature.com/articles/s41587-021-00912-9">recent article</a> showed that while key technological advancements for mRNA vaccines were invented in several academic labs or small biotech companies and then licensed to larger companies, the intellectual property rights owned by or assigned to those larger companies may impede future development of the technology.</p>
<h2>Intellectual property capitalism, growth and social polarisation</h2>
<p>Tight intellectual property rights are also counterproductive from a broader economic perspective. Several economists argue that intellectual monopoly capitalism <a href="https://academic.oup.com/cje/article-abstract/38/6/1409/2875367?redirectedFrom=fulltext">produces economic crisis</a> and stagnation. American scholar <a href="https://www.tandfonline.com/doi/abs/10.1080/09692290.2021.1918745?journalCode=rrip20">H Mark Schwartz</a> has demonstrated that firms based on intellectual property rights have a lower marginal propensity to invest.</p>
<p>The monopolisation of socially produced knowledge by intellectual property rights produces hierarchical relations among firms and between capital and labour, <a href="https://journals.sagepub.com/doi/abs/10.1177/1024529420968221">exacerbating</a> inequality and creating a situation where a handful of firms capture the lion’s share of global profits.</p>
<p>It should be noted that IPRs have exacerbated structural global polarisation. While production takes place in the South in exchange for poor wages and accompanied by environmental degradation, transnational corporations whose headquarters are mostly in the North (or in tax havens) <a href="https://www.tandfonline.com/doi/abs/10.1080/00213624.2017.1320916">extract monopoly rent</a> through IPRs out of value-added that is created in the South. What is <a href="https://unctad.org/system/files/official-document/tdr2018ch3_en.pdf">new</a> this time is that some historically technologically-advanced Western European countries have been locked out of the “fourth industrial revolution” – advancing information and communication technologies – partially due to IPRs.</p>
<p>Finally, there exists <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199698547.001.0001/acprof-9780199698547-chapter-10">other mechanisms, including prizes and government supported research</a>, that reward invention and disseminate knowledge while avoiding the creation of monopoly power.</p><img src="https://counter.theconversation.com/content/173298/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Salam Alshareef ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>From vaccines to treatments and even medical equipment, intellectual property rights have hampered the world’s efforts to fight the pandemic.Salam Alshareef, Enseignant-chercheur postdoctoral - Chaire Paix Economique, Grenoble École de Management (GEM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1621102021-07-06T15:00:16Z2021-07-06T15:00:16ZWhy Africa’s push to make vaccines should look further than COVID-19<figure><img src="https://images.theconversation.com/files/405100/original/file-20210608-130350-1ba9vr4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Cyril Ramaphosa, Deputy president David Mabuza, Health Minister Dr Zweli Mkhize visiting the Aspen Pharmacare sterile manufacturing facility. </span> <span class="attribution"><span class="source">Lulama Zenzile/Die Burger/Gallo Images via Getty Images</span></span></figcaption></figure><p>It’s unlikely that vaccine manufacturing will offer Africa a quick fix for COVID-19. Countries on the continent are grappling with a diverse array of challenges. These include vaccine hesitancy, supply bottlenecks and a lack of operational funding and human resources to administer jabs. </p>
<p>Still, the political will to boost local manufacturing of vaccines is rising across the globe, including in Africa – and has never been this high.</p>
<p>The reason is simple. COVID-19 has shown that regions and countries take care of their own people first when crises hit. Africa wants to be able to do the same. To do so, the continent must seize new opportunities to fast-track the development of vaccine manufacturing capacity and to boost regulatory processes.</p>
<p>In 2020, about 40 African countries participated in a World Health Organisation (WHO) <a href="https://www.who.int/director-general/speeches/detail/director-general-s-opening-remarks-for-panel-is-africa-ready-to-finance-its-own-vaccine">training marathon</a> to build manufacturing capacity.
All 54 countries on the continent also supported Ethiopia’s recently passed resolution to the <a href="https://healthpolicy-watch.news/us-backs-trips-waiver-to-strip-vaccines-of-patent-protection-as-wha-pushes-local-vaccine-capacity/">74th World Health Assembly</a>, focused on strengthening local production of medicine and health technology. At the recent <a href="https://www.g20.org/the-global-health-summit-ended-with-the-signing-of-the-rome-declaration.html">G20 Global Health Summit</a>, the European Commission also announced a new initiative on manufacturing in Africa, backed by €1 billion. </p>
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Read more:
<a href="https://theconversation.com/trips-waiver-us-support-is-a-major-step-but-no-guarantee-of-covid-19-vaccine-equity-160638">TRIPS waiver: US support is a major step but no guarantee of COVID-19 vaccine equity</a>
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<p>That’s critical because manufacturing vaccine doesn’t come cheap. Success will depend heavily on support – in cash and in kind – from developed countries. It takes hundreds of millions of dollars to produce a <a href="https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(18)30346-2/fulltext">new vaccine</a>. </p>
<p>There is hope for relaxation of <a href="https://theconversation.com/trips-waiver-us-support-is-a-major-step-but-no-guarantee-of-covid-19-vaccine-equity-160638">intellectual property rights</a>. These are necessary to open the way to local manufacturing of existing vaccines. </p>
<p>But the production process for new vaccines can take as long as five to 10 years. The typical vaccine roadmap begins with exploratory research, followed by pre-clinical and clinical safety and efficacy testing on animals and humans – and regulatory reviews and approvals for licensing. Only then can the manufacturing process begin.</p>
<p>This requires a significant body of skills. Local expertise in areas such as research and development, regulatory expertise and quality assurance must be strengthened too. </p>
<h2>Local manufacturing</h2>
<p>It will take several more years before countries are fully prepared to manufacture new vaccines to the scale of contributing significantly to global output. Therefore, governments should adopt a longer-term view that prioritises the most urgent health challenges in the region. This vision must be about manufacturing vaccine generally, rather than COVID-19 vaccines specifically.</p>
<p>Africa has <a href="https://www.nature.com/articles/d41586-021-01048-1">54 countries</a> and 1.2 billion people, but produces only 1% of all the vaccines it administers. The continent also faces a heavy burden of disease. Over <a href="https://www.who.int/news-room/fact-sheets/detail/malaria#:%7E:text=Disease%20burden&text=cases%20in%202018.-,The%20estimated%20number%20of%20malaria%20deaths%20stood%20at%20409%20000,all%20malaria%20cases%20and%20deaths">90%</a> of the world’s malaria deaths and <a href="https://www.afro.who.int/health-topics/hivaids">70%</a> of all people living with HIV are in Africa.</p>
<p>So far, the continent has only a few producers of vaccines. Statutes signed between the government of Senegal and the Institut Pasteur in <a href="https://www.avmi-africa.org/manufacturers/#1490181278853-496b3000-e3fc">2009</a> allowed the country to manufacture yellow fever vaccines. There are <a href="https://www.avmi-africa.org/manufacturers/#1490181277540-254a2bb0-9973">six other vaccine manufacturing institutes</a>. One is <a href="https://www.vacsera.com/">VACSERA </a>in Egypt, the oldest vaccine manufacturer in Africa. Egypt is slated to complete the production of <a href="https://egyptindependent.com/egypt-to-produce-40-million-doses-of-sinovac-vaccine-in-2021/">40 million</a> doses of China’s Sinovac COVID-19 vaccine domestically by the end of 2021. In South Africa, the pharmaceutical company<a href="https://www.aspenpharma.com/"> Aspen</a> will be manufacturing doses of the <a href="https://www.reuters.com/article/uk-health-coronavirus-safrica-johnson-jo-idUSKBN2BO5IA">Johnson & Johnson</a> COVID-19 vaccine under licence.</p>
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Read more:
<a href="https://theconversation.com/vaccine-production-in-south-africa-how-an-industry-in-its-infancy-can-be-developed-153204">Vaccine production in South Africa: how an industry in its infancy can be developed</a>
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<p>Most local companies engage only in packaging and labelling, and occasionally fill-and-finish steps. But it’s noteworthy that there are about <a href="https://www.afro.who.int/news/what-africas-vaccine-production-capacity">80 sterile injectables facilities</a> on the continent. These produce a broad range of fill-and-finish sterile solutions and emulsions including anaesthetics, eye drops and multi-drug resistant tuberculosis vaccines. Significant financial commitment would be required to transform them into fully integrated manufacturing facilities. But these operations have built solid track records with partners and suppliers that will benefit expansion plans.</p>
<h2>Integrating policies</h2>
<p>Africa’s segmented markets, and often small economies, are at odds with the fact that vaccines are mostly produced in large quantities to keep prices down. They require large markets for sustainability. Regulatory bodies that meet international standards are also lacking, presenting a further hurdle.</p>
<p>Integrating national and regional policies and strategies would in effect increase the size of the overall market. All countries could then benefit, regardless of the size of their economy.</p>
<p>More integration will drive agreement on the manufacturing of products in high demand in Africa. It will also expand market access, and help avoid costly duplication. But most importantly, it will help ensure sustainability because most African countries’ markets are too small to support their own manufacturing. </p>
<p>African countries must make better use of regional economic integration platforms such as the <a href="https://www.ecowas.int/">Economic Community of West African States</a>, the <a href="https://www.comesa.int/">Common Market for Eastern and Southern Africa</a>, and the new <a href="https://au.int/en/cfta">African Continental Free Trade Agreement</a>, all of which offer great opportunities. </p>
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Read more:
<a href="https://theconversation.com/africas-free-trade-area-offers-great-promise-but-only-if-risks-are-managed-with-resolve-161535">Africa's free trade area offers great promise. But only if risks are managed with resolve</a>
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<p>The <a href="https://www.un.org/africarenewal/magazine/november-december-2020/afcfta-africa-readying-free-trade-come-january-2021">African Continental Free Trade Area</a>, for example, aims to reduce all trade costs – it will eliminate 90% of tariffs – and enable Africa to integrate further into global supply chains. Cutting red tape and simplifying customs procedures will bring significant income gains. </p>
<p>Strong regulatory capacity and oversight is another building block for vaccine production and product safety. Countries must strengthen their regulatory systems to ensure that all medical products are of the highest quality, and that local manufacturers maintain international standards. This is why it’s critical for member states to urgently ratify the treaty to support the creation of the <a href="https://au.int/en/pressreleases/20200205/african-medicine-agency-ama-treaty">African Medicines Agency</a>. To date, <a href="https://au.int/en/pressreleases/20210507/republic-guinea-deposits-instrument-ratification-african-medicines-agency-ama">seven</a> of the required 15 African Union member states have ratified the treaty.</p>
<p>The World Health Organisation, where I am the regional advisor for vaccine research and regulation in the Africa region, works with member states and partners towards local vaccine manufacture.</p>
<p>In Ethiopia, for example, we are working closely with the Ministry of Health. We’re conducting a feasibility study in respect of the potential for high-standard manufacturing of vaccines. We’re also developing cost estimates for a road map to success.</p>
<p>Ethiopia, home to the second biggest population on the continent, had to pay a hefty US$707 million to procure routine vaccines between 2016 to 2020. That’s an enormous financial burden and sends a very clear message about the urgency for local manufacturing.</p>
<h2>Looking forward</h2>
<p>Africa is facing <a href="https://www.dw.com/en/coronavirus-digest-who-says-africa-urgently-needs-20-million-vaccine-doses/a-57695529">delays in accessing life-saving vaccines</a> for COVID-19. The continent may experience similar delays in the future. The continent faces significant and enduring <a href="https://www.hsph.harvard.edu/news/features/africa-cdc-head-is-driving-a-new-public-health-agenda-on-the-continent/#:%7E:text=March%2012%2C%202020%20%E2%80%93%20Africa%20faces,growing%20burden%20of%20chronic%20diseases">public health threats</a>, including measles, rotavirus, yellow fever and Ebola.</p>
<p>To manage these public health threats, Africa needs its own capacity for vaccine development and production so that it can immunise for childhood diseases and help control outbreaks of highly infectious diseases – including COVID-19.</p><img src="https://counter.theconversation.com/content/162110/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bartholomew Dicky Akanmori is Regional Adviser for Vaccine Research and Regulation in the WHO Regional Office for Africa. </span></em></p>Vaccine manufacturing doesn’t come cheap. It depends heavily on support from developed countries. It also requires much more than relaxing intellectual property rights and a desire for vaccine equity.Bartholomew Dicky Akanmori, Professor Emeritus of Immunology, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1605822021-05-10T12:34:00Z2021-05-10T12:34:00ZUS support for waiving COVID-19 vaccine patent rights puts pressure on drugmakers – but what would a waiver actually look like?<figure><img src="https://images.theconversation.com/files/399578/original/file-20210509-15-imdzwl.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3810%2C2527&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A COVID-19 surge has pushed hospitals in India beyond their capacity. A stadium in New Delhi was being used as a makeshift ward on May 2, 2021.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/medical-worker-in-ppe-observes-patients-who-have-been-news-photo/1315876823">Getty Images</a></span></figcaption></figure><p>The U.S. and Europe are debating waiving patent rights for COVID-19 vaccines, a move that could allow more companies to produce the vaccine around the world. But it’s not as simple as it might sound.</p>
<p>When the <a href="https://www.wto.org/english/news_e/news21_e/trip_11mar21_e.htm">U.S. announced</a> on May 5, 2021, that it supported the idea of a temporary waiver, the statement was vague. Some <a href="https://www.reuters.com/article/eu-summit-vaccine-waiver/eu-sceptical-on-vaccine-waiver-but-ready-to-discuss-proposal-idUSL8N2MV07S">European countries</a> still oppose even a narrow waiver. </p>
<p>Any agreement will take weeks of negotiation among the World Trade Organization’s 164 members, and then months more for production to begin.</p>
<p>That long timeline won’t solve the immediate problem. Many poor countries have vaccinated <a href="https://ourworldindata.org/explorers/coronavirus-data-explorer">less than 1%</a> of their populations, while <a href="https://ourworldindata.org/explorers/coronavirus-data-explorer">44% of the vaccine doses</a> have gone to Europe and North America, where wealthy countries secured <a href="https://apnews.com/article/europe-coronavirus-vaccine-coronavirus-pandemic-technology-business-dd8e893679769166e170144644eced75">large vaccine contracts</a>. At the same time, the disease is spreading quickly in South Asia, and new variants are raising the risks around the world.</p>
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<p>The idea of temporarily waiving World Trade Organization rules on intellectual property rights for the COVID-19 vaccines was <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">first proposed</a> by South Africa and India in late 2020. The original proposal was broad, covering patents, copyrights, trade secrets and industrial designs related to the “prevention, containment or treatment of COVID-19.”</p>
<p>The U.S. is suggesting a much narrower approach, but exactly what that would look like isn’t yet clear.</p>
<p>Some European countries with vaccine industries, <a href="https://www.reuters.com/world/europe/eu-split-vaccine-waiver-idea-unlikely-take-clear-stance-2021-05-07/">including Germany</a>, argue that waiving intellectual property rights would pose a <a href="https://www.wsj.com/articles/u-s-support-for-patent-waiver-unlikely-to-cost-covid-19-vaccine-makers-in-short-term-11620414260">danger to future vaccine innovation</a> and is unnecessary. <a href="https://www.reuters.com/world/europe/eu-split-vaccine-waiver-idea-unlikely-take-clear-stance-2021-05-07/">Others pointed out</a> that most countries in need lack the facilities, technology and skilled technicians to produce the vaccines even if patent rights were waived, and said the bigger problem was countries like the U.S. and Britain preventing their vaccines and ingredients from being exported to the rest of the world.</p>
<p>Critics are correct that, by itself, a temporary waiver is not sufficient to address the gap in production. They are correct that vaccine ingredients and other supplies remain a major blockage.</p>
<p>But it is also clear that vaccine makers are not voluntarily licensing their vaccines at the scale needed to expand production enough to stop the pandemic.</p>
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<img alt="An employee in full protective gear works on assembling vaccine doses." src="https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399579/original/file-20210509-13-1hfzvy5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">India’s Serum Institute is one of a few companies outside North America and Europe licensed to produce patented COVID-19 vaccines.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-employee-in-protective-gear-works-on-an-assembly-line-news-photo/1230726607">Punit Paranjpe/AFP via Getty Images</a></span>
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<p>The <a href="https://www.unicef.org/supply/covid-19-vaccine-market-dashboard">UNICEF COVID Dashboard</a> shows that Moderna and Pfizer/BioNTech, which both use new mRNA technology in their vaccines, have licensed to few other companies. Moderna had <a href="https://investors.modernatx.com/news-releases/news-release-details/statement-moderna-intellectual-property-matters-during-covid-19">voluntarily agreed not to enforce its patents</a> but has not shared trade secrets or know-how. Johnson & Johnson and AstraZeneca have primarily licensed to companies with which they carried out national clinical trials, and these may be limited just to production for export for existing developed country contracts or purely domestic supply. Refusals to license to experienced drug manufacturers such a <a href="https://www.theglobeandmail.com/world/article-canadian-firm-seeks-mandatory-licence-to-produce-covid-19-vaccines-for/">Biolyse in Canada</a> or <a href="https://kfgo.com/2021/04/28/exclusive-teva-pharm-unlikely-to-reach-deals-to-co-produce-vaccines-ceo/">Teva in Israel</a> present a serious problem.</p>
<p><a href="https://udayton.edu/directory/law/shabalala_dalindyebo.php">I have worked on legal issues related to access to medicines</a> since 2004 and have been involved in these debates at the WTO and the World Intellectual Property Organization. I believe that U.S. support of the waiver proposal can lead to an effective outcome if minimum criteria are met: The vaccine makers will have to give up some control, and the countries must ensure those companies are appropriately compensated.</p>
<p>The waiver could build on the existing system for compulsory licensing of patents and extend that to trade secrets and knowledge. The <a href="https://www.who.int/bulletin/volumes/84/5/news10506/en/">negotiations around access to HIV/AIDS medicines</a> in the 1990s ended up with a similar framework.</p>
<h2>How to make compulsory licenses work for vaccines</h2>
<p>When a country approves a patent, it gives the patent holder a monopoly for a limited term, usually 20 years, for new and highly inventive ideas. The key phrase is “limited time.” This makes sure that once a patent runs out, others can make the product. Generic drugs are an example.</p>
<p>For emergencies, the patent system has safety valves that allow governments to intervene before that limited time is up. Based on public needs – including health emergencies – a government can allow others to make the product, usually with a reasonable royalty, or fee, paid to the patent owner. This is known as a compulsory license.</p>
<p>Today, any country that has issued a patent to a COVID-19 vaccine maker can use that patent simply by issuing a compulsory license to enable production by its own companies.</p>
<p>The problem is that many countries don’t have vaccine production facilities within their borders – they need to rely on imports. But under Article 31 of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property, or TRIPS, compulsory licenses can’t be used to produce vaccines for exporting to other countries. That means countries like China and the Philippines that have thriving pharmaceutical industries can’t use compulsory licenses to send vaccines to Africa, for example.</p>
<figure class="align-center ">
<img alt="A person wearing a mask and gloves holds up a small vial." src="https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399580/original/file-20210509-17-xtrg2q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A medical worker in Algeria holds a vial of Russia’s Sputnik V vaccine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/medical-worker-holds-a-vial-of-russias-sputnik-v-vaccine-news-photo/1230865914">Ryad Kramdi/AFP via Getty Images</a></span>
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<p>There have been several attempts to solve this problem, including a change to the TRIPS Agreement approved in 2005. But <a href="https://www.wto.org/english/tratop_e/trips_e/tripsfacsheet_e.htm">only one country – Rwanda – has used that system</a> to access drugs, and it was deemed <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/IP/C/57.pdf&Open=True">too difficult to use</a>. Rwanda was able to import 7 million doses from Canada, but it took almost two years, and the Canadian generic producer declared the system <a href="https://www.biospace.com/article/releases/apotex-corp-receives-final-tender-approval-from-rwanda-for-vital-aids-drug-/">economically unsustainable for a private company</a>.</p>
<p>The technologies in COVID-19 vaccines, especially those based on mRNA vaccines, are complex and involve multiple patents, trade secrets and know-how. The TRIPS Agreement <a href="https://www.wto.org/english/docs_e/legal_e/27-trips_04d_e.htm">requires countries to provide protection</a> for trade secrets. Some countries’ laws, such as the U.S. Defense Production Act, allow for requiring such technology transfer, but many countries don’t want to violate the agreement. </p>
<p>To successfully expand vaccine production, countries need a relatively seamless system. The waiver must <a href="https://dalishabalala.wordpress.com/2021/04/15/a-compulsory-license-option-for-the-covid19-trips-waiver-proposal/">lift the TRIPS limitations on exports</a> and allow countries to require sharing of trade secrets and know-how. This would let a country like the Philippines issue a blanket license for COVID-19 technologies, allow its companies to produce vaccines developed elsewhere and export those vaccines to countries that lack their own manufacturing capacity.</p>
<p>Lifting those restrictions could help ensure that the world is not still in the same position in 2022. And that is what the proposal is truly aimed at.</p>
<h2>How soon could the world see results?</h2>
<p>Both the threat of the waiver and its actual implementation could accomplish several things.</p>
<p>First, they increase the incentive for companies to voluntarily license their vaccines and transfer knowledge to trusted partners in other countries. Provided there is pressure to do so, they could allow production for export to additional countries.</p>
<p>Second, they increase the leverage developing country companies and governments have in negotiations with vaccine makers for licenses, like the production <a href="https://www.cnn.com/2021/03/03/politics/biden-merck-johnson--johnson-dpa/index.html">agreement between Merck and Johnson & Johnson brokered by the Biden administration</a>.</p>
<p>Finally, if implemented, the waiver would ensure that pharmaceutical companies are compensated for their work in developing vaccines while ensuring that they cannot prevent wider production.</p>
<p>This is an international emergency that requires “extraordinary measures,” as <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver">U.S. Trade Representative Katherine Tai noted</a>. These measures do not need to be taken at the cost of either innovation or access.</p>
<p><em>This article updates a <a href="https://theconversation.com/how-to-get-covid-19-vaccines-to-poor-countries-and-still-keep-patent-benefits-for-drugmakers-158384">version</a> published April 14, 2021.</em></p><img src="https://counter.theconversation.com/content/160582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dalindyebo Shabalala is affiliated with the Center for International Environmental Law (CIEL) as a Board Member. He has previously worked at the South Centre, an intergovernmental organization of developing countries on Access to Medicines projects funded by the Rockefeller Foundation, SIDA, and GIZ among others</span></em></p>The process will take months, if it’s even approved. But just the threat of waiving intellectual property rights could spur faster action.Dalindyebo Shabalala, Associate Professor, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1604432021-05-07T04:05:42Z2021-05-07T04:05:42ZUS support for waiving COVID vaccine IP is a huge step<p>Yesterday, the US Biden administration <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver">declared</a> its support for waiving intellectual property rights, including patents, for COVID-19 vaccines.</p>
<p>This decision represents a huge breakthrough in discussions at the World Trade Organisation (WTO) that have been deadlocked for more than six months.</p>
<p>Shortly afterwards, New Zealand’s trade minister Damien O'Connor <a href="https://twitter.com/DamienOConnorMP/status/1390041572679372800">announced his country’s support on Twitter</a>, quickly followed by <a href="https://www.thestar.com/politics/federal/2021/05/06/canada-supports-review-of-patent-protections-for-covid-19-vaccines.html">Canada’s expression of support for the proposal</a>.</p>
<p>Other nations that have so far resisted pressure to support the waiver are likely to fall like dominoes in the wake of the US in coming days.</p>
<p>Today, Australia’s trade minister <a href="https://www.abc.net.au/news/2021-05-07/dan-tehan-says-australia-will-support-patent-waiver-for-vaccines/13333684">Dan Tehan said</a> the waiver “will be an important part of trying to get a resolution in the World Trade Organisation”, but it remains unclear whether Australia has unequivocally thrown its support behind the proposal. </p>
<p>Waiving intellectual property rights is a necessary first step to scaling up the global supply of COVID-19 vaccines and correcting worsening inequities in access to these desperately needed products. </p>
<p>A decision by Australia to support the waiver would indicate we value human lives more than pharmaceutical industry profits, and are committed to bringing the pandemic to an end globally.</p>
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Read more:
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<h2>Why do we need to waive intellectual property rights?</h2>
<p>The exclusive rights to manufacture COVID-19 vaccines are currently held by a small number of companies that control the global supply. This is despite the <a href="https://www.msf.org/governments-must-demand-all-coronavirus-covid-19-vaccine-deals-are-made-public">huge amounts of public funding</a> funnelled into their development.</p>
<p>Some of these companies have entered into licensing arrangements with other manufacturers to increase production, such as AstraZeneca’s contracts allowing CSL in Australia and the Serum Institute of India to make its vaccine.</p>
<p>But most have not. And no pharmaceutical company has taken steps to share its intellectual property, know-how, and technology through the <a href="https://www.who.int/initiatives/covid-19-technology-access-pool">COVID-19 Technology Access Pool</a>, a platform set up by the World Health Organisation (WHO) for this purpose almost a year ago.</p>
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<p>The exclusive rights held by these companies are governed by the WTO’s <a href="https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm">Agreement on Trade-Related Aspects of Intellectual Property Rights</a>, commonly known as “TRIPS”. WTO members are required by TRIPS to provide patent terms of at least 20 years, along with other types of intellectual property protection, such as protection of trade secrets.</p>
<p>Suspending patents and other intellectual property rights relevant to pharmaceuticals will remove legal barriers, allowing vaccine developers to enter the market more quickly without worrying about the prospect of litigation over potential infringements of intellectual property rights. </p>
<p>It will also mean vaccines manufactured in one country can be exported to others without having to navigate a legal maze.</p>
<h2>What’s been happening at the WTO?</h2>
<p>India and South Africa first put a <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">proposal</a> to the WTO in October 2020 for a waiver of certain intellectual property provisions in TRIPS for COVID-19 medical products for the duration of the pandemic. As envisaged by its sponsors, the waiver would apply to vaccines along with other medical products to fight the pandemic such as treatments, diagnostic tests and medical equipment.</p>
<p>Over the ensuing six months, <a href="https://www.twn.my/title2/health.info/2021/hi210306.htm">more than 100</a> of the WTO’s 164 members moved to support the TRIPS waiver proposal. </p>
<p>But several countries have prevented negotiations from moving forward, including the US, the European Union, the United Kingdom, Switzerland, Japan, Brazil, Norway and Australia. If Australia now adds its wholehearted support to the US proposal for a waiver for vaccines, this could help shift the dynamics at the WTO further towards a resolution.</p>
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<p>Meanwhile, the pandemic has been accelerating and inequities in vaccine access have been worsening. The director-general of the WHO, Tedros Adhanom Ghebreyesus, <a href="https://www.bbc.com/news/world-56698854">noted in April</a> that one in four people in rich countries had been given a vaccine dose, but only one in around 500 in low-income countries had received a dose. </p>
<p>It has become increasingly clear that unless governments take urgent action, the global supply of vaccines won’t be adequate to meet demand for a long time to come. COVAX, the global program for equitable distribution of COVID-19 vaccines, has so far <a href="https://www.unicef.org/supply/covid-19-vaccine-market-dashboard">been able to deliver only 54 million</a> of the two billion vaccine doses it planned to distribute by the end of 2021.</p>
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<h2>Why is the US about-face so significant?</h2>
<p>Historically, the US has been the world’s staunchest advocate for intellectual property rights. It has demanded its trading partners <a href="https://journals.sagepub.com/doi/10.1111/jlme.12014">provide high levels of protection for IP</a> in exchange for access to US markets, and has <a href="https://www.keionline.org/35215">named and shamed countries</a> it sees as providing insufficient IP protection, singling them out for trade sanctions.</p>
<p>The change in the US position signals how clearly the success of every country in fighting the pandemic depends on vaccinating the whole world. The risk of variants emerging in areas of uncontrolled transmission means no country can gain control of the situation just by vaccinating its own population.</p>
<p>The US move will give confidence to other countries to support the waiver and will isolate any countries that continue to oppose it.</p>
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<figcaption>Source: Médecins Sans Frontières</figcaption></figure>
<h2>Does the US support for the waiver go far enough?</h2>
<p>The US has agreed to support a waiver only for vaccines. This is short-sighted. COVID-19 treatments could become a more important part of the medical toolkit for fighting the pandemic further down the track — as treatments called “antiretrovirals” have proved <a href="https://ourworldindata.org/art-lives-saved">crucial to reigning in the spread of HIV</a>. And many countries are lacking sufficient diagnostic tests, which are critical for getting outbreaks under control.</p>
<p>The waiver also isn’t enough on its own: it’s necessary but not sufficient. Governments will need to incentivise pharmaceutical companies — or if they continue to drag their feet, force them — to share their knowledge of manufacturing processes and their technology through initiatives like the WHO Technology Access Pool.</p>
<p>And governments will need to invest in building production capacity in low- and middle-income countries and find solutions to problems like shortages of raw ingredients, rather than relying on the market to solve these structural problems.</p>
<h2>What needs to happen next?</h2>
<p>Given the consensus-based decision-making process at the WTO, the TRIPS waiver will still need to win the support of the remaining countries standing in the way.</p>
<p>Gaining the EU’s support will probably be the most difficult battle. The EU, where a large proportion of the world’s pharmaceutical companies are headquartered, has so far emphasised donations of vaccines as the way out of the pandemic. But European Commission President Ursula von der Leyen has at least <a href="https://twitter.com/vonderleyen/status/1390215441625321472">signalled</a> the EU’s willingness to discuss the US proposal.</p>
<p>Once consensus is reached, it will be important for the negotiations to be transparent, with draft texts shared publicly, as the benefits that flow from the waiver will rely on the detail of its wording.</p>
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<p>Negotiations will also need to progress at speed. There have been millions of deaths from COVID-19 since the proposal was first tabled six months ago. The world can’t afford another long wait.</p><img src="https://counter.theconversation.com/content/160443/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Gleeson has received funding in the past from the Australian Research Council. She has received funding from various national and international non-government organisations to attend speaking engagements related to trade agreements and health. She has represented the Public Health Association of Australia on matters related to trade agreements and public health.</span></em></p>The change in the US position signals how clearly the success of every country in fighting the pandemic depends on vaccinating the whole world.Deborah Gleeson, Associate Professor in Public Health, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1594672021-04-25T16:50:26Z2021-04-25T16:50:26ZIntellectual property and Covid-19: how can we accelerate vaccination globally?<p>The gap between the number of vaccines administered in rich countries and in the developing world “is growing every single day, and becoming more grotesque every day”, declared Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization (WHO), on March 22. The latter statement referred to the fact that only 0.1% of the doses of vaccines distributed in the world had been received by the 29 poorest countries, which represent <a href="https://www.france24.com/en/health/20210322-covid-19-who-slams-grotesque-growing-global-vaccine-inequity">9% of the global population</a>.</p>
<h2>An ambitious scaling-up plan</h2>
<p>However, as early as April 2020, the Bill & Melinda Gates Foundation, the European Commission and France together with WHO supported the implementation of COVAX (Covid-19 Vaccines Global Access), an international solidarity mechanism. Led by GAVI (the Vaccine Alliance) and CEPI (Coalition for Epidemic Preparedness Innovations), in partnership with UNICEF and PAHO (Pan-American Health Organization), COVAX’s mission is to purchase vaccines for equitable distribution in <a href="https://www.who.int/news/item/18-12-2020-covax-announces-additional-deals-to-access-promising-covid-19-vaccine-candidates-plans-global-rollout-starting-q1-2021">98 participating high-income countries and 92 low- and middle-income countries</a>.</p>
<p>At the end of February, the first 504,000 and 600,000 doses were delivered to Côte d'Ivoire and Ghana respectively. At the beginning of April, more than 38 million doses had already been received by 100 countries, 61 of which benefiting from a subsidy <a href="https://www.gavi.org/news/media-room/covax-reaches-over-100-economies-42-days-after-first-international-delivery">financed by a dedicated fund</a>. In the coming months, the expected scale-up of COVAX is ambitious, with a stated objective of 337 million doses to 145 countries by the end of June, and at least 2 billion doses by the end of 2021, including 1.3 billion at no cost to low-income countries, where up to <a href="https://www.gavi.org/sites/default/files/covid/covax/COVAX-Interim-Distribution-Forecast.pdf">27% of the population could be vaccinated</a>.</p>
<p>Even if this objective is met, it will not be sufficient to bring the pandemic under control. To achieve this, a much higher percentage of the population must be immunised. Recent modelling has estimated that if a vaccine prevents transmission of the virus in 90% of cases, then nearly 67% of the population needs to be vaccinated to achieve – at least temporarily – herd immunity, and <a href="https://www.nature.com/articles/d41586-021-00396-2">return to “normal” life</a>. Such a threshold, applied to a world population of <a href="https://worldpopulationreview.com/">7.7 billion people</a>, leads to a production target of between 5.2 billion doses in the most favourable situation of a single-dose vaccine, and twice as much, or 10.4 billion doses, if two shots are needed.</p>
<h2>No one is safe until everyone is safe</h2>
<p>In addition to producing new vaccines at an unprecedented scale, it is necessary to vaccinate everywhere in the world, in the shortest possible time, before <a href="https://theconversation.com/new-covid-variants-have-changed-the-game-and-vaccines-will-not-be-enough-we-need-global-maximum-suppression-157870">new variants compromise the initial results</a>. This imperative is reiterated by <a href="https://www.gavi.org/vaccineswork/patient-zero-understanding-how-new-coronavirus-variants-emerge">GAVI</a> and <a href="https://cepi.net/news_cepi/global-leaders-support-cepi-plan-to-tackle-risk-of-future-pandemics/">CEPI</a>, the co-leads of COVAX, as well as by <a href="https://www.unicef.org/press-releases/we-need-speed-and-simplicity-remove-barriers-acquisition-manufacture-and">UNICEF</a> and <a href="https://www.paho.org/en/news/17-3-2021-deliveries-covid-19-vaccines-procured-through-covax-accelerate">PAHO</a>, in charge of procurement and logistics. In the words of Jeremy Farrar, director of the <a href="https://wellcome.org/news/why-we-need-share-vaccine-doses-now-and-why-covax-right-way-do-it">Wellcome Trust</a>:</p>
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<p>“If left to spread unchecked in large parts of the world, the virus risks mutating to an extent where our vaccines and treatments no longer work – leaving us all exposed.”</p>
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<p>The distribution of vaccines is complicated by early commercial agreements concluded by governments with the industry, when no product was yet approved, in some cases for more doses than needed. For example, by mid-November 2020, pre-orders from Australia, Canada and Japan together exceeded <a href="https://www.bmj.com/content/371/bmj.m4750">1 billion doses</a>. In total, high-income countries alone are estimated to have pre-ordered <a href="https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)00306-8/fulltext">4.2 billion doses for 2021</a>.</p>
<p>The COVAX mechanism offers a partial solution, by encouraging high-income countries to donate surplus doses for reallocation to developing countries. But redistribution only makes it possible to share volumes which are limited by installed production capacities. The firms that signed a supply agreement with COVAX control capacities estimated at 8 billion doses for 2021, of which 2 billion relate to an mRNA vaccine that entails supply chain and storage challenges, particularly in the developing world. The manufacturing issues encountered recently by <a href="https://www.ft.com/content/38fecae5-86d0-49a5-8a33-3bf4a64e57bb">BioNTech-Pfizer</a>, <a href="https://www.ft.com/content/316b77c1-e640-4d53-8dec-547b1b5651d8">Gamaleya</a>, <a href="https://www.ft.com/content/b5ba2702-3bad-4f10-9d80-00eb3d48d802">Johnson & Johnson</a> and <a href="https://www.ft.com/content/8e2e994e-9750-4de1-9cbc-31becd2ae0a8">Oxford-AstraZeneca</a> have pointed to the difficulty of increasing production to capacity.</p>
<p>Future supply issues and resulting delays are likely to jeopardise the reallocation mechanism by incentivizing governments of developed countries to enforce priority clauses included in pre-order contracts.</p>
<h2>Temporary patent waiver versus bilateral manufacturing agreements</h2>
<p>Efforts are already underway to increase production capacity. Suppliers of approved vaccines invest in new manufacturing facilities. Other firms are developing candidate vaccines that could soon be added to the current supply.</p>
<p>A more controversial move was initiated in October 2020 by South Africa and India, which filed a request with the World Trade Organisation (WTO) for a temporary waiver of intellectual property rights relating to Covid-19, <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">particularly patents</a>. Supported by some 100 countries, the request aims to accelerate the production of vaccines, as well as treatments and diagnostics, for the <a href="https://www.nature.com/articles/d41586-021-00727-3">developing world</a>.</p>
<p>This initiative has met with opposition from the pharmaceutical industry, and many developed countries, for whom it would be sufficient to rely on bilateral agreements – between a vaccine producer and a firm holding production capacity – to increase supply, without questioning patents.</p>
<p>A patent waiver and the status quo are both vulnerable to policy-induced delays resulting from unilateral actions by governments. If patents are suspended, the flow of ingredients needed for vaccine production is likely to be hindered by export control mechanisms <a href="http://documents1.worldbank.org/curated/en/244291614991534306/pdf/The-Covid-19-Vaccine-Production-Club-Will-Value-Chains-Temper-Nationalism.pdf">recently reinforced in a number of countries</a>. If, on the other hand, patents are maintained, the use of compulsory licences – which allow a third party to manufacture the patented product without the consent of the patent holder – could become more widespread among developing countries, as occurred in the 2000s for the production of <a href="https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001154">HIV antiretroviral drugs</a>.</p>
<p>In both cases, a patent waiver and compulsory licensing provide little incentive for companies to engage in the transfer of know-how which is essential for vaccine production, and is <a href="https://science.sciencemag.org/content/369/6506/912">not described by intellectual property rights</a>.</p>
<h2>The Medicines Patent Pool of the WHO C-TAP mechanism as a third way</h2>
<p>A third approach, that we support, would be for vaccine producers to engage in licence agreements with the MPP (Medicines Patent Pool), a United Nations-backed public health organization integrated in the Covid-19 Technology Access Pool (C-TAP) <a href="https://www.nature.com/articles/d41586-021-00759-9">initiative of WHO</a>.</p>
<p>The mission of the MPP, whose mandate has been extended to Covid-19 as of March 2020, is to improve access to essential medicines in low- and middle-income countries. It solicits voluntary licenses – and thus does not question the patent system – from the pharmaceutical industry before acting as a one-stop shop for disseminating (combinations of) these licenses to producers of generics or biosimilars.</p>
<p>The resulting lower transaction costs, and the elimination of multiple margins by the pooling approach, entail lower prices in the final market than if the licences were transacted separately in multiple bilateral agreements. At the same time, incentives to invest in research and to transfer technical know-how to technology users can be preserved when patent holders, without taking in their production capacity, <a href="https://ferdi.fr/dl/df-ZXSnmDsG1rJHejemQ5nRYaoL/ferdi-b216-covid-19-should-intellectual-property-rights-be-challenged.pdf">receive royalties from the MPP</a>. Licences can cover only a few critical ingredients, or relate to narrowly defined operations, in order to eliminate bottlenecks and increase production capacity without transferring unduly the <a href="https://science.sciencemag.org/content/369/6506/912">proprietary knowledge of patent holders</a>.</p>
<p>Industry contributions to the MPP solution, within the WHO-initiated C-TAP mechanism, minimises risks of vaccine nationalism and of compulsory licensing initiatives, without suspending intellectual property rights. It has the advantage of using a well-established platform in order to immediately accelerate access to vaccines worldwide.</p><img src="https://counter.theconversation.com/content/159467/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Etienne Billette de Villemeur is also associated with UQAM, Canada and works with the "Chaires Universitaires Toussaint Louverture", in Haiti.</span></em></p><p class="fine-print"><em><span>Bruno Versaevel is a consultant to companies in the biopharmaceutical field. He is also a researcher at GATE (UMR #5824 CNRS).</span></em></p><p class="fine-print"><em><span>Vianney Dequiedt is affiliated with FERDI, a not-for-profit foundation specialized in international development policy.</span></em></p>Licensing agreements between pharmaceutical companies and the Medicines Patent Pool, in cooperation with the WHO, could accelerate access to doses for the poorest countries.Etienne Billette de Villemeur, Professor, Université de LilleBruno Versaevel, Professor of industrial economics, EM Lyon Business SchoolVianney Dequiedt, Professor of Economics, Université Clermont Auvergne (UCA)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1583842021-04-14T19:20:16Z2021-04-14T19:20:16ZHow to get COVID-19 vaccines to poor countries – and still keep patent benefits for drugmakers<figure><img src="https://images.theconversation.com/files/395076/original/file-20210414-13-heql0s.jpg?ixlib=rb-1.1.0&rect=535%2C23%2C4640%2C3150&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hospital staff in Lagos, Nigeria, administer the AstraZeneca vaccine.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakNigeriaAfricaVaccines/f37e2b62ec484fc1970d3dbcbb49c3b3/photo">AP Photo/Sunday Alamba</a></span></figcaption></figure><p>The world has a COVID-19 vaccine access problem: Almost half of all doses administered so far have been in Europe and North America, while many poorer countries have vaccinated <a href="https://ourworldindata.org/explorers/coronavirus-data-explorer">less than than 1%</a> of their populations.</p>
<p>With new coronavirus variants raising the health risk, South Africa and India have proposed that the World Trade Organization <a href="https://www.wto.org/english/news_e/news21_e/trip_11mar21_e.htm">temporarily waive intellectual property rights</a> for COVID-19 vaccines to help ramp up production.</p>
<p>The U.S., Britain and the European Union <a href="https://www.reuters.com/article/uk-health-coronavirus-wto-idUKKBN28020X">rejected the idea</a>, arguing that intellectual property rights – which give vaccine creators the power to prevent other companies from reproducing their products – are necessary to ensure innovation and waiving them would not result in increased production. They are now <a href="https://www.rollcall.com/2021/04/05/fellow-democrats-pressure-biden-to-weaken-vaccine-patents/">under pressure</a> to change their minds.</p>
<p>So, are there only two paths here? Patents remain inviolate, or patents are disregarded?</p>
<p><a href="https://udayton.edu/directory/law/shabalala_dalindyebo.php">I have worked on legal issues related to access to medicines</a> since 2004 and have been involved in these debates at the WTO and the World Intellectual Property Organization, working with civil society groups and developing countries. I believe there is a middle way: compulsory licensing.</p>
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<h2>Governments can already get around patents</h2>
<p>When a country approves a patent, it gives the patent holder a monopoly for a limited term, usually 20 years, for new and highly inventive ideas.</p>
<p>The promise of having a monopoly gives the patent holder more incentive to take on the risk of research and development and get a product to market. The company can charge a high price for a limited time to recoup that investment.</p>
<p>The key phrase is “limited time.” This makes sure that once a patent runs out, others can make the product. Generic drugs are an example. Competition typically lowers prices and ensures greater access for those who want or need the product.</p>
<figure class="align-center ">
<img alt="Employees in protective coveralls work on a machine filling vials with vaccine." src="https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/395083/original/file-20210414-23-1yqeiyc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">AstraZeneca issued a license to the Serum Institute of India to produce its COVID-19 vaccine.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakIndia/d7d89250c6ed43d19370970f200a0d3a/photo">AP Photo/Rafiq Maqbool</a></span>
</figcaption>
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<p>For emergencies, the patent system has a series of safety valves that allow governments to intervene before that limited time is up. The most important safety valve for COVID-19 vaccine production is the compulsory license. Based on public needs – including health emergencies – a government can allow others to make the product, usually with a reasonable royalty, or fee, paid to the patent owner.</p>
<p>Today, any country that has issued a patent to a COVID-19 vaccine maker can use that patent simply by issuing a compulsory license to enable production by its own companies.</p>
<p>So, why doesn’t this solve the COVID-19 vaccine access problem?</p>
<h2>Vaccine patents end at the border</h2>
<p>The same issue arose in the context of <a href="https://www.who.int/bulletin/volumes/84/5/news10506/en/">access to HIV medications</a> during the late 1990s.</p>
<p>Just like with HIV drugs then, the capacity to manufacture vaccines today is unevenly distributed. The real issue isn’t whether a country like Botswana can issue a compulsory license allowing its domestic companies to manufacture the vaccines – many countries don’t have that kind of production facility and, in many cases, the drugs aren’t even patented there.</p>
<p>The real issue is whether India or China or the Philippines – countries with thriving pharmaceutical industries and where drugs are much more likely to be patented – can issue a compulsory license that would allow their companies to export to Botswana.</p>
<figure class="align-center ">
<img alt="Two people in lab coats hold a box showing the label" src="https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/395091/original/file-20210414-16-1t8mv8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Technicians in Nairobi, Kenya, hold a carton of AstraZeneca COVID-19 vaccine manufactured in India.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakAfricaVaccinesKenya/338446ad563d4555b0efcd24d69016f6/photo">AP Photo/Ben Curtis</a></span>
</figcaption>
</figure>
<p>Why isn’t this happening under the existing rules?</p>
<p>Article 31 of the WTO’s <a href="https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm">Agreement of Trade-Related Aspects of Intellectual Property</a>, or TRIPS, limits compulsory licenses primarily to domestic production and use. It does not allow a country to issue a compulsory license to a company outside its territory. Countries also cannot issue compulsory licenses to companies within their territories to produce products primarily for export.</p>
<p>There have been several attempts to solve this problem, including a change to the TRIPS Agreement approved in 2005. But <a href="https://www.wto.org/english/tratop_e/trips_e/tripsfacsheet_e.htm">only one country – Rwanda – has used that system</a> to access drugs. After an almost two-year process, Rwanda was able to import 7 million doses from Canada. However, the Canadian generic producer, Apotex, declared that the system was <a href="https://www.biospace.com/article/releases/apotex-corp-receives-final-tender-approval-from-rwanda-for-vital-aids-drug-/">economically unsustainable for a private company</a>. During a 2010 review of the system, <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/IP/C/57.pdf&Open=True">many developing countries noted how difficult</a> it was to use, with several generic producers giving up in the middle of the process.</p>
<p>The process requires an agreement between the two countries issuing compulsory licenses. It also comes with a series of legal requirements, including producing only the amount ordered by the importing country; using entirely different packaging, coloring or shapes to distinguish the drug from regular production; and following special processes in the importing country to prevent the product from being diverted elsewhere. A different compulsory license and production line would be needed for each additional country.</p>
<p>For COVID-19, there is also another problem: The technologies in COVID-19 vaccines are complex and involve multiple patents, trade secrets and know-how. A compulsory licensing system would need to address not just patents but all related intellectual property.</p>
<h2>What to do about it</h2>
<p>An international consortium called <a href="https://theconversation.com/the-best-hope-for-fairly-distributing-covid-19-vaccines-globally-is-at-risk-of-failing-heres-how-to-save-it-158779">COVAX</a> is trying to expand COVID-19 vaccine deliveries to low-income countries through agreements with vaccine producers, but <a href="https://www.who.int/news/item/08-04-2021-covax-reaches-over-100-economies-42-days-after-first-international-delivery">it is struggling</a> to reach its <a href="https://www.who.int/news/item/08-04-2021-covax-reaches-over-100-economies-42-days-after-first-international-delivery">goal of providing 2 billion doses</a> by the end of 2021.</p>
<p>To successfully expand vaccine production, countries need a relatively seamless system that allows a country like India to grant a single, blanket license allowing its companies to produce vaccines developed by U.S. or European companies for export to all countries that lack their own manufacturing capacity.</p>
<p>This is ideally what a properly functioning system of global compulsory licensing would enable, in my view. Compulsory licensing is not a violation of patent or intellectual property. The rights holder still gets compensated, and access is assured when it is most needed.</p>
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<p>The proposed WTO waiver of intellectual property rights seeks to address this need, but it may be broader than necessary. A better solution as I see it would be to smooth the way for using compulsory licensing across all relevant intellectual property needed to expand vaccine manufacturing.</p>
<p>Removing the TRIPS limitations on production for export would allow a country like India, at the request of a qualifying country, to issue blanket compulsory licenses covering all COVID-19 vaccine technologies, set the compensation prices and allow the vaccines to be exported to multiple countries simultaneously. </p>
<p>The company would make the vaccine in its existing facilities and would be allowed to stockpile for future orders. Additional requests from other countries could be fulfilled from the same production line on the same basis, ensuring a sustainable business model. The patent owner – Moderna, for example – may lose control over the market, but it maintains its right to be compensated, as is normal for any compulsory license. </p>
<p>This is part of the bargain Moderna and Pfizer made when they received patent protection. </p>
<p>The result could be a fast increase in vaccine manufacturing that reaches countries that have been left out. Without global vaccinations, it’s <a href="https://doi.org/10.1038/d41586-021-00728-2">hard to see an end</a> to this pandemic. This emergency is exactly what the patent system is designed for, if it’s allowed to operate properly for the patent holder and for the public.</p>
<p>[<em>More than 104,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p><img src="https://counter.theconversation.com/content/158384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dalindyebo Shabalala is affiliated with the Center for International Environmental Law (CIEL) as a Board Member. He has previously worked at the South Centre, an intergovernmental organization of developing countries on Access to Medicines projects funded by the Rockefeller Foundation, SIDA, and GIZ among others.</span></em></p>India and South Africa are pressing the World Trade Organization to waive patent rights to help ramp up vaccine production. There’s a better solution.Dalindyebo Shabalala, Associate Professor, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1569712021-03-22T18:51:43Z2021-03-22T18:51:43ZMore talk, no action: Australia’s approach to trade rules restraining vaccine production<figure><img src="https://images.theconversation.com/files/390555/original/file-20210319-14-n8tm2e.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3600%2C2401&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A pharmacist prepares to vaccinate health-care workers at the Klerksdorp Hospital, South Africa, on February 18 2021. </span> <span class="attribution"><span class="source">Shiraaz Mohamed/AP</span></span></figcaption></figure><p>Papua New Guinea’s COVID-19 outbreak is a portent of the “<a href="https://www.bbc.com/news/world-55709428">catastrophic moral failure</a>” the head of the World Health Organization warned of in January due to poor countries being pushed to the back of the vaccine queue. </p>
<p>Australia has gifted 8,000 doses to PNG, and vowed to help the nation of almost 9 million secure <a href="https://www.abc.net.au/news/2021-03-17/covid-papua-new-guinea-vaccination-australia-scott-morrison/13255158">1 million more</a>. Earlier this month Australia agreed to work with the US, India and Japan <a href="https://www.theguardian.com/australia-news/2021/mar/13/australia-commits-100m-to-covid-vaccine-deal-at-quad-meeting">to provide 1 billion vaccines</a> to poorer countries in the Asia-Pacific. It is also supporting <a href="https://www.who.int/initiatives/act-accelerator/covax">COVAX</a>, the global program aiming to buy and distribute 2 billion COVID-19 vaccine doses to developing nations by the end of 2021.</p>
<p>But all this could be negated through Australia’s potential spoiling role (with a handful of other countries) against a proposal supported by 118 countries to ramp up vaccine production by relaxing the trade rules governing intellectual property.</p>
<h2>Inequities in access to COVID-19 vaccines</h2>
<p>The inequities in access to vaccines are stark. By November, wealthy nations accounting for just <a href="https://www.bmj.com/content/371/bmj.m4750">14% of the global population</a> had locked in premarket agreements to buy 51% of the first 7.48 billion doses of candidate COVID-19 vaccines. </p>
<p>That number should be enough to vaccinate almost half the global population – 3.76 billion of 7.8 billion people. But Canada, Australia, Britain, Japan, the European Union and the US have all bought up more than their fair share. Canada has reserved about 4.5 courses per person; Australia and the UK close to 2.5.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pre-market commitments for COVID-19 vaccines, per capita (in courses)" src="https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=313&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=313&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=313&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=393&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=393&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390763/original/file-20210322-13-l49s7r.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=393&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.ignitetheidea.org/covid-reservedvaccines">Anthony D. So/British Medical Journal</a></span>
</figcaption>
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<hr>
<p>This means most middle-income countries won’t achieve widespread vaccination coverage until late 2022, according to <a href="https://www.eiu.com/n/85-poor-countries-will-not-have-access-to-coronavirus-vaccines/">The Economist’s Intelligence Unit</a>. For poorer economies, including some of Australia’s closest neighbours, it won’t be “before 2023, if at all”.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The Economist Intelligence Unit infographic showing vaccine access by country." src="https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390515/original/file-20210318-15-1m5hohi.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.eiu.com/n/85-poor-countries-will-not-have-access-to-coronavirus-vaccines/">The Economist Intelligence Unit</a></span>
</figcaption>
</figure>
<hr>
<h2>Suspending intellectual property rules</h2>
<p>Addressing vaccine inequities, the director-general of the World Health Organization, Tedros Adhanom Ghebreyesus has said, requires pulling “<a href="https://www.theguardian.com/commentisfree/2021/mar/05/vaccination-covid-vaccines-rich-nations">out all the stops</a>”.</p>
<p>One of those stops is the international agreement protecting intellectual property rights – the Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly called the <a href="https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm">TRIPS agreement</a>. All members of the World Trade Organization are bound by the agreement. </p>
<p>In October 2020, South Africa and India <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">proposed waiving</a> certain provisions of TRIPS that give the owners of the intellectual property exclusive rights over the manufacture and sale of COVID vaccines. The waiver would only apply to COVID-19 medical products and only for the duration of the pandemic. This would allow others to make COVID-19 vaccines without the vaccine developers’ permission.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390543/original/file-20210319-15-1levqhz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Medecins Sans Frontieres members deploy a banner in front of the headquarters of the World Trade Organization in Geneva on March 4 2021.</span>
<span class="attribution"><span class="source">Martial Trezzini/EPA</span></span>
</figcaption>
</figure>
<p>The TRIPS waiver is supported by <a href="https://www.twn.my/title2/health.info/2021/hi210306.htm">118</a> of the WTO’s 164 members – more than two-thirds of its membership. </p>
<h2>The counter-proposal supported by Australia</h2>
<p>Australia, however, has joined with Canada, Chile, Colombia, New Zealand, Norway and Turkey in supporting a <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/GC/230.pdf&Open=True">counter-proposal</a> that argues provisions already in the TRIPS agreement are good enough.</p>
<p>TRIPS does allow for compulsory licensing, enabling the use of a patent without the consent of the owner, in a public health emergency. But the compulsory licensing process is time-consuming and only applies to patents, not the other types of intellectual property important for making vaccines.</p>
<figure class="align-center ">
<img alt="A vaccination centre in Mumbai, India, on March 10 2021." src="https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390567/original/file-20210319-13-hf9fph.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A vaccination centre in Mumbai, India, on March 10 2021.</span>
<span class="attribution"><span class="source">Rajanish Kakade/AP</span></span>
</figcaption>
</figure>
<p>The counter-proposal put its faith in encouraging more talk between vaccine developers and manufacturers, enabling them to make voluntary licensing agreements and identify ways to increase production.</p>
<p>But there’s little reason to think this would achieve more than what is already happening. For example, AstraZeneca has licensed the <a href="https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/astrazeneca-serum-institute-of-india-sign-licensing-deal-for-1-billion-doses-of-oxford-vaccine/articleshow/76202016.cms?from=mdr">Serum Institute of India</a> to make its vaccine both for India and other countries. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/yes-export-bans-on-vaccines-are-a-problem-but-why-is-the-supply-of-vaccines-so-limited-in-the-first-place-156569">Yes, export bans on vaccines are a problem, but why is the supply of vaccines so limited in the first place?</a>
</strong>
</em>
</p>
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<p>Voluntary licences are problematic because they are ad hoc and confidential. The lack of transparency has seen <a href="https://www.politico.eu/article/astrazeneca-vaccine-cost-higher-in-poorer-countries-coronavirus/">pricing discrepancies</a> such as Bangladesh and South Africa reportedly paying more for their AstraZeneca doses than European nations. </p>
<p>Voluntary licences can also place tight restrictions on where the resulting products can be sold. For example, when US pharmaceutical company Gilead Sciences negotiated licences with makers in India, Pakistan and Egypt to produce a cheaper version of Remdesivir (a candidate for COVID-19 treatment in the early stages of the pandemic) the licence conditions <a href="https://www.citizen.org/news/remdesivir-should-be-in-the-public-domain-gileads-licensing-deal-picks-winners-and-losers/">excluded many middle-income countries</a> from buying the cheaper version. </p>
<p>Australia’s support for this counter-proposal is therefore a distraction at best. It can’t bring about the fundamental change the TRIPS waiver could generate. Nor is it likely to lead to the world being vaccinated sooner.</p><img src="https://counter.theconversation.com/content/156971/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Gleeson has received funding in the past from the Australian Research Council. She has received funding from various national and international non-government organisations to attend speaking engagements related to trade agreements and health. She has represented the Public Health Association of Australia on matters related to trade agreements and public health.</span></em></p>Australia has joined a handful of countries resisting a push to relax intellectual property rules related to COVID vaccines.Deborah Gleeson, Associate professor, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1480752021-03-16T19:04:46Z2021-03-16T19:04:46ZPatent system often stifles the innovation it was designed to encourage<figure><img src="https://images.theconversation.com/files/389683/original/file-20210315-23-1ia171j.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3406%2C2328&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorneys for Apple heading to court during the so-called smartphone patent wars.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ADDITIONAppleSamsungTrial/0c156dac0ddf458dbab913fe270b6d44/photo?Query=patent%20AND%20lawyer&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=23&currentItemNo=9">AP Photo/Jeff Chiu</a></span></figcaption></figure><p>Over his career Thomas Edison garnered <a href="https://www.scientificamerican.com/article/edison-on-patents/">more U.S. patents than anyone</a> in his time. Edison profited from his patents, but he was also exposed to the dark side of the patent system. He had to contend with lawsuits by other patentees who sought – and sometimes won – a piece of his success. While the patent system is designed to spur innovation like Edison’s, it also hampers it.</p>
<p>Easy copying and imitation discourage innovation, because why make the effort if someone else will profit from it? The patent system works by enabling inventors <a href="https://www.uspto.gov/patents/basics#heading-2">to block unauthorized use</a> of patented technology.</p>
<p>Most technologies are developed by many inventors over many years, a process called <a href="https://doi.org/10.1017/CBO9781107709409.010">“cumulative” innovation</a>. Too often, however, early inventors get a patent on a small and perhaps insignificant piece of the technological puzzle, yet their patent covers the entire puzzle. Inventors who solve subsequent parts of the puzzle may need to pay royalties to the patentee, even if their contributions are larger.</p>
<p>As <a href="https://scholar.google.com/citations?user=Xx0JFNwAAAAJ&hl=en">legal experts</a> who focus on <a href="https://scholar.google.com/citations?user=SlW0VEkAAAAJ&hl=en">technology law and policy</a>, we suggest that the problem boils down to two issues: too many patents and too little accurate information about them.</p>
<h2>Too many patents</h2>
<p>The U.S. is awash in patents. <a href="https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm">Over 350,000</a> U.S. patents were granted in 2019, four times the per capita rate in 1980. From the perspective of research managers at big firms, patents are cheap and easy to get. For example, in the early 2000s Bill Gates decided that <a href="https://www.nytimes.com/2005/07/31/business/digital-domain-why-bill-gates-wants-3000-new-patents.html">Microsoft was patent-poor</a>, and within a few years the company increased annual patent applications by 50%. </p>
<p><a href="https://scholarship.law.wm.edu/wmlr/vol51/iss2/11/">Patents are easy to get</a> because the standards of patentability are low and because the burden is on the U.S. Patent and Trademark Office to prove an invention is not patentable. <a href="https://www.uspto.gov/dashboard/patents/">Patent examination is slow</a>. It often takes three years or more. Despite increased staffing, the backlog of patent applications has continued to grow, and examiners spend on average only 20 hours reviewing each application. The patent examiner <a href="https://www.uspto.gov/sites/default/files/documents/InventionCon2020_Understanding_the_Patent_Examination_Process.pdf">is required to</a> read and understand the invention in an application, determine whether the invention meets the claims of the application, search existing technology to see if the invention already exists and write a response to the application.</p>
<p><a href="https://www.gao.gov/products/gao-16-490">Helter-skelter examination causes errors</a> – many patents are too broad, or they cover obvious inventions. To draw attention to problems caused by the <a href="https://openscholarship.wustl.edu/law_journal_law_policy/vol8/iss1/12/">flood of low-quality patents</a>, billionaire entrepreneur Mark Cuban <a href="https://www.wired.com/2012/12/eff-patent-donation/">endowed a chair</a> at the Electronic Frontier Foundation dedicated to elimination of “stupid patents.” </p>
<p>Innovative firms that succeed in assembling many pieces of a technology puzzle into a finished product must consult with a patent lawyer to learn whether their new technology is covered by one or more patents owned by others. Ideally an innovator will get permission to use patented technology, usually for a fee, or redesign its technology to steer clear of relevant patents. </p>
<p>In practice this patent “clearance” process is <a href="https://doi.org/10.1093/jla/las019">difficult, costly and sometimes impossible</a>. For technologies like smartphones, a patent attorney likely would need to review hundreds of patents, including many patents that are not granted until long after the new product is launched. Failure to license relevant patents creates a risk of litigation and the threat the new technology could be forced out of the marketplace.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Screenshot of an iPod showing an image of the earth and the slide-to-unlock bar" src="https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389676/original/file-20210315-15-2cp6l0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Apple secured a patent on slide-to-unlock despite earlier work that set the stage for the feature.</span>
<span class="attribution"><a class="source" href="https://flickr.com/photos/angelosu/3590292559/">Angelo Su/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>As a result, smartphone patent litigation is far too common. Apple – a smartphone pioneer – has participated in scores of lawsuits around the globe as both a defendant and plaintiff. As a plaintiff, Apple sometimes uses its patents opportunistically to hinder innovation by its rivals.</p>
<p>For example, Apple sued Samsung using a patent that claimed the <a href="https://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html">slide-to-unlock</a> feature on a phone as Apple’s invention. Despite strong evidence that inventors before Apple had already accomplished the key steps to implement this feature, Apple convinced the courts that their version of this feature was patentable, and after seven years Samsung agreed to pay license fees to Apple to <a href="https://www.nytimes.com/2018/06/27/technology/apple-samsung-smartphone-patent.html">settle the case</a>. </p>
<p><a href="https://dx.doi.org/10.2139/ssrn.2091210">Economic research</a> suggests that these litigation costs and license fees burden innovative firms to such a degree that on balance the patent system discourages innovation. In other words, innovative firms gain a benefit from their patents on their new technology, but that benefit is more than offset by the many patents owned by others that might be asserted against the new technology. </p>
<h2>Too little information</h2>
<p>When an inventor gets a patent, she is supposed to reveal the secret sauce behind the invention in the patent, a public document. This allows scientists and engineers to learn about the invention and use that information to improve the technology. </p>
<p>Or at least, that’s the theory. In practice, many inventors make shoddy disclosures. Experiments reported in patents are sometimes <a href="https://science.sciencemag.org/content/364/6445/1036">fictional</a> and often rely on <a href="https://dx.doi.org/10.2139/ssrn.3538746">dubious methodology</a>. For instance, patent law permits an inventor to disclose the fictional finding that a drug treats cancer as evidence that she deserves a patent on that drug. </p>
<p>Inventors applying for patents are allowed to include predicted experimental results. The intent is to allow for earlier disclosure and to help smaller companies secure funding. But when evidence in patents is wrong, other innovators can be <a href="https://dx.doi.org/10.2139/ssrn.3202493">misled</a>. Further, if other innovators want to figure out if the patented drug really treats cancer – or any other disease – they need a license from the patentee.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A graphical representation of an early electric incandescent lightbulb" src="https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=915&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=915&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=915&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1150&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1150&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389680/original/file-20210315-15-1qujb86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1150&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Edison was the victim of a broad light bulb patent that covered one of his subsequent inventions.</span>
<span class="attribution"><a class="source" href="https://archive.org/details/TheEdisonIncandescentElectricLightItsSuperiorityToAllOther">Edison Electric Light Company</a></span>
</figcaption>
</figure>
<p>Sometimes key pieces of evidence are missing entirely from patents. This happens when a patent covers aspects of a technology that the patentee <a href="https://ssrn.com/abstract=2785886">didn’t actually invent</a>. Imagine discovering that paper is a mediocre incandescent conductor in light bulbs and using that discovery to get a patent covering thousands of other conductors, including ones that, unbeknownst to you, work much better. Later innovators might want to figure out whether other substances are better conductors than paper, but they can’t even start experiments without a license. </p>
<p><a href="https://www.nytimes.com/1895/11/12/archives/sustained-the-edison-company-supreme-court-decides-against-the.html">This happened to Edison</a>. He was <a href="https://supreme.justia.com/cases/federal/us/159/465/">sued for patent infringement</a> after discovering a far better conductor than that discovered by the patentee – but because the patent was written broadly, it nevertheless covered Edison’s invention.</p>
<p>There is also too little information about the <a href="https://press.princeton.edu/books/paperback/9780691143217/patent-failure">boundaries of patents</a>. When an inventor gets a patent, she is also supposed to provide clear boundary information – what a patent application covers and what it doesn’t – to the public about her patent rights. The patent system fails to ensure this, however. </p>
<p>The boundary information in patent applications is hidden for <a href="https://www.uspto.gov/web/offices/pac/mpep/s1120.html">18 months</a> until the application is published, and even longer if the boundaries change later during examination. Once the patent is granted, lawyers, judges and the public often have <a href="https://ilr.law.uiowa.edu/print/volume-103-issue-3/patent-clutter/">difficulty reaching agreement</a> on the meaning of boundary language that may be <a href="https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2010/01/39_1_Meurer_F.pdf">intentionally vague or ambiguous</a>.</p>
<h2>How to fix the system</h2>
<p>Inventors who come up with new chemicals, including pharmaceuticals, <a href="https://doi.org/10.1377/hlthaff.2014.1047">tend to benefit from the patent system</a>. Unfortunately, the system appears to impose a <a href="https://dx.doi.org/10.2139/ssrn.2278255">net cost on most other technologies</a>, especially in high-tech industries.<br>
Opportunistic patent owners, often called patent trolls, surprise inventors with patent claims about inventions that are minor or distantly related to the technology that is the target of the suit. <a href="https://www.cato.org/sites/cato.org/files/serials/files/regulation/2012/5/v34n4-1.pdf">Economics research</a> shows such trolling activity slows innovation. </p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>The patent system can be improved to deliver a net gain to all inventors even without being drastically reworked. A good start would be to rigorously enforce existing standards about information disclosure. Courts should push inventors to clearly describe and explain their inventions. </p>
<p>The flood of patents on minor technical advances could be ended if patent <a href="https://www.ftc.gov/system/files/documents/public_events/1494697/21_mark_schankerman.pdf">fees were increased and if the nonobviousness standard</a>, which screens out minor advances, was made stronger. Reducing the number of patents and increasing the amount of information about each patent would go a long way toward making the patent system work the way it was intended.</p><img src="https://counter.theconversation.com/content/148075/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Meurer receives funding from the Technology and Policy Research Initiative at BU Law. The current funders are Google.org
Ewing Marion Kauffman Foundation
Charles Koch Foundation
Schmidt Futures
<a href="https://sites.bu.edu/tpri/about/funders/">https://sites.bu.edu/tpri/about/funders/</a> </span></em></p><p class="fine-print"><em><span>Janet Freilich does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Too many patents and too little information about them makes it hard for the system to weed out patents that unfairly block inventors.Michael J. Meurer, Professor of Law, Boston UniversityJanet Freilich, Associate Professor of Law, Fordham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1554942021-02-18T15:25:06Z2021-02-18T15:25:06ZHow patent laws get in the way of the global coronavirus vaccine rollout<figure><img src="https://images.theconversation.com/files/384975/original/file-20210218-14-t42zc2.jpg?ixlib=rb-1.1.0&rect=25%2C33%2C5467%2C3609&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The race to make enough coronavirus vaccines is underway. </span> <span class="attribution"><span class="source">i_am_zews via Shutterstock</span></span></figcaption></figure><p><em>This is a transcript of <a href="https://theconversation.com/coronavirus-vaccine-whats-getting-in-the-way-of-the-global-rollout-the-conversation-weekly-podcast-155432">Episode 3 of The Conversation Weekly podcast: Coronavirus vaccines: what’s getting in the way of the global rollout</a>, published on February 18, 2021. In this week’s episode, we hear about an ongoing battle to relax intellectual property rules around coronavirus vaccines and new research on why China is closing down coal-fired power stations faster in some places than others.</em></p>
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<p><em>NOTE: Transcripts may contain errors. Please check the corresponding audio before quoting in print.</em></p>
<p>Gemma: Hello and welcome to <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a>. </p>
<p>Dan: Each week we bring you expert analysis on the world’s biggest stories. </p>
<p>Gemma: And groundbreaking new research, explained by the academics behind it. </p>
<p>Dan: Today, we’re talking about coronavirus vaccines – how and where they’re getting manufactured and why there is a fight over the intellectual property rights that regulate them. </p>
<p>Ronald Labonté: Countries have that vaccine manufacturing capacity, but right now they can’t access it. </p>
<p>Gemma: And we’ll hear from an expert on Chinese energy on why the country is shutting down coal-fired power stations – and what this means for the wider region. </p>
<p>Hao Tan: 291 coal power generation units had been decommissioned in China. </p>
<p>Dan: I’m Dan Merino in San Francisco. </p>
<p>Gemma: And I’m Gemma Ware in London and you’re listening to The Conversation Weekly.</p>
<p>Dan: Gemma and I are in the UK and the US. But the story we’re gonna hear today is about how countries with lower incomes are struggling to get vaccines. A key reason for this is that companies in rich nations generally hold the intellectual property rights over the vaccines. </p>
<p>Gemma: OK Dan, before we get into all, can you just run through the different types of vaccine that have already been licensed.</p>
<p>Dan: Sure, so first we have whole virus vaccines. These are when you inject a whole but harmless version of the coronavirus into your body and this generates an immune response. These use either harmless versions of the coronavirus that are still alive, this is called a live attenuated vaccine, or a dead normal version of the coronavirus, this is called an inactivated vaccine. Another kind is called an adenovirus vaccine – these use harmless adenoviruses to deliver a gene from the coronavirus into your body. Your cells then use that gene’s directions to make a piece of the coronavirus. It’s totally harmless, it’s just a little protein, but it triggers a really strong immune response.</p>
<p>Gemma: OK, which vaccines are we talking about here? </p>
<p>Dan: A couple of the Chinese vaccines are using dead version of the coronavirus. And ones using those harmless adenoviruses include the Oxford/Astrazeneca vaccine, the Johnson & Johnson vaccine and also the Sputnik vaccine in Russia.</p>
<p>There’s also mRNA vaccines, like the Moderna and the Pfizer vaccines. When you get one of these, a bit of mRNA – a form of genetic code – is shot into your arm. Like with the adenovirus vaccine, your cells read these genetic instructions to create the same protein from the coronavirus. Again this triggers a really strong immune response, it’s totally harmless.</p>
<p>Gemma: OK, and are there any other technologies being used? </p>
<p>Dan: There are a ton of different things being tried, but the ones I explained just now are the ones that have been approved so far. </p>
<p>Gemma: OK so we’ve got all these different types of vaccine but how are they actually made? </p>
<p>Dan: So I actually spoke with someone who really helped explain how vaccines are manufactured.</p>
<p>Anne Moore: My name is Dr Anne Moore and my research interests are in vaccines. </p>
<p>Dan: Anne is a Senior Lecturer in Biochemistry and Cell Biology at University College Cork in Ireland. She first explained how adenovirus vaccines – like the Oxford/Astrazeneca vaccine – are manufactured. </p>
<p>Anne: So what you do, say for adenovirus, you would take some of your master virus, and you would infect some cells, some very special cells that you understand all of the attributes about those cells. And you grow those up. The virus will infect the cells and produce more virus. And then you’ve enough cells in there where you have this bulking up a virus over the course of a few days, and this will be in anywhere from four litres of cell culture up to higher volumes, maybe 20, 30 litres.</p>
<p>And then you have what we call downstream processing then where you’re purifying the virus vaccine away from all of the other components that you’re not interested in. That can be a very, very difficult process. So even though it only takes a few days to grow a batch of virus. It can take a long time to not just to purify, but also to prove that it is pure and it is sterile and it is what you say it is. </p>
<p>Dan: So what about the genetic material vaccines? </p>
<p>Anne: It’s much more synthetic. You don’t have any cells, so you don’t need any vats to grow anything in. The synthesiser is chemically conjugating one nucleic acid onto the next one in the right sequence. </p>
<p>Dan: That sounds almost more assembly line-like where the other one is much more staged?</p>
<p>Anne: Yeah, I guess we call that continuous versus batch manufacturing. So the kind of move in industry is to go down this more continuous method where it is, as you say, an assembly line.</p>
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<p>Dan: How many vaccines can one facility make at a time. And where are we at right now as far as output? </p>
<p>Anne: I suppose thinking about one facility making the vaccine from start to finish is a little bit untrue, because classically in the pharma industry, you would have different facilities doing a different part of the job. </p>
<p>I guess, constraints at the moment is more about actually getting your hands on the materials that you need to make the final product. Everything has many moving parts and that is becoming a constraint in manufacturing now because there is a big demand to make as many vaccines as quickly as possible.</p>
<figure class="align-center ">
<img alt="Line of vaccine vials in manufacturing facility." src="https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384978/original/file-20210218-18-1u613d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Manufacturing of vaccines is a complex process with multiple steps.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/glass-bottles-production-tray-automatic-liquid-1685674168">Ekaterina 1525 via Shutterstock</a></span>
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<p>Dan: Is the pace something that you are happy with?</p>
<p>Anne: I think, you know, considering this virus only emerged in November 2019, we are doing incredibly well, if you look back and say we actually even have a vaccine and we have almost half a dozen licensed at this stage is an incredible achievement. It kind of comes down to commerce. We didn’t have any buffer in the system in the sense that there was no spare capacity. And there was a recognition that that was needed because a pandemic would happen, but nobody was actually willing to support it. </p>
<p>Nature abhors a vacuum and pharma abhors an empty facility, you know, nobody’s going to leave something empty just in case pandemic happens.</p>
<p>So I think it is a huge global scramble to rededicate facilities to a coronavirus vaccine to upskill employees, to get more employees in, to actually do the work. And I think there will be an inflection point where these facilities that are now being kitted out will come on stream and will be then pumping out millions more vaccine doses than we’re seeing at the moment. </p>
<p>Gemma: So Dan it sounds like Anne is saying good job so far everyone, but the world could have perhaps prepared a bit better.</p>
<p>Dan: Yeah, absolutely and I guess that’s a major lesson from this pandemic too. But she touched on a hugely important part of the story here: economics. The fact that these vaccines are being produced by large, for-profit, pharmaceutical companies.</p>
<p>Anne: Who made the vast proportion of vaccines for the world. </p>
<p>Dan: Anne told me that there are essentially four major vaccine manufacturers in the world, and for the most part, they have their manufacturing facilities in the US and in Europe. There’s a shift though happening as India is now actually the biggest vaccine manufacturer globally. They’ve actually got a licence to make large batches of the Oxford/Astrazeneca vaccine.</p>
<p>Gemma: So who is getting the coronavirus vaccines that this small number of companies are producing?</p>
<p>Dan: The answer to that also is basically who has the money. A bunch of different countries spent a tonne to pre-order batches of the different vaccines. And this was happening even before these vaccines were approved.</p>
<p>According to the <a href="https://launchandscalefaster.org/COVID-19#Interactive%20tables%20and%20charts%20-%20COVID-19%20Vaccine%20Advance%20Market%20Commitments">Duke Global Health Innovation Center</a> by early February 2021, the world’s high-income countries had pre-ordered 4.2 billion vaccine doses, compared to a total of 670 million ordered by low-income countries. Many of the world’s wealthiest countries have far more than they need to cover their entire populations.</p>
<p>So to find out what it’s like in a part of the world where COVID vaccinations still feel very far away in the future, I called up a researcher who’s actually working across west Africa to try and solve this problem. </p>
<p>Mosoka: My name is Mosoka P. Fallah, I’m from Liberia.</p>
<p>Dan: Mosoka is a lecturer at the University of Liberia in the School of Public Health, and also a part-time lecturer in Harvard’s School of Public Health. He’s been very involved in the research on Ebola, and consults for the company Merck as an expert on Ebola vaccine licensing. He spoke to me last week from Sierra Leone, and described the situation there. </p>
<p>Mosoka: I can speak from west Africa because at least I’ve travelled, in recent times, Libiera, Sierra Leone, I was in Burkina Faso and then I transited through Togo. Basically, what I do know for now is that there’s nothing substantial towards vaccine.</p>
<p>Dan: He said a few countries in the region, including the small island of Cape Verde have been able to start to procuring some doses of the vaccine. But these are the exception. </p>
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<p>Mosoka: There’s attempt by the regional body, like African Union to access the vaccine. There is minimum effort, at least I know one, from a cell phone company to procure very little vaccine but it’s just a drop in the ocean. So basically Africa right now does not have any substantive way to acquire the vaccines.</p>
<p>Dan: Mosoka explains the reasons for this are almost entirely economic. </p>
<p>Mosoka: Fundamentally it’s the economic costs of acquiring the vaccine. You know, As someone really involved with the outbreak, I think the African countries tried to protect themselves preemptively, but it came at an alarming cost. </p>
<p>Dan: The cost of the vaccines is simply prohibitive for many of these countries.</p>
<p>Mosoka: Most of them are heavily indebted and there are no sense that they will have any debt relief. So basically this means, from an economic point of view, they cannot afford at the current market price.</p>
<p>Dan: There is an ongoing multinational effort to secure vaccines for countries that can’t afford them. I’m talking of course about the Covax initiative, led by the World Health Organization. The initiative wants to get 2 billion vaccine doses out to these countries in 2021. </p>
<p>But it’s at an incredibly slow pace. Mosoka explained that many west African nations covered by the alliance are only expecting to have 3% of their populations vaccinated by mid-2021. To put that that into perspective, as of February 14, 3.9% of the entire US population had gotten both doses of a coronavirus vaccine, 11% had already had one dose. </p>
<p>Anne Moore explained that manufacturing a vaccine is difficult and there have been a ton of delays already. This begs an obvious question: why aren’t more countries manufacturing vaccines that have already been approved, like the Moderna or Astrazeneca vaccines, for example. To understand why this is happening, we have to broach an ugly international issue. This is intellectual property rights around pharmaceuticals. To help me understand that, I called up Ronald Labonté.</p>
<p>Ronald: I’m a professor and have a distinguished research chair at the University of Ottawa in the School of Epidemiology and Public Health. </p>
<p>Dan: Ronald told me that the world has a lot of untapped vaccine manufacturing capacity.</p>
<p>Ronald: The annual global vaccine manufacturing capacity is estimated at somewhere between six and a half and eight and a half billion doses per year. But UNICEF probably using a larger database of potential manufacturers, estimates that in 2021, the volume of that output <a href="https://app.powerbi.com/view?r=eyJrIjoiNmE0YjZiNzUtZjk2OS00ZTg4LThlMzMtNTRhNzE0NzA4YmZlIiwidCI6Ijc3NDEwMTk1LTE0ZTEtNGZiOC05MDRiLWFiMTg5MjAyMzY2NyIsImMiOjh9&pageName=ReportSectiona329b3eafd86059a947b">could be as much as 20 billion</a>. </p>
<p>Meanwhile, the 2021 production run of the top three vaccines at the moment, right, the Pfizer vaccine, the Moderna, the AstraZeneca, the total manufacturing capacity that these three companies have is only 3.2 billion. </p>
<p>Dan: Sort of running in parallel to Covax is something called the <a href="https://www.who.int/initiatives/covid-19-technology-access-pool">COVID Technology Access Pool or CTAP</a>, it’s led by the World Health Organization. This is something of a information sharing club to help scale up the global production of vaccines. </p>
<p>Ronald: And that pool was designed to have manufacturers make their patents, their medical know-how available to all other manufacturers. Since its launch, not a single COVID-19 patent-holding company has joined CTAP. A lot of countries have that vaccine manufacturing capacity, but right now they can’t access it. And interestingly half of this vaccine manufacturing potential is actually in developing countries: Argentina, Bangladesh, China, India, Brazil, Egypt, Cuba, Indonesia, Iran, Mexico, Taiwan, Thailand, South Africa.</p>
<p>Dan: The intellectual property system for drugs is governed by the World Trade Organization. Specifically, it’s regulated by an agreement called TRIPS, which stands for the Trade-Related Aspects of Intellectual Property Rights agreement.</p>
<p>Ronald: And this agreement obliges all WTO member states to offer 20 years of monopoly protection on new patented products. There is a group of 35 least developed WTO member states that are still exempt from these obligations, but all the other countries that are members of the World Trade Organization have to play by these rules. </p>
<p>If the patent holder has a patent that applies to that particular country, that country cannot just automatically reverse engineer, try to develop a generic equivalent. It has to offer or provide or guarantee, a period of monopoly protection, during which time the company is basically able to set whatever price or whatever conditions it wants to set in access to its product. It’s the only agreement in the World Trade Organization that is not liberalising, it is protecting.</p>
<p>Dan: The pandemic has now put this TRIPS agreement seemingly at odds with an international effort to ramp up vaccine production. This is due to be discussed on March 1 and 2 at the World Trade Organization’s General Council. A number of countries are bringing up a request – first tabled in October 2020 – for a temporary waiver of the TRIPS agreement when it comes to COVID-19.</p>
<p>Ronald: India and South Africa, and a bunch of other countries, have formally signed on with a petition to create this waiver and over a hundred developing country member states of the World Trade Organization also support it. </p>
<p>So what they’re arguing is that, is that in the absence of a waiver, there are too many, uh, legal obligations, too many impediments, too many cumbersome rules around the flexibilities of the TRIPS agreement that would allow, other vaccine manufacturers to very quickly scale up and produce more of the vaccines that are effective.</p>
<p>It would be enforced until the World Health Organization declared the global pandemic was over. In other words, that global herd immunity had been reached.</p>
<p>Dan: Waivers have issued for other WTO stuff, like things for bananas, for example. But there’s only been one waiver for TRIPS, relating to the licensing rules around exporting generic medicines.</p>
<p>Ronald: So it is possible, by consensus, if all the countries agree, then yes, we have the TRIPS waiver. Or if I believe it’s three quarters of the member states agree if they come and they hold a vote on that.</p>
<p>Dan: This path to expanding global manufacturing capacity for coronavirus vaccines – and presumably ending the pandemic faster – is being blocked by a few powerful countries.</p>
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Read more:
<a href="https://theconversation.com/dummys-guide-to-how-trade-rules-affect-access-to-covid-19-vaccines-152897">Dummy's guide to how trade rules affect access to COVID-19 vaccines</a>
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<p>Ronald: Australia, Brazil, Canada, the EU, Japan, Norway, Switzerland, the UK and the US oppose it, or if they don’t oppose it they’re saying, well, we really can’t support it at this time because there’s no real evidence that it’s needed.</p>
<p>Now, the argument being made by this small handful of opposing countries, all of them, high-income countries, pretty much. Most of them already having inked a number of their own bilateral vaccine, advanced purchase agreements, so there they’ve taken care of themselves. Their argument is that existing TRIPS flexibilities for compulsory licenses or parallel importing is sufficient. And they also argue that patent holding companies well, they can issue voluntary licenses to other manufacturers to produce their products at negotiated prices, and indeed, many have done so with a number of other vaccine manufacturers. </p>
<p>Dan: But again, price limits how many places can actually afford to make a deal with the patent holders. And that’s where these flexibilities built into TRIPS come into play. They could theoretically allow countries to make their own vaccines without having to deal with the pharmaceutical companies at all. But Ronald says getting these flexibilities approved is next to impossible – it’s only happened once before – and it would take forever to be done on a wide enough scale as the flexibilities need to be approved on a case-by-case basis. </p>
<p>Ronald: What it really comes down to is that they don’t want to touch the intellectual property rights regime of the TRIPS agreement, which is so profitable to the patent-holding pharmaceutical industry.</p>
<p>Intellectual property it’s seen as one of the engines of the new kind of post-industrial economic growth. So we want our patent-holding companies to become profitable, to become rich because if they’re rich, then supposedly our countries become rich. So there’s a kind of a mercantilism going on here. </p>
<p>Dan: To Ronald, it’s frustrating to see pharmaceutical companies posting big profits from coronavirus vaccines. </p>
<p>Ronald: The only reason the vaccines got done so quickly, wasn’t because of the wonderful inventiveness and the use of intellectual property rights that the vaccine manufacturers, were able to put in place. It was because of massive, massive amount, billions and billions of dollars, in public support. And billions and billions of dollars more in advanced purchase agreements by governments that, that kind of gave the assurance of making a tonne of money at some point in time and recovering all of those costs. It wasn’t because we had an intellectual property regime system.</p>
<p>Dan: Ronald has been advocating hard for the TRIPS waiver – including writing a <a href="https://theconversation.com/profiles/ronald-labonte-106415/articles">few articles for The Conversation</a>. But he admits, if the waiver passes through the WTO, the outcome are also unknown.</p>
<p>Ronald: Now it may mean that, or it may be that, that if the waiver were approved, that it would take a while for all of its actions to sort of begin to play out. And, it may not make the huge difference that a lot of people think it could make. But we don’t know that. </p>
<p>We’re in a global pandemic emergency. The longer we wait, the worse it’s going to become, the more variants we might get. And the countries that are going to take the longest in actually being able to vaccinate their population to some sort of a kind of the national herd immunity are going to be the low-income countries. </p>
<p>Dan: When I asked Mosoka Fallah about what changes to IP and intellectual property rights might mean, he immediately pointed to the example of antiretroviral drugs and HIV/Aids. As soon as the IP was opened up, the price went down.</p>
<p>Mosoka: Once, multiple countries like Brazil and South Africa manufactured HIV, drugs, antiretroviral, we saw that the prices went down and countries could access it. </p>
<p>Fundamentally, in an ideal situation, if they release the IP to countries that have the capacity to manufacture, the pipeline going to increase. There’s going to be more vaccines, the prices are going to be reduced. </p>
<p>Dan: This won’t happen easily. </p>
<p>Mosoka: But the catch of this is that, if we allow of them to to give their IP, and there is an another outbreak tomorrow would they have incentive to do research? So the key trigger to think about is, how do we find means to meet these countries halfway, give them some funding for the R&D?</p>
<p>Dan: Mosoka is particularly incensed by the vaccine nationalism surrounding COVID, because it is so different from what he saw during the Ebola crisis. Today, there a shared pool of Ebola vaccines, ready and waiting to stop any outbreak no matter where it happens.</p>
<p>Mosoka: So that within 24 hours, where there is an Ebola outbreak, you can make a request that the vaccine can go to that country, irrespective of their ability to pay. So that’s a very good arrangement. </p>
<p>Dan: Towards the end of our conversation, Mosoka relayed to me a teaching, from his close friend and collaborator, the late Swedish epidemiologist, Hans Rosling. </p>
<p>Mosoka: And one morning, he said to me: “Mosoka, keep this in your mind. Everything you do in Liberia you are protecting Washington DC and London. If you don’t do a good job in Liberia, London and DC are vulnerable.” </p>
<p>Dan: The is as true for COVID as it is for Ebola.</p>
<p>Mosoka is part of a group of scientists working on a joint letter advocating for more equitable access to COVID vaccines. There are two main actions they plan to push for. First, more funding for the Covax alliance. This would help the group buy more vaccines for countries that can’t afford them. Second, that intellectual property rights be relaxed or waived. </p>
<p>Finally, Mosoka argues that richer countries, should simply give vaccines to poorer places. This isn’t even an ethical argument, it’s actually just the safest thing to do for everyone on earth. </p>
<p>Mosoka: And so at some point in time, if you vaccinated, say, 50% or 60% of the rich population, then you begin to do to share with others because even from a protective point of view, from a selfish point of view, if you don’t protect us, you are at risk because there is mutation happening. And so we are trying to propose potential alternatives. We’re not saying give 100%, can you give 10%? But for your own survival, try to share some of that vaccine. </p>
<p>Gemma: He makes a compelling argument doesn’t he? </p>
<p>Dan: He really does, not only from the ethics, but just the broader public health argument. Like, if your neighbours’ house is burning down, not only should you save them because, I don’t know, maybe it’s the nice thing and the right thing to do, but also because it’s gonna burn your house down too. </p>
<p>If you’re interested in reading more about vaccine manufacturing, vaccine nationalism and the intellectual property rights around vaccines, you can read stories by <a href="https://theconversation.com/dummys-guide-to-how-trade-rules-affect-access-to-covid-19-vaccines-152897">Ronald Labonté</a>, <a href="https://theconversation.com/no-country-is-an-island-collective-approach-to-covid-19-vaccines-is-the-only-way-to-go-153200">Mosoka Fallah</a> and Anne Moore on The Conversation. The links to their stories, and plenty of other further reading by experts, are in the show notes. </p>
<p>Gemma: Right, so for our next story we’re going to hear about an important shift that’s happening in China. So Dan, what do you think when I say the words “coal and China”. </p>
<p>Dan: Well, I imagine China’s burning a lot of it. And because its coal, it’s just spewing tonnes of pollution out into the atmosphere. Am I far off the mark there, Gemma? </p>
<p>Gemma: No, you are right. In fact, China is still the world’s biggest producer and consumer of coal, by a large margin. But there’s a change underway, and China is closing down some of its coal power stations. </p>
<p>Dan: Well that’s gotta be good. Is it for environomental reasons, or what’s going on?</p>
<p>Gemma: You’d think so but actually the reasons aren’t just about the environment, and they’re a lot more complex than that. So to find out more, I spoke to a researcher who has just published a study on what’s happening. </p>
<p>Hao Tan: My name is Hao Tan and I’m a researcher with Newcastle Business School within the University of Newcastle in Australia. My research is focused on energy transitions, especially that in China and its global implications. </p>
<p>Gemma: So Hao could you set the scene for us? How much coal does China use every year? </p>
<p>Hao: China is the largest coal user in the world. In 2019, China consumed about 53% of the coal produced in the world. In 2020, this share could even go higher because the country’s economy has had rapid recovery from the pandemic since early 2020, where all the major economies are still struggling with restriction to economic activities. </p>
<p>Gemma: Ok. So biggest consumer of coal, and I think the biggest producer of coal as well?</p>
<p>Hao: Exactly. China is also the largest coal producer in the world, yes, you’re right. So it’s not surprising that the majority of the coal used in China is from domestic sources. In 2019, about 90% of the coal used in China was domestically reproduced and the rest was imported from overseas. </p>
<p>Gemma: Why? What is this coal being used for?</p>
<p>Hao: About half of the coal is for power generation. So right now China has about half of the coal power stations in the world. </p>
<p>Gemma: But it’s also used for industry?</p>
<p>Hao: Yeah, for steel making, for heating, a range of purposes. </p>
<p>Gemma: When it does use coal from outside of the country, where does that coal come from? </p>
<p>Hao: Indonesia, Australia, Mongolia and Russia. So coal from those four countries account for over 90% of the coal imports of China. </p>
<p>Gemma: And in terms of domestic coal, is it coming from all over the country or are there particular parts of China, which are the biggest coal producers? </p>
<p>Hao: The majority of the coal produced in China actually is from western China. Eastern China used to produce a coal, but they are no longer producing coal anymore. </p>
<p>Gemma: So you’ve set out to picture here where China is the world’s biggest producer and consumer of coal, but it’s got plans to change that, hasn’t it? It’s trying to shift away.</p>
<p>Hao: Yes, so China, as we know, has recently announced its commitment to zero emissions by 2060. I think to achieve this goal, it has to radically reduce the coal use in the country. </p>
<p>Gemma: Let’s turn now to talking about your research. Could you explain what the most recent research you’ve done on coal power stations has been in China? </p>
<p>Hao: This is a part of an ongoing project funded by the Australian Research Council. In this project, my colleagues from UNSW and Macquarie University and myself, look into the energy transitions in east Asian countries and particularly the role governments play in those transitions. And in this research project we look into not only the rise of renewable energy industries, but also the dynamics of traditional energy industries, such as coal. </p>
<p>Gemma: And what did you find? How many coal power stations have been closed?</p>
<p>Hao: So between 2010 and 2019, a total of 291 coal-power generation units had been decommissioned in China, accounting for 37 gigawatts of capacity. For context, currently there’s 50 gigawatts of power generation capacity in operation in Australia. </p>
<p>Gemma: And what share of the overall coal power generation was that? </p>
<p>Hao: Right now it’s still a small share in terms of the total coal power generation capacity in China. China currently has over 1,000 gigawatts of coal power generation capacity. </p>
<p>Gemma: So it’s a small amount, but it’s happening at a faster rate than it used to? </p>
<p>Hao: Yes, yes. And, more interestingly, we found that in more economically advanced regions, the closures have been more substantial and more rapid. For example, take Guangdong province, a relatively developed region June in China. </p>
<p>Gemma: That’s in the east? </p>
<p>Hao: That’s right. This is one of the 30 provinces in China but, since 2015, coal power capacity retired in this province accounted for over 10% of the total coal power capacity retired in the country. Meanwhile, we see that the new power stations are still being built, particularly in poorer western provinces in China. In fact, since 2015 and 2019, the total coal power capacity of the country increased, by about 18%.</p>
<p>Gemma: Ok, so it’s a complex picture there that you’re painting, isn’t it? That there are power stations closing, but there are others opening. So in the areas where you did see them closing, can you explain a bit about why? </p>
<p>Hao: We found that, while in other countries, climate change is probably the main cause of, closures of coal power plants, a distinctive feature in China is that closure of coal plant stations there largely follow a developmental logic. By developmental logic, we refer to the local government’s ambitions to replace many energy- and pollution-intensive industries with industries based on more value-added activities, such as advanced manufacturing and services.</p>
<p>Gemma: And the land is very valuable, I imagine? </p>
<p>Hao: Yes, especially in those rich regions land has become very expensive. So that becomes a economic incentive for the closures of power plants. </p>
<p>Gemma: And what does that mean for those countries you mentioned at the beginning, who export a lot of coal to China? </p>
<p>Hao: If we’re talking about countries like Australia and Indonesia, an advantage of their coal exports is that they can actually transport the coal to China’s coastal regions with relatively cheaper transportation costs. But with this geographic redistribution of the coal power capacity, I think the prospect of coal exports from these countries to China is a bit gloomy in the future. </p>
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<p>Gemma: I think particularly with Australia, there’s real trade tensions with coal at the centre of them?</p>
<p>Hao: Yes, in the middle of 2020, China has imposed an unofficial ban to Australian coal exports to China. And ships of coal have not been able to unload it to Chinese ports. So in December, the coal exports to China, for example, from Australia has completely stopped. </p>
<p>Gemma: How does this shift that you’re seeing in China fit into a wider pattern of energy transition, which, you know, you said at the beginning that you study the wider region?</p>
<p>Hao: So those countries race to develop new carbon energy technologies is not just about climate change. It’s probably more to do with growing internationally competitive industries. This reflects the strong tradition of the development state in those countries, where governments have the resources and motives, to directly support a creation, transformation and growth of new industries. </p>
<p>Gemma: So what you’re saying is that while there’s an overall kind of concern about climate change and a need to shift away from coal, that actually it’s more economic drivers that are the reason behind the closures in eastern China. Is that, is that what you’re saying? </p>
<p>Hao: Yes. You can say that. Yes. </p>
<p>Gemma: And what do you think about this 2060 net zero emissions target? Do you think it’s achievable in the timeframe? </p>
<p>Hao: I think we still need to see more evidence to assess whether this commitment is achievable and whether the Chinese government is serious about that. I think two immediate indications include, first, the coming 14th five-years plan, which is going to be released by the Chinese government very soon. And second, whether the trend of emissions - so as we know, into 2013, actually the emissions in China has declined between 2013 and 2017. But unfortunately in recent years, that emission has picked up again. So we will look very closely whether that trend can be reversed. </p>
<p>Gemma: Well thank you very much Hao, it’s been fascinating talking to you, and I appreciate you explaining your research to us.</p>
<p>Hao: Thank you Gemma.</p>
<p>Gemma: If you want to read more about this, you can find a link to a story that Hao Tan wrote recently with some of his colleagues, in the show notes. </p>
<p>Dan: To finish off this episode we’ve got a few recommendations sent in via voicemail from our colleague Clea Chakraverty, politics and society editor at The Conversation in France. </p>
<p>Clea Chakraverty: Hi everyone. I’m Clea Chakraverty, politics and society editor from the The Conversation France. </p>
<p>This week I would like to discuss a very sensitive topic that is shaking France at the moment. At the beginning of January 2021, lawyer Camille Kouchner published a book called La Familia Grande in which she reveals how her father in law sexually abused her twin brother when they were teenagers. The book triggered a huge outcry as the man she accused is a well-known academic and is close to various elite circles in France. </p>
<p>The book also broke the taboos around incest, child abuse and abusers in a new way. Following its release, thousands of French people came out with stories of incest and abuse with the #Metooincest.</p>
<p>As historian Anne-Claude Ambroise Rendu from Université Versailles St Quentin <a href="https://theconversation.com/inceste-au-dela-du-bruit-mediatique-entendre-la-tragique-banalite-du-phenomene-152841">wrote for The Conversation</a> in French, incest and child abuse are quite common within families, but they are too often silenced. </p>
<p>Recent data published by a <a href="https://theconversation.com/violences-sexuelles-familiales-la-triste-realite-des-donnees-154492">team of researchers from INED</a>, also for The Conversation, back her claim: in France one woman out of 10 has faced sexual abuse while growing up, whether from outside her family or within. </p>
<p>This week authorities are discussing a possible revision of the law surrounding sexual abuse of minors. The reckoning for this historic abuse has only just started. Thanks so much for listening. </p>
<p>Gemma: Clea Chakraverty there from The Conversation in France. </p>
<p>Dan: Alrighty, that’s it for this episode of The Conversation Weekly. Thank you to all of the academics we’ve spoken to in this episode. </p>
<p>Gemma: And thanks to The Conversation editors Nicole Hasham, Caroline Southey, Moina Spooner and Clea Chakraverty. </p>
<p>Dan: You can find links to all of the expert analysis we’ve mentioned in this week’s episode in the show notes. Or head to TheConversation.com, where you can sign up to get a free daily email by clicking “<a href="https://theconversation.com/uk/newsletters/the-daily-newsletter-2?utm_campaign=System&utm_content=newsletter&utm_medium=TopBar&utm_source=theconversation.com">Get newsletter</a>” at the top of the homepage. I promise you, it’s actually a good newsletter. </p>
<p>Gemma: This episode is co-produced by Mend Mariwany and me, with sound design by Eloise Stevens. Our theme music is by Neeta Sarl. Final thanks also to Alice Mason, Scott White and Imriel Morgan. </p>
<p>Dan: And one final thing, if you like this podcast, please tell your friends about us and go please give us a review on Apple Podcasts – it really does help! </p>
<p>Gemma: Thanks for listening, until next week.</p><img src="https://counter.theconversation.com/content/155494/count.gif" alt="The Conversation" width="1" height="1" />
A transcript of The Conversation Weekly podcast episode #3.Gemma Ware, Head of AudioDaniel Merino, Associate Breaking News Editor and Co-Host of The Conversation Weekly PodcastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1512942020-12-09T03:37:55Z2020-12-09T03:37:55ZTikTokkers are writing Ratatouille, the musical. But who owns the copyright?<figure><img src="https://images.theconversation.com/files/373442/original/file-20201207-19-gp025k.jpg?ixlib=rb-1.1.0&rect=0%2C3%2C2048%2C901&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Disney/Pixar</span></span></figcaption></figure><p>Thousands of TikTok users have been creating a musical based on Disney/Pixar’s 2007 film <a href="https://www.imdb.com/title/tt0382932/">Ratatouille</a> under the hashtag #ratatouillemusical. </p>
<p>It began when US-based schoolteacher Emily Jacobsen wrote a “<a href="https://www.tiktok.com/@e_jaccs/video/6859521038418447622">love ballad</a>” in honour of Remy, the anthropomorphic rat with an acute sense of smell and taste who dreams of becoming a chef. </p>
<p>Jacobsen’s clip was then transformed by Daniel Mertzlufft, a composer and arranger, who <a href="https://www.tiktok.com/@danieljmertzlufft/video/6885475193410620678">revamped the song</a>. Adding strings, trumpets, additional vocals and French horn, he turned it into a big musical number, capturing the imagination of thousands of TikTok users.</p>
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<p>Soon others joined in: writing <a href="https://www.tiktok.com/@fettuccinefettuqueen/video/6888530225508928770">songs</a>, crafting <a href="https://www.tiktok.com/@tristanmichaelmcintyre/video/6894839741158608134">choreography</a> and designing <a href="https://www.tiktok.com/@shoeboxmusicals/video/6896481065855241477">sets</a>, <a href="https://www.tiktok.com/@ardellyfoshelly/video/6895493098881682693">costumes</a>, <a href="https://www.tiktok.com/@morgainemade/video/6895753331688426753">makeup</a>, <a href="https://www.tiktok.com/@brandon.hardy.art/video/6896430847122099462">puppets</a> — and even the <a href="https://www.tiktok.com/@siswij/video/6894854586293669126">playbill</a>. Others imagined the <a href="https://www.tiktok.com/@jjniemann/video/6886114072820010246">rehearsal process</a> and the artistic director’s <a href="https://www.tiktok.com/@stanzipotenza/video/6896565356802985221">notes</a>. </p>
<p>The result is a <a href="https://www.nytimes.com/2020/11/30/arts/tiktok-disney-ratatouille-musical.html">viral sensation</a>. Even Disney has picked up the enthusiasm, with the Disney Parks TikTok account <a href="https://www.tiktok.com/@disneyparks/video/6897222815758535942">posting</a> their own contribution — a <a href="https://en.wikipedia.org/wiki/Hamilton_(musical)">Hamilton</a>-esque rap about Remy’s culinary ambitions.</p>
<p>But what if Disney wanted to bring this collectively written musical to stage? Could they? And could Ratatouille The Musical be a ticket to riches for these gifted Gen Zers? </p>
<h2>Who owns the copyright?</h2>
<p>Generally speaking, anyone who makes their own song or dance on TikTok automatically owns the copyright. Copyright also allows for <a href="https://www.artslaw.com.au/information-sheet/copyright/">joint authorship</a>, but it usually requires the authors to have been working together on a common aim — could this be said of TikTok creators who take and build on each others’ works sequentially? </p>
<p>Working out authorship is only the first hurdle. Because creators are located all around the world, different copyright and contract laws come into play.</p>
<p><iframe id="tc-infographic-555" class="tc-infographic" height="400px" src="https://cdn.theconversation.com/infographics/555/cbf0b26f17396fdc30fbf96f6fa4ed66ab49016e/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>And these creators are not only building on each other’s creations, they are also building off Disney’s original movie.</p>
<p>This means there might be potential, (as unlikely as it seems,) for Disney to sue the TikTokkers for their use of Remy. In the United States and some other jurisdictions, it is possible to assert <a href="https://ipkitten.blogspot.com/2019/11/copyright-protection-of-fictional.html">copyright in fictional characters</a>.</p>
<p>This is more complicated in places like Australia, where at least one eager TikTokker, <a href="https://www.tiktok.com/@fettuccinefettuqueen">Gabbi Bolt</a>, is crafting songs for the musical. Here, characters themselves are not protected by copyright, but aspects could be protected under the <a href="https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets/Characters_and_Copyright.aspx?WebsiteKey=8a471e74-3f78-4994-9023-316f0ecef4ef">broader copyright</a> encompassing the movie’s story and artwork.</p>
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<p>Infringement would turn on whether a “substantial part” has been copied — something difficult to assess as it’s a matter of degree.</p>
<p>Mind you, as long as the collaborations stay on TikTok, it seems unlikely Disney will sue. In a statement, the company <a href="https://www.nytimes.com/2020/11/30/arts/tiktok-disney-ratatouille-musical.html">told the New York Times</a> “we love when our fans engage with our stories”.</p>
<h2>But who can get paid?</h2>
<p>Even though the TikTok users own their copyright, as a condition of participating on the platform, they agree to the <a href="https://www.tiktok.com/legal/terms-of-use?lang=en">terms of service</a>. These terms are complex and hard to navigate — but it appears users grant TikTok a very broad irrevocable, perpetual, sublicensable right to copy, modify and share their content on a royalty-free basis. </p>
<p>This licence is non-exclusive so (in theory) TikTokkers could license their videos to others, such as Disney — but the terms imply that users can only access and use any TikTok content for “personal, non-commercial use”. </p>
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<p>It’s not clear from the terms exactly what this personal use would cover. In addition, TikTokkers specifically renounce the right to remuneration for their creativity except as provided for in the terms of service. </p>
<p>(It seems even <a href="https://www.pedestrian.tv/entertainment/charli-damelio-paid-tiktok-posts/">sponsored posts</a> could be contrary to the terms of service, despite being so widespread. For stars like Charli D'Amelio, TikTok clearly tolerates — or has agreed to — some commercial uses.)</p>
<p>Under the terms of service, TikTokkers also waive their “<a href="https://www.artslaw.com.au/information-sheet/moral-rights/">moral rights</a>”: anyone who uses their work doesn’t need to attribute them as authors, which they would normally have to do in Australia.</p>
<p>This means Disney could use the creative contributions of the users without having to compensate the creators, or even recognise them as authors.</p>
<p>So it seems the TikTokkers can’t get paid. But TikTok can. Under the terms of service, users agree TikTok can authorise others to make derivative works based on their work in any format or on any platform. </p>
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<p>Disney would probably need to get TikTok’s permission to make any commercial use of the songs, artworks and dances uploaded on its service. </p>
<p>And while the TikTokkers who create the content are not allowed to receive any money for their work, nothing in the terms of service prevents TikTok from charging Disney a hefty fee for granting such permission.</p>
<h2>A double sided coin</h2>
<p>The story of #ratatouillemusical illustrates the two sides of social media services such as Instagram or TikTok, which can launch an artist or creator while, at the same time, making it challenging for them to monetize their content. </p>
<p>TikTok has recently launched a <a href="https://newsroom.tiktok.com/en-us/introducing-the-200-million-tiktok-creator-fund">Creator Fund</a>, allowing eligible “ambitious creators” to earn money off their videos, so far some users seem <a href="https://www.wired.com/story/tiktok-creators-fund-revenue-sharing-complaints/">disappointed</a> with the service which reportedly pays between <a href="https://musically.com/2020/10/02/tiktok-creator-fund-reportedly-paying-2-4-cents-per-1000-views/">2 and 4 cents</a> per 1,000 views.</p>
<p>And while there are agreements in place with some <a href="https://www.rollingstone.com/pro/news/tiktok-sony-music-licensing-deal-1084854/">recording labels</a> and <a href="https://ipkitten.blogspot.com/2020/07/tiktok-signs-copyright-licensing.html">independent distributors</a> about the use of background music, this doesn’t really help amateur contributors. </p>
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<p>Under COVID-19, we have seen a huge surge in collaborative <a href="https://www.psychologytoday.com/us/blog/and-all-jazz/202004/creativity-in-coronavirus-world">creativity</a> and a growing reliance on platforms such as TikTok for <a href="https://www.theguardian.com/technology/2020/apr/26/how-coronavirus-helped-tiktok-find-its-voice">socialising and entertainment</a>.</p>
<p>These are exciting opportunities — but the intellectual property implications of conducting more and more of our lives online have yet to be fully thought through.</p><img src="https://counter.theconversation.com/content/151294/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Gen Z have been collaboratively writing Ratatouille the Musical on TikTok – but what do the terms of service say about who owns the art?Daniela Simone, Senior lecturer, Macquarie UniversityIsabella Alexander, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.