intellectual property rights research questions

Intellectual Property Law Research Paper Topics

Welcome to the realm of intellectual property law research paper topics , where we aim to guide law students on their academic journey by providing a comprehensive list of 10 captivating and relevant topics in each of the 10 categories. In this section, we will explore the dynamic field of intellectual property law, encompassing copyrights, trademarks, patents, and more, and shed light on its significance, complexities, and the diverse array of research paper topics it offers. With expert tips on topic selection, guidance on crafting an impactful research paper, and access to iResearchNet’s custom writing services, students can empower their pursuit of excellence in the domain of intellectual property law.

100 Intellectual Property Law Research Paper Topics

Intellectual property law is a dynamic and multifaceted field that intersects with various sectors, including technology, arts, business, and innovation. Research papers in this domain allow students to explore the intricate legal framework that governs the creation, protection, and enforcement of intellectual property rights. To aid aspiring legal scholars in their academic pursuits, this section presents a comprehensive list of intellectual property law research paper topics, categorized to encompass a wide range of subjects.

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• Fair Use Doctrine: Balancing Creativity and Access to Knowledge
• Copyright Infringement in the Digital Age: Challenges and Solutions
• The Role of Copyright Law in Protecting Creative Works of Art
• The Intersection of Copyright and AI: Legal Implications and Challenges
• Copyright and Digital Education: Analyzing the Impact of Distance Learning
• Copyright and Social Media: Addressing Infringement and User Rights
• Copyright Exceptions for Libraries and Educational Institutions
• Copyright Law and Virtual Reality: Emerging Legal Issues
• Copyright and Artificial Intelligence in Music Creation
• Copyright Termination Rights and Authors’ Works Reversion
• Patentable Subject Matter: Examining the Boundaries of Patent Protection
• Patent Trolls and Innovation: Evaluating the Impact on Technological Advancement
• Biotechnology Patents: Ethical Considerations and Policy Implications
• Patent Wars in the Pharmaceutical Industry: Balancing Access to Medicine and Innovation
• Standard Essential Patents: Analyzing the Role in Technology Development and Market Competition
• Patent Thickets and the Challenges for Startups and Small Businesses
• Patent Pooling and Collaborative Innovation: Advantages and Legal Considerations
• Patent Litigation and Forum Shopping: Analysis of Jurisdictional Issues
• Patent Law and Artificial Intelligence: Implications for Inventorship and Ownership
• Patent Exhaustion and International Trade: Legal Complexities in Global Markets
• Trademark Dilution: Protecting the Distinctiveness of Brands in a Global Market
• Trademark Infringement and the Online Environment: Challenges and Legal Remedies
• The Intersection of Trademark Law and Freedom of Speech: Striking a Balance
• Non-Traditional Trademarks: Legal Issues Surrounding Sound, Color, and Shape Marks
• Trademark Licensing: Key Considerations for Brand Owners and Licensees
• Trademark Protection for Geographical Indications: Preserving Cultural Heritage
• Trademark Opposition and Cancellation Proceedings: Strategies and Legal Considerations
• Trademark Law and Counterfeiting: Global Enforcement Challenges
• Trademark and Domain Name Disputes: UDRP and Legal Strategies
• Trademark Law and Social Media Influencers: Disclosure and Endorsement Guidelines
• Trade Secrets vs. Patents: Choosing the Right Intellectual Property Protection
• Trade Secret Misappropriation: Legal Protections and Remedies for Businesses
• Protecting Trade Secrets in the Digital Age: Cybersecurity Challenges and Best Practices
• International Trade Secret Protection: Harmonization and Enforcement Challenges
• Whistleblowing and Trade Secrets: Balancing Public Interest and Corporate Secrets
• Trade Secret Licensing and Technology Transfer: Legal and Business Considerations
• Trade Secret Protection in Employment Contracts: Non-Compete and Non-Disclosure Agreements
• Trade Secret Misappropriation in Supply Chains: Legal Implications and Risk Mitigation
• Trade Secret Law and Artificial Intelligence: Ownership and Trade Secret Protection
• Trade Secret Protection in the Era of Open Innovation and Collaborative Research
• Artificial Intelligence and Intellectual Property: Ownership and Liability Issues
• 3D Printing and Intellectual Property: Navigating the Intersection of Innovation and Copyright
• Blockchain Technology and Intellectual Property: Challenges and Opportunities
• Digital Rights Management: Addressing Copyright Protection in the Digital Era
• Open Source Software Licensing: Legal Implications and Considerations
• Augmented Reality and Virtual Reality: Legal Issues in Content Creation and Distribution
• Internet of Things (IoT) and Intellectual Property: Legal Challenges and Policy Considerations
• Big Data and Intellectual Property: Privacy and Data Protection Concerns
• Artificial Intelligence and Patent Offices: Automation and Efficiency Implications
• Intellectual Property Implications of 5G Technology: Connectivity and Innovation Challenges
• Music Copyright and Streaming Services: Analyzing Legal Challenges and Solutions
• Fair Use in Documentary Films: Balancing Copyright Protection and Freedom of Expression
• Intellectual Property in Video Games: Legal Issues in the Gaming Industry
• Digital Piracy and Copyright Enforcement: Approaches to Tackling Online Infringement
• Personality Rights in Media: Balancing Privacy and Freedom of the Press
• Streaming Services and Copyright Licensing: Legal Challenges and Royalty Distribution
• Fair Use in Parody and Satire: Analyzing the Boundaries of Creative Expression
• Copyright Protection for User-Generated Content: Balancing Authorship and Ownership
• Media Censorship and Intellectual Property: Implications for Freedom of Information
• Virtual Influencers and Copyright: Legal Challenges in the Age of AI-Generated Content
• Intellectual Property Protection in Developing Countries: Promoting Innovation and Access to Knowledge
• Cross-Border Intellectual Property Litigation: Jurisdictional Challenges and Solutions
• Trade Agreements and Intellectual Property: Impact on Global Innovation and Access to Medicines
• Harmonization of Intellectual Property Laws: Prospects and Challenges for International Cooperation
• Indigenous Knowledge and Intellectual Property: Addressing Cultural Appropriation and Protection
• Intellectual Property and Global Public Health: Balancing Innovation and Access to Medicines
• Geographical Indications in International Trade: Legal Framework and Market Exclusivity
• International Licensing and Technology Transfer: Legal Considerations for Multinational Corporations
• Intellectual Property Enforcement in the Digital Marketplace: Comparative Analysis of International Laws
• Digital Copyright and Cross-Border E-Commerce: Legal Implications for Online Businesses
• Intellectual Property Strategy for Startups: Maximizing Value and Mitigating Risk
• Licensing and Franchising: Legal Considerations for Expanding Intellectual Property Rights
• Intellectual Property Due Diligence in Mergers and Acquisitions: Key Legal Considerations
• Non-Disclosure Agreements: Safeguarding Trade Secrets and Confidential Information
• Intellectual Property Dispute Resolution: Arbitration and Mediation as Alternative Methods
• Intellectual Property Valuation: Methods and Challenges for Business and Investment Decisions
• Technology Licensing and Transfer Pricing: Tax Implications for Multinational Corporations
• Intellectual Property Audits: Evaluating and Managing IP Assets for Businesses
• Trade Secret Protection and Non-Compete Clauses: Balancing Employer and Employee Interests
• Intellectual Property and Startups: Strategies for Funding and Investor Relations
• Intellectual Property and Access to Medicines: Ethical Dilemmas in Global Health
• Gene Patenting and Human Dignity: Analyzing the Moral and Legal Implications
• Intellectual Property and Indigenous Peoples: Recognizing Traditional Knowledge and Culture
• Bioethics and Biotechnology Patents: Navigating the Intersection of Science and Ethics
• Copyright, Creativity, and Freedom of Expression: Ethical Considerations in the Digital Age
• Intellectual Property and Artificial Intelligence: Ethical Implications for AI Development and Use
• Genetic Engineering and Intellectual Property: Legal and Ethical Implications
• Intellectual Property and Environmental Sustainability: Legal and Ethical Perspectives
• Cultural Heritage and Intellectual Property Rights: Preservation and Repatriation Efforts
• Intellectual Property and Social Justice: Access and Equality in the Innovation Ecosystem
• Innovation Incentives and Intellectual Property: Examining the Relationship
• Intellectual Property and Technology Transfer: Promoting Innovation and Knowledge Transfer
• Intellectual Property Rights in Research Collaborations: Balancing Interests and Collaborative Innovation
• Innovation Policy and Patent Law: Impact on Technology and Economic Growth
• Intellectual Property and Open Innovation: Collaborative Models and Legal Implications
• Intellectual Property and Startups: Fostering Innovation and Entrepreneurship
• Intellectual Property and University Technology Transfer: Challenges and Opportunities
• Open Access and Intellectual Property: Balancing Public Goods and Commercial Interests
• Intellectual Property and Creative Industries: Promoting Cultural and Economic Development
• Intellectual Property and Sustainable Development Goals: Aligning Innovation with Global Priorities

The intellectual property law research paper topics presented here are intended to inspire students and researchers to delve into the complexities of intellectual property law and explore emerging issues in this ever-evolving field. Each topic offers a unique opportunity to engage with legal principles, societal implications, and practical challenges. As the landscape of intellectual property law continues to evolve, there remains an exciting realm of uncharted research areas, waiting to be explored. Through in-depth research and critical analysis, students can contribute to the advancement of intellectual property law and its impact on innovation, creativity, and society at large.

Exploring the Range of Topics in Human Rights Law

Human rights law is a vital field of study that delves into the protection and promotion of fundamental rights and freedoms for all individuals. As a cornerstone of international law, human rights law addresses various issues, ranging from civil and political rights to economic, social, and cultural rights. It aims to safeguard the inherent dignity and worth of every human being, regardless of their race, religion, gender, nationality, or other characteristics. In this section, we will explore the diverse and expansive landscape of intellectual property law research paper topics, shedding light on its significance and the vast array of areas where students can conduct meaningful research.

• Historical Perspectives on Human Rights : Understanding the historical evolution of human rights is essential to comprehend the principles and norms that underpin modern international human rights law. Research papers in this category may explore the origins of human rights, the impact of significant historical events on the development of human rights norms, and the role of key figures and organizations in shaping the human rights framework.
• Human Rights and Social Justice : This category delves into the intersection of human rights law and social justice. Intellectual property law research paper topics may encompass the role of human rights in addressing issues of poverty, inequality, discrimination, and marginalization. Researchers can analyze how human rights mechanisms and legal instruments contribute to advancing social justice and promoting inclusivity within societies.
• Gender Equality and Women’s Rights : Gender equality and women’s rights remain crucial subjects in human rights law. Research papers in this area may explore the legal protections for women’s rights, the challenges in achieving gender equality, and the impact of cultural and societal norms on women’s human rights. Intellectual property law research paper topics may also address specific issues such as violence against women, gender-based discrimination, and the role of women in peacebuilding and conflict resolution.
• Freedom of Expression and Media Rights : The right to freedom of expression is a fundamental human right that forms the basis of democratic societies. In this category, researchers can examine the legal dimensions of freedom of expression, including its limitations, the role of media in promoting human rights, and the challenges in balancing freedom of expression with other rights and interests.
• Human Rights in Armed Conflicts and Peacebuilding : Armed conflicts have severe implications for human rights, necessitating robust legal frameworks for protection. Topics in this category may focus on humanitarian law, the rights of civilians during armed conflicts, and the role of international organizations in peacebuilding and post-conflict reconstruction.
• Refugee and Migration Rights : With the global refugee crisis and migration challenges, this category addresses the legal protections and challenges faced by refugees and migrants. Research papers may delve into the rights of asylum seekers, the principle of non-refoulement, and the legal obligations of states in providing humanitarian assistance and protection to displaced populations.
• Economic, Social, and Cultural Rights : Economic, social, and cultural rights are integral to human rights law, ensuring the well-being and dignity of individuals. Topics may explore the right to education, health, housing, and adequate standards of living. Researchers may also examine the justiciability and enforcement of these rights at national and international levels.
• Human Rights and Technology : The digital age presents new challenges and opportunities for human rights. Research in this category can explore the impact of technology on privacy rights, freedom of expression, and the right to access information. Intellectual property law research paper topics may also cover the use of artificial intelligence and algorithms in decision-making processes and their potential implications for human rights.
• Environmental Justice and Human Rights : Environmental degradation has significant human rights implications. Researchers can investigate the intersection of environmental protection and human rights, examining the right to a healthy environment, the rights of indigenous communities, and the role of human rights law in addressing climate change.
• Business and Human Rights : The responsibilities of corporations in upholding human rights have gained increasing attention. This category focuses on corporate social responsibility, human rights due diligence, and legal mechanisms to hold businesses accountable for human rights violations.

The realm of human rights law offers an expansive and dynamic platform for research and exploration. As the international community continues to grapple with pressing human rights issues, students have a unique opportunity to contribute to the discourse and advance human rights protections worldwide. Whether examining historical perspectives, social justice, gender equality, freedom of expression, or other critical areas, research in human rights law is a compelling endeavor that can make a positive impact on the lives of people globally.

How to Choose an Intellectual Property Law Topic

Choosing the right intellectual property law research paper topic is a crucial step in the academic journey of law students. Intellectual property law is a multifaceted and rapidly evolving field that covers a wide range of subjects, including patents, copyrights, trademarks, trade secrets, and more. With such diversity, selecting a compelling and relevant research topic can be both challenging and exciting. In this section, we will explore ten practical tips to help students navigate the process of choosing an engaging and impactful intellectual property law research paper topic.

• Identify Your Interests and Passion : The first step in selecting a research paper topic in intellectual property law is to identify your personal interests and passion within the field. Consider what aspects of intellectual property law resonate with you the most. Are you fascinated by the intricacies of patent law and its role in promoting innovation? Or perhaps you have a keen interest in copyright law and its influence on creative expression? By choosing a topic that aligns with your passions, you are more likely to stay motivated and engaged throughout the research process.
• Stay Updated on Current Developments : Intellectual property law is a dynamic area with continuous developments and emerging trends. To choose a relevant and timely research topic, it is essential to stay updated on recent court decisions, legislative changes, and emerging issues in the field. Follow reputable legal news sources, academic journals, and intellectual property law blogs to remain informed about the latest developments.
• Narrow Down the Scope : Given the vastness of intellectual property law, it is essential to narrow down the scope of your research paper topic. Focus on a specific subfield or issue within intellectual property law that interests you the most. For example, you may choose to explore the legal challenges of protecting digital copyrights in the music industry or the ethical implications of gene patenting in biotechnology.
• Conduct Preliminary Research : Before finalizing your research paper topic, conduct preliminary research to gain a better understanding of the existing literature and debates surrounding the chosen subject. This will help you assess the availability of research material and identify any gaps or areas for further exploration.
• Review Case Law and Legal Precedents : In intellectual property law, case law plays a crucial role in shaping legal principles and interpretations. Analyzing landmark court decisions and legal precedents in your chosen area can provide valuable insights and serve as a foundation for your research paper.
• Consult with Professors and Experts : Seek guidance from your professors or intellectual property law experts regarding potential intellectual property law research paper topics. They can offer valuable insights, suggest relevant readings, and provide feedback on the feasibility and relevance of your chosen topic.
• Consider Practical Applications : Intellectual property law has real-world implications and applications. Consider choosing a research topic that has practical significance and addresses real challenges faced by individuals, businesses, or society at large. For example, you might explore the role of intellectual property in facilitating technology transfer in developing countries or the impact of intellectual property rights on access to medicines.
• Analyze International Perspectives : Intellectual property law is not confined to national boundaries; it has significant international dimensions. Analyzing the differences and similarities in intellectual property regimes across different countries can offer a comparative perspective and enrich your research paper.
• Propose Solutions to Existing Problems : A compelling research paper in intellectual property law can propose innovative solutions to existing problems or challenges in the field. Consider focusing on an area where there are unresolved debates or conflicting interests and offer well-reasoned solutions based on legal analysis and policy considerations.
• Seek Feedback and Refine Your Topic : Once you have narrowed down your research paper topic, seek feedback from peers, professors, or mentors. Be open to refining your topic based on constructive criticism and suggestions. A well-defined and thoughtfully chosen research topic will set the stage for a successful and impactful research paper.

Choosing the right intellectual property law research paper topic requires careful consideration, passion, and a keen awareness of current developments in the field. By identifying your interests, staying updated on legal developments, narrowing down the scope, conducting preliminary research, and seeking guidance from experts, you can select a compelling and relevant topic that contributes to the academic discourse in intellectual property law. A well-chosen research topic will not only showcase your expertise and analytical skills but also provide valuable insights into the complexities and challenges of intellectual property law in the modern world.

How to Write an Intellectual Property Law Research Paper

Writing an intellectual property law research paper can be an intellectually stimulating and rewarding experience. However, it can also be a daunting task, especially for students who are new to the intricacies of legal research and academic writing. In this section, we will provide a comprehensive guide on how to write an effective and impactful intellectual property law research paper. From understanding the structure and components of the paper to conducting thorough research and crafting compelling arguments, these ten tips will help you navigate the writing process with confidence and proficiency.

• Understand the Paper Requirements : Before diving into the writing process, carefully review the requirements and guidelines provided by your professor or institution. Pay attention to the paper’s length, formatting style (APA, MLA, Chicago/Turabian, Harvard, etc.), citation guidelines, and any specific instructions regarding the research paper topic or research methods.
• Conduct In-Depth Research : A strong intellectual property law research paper is built on a foundation of comprehensive and credible research. Utilize academic databases, legal journals, books, and reputable online sources to gather relevant literature and legal precedents related to your chosen topic. Ensure that your research covers a wide range of perspectives and presents a well-rounded analysis of the subject matter.
• Develop a Clear Thesis Statement : The thesis statement is the central argument of your research paper. It should be concise, specific, and clearly convey the main point you will be arguing throughout the paper. Your thesis statement should reflect the significance of your research topic and its contribution to the field of intellectual property law.
• Create an Outline : An outline is a roadmap for your research paper, helping you organize your thoughts and ideas in a logical and coherent manner. Divide your paper into sections, each representing a key aspect of your argument. Within each section, outline the main points you will address and the evidence or analysis that supports your claims.
• Introduction : Engage and Provide Context: The introduction of your research paper should captivate the reader’s attention and provide essential context for your study. Start with a compelling opening sentence or anecdote that highlights the importance of the topic. Clearly state your thesis statement and provide an overview of the main points you will explore in the paper.
• Literature Review : In the early sections of your research paper, include a literature review that summarizes the existing research and scholarship on your topic. Analyze the key theories, legal doctrines, and debates surrounding the subject matter. Use this section to demonstrate your understanding of the existing literature and to identify gaps or areas where your research will contribute.
• Legal Analysis and Argumentation : The heart of your intellectual property law research paper lies in your legal analysis and argumentation. Each section of the paper should present a well-structured and coherent argument supported by legal reasoning, case law, and relevant statutes. Clearly explain the legal principles and doctrines you are applying and provide evidence to support your conclusions.
• Consider Policy Implications : Intellectual property law often involves complex policy considerations. As you present your legal arguments, consider the broader policy implications of your research findings. Discuss how your proposed solutions or interpretations align with societal interests and contribute to the advancement of intellectual property law.
• Anticipate Counterarguments : To strengthen your research paper, anticipate potential counterarguments to your thesis and address them thoughtfully. Acknowledging and refuting counterarguments demonstrate the depth of your analysis and the validity of your position.
• Conclusion : Recapitulate and Reflect: In the conclusion of your research paper, recapitulate your main arguments and restate your thesis statement. Reflect on the insights gained from your research and highlight the significance of your findings. Avoid introducing new information in the conclusion and instead, offer recommendations for further research or policy implications.

Writing an intellectual property law research paper requires meticulous research, careful analysis, and persuasive argumentation. By following the tips provided in this section, you can confidently navigate the writing process and create an impactful research paper that contributes to the field of intellectual property law. Remember to adhere to academic integrity and proper citation practices throughout your research, and seek feedback from peers or professors to enhance the quality and rigor of your work. A well-crafted research paper will not only demonstrate your expertise in the field but also provide valuable insights into the complexities and nuances of intellectual property law.

iResearchNet’s Research Paper Writing Services

At iResearchNet, we understand the challenges that students face when tasked with writing complex and comprehensive research papers on intellectual property law topics. We recognize the importance of producing high-quality academic work that meets the rigorous standards of legal research and analysis. To support students in their academic endeavors, we offer custom intellectual property law research paper writing services tailored to meet individual needs and requirements. Our team of expert writers, well-versed in the intricacies of intellectual property law, is committed to delivering top-notch, original, and meticulously researched papers that can elevate your academic performance.

• Expert Degree-Holding Writers : Our team consists of experienced writers with advanced degrees in law and expertise in intellectual property law. They possess the necessary knowledge and research skills to create well-crafted research papers that showcase a profound understanding of the subject matter.
• Custom Written Works : We take pride in producing custom-written research papers that are unique to each client. When you place an order with iResearchNet, you can be assured that your paper will be tailored to your specific instructions and requirements.
• In-Depth Research : Our writers conduct thorough and comprehensive research to ensure that your intellectual property law research paper is well-supported by relevant legal sources and up-to-date literature.
• Custom Formatting : Our writers are well-versed in various citation styles, including APA, MLA, Chicago/Turabian, and Harvard. We will format your research paper according to your specified citation style, ensuring accuracy and consistency throughout the paper.
• Top Quality : We are committed to delivering research papers of the highest quality. Our team of editors reviews each paper to ensure that it meets the required academic standards and adheres to your instructions.
• Customized Solutions : At iResearchNet, we recognize that each research paper is unique and requires a tailored approach. Our writers take the time to understand your specific research objectives and create a paper that aligns with your academic goals.
• Flexible Pricing : We offer competitive and flexible pricing options to accommodate students with varying budget constraints. Our pricing is transparent, and there are no hidden fees or additional charges.
• Short Deadlines : We understand that students may face tight deadlines. Our writers are skilled in working efficiently without compromising the quality of the research paper. We offer short turnaround times, including deadlines as tight as 3 hours.
• Timely Delivery : Punctuality is a priority at iResearchNet. We ensure that your completed research paper is delivered to you on time, allowing you ample time for review and any necessary revisions.
• 24/7 Support : Our customer support team is available 24/7 to assist you with any queries or concerns you may have. Feel free to contact us at any time, and we will promptly address your needs.
• Absolute Privacy : We value your privacy and confidentiality. Your personal information and order details are treated with the utmost confidentiality, and we never share your data with third parties.
• Easy Order Tracking : Our user-friendly platform allows you to easily track the progress of your research paper. You can communicate directly with your assigned writer and stay updated on the status of your order.
• Money-Back Guarantee : We are committed to customer satisfaction. If, for any reason, you are not satisfied with the quality of the research paper, we offer a money-back guarantee.

When it comes to writing an exceptional intellectual property law research paper, iResearchNet is your reliable partner. With our team of expert writers, commitment to quality, and customer-centric approach, we are dedicated to helping you succeed in your academic pursuits. Whether you need assistance with choosing a research paper topic, conducting in-depth research, or crafting a compelling argument, our custom writing services are designed to provide you with the support and expertise you need. Place your order with iResearchNet today and unlock the full potential of your intellectual property law research.

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Intellectual Property Rights: What Researchers Need to Know

Intellectual property rights help protect creations of the mind that include inventions, literary or artistic work, images, symbols, etc. If you create a product, publish a book, or find a new drug, intellectual property rights ensure that you benefit from your work. These rights protect your creation or work from unfair use by others. In this article, we will discuss different types of intellectual property rights and learn how they can help researchers.

Types of Intellectual Property Rights

There are two main types of intellectual property rights (IPR).

• Copyrights and related rights
• Industrial property

Copyrights give authors the right to protect their work.

It covers databases, reference works, computer programs, architecture, books, technical drawings, and others.

By copyrighting your work, you ensure that others cannot use it without your permission.

Industrial property rights include trademarks, patents, geographical indications, and industrial designs.

• A trademark is a unique sign used to identify a product or a service. It can be a single word or a combination of words and numbers. Drawings, 3-D signs, or even symbols can constitute a trademark. For instance, Google is a famous trademark. The trademark application can be filed at national or regional levels depending on the extent of protection required.
• A patent is an exclusive right to an invention that introduces a new solution or a technique. If you own a patent, you are the only person who can manufacture, distribute, sell, or commercially use that product. Patents are usually granted for a period of 20 years. The technology that powers self-driving cars is an example of a patented invention.
• A geographical indication states that a product belongs to a specific region and has quality or reputation owing to that region. Olive oil from Tuscany is a product protected by geographical indication.
• An industrial design is what makes a product unique and attractive. These may include 3-D (shape or surface of an object) or 2-D (lines or patterns) features. The shape of a glass Coca-Cola bottle is an example of the industrial design.

What Do I Need to Know About IPR?

Intellectual property rights are governed by WIPO , the World Intellectual Property Organization. WIPO harmonizes global policy and protects IPR across borders. As a researcher, you rely on the published work to create a new hypothesis or to support your findings. You should, therefore, ensure that you do not infringe the copyright of the owner or author of the published work (images, extracts, figures, data, etc.)

When you refer to a book chapter or a research paper , make sure to provide appropriate credit and avoid plagiarism by using effective paraphrasing , summarizing, or quoting the required content. Remember plagiarism is a serious misconduct! It is important to cite the original work in your manuscript. Copyright also covers images, figures, data, etc. Authors must get appropriate written permission to use copyrighted images before using them in the manuscripts or thesis.

How do you decide whether to publish or patent? Check your local IPR laws. IPR laws vary between countries and regions. In the US, a patent will not be granted for an idea that has already been published. Researchers, therefore, are advised to file a patent application before publishing a paper on their invention. Discussing an invention in public is what is known as public disclosure . In the US, for instance, a researcher has one year from the time of public disclosure to file a patent. However, in Europe, a researcher who has already disclosed his or her invention publicly loses the right to file a patent immediately.

IPR and Collaborative Research

IPR laws can impact international research collaboration. Researchers should take national differences into account when planning global collaboration. For example, researchers in the US or Japan collaborating with researchers in the EU must agree to restrict public disclosure or publication before filing a patent. In the US, it is common for publicly funded universities to retain patent ownership. However, in Europe , there are different options . An ideal collaboration provides everyone involved with the maximum ownership of patent rights. Several entities specialize in organizing international research collaborations. Researchers can also consider engaging with such a company to manage IPR.

What questions do you have about IPR? Have you faced any situation where you need to consider IPR issues when conducting or publishing your research ? Please let us know your thoughts in the comments below.

Wow, I never knew that geographical indication can have a connection to intellectual property if it has distinctions that can be attributed to where it came from. After finishing my master’s degree, I think I’m going to be staying in the academe as a researcher so it’s quite helpful to know more about how the intricacies of IP can affect research. I hope I can one day attend a conference about IP to learn more about its modern day advancements.

I have invented – conceived – a training system. What do I have to do to achieve and retain ownership if I enroll in a university higher degree by research program to develop this idea?

Thank you for sharing your query on our website. Regarding your query, most universities recognize as a general principle that students who are not employees of the university own the IP rights in the works they produce purely based on knowledge received from lectures and teaching. However, there may be some circumstances where ownership has to be shared or assigned to the university or a third party. These include cases when the student is being sponsored by the university, or the project is a sponsored research project or involves the academic staff of the university or university resources. If the training system conceived by you does not involve any of the above mentioned scenarios, ideally you should be able to retain its ownership. For more clarity you can check through the IP rules section of the concerned university.

Please let us know in case of any queries.

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Sharing Research Data and Intellectual Property Law: A Primer

* E-mail: [email protected]

Affiliation Program on Information Justice and Intellectual Property, American University, Washington College of Law, Washington, D.C., United States of America

• Michael W. Carroll

Published: August 27, 2015

• https://doi.org/10.1371/journal.pbio.1002235
• Reader Comments

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security laws that regulate sharing certain types of data, this Perspective explains how to work through the general intellectual property and contractual issues for all research data.

Citation: Carroll MW (2015) Sharing Research Data and Intellectual Property Law: A Primer. PLoS Biol 13(8): e1002235. https://doi.org/10.1371/journal.pbio.1002235

Copyright: © 2015 Michael W. Carroll. This is an open access article distributed under the terms of the Creative Commons Attribution License , which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited

Funding: The author received no specific funding for this work.

Competing interests: I have read the journal's policy and have the following conflicts: I am on the Board of Directors of Creative Commons, I am the Public Lead of Creative Commons USA, and I am on the Board of Directors of the Public Library of Science.

Abbreviations: CC, Creative Commons; CC0, Creative Commons Zero; CC BY, Creative Commons Attribution; CC BY-SA, Creative Commons Attribution-ShareAlike; CC BY-NC, Creative Commons Attribution-NonCommercial; CC BY-ND, Creative Commons Attribution-NoDerivs; CRISPR/Cas9, Clustered Regularly Interspaced Short Palindromic Repeats/CRISPR associated protein 9; EMBL-EBI, The European Molecular Biology Laboratory-The European Bioinformatics Institute; GNU, GNU’s Not Unix!

For the researcher seeking to use another’s data, this Perspective offers some good news and some not as good news. The good news is that if a source of data—the researcher or repository—gives permission to reuse the data and one’s intended use fits within the scope of the permission, one need not be overly concerned with the details of the discussion that follows because the permission provides the legal basis for data reuse. For example, if one seeks data from the European Bioinformatics Institute, one will find that the terms of use state that “[t]he public databases of EMBL-EBI [The European Molecular Biology Laboratory-The European Bioinformatics Institute] are freely available by any individual and for any purpose” [ 1 ]. This would appear to give any individual academic researcher permission to copy and reuse the data at will. It leaves open a question about whether an employee acting on behalf of his or her employer (is s/he acting as “an individual”?) is equally granted this permission.

There is, however, a catch. The EBI’s terms also warn the user that some third parties may claim intellectual property or other legal rights on the original data, and it is up to the researcher not to infringe these rights. This kind of legal uncertainty interferes with the productive reuse of research data. It can be avoided if the repository requires depositors to grant permission to downstream users or to give up any intellectual property rights they may have in the data. Alternatively, the final section of this Perspective describes means by which repositories can make it easy for depositors to signal the scope of the permission they grant to downstream users.

In the absence of clear permission, mapping how intellectual property law does—and does not—apply to research data may be of use. In my view, the law makes all of this far more complicated than it need be. For those seeking to pick and choose which reuses of another’s data may be permitted by law, regrettably, the answers to the above questions are more context dependent than many would like.

This is so for two reasons. First, the source of all intellectual property rights is national law. Certain international treaties harmonize intellectual property owners’ rights but leave the users’ rights to vary by country. Second, certain countries have added protection beyond what the treaties require. Specifically, the members of the European Union, candidate countries in Eastern Europe, Mexico [ 2 ], and South Korea have created a specialized database right that applies to certain databases created or maintained within their borders. These laws regulate uses of these databases only within their borders.

What Are the Legal Rights in Data?

The rights that may apply to research data are trade secrets (confidential information), copyrights, and special database rights in the EU and South Korea. Patents may apply to some forms of data, but the more common issue is that data sharing may have implications for the acquisition of patent protection in inventions that arise from research. Finally, the ability to use contracts overlays all of these rights and can be used to provide permission for reuse through licensing of underlying rights (but also to restrict reuse merely as a term and condition of granting access to data). Focusing on the case of a researcher depositing data in compliance with a journal’s publication policies, the following discusses the relevant rights and their application.

Trade Secret (Also Known As Proprietary or Confidential Information)

Most scientific researchers own trade secrets in their research data for some period of time, even if they are unaware of this fact. This is because, according to international standards, national laws treat information as a trade secret if it derives economic value from not being generally known or readily ascertainable, so long as the information has been subject to reasonable measures to keep it secret. Most research data meets this definition, at least in the early stages of collection or generation.

The ease with which trade secret protection is acquired is mirrored by the ease with which it is lost. Public disclosure of the information removes any associated trade secret protection because the information has become generally known or readily ascertainable. In commercial practice, trade secrets are routinely created and destroyed as companies develop new products and services in confidence that they then publicly disclose when they go to market. Analogously, trade secrets in research data are routinely removed through data sharing practices, including depositing in a publicly accessible repository.

In traditional academic research, trade secrecy is unlikely to be invoked unless a member of a research team decamps to another team with confidential data. The issue becomes more salient in the context of industrial research or commercially sponsored academic research. Most commercial sponsors provide for the management of trade secrets in the terms of their sponsorship agreements [ 3 ]. For example, if a researcher collaborates with a pharmaceutical company, the researcher may be contractually bound to suppress the release of research data until the sponsor has developed a patentable product. Academic researchers and their offices of sponsored projects should carefully review drafts of sponsored research agreements and clinical trial agreements to ensure they do not inappropriately restrict a researcher’s right to disseminate the results of the scientific research they have conducted. A researcher should ensure that the agreements do not permit commercial sponsors to revise, delete, or suppress information generated by the researcher. The terms and timing of disclosing research results that are trade secrets should be incorporated into the sponsored research agreements, not negotiated at the time of publication [ 3 , 4 ].

Copyright grants the author(s) of an original work the exclusive rights to reproduce the work, to publicly distribute copies, to publicly display, publicly perform, or otherwise communicate the work to the public, and to make adaptations of the work.

Understanding how copyright applies to the sharing of research data is more work than it is worth unless it is likely or plausible that the creator, owner, or repository in which data resides is likely to seek to limit copying, distribution, or other reuses of data. When such rights of control are likely to be asserted or when a third party requires evidence that all permissions for republication or reuse of data have been obtained, copyright law plays a limited but inescapable role in the sharing of research data.

Copyright law is founded on certain science-friendly policies. Copyright imposes no restrictions on the sharing of the basic building blocks of knowledge—facts and ideas—which are part of the public domain. Researchers routinely rely on this freedom to copy in their daily practice [ 5 ]. For example, the freedom to copy ideas has been an important component of the rapid propagation of the CRISPR/Cas9 (Clustered Regularly Interspaced Short Palindromic Repeats/CRISPR associated protein 9) process for gene editing [ 6 ]. (There is a pending patent dispute about applications of this method [ 7 ], but the underlying idea that one can manipulate bacterial immune response to splice genes is in the public domain.) Similarly, raw observational and experimental data are “facts” for copyright purposes that are free to be shared and reused without copyright restriction [ 5 ].

Copyright applies to original works of authorship. For copyright purposes, an author is one who makes creative or editorial decisions about how ideas and facts are expressed. For example, the only authors of a journal article for copyright purposes are those who wrote the words or created the tables or figures. The amount of creativity or editorial discretion needed to create a work of authorship is quite minimal. As a result, some aspects of a dataset are likely to have a copyright attached to them. Copying the whole dataset will involve copying the copyrighted layer. Additionally, separate copyrights can attach to data items, organizational structures, and metadata ( Box 1 ).

Box 1. Layers of Copyrights in Databases

Copyright at the item level is limited to items that involve expressive choice, such as drawings or photographs. For example, if one treats the images in the Encyclopedia of Life as data items, the very large majority of these have enough creative expression to be copyrightable. However, the copyright is limited to the expression that the author created. One would not be exercising any rights under copyright by creating a drawing of an animal depicted in a photograph. The photographer is not the author of the animal’s characteristics. The author’s copyright is limited to this particular expression through the way the shot is composed, lit, and focused, for example. Otherwise, at the item level, most data expressed as numeric values are likely to be “facts” that are in the public domain. This means that even if there is a copyright at the organizational level, these numeric values can be copied and reused without any copyright restrictions.

At the organization layer, a separate copyright can arise with respect to the manner in which data are selected and arranged. For example, even the organization of an Excel spreadsheet could be copyrightable if a researcher exercised discretion in selecting field names and arranging their order. However, the copyright that would arise would be limited to this layer of the dataset. Another researcher would not be infringing any of the rights associated with this work if s/he were to republish the data in a spreadsheet with renamed and reorganized fields. As the amount of organizational choice increases in, for example, the structure of a relational database, the amount of copyrightable expression increases as well.

Annotations, visualizations, and other forms of metadata can receive separate copyright protection if they are sufficiently original. Creating visualizations, figures, charts, graphs, and other forms of “processing” of research data often involves the kinds of discretionary decisions about expression to which copyright applies, and copyright becomes an issue for a user who seeks to reuse these forms of original expression. Finally, compilations of datasets—used in meta-analysis, for example—might receive a separate copyright if the selection and arrangement of these involve sufficient discretionary choice. Such a copyright would apply only to this selection and arrangement and not to any of the underlying items or organizational features of individual datasets.

In cases in which copyright attaches to some aspect of research data relevant to a potential user, it becomes important to know which copyright(s) regulate(s) a proposed use. These rights in the copyrighted layer of a dataset give the owner a legal hook to seek to control the reproduction or distribution of datasets and visualizations.

When copyright does govern a proposed use of data, the use may be permitted by users’ rights that are expressed as exceptions or limitations to the copyright owner’s rights. These users’ rights vary by country or region ( Box 2 ). For example, countries whose law is based on that of the United Kingdom have a flexible provision called fair dealing that resembles fair use but is somewhat more limited. A fair dealing analysis involves a first step of determining whether the use fits within one of the categorically eligible types of use. Using a copyrighted work for noncommercial research or private study or criticism or review are examples of categorically acceptable uses. Such a use does not infringe copyright if it is “fair dealing,” which is determined by balancing similar considerations about the purpose of the use, the extent of the work used, and the effect of the use on the copyright owner. In the rest of Europe, countries also have the option—but not a requirement—to provide exceptions for these same uses. The picture of users’ rights becomes even more of a patchwork as one extends the lens to the rest of the world.

Countries also provide authors with some level of moral rights in their works of authorship. These rights are personal to the author and cannot be transferred. Authors have the right to be attributed as such. Authors also have the right to not be attributed if they no longer wish to be associated with the work. A strong version of moral rights even gives the author the right to retract a work from publication and to enjoin any further publication or duplication. Other rights include the right of integrity in the work, which limits adaptations to those that do not harm the reputation of the author. Of these, the attribution right is likely the one with the most salience in the context of data reuse.

Box 2. National Variation in Users’ Rights in Copyright Law

The scope of copyright control is limited by statutory limitations and exceptions to the copyright owner’s exclusive rights that permit certain reuses by law. These limitations and exceptions have not been harmonized internationally. As a result, the freedom to use the copyrighted layer of a dataset—by, for example, copying the whole set—without permission depends upon the country in which the copying takes place. This is a prime example of how and where the law is far more complex than necessary to chart the basic rules for when data sharing is permitted by law and when the presence of a copyrighted layer would require the copyright owner’s permission.

All countries have a targeted list of uses that are permitted by law, but these lists vary considerably, and the identified uses can often be defined quite specifically and narrowly. For example, the UK recently amended its copyright law to explicitly permit researchers to content mine the research literature because its Parliament was uncertain whether the existing limitations and exceptions would permit the copying necessary to engage in content mining [ 8 ].

A number of other countries also have a flexible exception that requires a balancing of considerations to determine whether the use is permitted. The most clear-cut example is the fair use doctrine in the United States and Israel. Under this rule, one considers the nature and purpose of the use, how much authorship is in the source work, how much of the author’s expression has been taken in the use, and whether the use has an adverse effect on the copyright owner’s ability to economically exploit the work. Relevant to this discussion, courts have found that copying the copyrighted layer of a work is fair use if the purpose is to extract the public domain information incorporated in the work.

Sui Generis Database Rights—Europe and South Korea

In the EU, certain candidate countries in Eastern Europe, and South Korea, research data may also be subject to a special database right. Mexico also protects databases that do not qualify for copyright protection, but its measures are not discussed here. Keep in mind that what follows applies only to (1) databases that are created or maintained within the borders of EU member states or South Korea and (2) uses of these protected databases that take place within these territories. As frustrating as this may be to a globalized research community, in a narrow class of cases, this right could apply to a download of a substantial amount of data that takes place on a computer connected to the Internet in Europe or South Korea, but not elsewhere.

Under the EU’s Database Directive [ 9 ], these special rights apply to any database that requires a “substantial investment” to assemble or maintain. As interpreted by the Court of Justice of the European Union (“Court of Justice”), this right is limited to those databases that require investments in the obtaining of data, not the creation of the underlying data [ 10 ]. This means that a sole source database, like a sporting events schedule, generally does not enjoy protection, while publishers of directories or lists can maintain protection if they only obtain data from others, not create it themselves. This sui generis right in the nonoriginal (i.e., not subject to copyright) portions of a database lasts for 15 years.

Sui generis database rights protect against the extraction or reutilization of substantial parts of a protected database as well as frequent extraction of insubstantial parts of a protected database. This legal right would be a significant barrier to sharing research data were it not subject to a limitation for noncommercial research. A great deal of research data likely meets the threshold requirement of “substantial investment” of financial resources and labor because of its capacious definition, but a substantial amount of university or nonprofit hospital use of such data likely qualifies for the limitation. A risk remains that increased commercial sponsorship of academic research may test the boundaries of this “noncommercial” exception.

One user-friendly provision of the Database Directive is that it greatly limits the ability of a database owner to use terms of use or other forms of contractual agreement to add use restrictions that exceed those in the Directive—by, for example, prohibiting the occasional extraction or republication of insubstantial amounts of data taken from the database. In a recent odd twist, the Court of Justice has determined that if a database lacks both copyright protection and protection under the Directive, then the owner’s terms of use will be enforceable [ 11 ].

The impact of disclosing or sharing research data on patent rights can be easily overstated by those seeking legal cover to avoid sharing data. However, the issue is not entirely fabricated because there are situations in which data sharing may have an adverse effect on a party seeking patent protection.

Patents are exclusive rights in inventions. An invention is patentable if it is new, useful, and demonstrates an inventive step over what is already known within the relevant field of knowledge. Unlike the rights described above, patents only arise if they are applied for and granted by a public authority. In most countries, the application process requires an examination to determine if the legal requirements for patent protection are met. In a few countries, such as South Africa, one need only register one’s claim to receive a patent. As with other intellectual property rights, a patent applies only to uses that take place at least in part within the borders of the country from which a patent has issued.

The putative risk of data sharing arises because public disclosure of an invention prior to filing a patent application can destroy or impair one’s right to obtain patent protection for the invention [ 3 ]. However, most research data are not eligible to be protected as inventions as such. (Whether research data is capable of being a patentable invention depends upon how elastic one’s definition of “data” is. If genetically modified organisms are “data,” for example, then such data very likely are eligible for patent protection and any intended patent applications should be filed prior to their public disclosure.) Instead, the invention is far more likely to be disclosed through the publication of an associated research article than by the sharing of data.

When a published research article teaches the public everything about inventions arising from research that data deposit does, then the deposition has no more impact on patentability than the decision to publish had. For this reason, the rules that researchers must abide by for disclosing inventions to their university or other employer or funder prior to publishing a research article should be read to include disclosure prior to depositing associated data as well [ 3 , 12 ].

There may be cases in which data deposit has a marginal additional impact on patentability of inventions arising from research reported in an article. One such case would be when the article does not describe the invention but the data do. Another case would be one in which the data disclosure fills a gap in other researchers’ knowledge such that inventions that arise from the research are not described by the data but rendered “obvious” to one skilled in the art by the disclosure. Once an invention becomes obvious, it lacks the required inventive step needed to obtain protection.

A separate patent issue for data sharing arises when a patented process claims the steps involved in data sharing or reuse. A patent grants the owner the rights to exclude others from making, using, selling, offering to sell, or importing the invention. Use of an invention is interpreted quite broadly. A patentable process could claim a series of steps that would be practiced in connection with certain forms of data reuse. This issue is so context dependent that little more than raising it as a consideration can be done here.

Who Holds These Rights?

This question becomes relevant when one wishes to assert intellectual property control or when one must seek permission to make an intended use of another’s research data. Usually the person who creates or generates the intellectual property is the initial owner of these rights. When the creator is an employee, determining who holds the rights becomes more complicated, and national variation reemerges as an issue. Finally, all of these rights are transferable (except moral rights in copyright), so the initial owner may no longer be the rights holder.

Trade Secret

Employers generally own trade secrets that are developed by their employees within the scope of their employment. This rule certainly encompasses the research data generated or collected by an industrial researcher. Whether or how this rule applies in the academic research context is not clear. In the absence of an agreement or policy that applies to trade secrets, student or independent researchers would own any trade secret rights associated with their data. Whether an employee of a university or hospital creates or collects data within the scope of employment is a subject of theoretical interest. In practice, however, the rules of ownership are routinely altered or determined contractually. Sponsored research agreements and university or hospital intellectual property policies generally establish the rules for ownership and disclosure of trade secrets [ 3 , 4 ].

Copyright is owned initially by the author(s) of a copyrighted work. For copyright purposes, the author is the person or persons who make the creative or editorial decisions about how to express the underlying facts and ideas. This is a much more constrained version of authorship than applies in science. This gap between what science and copyright law values is readily seen in how credit is distributed for a scientific publication. Scientists recognize that results emerge from team effort, and scientists have developed conventions about who is listed as an author and in what order to signal this recognition to the broader community. For copyright purposes, however, only those members of the team who expressed themselves by writing the words, drawing the figures, or otherwise creating original expression are authors with rights under copyright.

Thus, if there is a copyright layer to a dataset or database, the owner(s) of the copyright(s) associated with this layer would be the one(s) who chose how to organize, arrange, annotate, or visualize the data rather than the one(s) involved in its generation or collection [ 5 ].

When the copyrighted work is created by an employee within the scope of employment, a national division emerges. In the US, under the work-made-for-hire rule, the employer is treated as the author, and the employee has no rights [ 13 ]. Whether this rule applies to the research and teaching materials created by university employees is the subject of a division of opinion. Some argue the rule does not apply to research outputs either because the particular research from which the data arise may not be considered within the scope of employment or because prior law had recognized a “teacher exception” to the rule that may have been implicitly carried forward into current law. On its face, current law does not state any exceptions to the rule. In the rest of the world, the individual creator(s) start(s) with the rights, but these may automatically be transferred to the employer if the employment agreement provides for this.

The holder of sui generis database rights is the person or entity that makes the substantial investment in collecting data from other sources or maintaining the database. In the research context, these rights usually will belong to data aggregators and repositories rather than individual researchers or research teams.

Patent applications generally must be filed in the name of the inventor(s). The rights in the patent, however, can be assigned to another party. By agreement, employees routinely assign the rights in their inventions to their employer. University and hospital employment agreements and policies often require that researchers assign rights to inventions arising under sponsored research agreements to their employer as well. Academic institutions sometimes hold more patents than both the government and commercial businesses. For example, the University of California and The John Hopkins University were both in the top 15 holders of deoxyribonucleic acid patents in 2004 [ 14 ].

Recommendations for Increasing Data Sharing and Openness

Contracts and licenses.

When one or more intellectual property rights apply to research data, the owner of such rights can grant permission for reuse through a license. In legal terms, a grant of permission is a nonexclusive license. An exclusive license is one in which the rights holder agrees to give up any rights to use the intellectual property, usually in return for some form of compensation.

From a legal perspective, terms of use or other “licenses” fall into one of two groups. In the first group, there is an underlying intellectual property right associated with data that would be violated by the user in the absence of the permission granted by the terms. That is an intellectual property license. Violation of such a license could lead to a court order requiring the user to cease any further use. Damages and attorneys’ fees may also be assessed against the breaching user.

In the second group, there is a collection of data that has no underlying intellectual property right associated with it, such as a large collection of sensor data that is organized in an unoriginal manner—say, chronologically. If one were to download these data from a site with “terms of use” associated, those terms are still enforceable as a contractual agreement, but there would be no intellectual property right to infringe. Enforcing any use restrictions in this second group of agreements is much more difficult because the author of the terms has to prove that the use has caused measureable economic damages.

Although there are policy arguments against enforcing the terms of use in this second group—because they impose use restrictions on data that intellectual property law treats as in the public domain—courts in the US and elsewhere generally have found these terms of use to be enforceable as long as the basic requirements for voluntary agreements have been met. For example, a Maryland district court upheld a terms-of-use agreement even when a third-party user obtained database access merely by clicking a box to accept, but failed to review, the terms of use [ 15 ].

Since the practice is legal and enforceable, it should be a topic for community discussion whether it is ethical or appropriate to condition access to data on agreement to a contract that imposes use restrictions on data that is otherwise free of any intellectual property rights.

Clarifying the Terms of Use

As the discussion above demonstrates, it is not often clear to a potential user of data whether any intellectual property rights are associated with the data and, if there are, who owns these. To promote data reuse, it is incumbent on the owner(s) of these rights to mark the data with the associated permissions. Otherwise, one ends up with the muddy rules set forth by the EBI outlined at the opening of this Perspective.

Removing or Limiting Rights Restrictions

Trade secret..

The easiest way to grant permission to use a trade secret associated with data is to get rid of it by publicly disclosing or depositing the data. Otherwise, some form of confidentiality or nondisclosure agreement would be needed to preserve the trade secret(s) while permitting their reuse by a closed group of other researchers.

As discussed above, public disclosure can also limit or destroy the ability to obtain patent rights in inventions associated with data. When a patent covers the collection, generation, or use of research data, the owner can grant permission to practice the process through a nonexclusive license or through a public statement that the patent will not be asserted against researchers practicing the process in connection with their research.

Copyright and database rights.

These rights are more persistent than trade secrets or patents. However, they also can be permanently removed in most parts of the world if the owner of the rights publicly and unequivocally states his or her intention to permanently relinquish these rights. Creative Commons provides a tool called CC0 (CC Zero) to accomplish this task. In countries that deny owners the right to relinquish these rights (yes, it happens), CC0 functions as a license that imposes no constraints on the user ( Box 3 ).

Box 3. Creative Commons

Creative Commons is a global organization that promotes the sharing and reuse of creative, educational, and scientific works by supplying standardized public licenses that anyone can use to permit reuse of works they created or to which they own the rights. The primary tools are six copyright licenses, a copyright waiver, and a label that indicates that a work is free from copyright and in the public domain. The six licenses and the CC0 waiver are designed to respond to creators who have different appetites for reuse of their works. As is indicated in the body of this Perspective, CC0 is a way to dedicate a work to the public domain by waiving all rights under copyright and any sui generis database rights that may apply. This tool is used by those who create public domain clipart, for example, and in connection with sharing data for which copyright is only an incidental consideration. Unlike CC0, the licenses impose some conditions on reuse.

The licenses

The broadest license is the Creative Commons Attribution (CC BY) license, which requires only that the user provide attribution as directed by the licensor. This license is used by open access publishers, including PLOS, by creators of open educational resources, such as OpenStax College and Rice Connexions, and by a range of other creators. All of the other licenses keep the attribution requirement and add other conditions. One of these is the “Share Alike” requirement, which provides that anyone who adapts the licensed work must license the adaptation under the same license as the source work. This requirement is a close cousin to certain “copyleft” licenses used for software, such as the GNU General Public License (GNU’s Not Unix!). Wikipedia uses this Creative Commons Attribution-ShareAlike (CC BY-SA) license, and only materials licensed under CC BY or CC BY-SA can be uploaded to Wikimedia Commons.

The Creative Commons Attribution-NonCommercial (CC BY-NC) license limits licensed uses to noncommercial uses. Last, one may permit only copy-paste reuse and not license the creation of derivative works by using the Creative Commons Attribution-NoDerivs license (CC BY-ND). The final two licenses combine the noncommercial condition with either the Share Alike or the No Derivatives condition ( https://creativecommons.org/licenses/ ). This may seem like more complexity than it is worth, and some critics of Creative Commons take this position, but a quick look at the uses of these licenses on Flickr demonstrates that creators appear to want this full choice set to share their works ( https://www.flickr.com/creativecommons/ ).

Alternatively, one can grant the public permission to use copyrights associated with a dataset or database through a license. For example, a researcher may post to the web a complex dataset that has an original database model. Users who copy the dataset merely to extract the uncopyrightable data elements would not need permission to do so in much of the world. However, if one were to republish the full dataset, one would be using the copyright layer in a manner that likely would require a license. The researcher publishing the dataset may simply want to require that any republication be done with proper attribution. The researcher could write a bespoke license to require this or could use a standard copyright license, such as the CC BY license. The organization publishes an FAQ on the relation of its licenses to databases on its website [ 16 ].

• 1. EBI Terms of Use of the EBI Services. EMBL-EBI. 2015. http://www.ebi.ac.uk/about/terms-of-use .
• 2. World Intellectual Property Organization, Summary on Existing Legislation Concerning Intellectual Property in Non-Original Databases. 13 Sep 2002; SCCR/8/3. http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=2296 .
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• 11. Judgment of the Court (Second Chamber) of 15 January 2015. Ryanair Ltd v PR Aviation BV. Case C-30/14. Official Journal of the European Union. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62014CJ0030&qid=1435940638722 .
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Ten Common Questions About Intellectual Property and Human Rights

Georgia State University Law Review, Vol. 23, 2007, pp. 709-53

Michigan State University Legal Studies Research Paper No. 04-27

46 Pages Posted: 9 Apr 2007 Last revised: 14 Feb 2014

Peter K. Yu

Texas A&M University School of Law

With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational. This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human rights framework for intellectual property rights. It is his hope that a better understanding of the answers to these questions will help promote a constructive and fruitful dialogue concerning of the interplay of intellectual property and human rights. The ten questions explored in this article are: (1) Are intellectual property rights human rights? (2) Besides access to medicines, are there other intellectual property issues that implicate the protection of human rights? (3) Should the human rights debate separate patents from copyrights? (4) Are all forms of intellectual property rights human rights? (5) Can corporations claim protection of the right to the protection of interests in intellectual creations? (6) Does the right to private property already protect interests in intellectual creations? (7) Can human rights interests be built into the intellectual property system? (8) Will the human rights framework ratchet up existing intellectual property protection? (9) Will the human rights framework benefit indigenous peoples and traditional communities? (10) Will the human rights framework benefit less developed countries?

Suggested Citation: Suggested Citation

Peter K. Yu (Contact Author)

Texas a&m university school of law ( email ).

1515 Commerce St. Fort Worth, TX Tarrant County 76102 United States

HOME PAGE: http://www.peteryu.com/

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Keeping up with IP Law

Sources for news, new scholarship & current awareness

• SSRN Intellectual Property Law eJournals Working papers and pre-publication titles from the various SSRN eJournals on aspects of IP Law
• IP Blawgs via Justia

Study tools

Audio casefiles.

Download recordings of cases commonly read in first and second year courses.

• Audiocasefiles on Intellectual Property
• Audiocasefiles by Intellectual Property Casebook

CALI Lessons

CALI provides access to interactive, computer-based lessons designed to augment traditional law school instruction. You can use the lessons to supplement your studies and to review specific concepts.

• CALI Lessons on Intellectual Property
• CALI Authorization Code & Registration Harvard Law School access only. First time users: please register using the HLSL CALI Authorization code.

Patent Law: Summaries & Explanations

Get started with these books for law school students.

Patent Law in Depth

U.S. Patent & Trademark Office

"The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

• USPTO - About Us
• U.S. Constitution Art. 1 Sec. 8

The USPTO website provides education and guidance on how to conduct a patent search: 

• How to Conduct a Preliminary U.S. Patent Search Tutorial
• Patent Search Seven Step Strategy

USPTO also maintains databases that users can search within to learn more about prior art:

• Patent Public Search
• More Information on Searching for Patents

The US PTO puts out an Official Gazette, a journal, "published weekly on Tuesday, that includes bibliographic information and a representative drawing for each patent granted or trademark published on that issue date."

• Official Gazette for Patents

Google Patent Search

Google Patents includes U.S. PTO records from 1790 and the WIPO and EPO from 1978.

• Patents.google.com
• About Google Patents

"You can search the full text of U.S. patents by selecting "Patents" from within Google search, from the search box at the top of any patent page, or by typing the grant or application number into Google."  Advanced search features that allow you to find results by criteria such as inventor, classification, keyword, and filing date are also available.

• Advanced Patent Search
• Lexis TotalPatent One

This platform allows you to search issued patents, published patent applications, and utility models, globally. Full-text patent documents from 56 patent authorities are included. It also incorporates analytics, IP documentation, and editorial insights.

You can access Lexis TotalPatent One through the following:

• Lexis TotalPatent One Search Manual

Other Options

• Westlaw Edge Patents & Applications
• Bloomberg Global Patent Search

Keeping up with Patent Law

Sources for news, new scholarship & current awareness:

• Bloomberg Law Patent Page (Bloomberg Law)
• SSRN Intellectual Property Patent Law eJournal Working papers and pre-publication titles on of Patent Law

Copyright Law: Summaries & Explanations

Copyright Law in Depth

U.S. Copyright Office

The Copyright Office is a part of the Library of Congress.  It was established in 1870, and recognized by Congress as a separate department in 1897.   "The Copyright Office registers copyright claims, records information about copyright ownership, provides information to the public, and assists Congress and other parts of the government on a wide range of copyright issues."

• Copyright Law of the United States
• Copyright Regulations
• Copyright Review Board Opinions

Through the Copyright Office you can search copyright records: 

• Search Copyright Records (U.S. Copyright Office)
• Copyright Public Records Portal

The Copyright Office has a notification system, alerts, website postings, and announcements:

• Copyright Office NewsNet

Search Copyrights

• U.S. Copyright Search (Westlaw)
• Copyrights Practice Center (Bloomberg Law)

"Fair use provisions of the copyright law allow use of copyrighted materials on a limited basis for specific purposes without requiring the permission of the copyright holder."  This often comes up in the academic context. Below are some materials providing more information and guidance on the fair use doctrine.

• Harvard Office of Scholarly Communications Fair Use
• HLS Fair Use and Copyrighted Material
• Harvard Office of General Counsel Copyright and Fair Use
• US Copyright Office Fair Use Index
• Copyright Fair Use Factors Courts Consider (Westlaw)

Keeping up with Copyright Law

• HeinOnline Copyright Law Journal Articles
• SSRN Copyright eJournal Working papers and pre-publication titles from the various SSRN eJournals on Copyright Law

Trademark Law: Summaries & Explanations

Trademark Law in depth

The United States Patent and Trademark Office (USPTO) registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3)."  Regulations implementing the Trademark Modernization Act of 2020 (TMA) went into effect on December 18, 2021. The USPTO now has "new tools to clear away unused registered trademarks from the federal trademark register and [can] move applications through the registration process more efficiently." 

• Trademark Modernization Act of 2020

The USPTO website provides education and guidance on how to conduct a trademark search: 

• FAQ on Trademarks
• Online Trademark Tools
• Trademark Manual of Examining Procedure (TMEP)

USPTO also maintains databases that users can search within to learn more about claimed trademarks:

• Trademark Electronic Search System (TESS)

The USPTO also "handles appeals involving applications to register marks, appeals from expungement or reexamination proceedings involving registrations, and trial cases of various types involving applications or registrations."

• Trademark Trial and Appeal Board

The USPTO puts out an Official Gazette, a journal, "published weekly on Tuesday, that contains bibliographic information and a representative drawing for each mark published, along with a list of cancelled and renewed registrations."

• Official Gazette for Trademark

Search Trademarks

• Trademarks Search (Westlaw) Search U.S. federal and state, foreign and international trademark databases
• Trademarks Search (Lexis Plus)

Trademark Primary Law Resources

Statutes & regulations.

• 15 USCA Chapter 22 & Regulations (WestlawNext)
• Law Trademark Regulations (Bloomberg)
• Federal Trademark Cases (WestlawNext)
• Federal Court Trademark Opinions (Bloomberg Law)
• State Court Trademark Opinions (Bloomberg Law)

Keeping up with Trademark Law

• Trademark Law Practice Page (Bloomberg Law) News & current awareness, cases, statutes, & regulations
• SSRN Trademark Law eJournal Working papers and pre-publication titles from the various SSRN eJournals on trademark Law

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• v.2(2); Apr-Jun 2011

Intellectual property rights: An overview and implications in pharmaceutical industry

Chandra nath saha.

Quality Assurance Department, Claris Lifesciences Ltd., Ahmedabad, Gujarat, India

Sanjib Bhattacharya

1 Pharmacognosy Division, Bengal School of Technology (A College of Pharmacy), Sugandha, Hooghly, West Bengal, India

Intellectual property rights (IPR) have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. IPR provide certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation. There are several types of intellectual property protection like patent, copyright, trademark, etc. Patent is a recognition for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial application. IPR is prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity. Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty. Pharmaceutical industry currently has an evolving IPR strategy requiring a better focus and approach in the coming era.

INTRODUCTION

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.[ 1 ] These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP play a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting a new technology in the market place.[ 2 ] The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D.[ 3 ] IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in this way aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth. Present review furnishes a brief overview of IPR with special emphasis on pharmaceuticals.

BRIEF HISTORY

The laws and administrative procedures relating to IPR have their roots in Europe. The trend of granting patents started in the fourteenth century. In comparison to other European countries, in some matters England was technologically advanced and used to attract artisans from elsewhere, on special terms. The first known copyrights appeared in Italy. Venice can be considered the cradle of IP system as most legal thinking in this area was done here; laws and systems were made here for the first time in the world, and other countries followed in due course.[ 4 ] Patent act in India is more than 150 years old. The inaugural one is the 1856 Act, which is based on the British patent system and it has provided the patent term of 14 years followed by numerous acts and amendments.[ 1 ]

Types of Intellectual Properties and their Description

Originally, only patent, trademarks, and industrial designs were protected as ‘Industrial Property’, but now the term ‘Intellectual Property’ has a much wider meaning. IPR enhances technology advancement in the following ways:[ 1 – 4 ]

• (a) it provides a mechanism of handling infringement, piracy, and unauthorized use
• (b) it provides a pool of information to the general public since all forms of IP are published except in case of trade secrets.

IP protection can be sought for a variety of intellectual efforts including

• (i) Patents
• (ii) Industrial designs relates to features of any shape, configuration, surface pattern, composition of lines and colors applied to an article whether 2-D, e.g., textile, or 3-D, e.g., toothbrush[ 5 ]
• (iii) Trademarks relate to any mark, name, or logo under which trade is conducted for any product or service and by which the manufacturer or the service provider is identified. Trademarks can be bought, sold, and licensed. Trademark has no existence apart from the goodwill of the product or service it symbolizes[ 6 ]
• (iv) Copyright relates to expression of ideas in material form and includes literary, musical, dramatic, artistic, cinematography work, audio tapes, and computer software[ 7 ]
• (v) Geographical indications are indications, which identify as good as originating in the territory of a country or a region or locality in that territory where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin[ 8 ]

A patent is awarded for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial or commercial application. Patents can be granted for products and processes. As per the Indian Patent Act 1970, the term of a patent was 14 years from the date of filing except for processes for preparing drugs and food items for which the term was 7 years from the date of the filing or 5 years from the date of the patent, whichever is earlier. No product patents were granted for drugs and food items.[ 9 ] A copyright generated in a member country of the Berne Convention is automatically protected in all the member countries, without any need for registration. India is a signatory to the Berne Convention and has a very good copyright legislation comparable to that of any country. However, the copyright will not be automatically available in countries that are not the members of the Berne Convention. Therefore, copyright may not be considered a territorial right in the strict sense. Like any other property IPR can be transferred, sold, or gifted.[ 7 ]

Role of Undisclosed Information in Intellectual Property

Protection of undisclosed information is least known to players of IPR and also least talked about, although it is perhaps the most important form of protection for industries, R&D institutions and other agencies dealing with IPR. Undisclosed information, generally known as trade secret or confidential information, includes formula, pattern, compilation, programme, device, method, technique, or process. Protection of undisclosed information or trade secret is not really new to humanity; at every stage of development people have evolved methods to keep important information secret, commonly by restricting the knowledge to their family members. Laws relating to all forms of IPR are at different stages of implementation in India, but there is no separate and exclusive law for protecting undisclosed information/trade secret or confidential information.[ 10 ]

Pressures of globalisation or internationalisation were not intense during 1950s to 1980s, and many countries, including India, were able to manage without practising a strong system of IPR. Globalization driven by chemical, pharmaceutical, electronic, and IT industries has resulted into large investment in R&D. This process is characterized by shortening of product cycle, time and high risk of reverse engineering by competitors. Industries came to realize that trade secrets were not adequate to guard a technology. It was difficult to reap the benefits of innovations unless uniform laws and rules of patents, trademarks, copyright, etc. existed. That is how IPR became an important constituent of the World Trade Organization (WTO).[ 11 ]

Rationale of Patent

Patent is recognition to the form of IP manifested in invention. Patents are granted for patentable inventions, which satisfy the requirements of novelty and utility under the stringent examination and opposition procedures prescribed in the Indian Patents Act, 1970, but there is not even a prima-facie presumption as to the validity of the patent granted.[ 9 ]

Most countries have established national regimes to provide protection to the IPR within its jurisdiction. Except in the case of copyrights, the protection granted to the inventor/creator in a country (such as India) or a region (such as European Union) is restricted to that territory where protection is sought and is not valid in other countries or regions.[ 1 ] For example, a patent granted in India is valid only for India and not in the USA. The basic reason for patenting an invention is to make money through exclusivity, i.e., the inventor or his assignee would have a monopoly if,

• (a) the inventor has made an important invention after taking into account the modifications that the customer, and
• (b) if the patent agent has described and claimed the invention correctly in the patent specification drafted, then the resultant patent would give the patent owner an exclusive market.

The patentee can exercise his exclusivity either by marketing the patented invention himself or by licensing it to a third party.

The following would not qualify as patents:

• (i) An invention, which is frivolous or which claims anything obvious or contrary to the well established natural law. An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health
• (ii) A discovery, scientific theory, or mathematical method
• (iii) A mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus unless such known process results in a new product or employs at least one new reactant
• (iv) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance
• (v) A mere arrangement or re-arrangement or duplication of a known device each functioning independently of one another in its own way
• (vi) A method of agriculture or horticulture
• (vii) Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products
• (viii) An invention relating to atomic energy
• (ix) An invention, which is in effect, is traditional knowledge

Rationale of License

A license is a contract by which the licensor authorizes the licensee to perform certain activities, which would otherwise have been unlawful. For example, in a patent license, the patentee (licensor) authorizes the licensee to exercise defined rights over the patent. The effect is to give to the licensee a right to do what he/she would otherwise be prohibited from doing, i.e., a license makes lawful what otherwise would be unlawful.[ 12 ]

The licensor may also license ‘know-how’ pertaining to the execution of the licensed patent right such as information, process, or device occurring or utilized in a business activity can also be included along with the patent right in a license agreement. Some examples of know-how are:

• (i) technical information such as formulae, techniques, and operating procedures and
• (ii) commercial information such as customer lists and sales data, marketing, professional and management procedures.

Indeed, any technical, trade, commercial, or other information, may be capable of being the subject of protection.[ 13 ]

Benefits to the licensor:

• (i) Opens new markets
• (ii) Creates new areas for revenue generation
• (iii) Helps overcome the challenge of establishing the technology in different markets especially in foreign countries – lower costs and risk and savings on distribution and marketing expenses

Benefits to the licensee are:

• (i) Savings on R&D and elimination of risks associated with R&D
• (ii) Quick exploitation of market requirements before the market interest wanes
• (iii) Ensures that products are the latest

The Role of Patent Cooperation Treaty

The patent cooperation treaty (PCT) is a multilateral treaty entered into force in 1978. Through PCT, an inventor of a member country contracting state of PCT can simultaneously obtain priority for his/her invention in all or any of the member countries, without having to file a separate application in the countries of interest, by designating them in the PCT application. All activities related to PCT are coordinated by the world intellectual property organization (WIPO) situated in Geneva.[ 14 ]

In order to protect invention in other countries, it is required to file an independent patent application in each country of interest; in some cases, within a stipulated time to obtain priority in these countries. This would entail a large investment, within a short time, to meet costs towards filing fees, translation, attorney charges, etc. In addition, it is assumed that due to the short time available for making the decision on whether to file a patent application in a country or not, may not be well founded.[ 15 ]

Inventors of contracting states of PCT on the other hand can simultaneously obtain priority for their inventions without having to file separate application in the countries of interest; thus, saving the initial investments towards filing fees, translation, etc. In addition, the system provides much longer time for filing patent application in the member countries.[ 15 , 16 ]

The time available under Paris convention for securing priority in other countries is 12 months from the date of initial filing. Under the PCT, the time available could be as much as minimum 20 and maximum 31 months. Further, an inventor is also benefited by the search report prepared under the PCT system to be sure that the claimed invention is novel. The inventor could also opt for preliminary examination before filing in other countries to be doubly sure about the patentability of the invention.[ 16 ]

Management of Intellectual Property in Pharmaceutical Industries

More than any other technological area, drugs and pharmaceuticals match the description of globalization and need to have a strong IP system most closely. Knowing that the cost of introducing a new drug into the market may cost a company anywhere between $ 300 million to $1000 million along with all the associated risks at the developmental stage, no company will like to risk its IP becoming a public property without adequate returns. Creating, obtaining, protecting, and managing IP must become a corporate activity in the same manner as the raising of resources and funds. The knowledge revolution, which we are sure to witness, will demand a special pedestal for IP and treatment in the overall decision-making process.[ 17 ]

Competition in the global pharmaceutical industry is driven by scientific knowledge rather than manufacturing know-how and a company's success will be largely dependent on its R&D efforts. Therefore, investments in R&D in the drug industry are very high as a percentage of total sales; reports suggest that it could be as much as 15% of the sale. One of the key issues in this industry is the management of innovative risks while one strives to gain a competitive advantage over rival organizations. There is high cost attached to the risk of failure in pharmaceutical R&D with the development of potential medicines that are unable to meet the stringent safety standards, being terminated, sometimes after many years of investment. For those medicines that do clear development hurdles, it takes about 8-10 years from the date when the compound was first synthesized. As product patents emerge as the main tools for protecting IP, the drug companies will have to shift their focus of R&D from development of new processes for producing known drugs towards development of a new drug molecule and new chemical entity (NCE). During the 1980s, after a period of successfully treating many diseases of short-term duration, the R&D focus shifted to long duration (chronic) diseases. While looking for the global market, one has to ensure that requirements different regulatory authorities must be satisfied.[ 18 ]

It is understood that the documents to be submitted to regulatory authorities have almost tripled in the last ten years. In addition, regulatory authorities now take much longer to approve a new drug. Consequently, the period of patent protection is reduced, resulting in the need of putting in extra efforts to earn enough profits. The situation may be more severe in the case of drugs developed through the biotechnology route especially those involving utilization of genes. It is likely that the industrialized world would soon start canvassing for longer protection for drugs. It is also possible that many governments would exercise more and more price control to meet public goals. This would on one hand emphasize the need for reduced cost of drug development, production, and marketing, and on the other hand, necessitate planning for lower profit margins so as to recover costs over a longer period. It is thus obvious that the drug industry has to wade through many conflicting requirements. Many different strategies have been evolved during the last 10 to 15 years for cost containment and trade advantage. Some of these are out sourcing of R&D activity, forming R&D partnerships and establishing strategic alliances.[ 19 ]

Nature of Pharmaceutical Industry

The race to unlock the secrets of human genome has produced an explosion of scientific knowledge and spurred the development of new technologies that are altering the economics of drug development. Biopharmaceuticals are likely to enjoy a special place and the ultimate goal will be to have personalized medicines, as everyone will have their own genome mapped and stored in a chip. Doctors will look at the information in the chip(s) and prescribe accordingly. The important IP issue associated would be the protection of such databases of personal information. Biotechnologically developed drugs will find more and more entry into the market. The protection procedure for such drug will be a little different from those conventional drugs, which are not biotechnologically developed. Microbial strains used for developing a drug or vaccine needs to be specified in the patent document. If the strain is already known and reported in the literature usually consulted by scientists, then the situation is simple. However, many new strains are discovered and developed continuously and these are deposited with International depository authorities under the Budapest Treaty. While doing a novelty search, the databases of these depositories should also be consulted. Companies do not usually go for publishing their work, but it is good to make it a practice not to disclose the invention through publications or seminars until a patent application has been filed.[ 20 ]

While dealing with microbiological inventions, it is essential to deposit the strain in one of the recognized depositories who would give a registration number to the strain which should be quoted in the patent specification. This obviates the need of describing a life form on paper. Depositing a strain also costs money, but this is not much if one is not dealing with, for example cell lines. Further, for inventions involving genes, gene expression, DNA, and RNA, the sequences also have to be described in the patent specification as has been seen in the past. The alliances could be for many different objectives such as for sharing R&D expertise and facilities, utilizing marketing networks and sharing production facilities. While entering into an R&D alliance, it is always advisable to enter into a formal agreement covering issues like ownership of IP in different countries, sharing of costs of obtaining and maintaining IP and revenue accruing from it, methods of keeping trade secrets, accounting for IP of each company before the alliance and IP created during the project but not addressed in the plan, dispute settlements. It must be remembered that an alliance would be favorable if the IP portfolio is stronger than that of concerned partner. There could be many other elements of this agreement. Many drug companies will soon use the services of academic institutions, private R&D agencies, R&D institutions under government in India and abroad by way of contract research. All the above aspects mentioned above will be useful. Special attention will have to be paid towards maintaining confidentiality of research.[ 1 – 18 ]

The current state of the pharmaceutical industry indicates that IPR are being unjustifiably strengthened and abused at the expense of competition and consumer welfare. The lack of risk and innovation on the part of the drug industry underscores the inequity that is occurring at the expense of public good. It is an unfairness that cannot be cured by legislative reform alone. While congressional efforts to close loopholes in current statutes, along with new legislation to curtail additionally unfavorable business practices of the pharmaceutical industry, may provide some mitigation, antitrust law must appropriately step in.[ 21 ] While antitrust laws have appropriately scrutinized certain business practices employed by the pharmaceutical industry, such as mergers and acquisitions and agreements not to compete, there are several other practices that need to be addressed. The grant of patents on minor elements of an old drug, reformulations of old drugs to secure new patents, and the use of advertising and brand name development to increase the barriers for generic market entrants are all areas in which antitrust law can help stabilize the balance between rewarding innovation and preserving competition.[ 20 ]

Traditional medicine dealing with natural botanical products is an important part of human health care in many developing countries and also in developed countries, increasing their commercial value. The world market for such medicines has reached US $ 60 billion, with annual growth rates of between 5% and 15%. Although purely traditional knowledge based medicines do not qualify for patent, people often claim so. Researchers or companies may also claim IPR over biological resources and/or traditional knowledge, after slightly modifying them. The fast growth of patent applications related to herbal medicine shows this trend clearly. The patent applications in the field of natural products, traditional herbal medicine and herbal medicinal products are dealt with own IPR policies of each country as food, pharmaceutical and cosmetics purview, whichever appropriate. Medicinal plants and related plant products are important targets of patent claims since they have become of great interest to the global organized herbal drug and cosmetic industries.[ 22 ]

Some Special Aspects of Drug Patent Specification

Writing patent specification is a highly professional skill, which is acquired over a period of time and needs a good combination of scientific, technological, and legal knowledge. Claims in any patent specification constitute the soul of the patent over which legal proprietary is sought. Discovery of a new property in a known material is not patentable. If one can put the property to a practical use one has made an invention which may be patentable. A discovery that a known substance is able to withstand mechanical shock would not be patentable but a railway sleeper made from the material could well be patented. A substance may not be new but has been found to have a new property. It may be possible to patent it in combination with some other known substances if in combination they exhibit some new result. The reason is that no one has earlier used that combination for producing an insecticide or fertilizer or drug. It is quite possible that an inventor has created a new molecule but its precise structure is not known. In such a case, description of the substance along with its properties and the method of producing the same will play an important role.[ 23 ]

Combination of known substances into useful products may be a subject matter of a patent if the substances have some working relationship when combined together. In this case, no chemical reaction takes place. It confers only a limited protection. Any use by others of individual parts of the combination is beyond the scope of the patent. For example, a patent on aqua regia will not prohibit any one from mixing the two acids in different proportions and obtaining new patents. Methods of treatment for humans and animals are not patentable in most of the countries (one exception is USA) as they are not considered capable of industrial application. In case of new pharmaceutical use of a known substance, one should be careful in writing claims as the claim should not give an impression of a method of treatment. Most of the applications relate to drugs and pharmaceuticals including herbal drugs. A limited number of applications relate to engineering, electronics, and chemicals. About 62% of the applications are related to drugs and pharmaceuticals.[ 1 – 24 ]

CONCLUSIONS

It is obvious that management of IP and IPR is a multidimensional task and calls for many different actions and strategies which need to be aligned with national laws and international treaties and practices. It is no longer driven purely by a national perspective. IP and its associated rights are seriously influenced by the market needs, market response, cost involved in translating IP into commercial venture and so on. In other words, trade and commerce considerations are important in the management of IPR. Different forms of IPR demand different treatment, handling, planning, and strategies and engagement of persons with different domain knowledge such as science, engineering, medicines, law, finance, marketing, and economics. Each industry should evolve its own IP policies, management style, strategies, etc. depending on its area of specialty. Pharmaceutical industry currently has an evolving IP strategy. Since there exists the increased possibility that some IPR are invalid, antitrust law, therefore, needs to step in to ensure that invalid rights are not being unlawfully asserted to establish and maintain illegitimate, albeit limited, monopolies within the pharmaceutical industry. Still many things remain to be resolved in this context.

Source of Support: Nil

Conflict of Interest: Nil.

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Intellectual Property Law Dissertation Topics

Published by Ellie Cross at December 29th, 2022 , Revised On May 3, 2024

A dissertation or a thesis in the study area of intellectual property rights can be a tough nut to crack for students. Masters and PhD students of intellectual property rights often struggle to come up with a relevant and fulfilling research topic; this is where they should seek academic assistance from experts.

An individual, a group, an association, an organisation or a company that wants to claim ownership of a particular design, piece of art, technology, literature, or physical or virtual property must adhere to a specific set of rules. Without these regulations, known as intellectual property rights, concerning parties will not be secure, and anyone could easily steal from them. If someone else attempts to take the property, the original owners are guaranteed the right to keep and reclaim it.

So let’s take a look at the list of unique and focused intellectual property law dissertation topics, so you can select one more suitable to your requirements and get started with your project without further delay. Don’t forget to read our free guide on writing a dissertation step by step after you have finalised the topic. 

A List Of Intellectual Property Law Dissertation Topics Is Provided Below

• How can virtual companies ensure that copyright rules are followed while creating their logos, websites, goods, and designs?
• What does it mean legally to own an original work of art or piece of property?
• Can the most recent technical developments coexist peacefully with the present patent rules and system?
• Does the UK’s intellectual property legislation protect the owners and users fairly and securely?
• Is there a connection between European and British intellectual property laws?
• Comparison of the institutions and regulations governing intellectual property in the US and the UK
• What do fair pricing and fair dealing with copyright regulations mean?
• Can a business or individual assert ownership of a colour scheme or hue?
• The conflict between business law and trade secrets
• The Difficult Relationship Between Intellectual Property and Contemporary Art
• Trade-Related Aspects of IP Rights: A Workable Instrument for Enforcing Benefit Sharing
• A US-UK Comparison of the Harmonisation of UK Copyright and Trademark Damages
• The difficulties brought by digitalisation and the internet are beyond the capacity of the copyright system to appropriately address them. Discuss
• Which copyright laws can be cited as protecting software?
• The law on online copyright infringement facilitation
• The necessity for companies to safeguard their brand value should serve as the primary
• Justification for trademark protection. The general welfare is only a secondary concern. Discuss
• Intellectual property rights are being directly used by businesses and investors: IP privateering and contemporary letters of marque and reprisal
• Decisions and dynamics in understanding the role of intellectual property in digital technology-based startups
• Investigating conflicts between appropriable and collaborative openness in innovation
• Assessing the strength and scope of our system for protecting the intellectual property rights of indigenous people
• Assessing legal protections for intellectual property rights online
• Does EU copyright legislation adequately balance the requirements of consumers and inventors?
• A case study of the US is used to evaluate fair dealing in terms of copyright law.
• Contrasting and comparing the US and UK intellectual property systems
• Are consumers and owners protected and treated fairly under EU intellectual property law?
• What effects has EU legislation had on the UK’s intellectual property system?
• What more should be done to increase the efficacy of the US’s present intellectual property laws?
• Analysing how Brexit may affect the UK’s protection of intellectual property rights
• An in-depth analysis of the UK’s invention and patenting system: Can the existing, rigid system stimulate innovation?
• The Role of Intellectual Property Rights in Promoting Innovation and Economic Growth.
• Comparative Analysis of Patent Laws: Case Study of the US, EU, and China.
• Challenges and Solutions of the Copyright Protection in the Digital Age
• The Impact of Open Access Initiatives on Intellectual Property Rights.
• Emerging Issues in Trademark Protection in the Global Marketplace
• Intellectual Property Enforcement in the Era of Online Piracy.
• Intellectual Property Rights and Artificial Intelligence
• Legal Frameworks and Indigenous Right for Biopiracy and Bioprospecting
• Plant Breeders’ Rights
• Pharmaceutical Patents and Access to Essential Medicines in Developing Countries.
• Intellectual Property Rights in the Fashion Industry

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When choosing a topic in intellectual property law, make sure your selection is based on your interests.

As an intellectual property rights law student, there are many areas you might base your thesis or dissertation on. For example, a copyright lawyer can defend the rights of creative works, a patent lawyer can provide lawful protection for inventors, and a trademark lawyer can assist with the protection of trademarks.  You could also investigate rights related to plant varieties, trade dresses, and industrial designs.

Dissertations take a lot of time and effort to complete. It is essential to seek writing assistance if you are struggling to complete the paper on time to ensure you don’t end up failing the module.

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To find Intellectual Property Law dissertation topics:

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• Explore global IP issues.
• Consider economic implications.
• Select a topic aligning with your passion and career goals.

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Diplomacy dissertation is an interesting and important academic pursuit, especially given the current global climate.

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Generative AI Has an Intellectual Property Problem

• Juliana Neelbauer,
• David A. Schweidel

Strategies to help companies mitigate the legal risk and ensure they’re in compliance with the law.

Generative AI, which uses data lakes and question snippets to recover patterns and relationships, is becoming more prevalent in creative industries. However, the legal implications of using generative AI are still unclear, particularly in relation to copyright infringement, ownership of AI-generated works, and unlicensed content in training data. Courts are currently trying to establish how intellectual property laws should be applied to generative AI, and several cases have already been filed. To protect themselves from these risks, companies that use generative AI need to ensure that they are in compliance with the law and take steps to mitigate potential risks, such as ensuring they use training data free from unlicensed content and developing ways to show provenance of generated content.

Generative AI can seem like magic. Image generators such as Stable Diffusion, Midjourney, or DALL·E 2 can produce remarkable visuals in styles from aged photographs and water colors to pencil drawings and Pointillism. The resulting products can be fascinating — both quality and speed of creation are elevated compared to average human performance. The Museum of Modern Art in New York hosted an AI-generated installation generated from the museum’s own collection, and the Mauritshuis in The Hague hung an AI variant of Vermeer’s Girl with a Pearl Earring while the original was away on loan.

• GA Gil Appel is an Assistant Professor of Marketing at the GW School of Business.  His research uncovers insights driven by consumer interactions with digital technologies, such as big data, social media, NFTs, and AI.
• JN Juliana Neelbauer is a partner at Fox Rothschild LLP in the corporate, intellectual property, emerging markets, and entertainment and sports law groups. She is a lecturer at the University of Maryland and Georgetown University regarding securities law, negotiations, digital assets, and business law.
• DS David A. Schweidel is Rebecca Cheney McGreevy Endowed Chair and Professor of Marketing at Emory University’s Goizueta Business School. His research focuses on consumer interactions with technology, and how this shapes marketing practice.

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Responsible Conduct of Research: Intellectual Property

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Intellectual Property

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• Instructor Resources
• What is Intellectual Property? Written by the World Intellectual Property Organization, this web resource discusses what intellectual property is, the different ways to protect intellectual property, and issues regarding the protection of intellectual property at an international level.

Intellectual property refers to patents, copyrights, trademarks, and trade secrets, all of which are legal means meant to protect unique ideas, inventions, and other non-tangible property.  Ethical issues regarding intellectual property frequently arise in IPRO projects concerning how group member's contributions should be measured and rewarded if the research project results in a patent, how businesses, advisors, and other institutions may have a claim to intellectual property resulting from projects they sponsor, and intellectual property and confidentiality agreements companies may ask students to sign to protect the intellectual property rights of a company. 

Approaches to intellectual property may differ according to whether the results of an IPRO project can be considered as a private, potentially marketable commodity or a common good.  For example, say a pharmaceutical company has created a vaccine for HIV/AIDS.  The company has a right to recoup the money they spent in developing the vaccine, and so may chose to protect the new vaccine with a patent.  However, should the knowledge of how to make this vaccine become common knowledge, it could become more widely available to at-risk populations in Africa and elsewhere than if only one company held the patent to make and distribute the vaccine.  How should the rights of the pharmaceutical company be weighed against the common good of HIV/AIDS patients who may not be able to afford the drug?

For more information about intellectual property, please visit the following websites and other publications.

• Owning Scientific and Technical Information This book, published in 1989 by Dr. Vivian Weil and Dr. John W. Snapper, gives a very good synopsis of what intellectual property is and some of the ethical issues raised. Available at the Ethics Center Library, call # CSEP.KF2979.A2O961989
• United States Patent and Trademark Office The official website of the United States Patent and Trademark Office. Includes a publicly available searchable database of issued patents.

Patents grant inventors exclusive rights over their works, and usually apply to inventions (such as machines), processes (such as a way to synthesize a chemical) and substances (such as a new form of plastic). The patent holder has the right to determine who may produce, use, or sell his invention, process, or substance.

For a short introduction to patents and other forms of legal protections for intellectual property, see Owning Science and Technical Information by Vivian Weil and Jack Snapper, which is available at the Ethics Center Library.

• Lab Book Guidelines This is a set of guidelines developed by Rice University's Experimental Biosciences Department. The guidelines outline how important keeping a lab notebook is for the patent application process.
• U.S. Copyright Office The official web site of the United States Copyright Office. For a further description of what copyright is and laws protecting copyrights, visit the "Copyright Basics" section of the site.

C opyrights protect ways of expressing ideas. As the name suggests, the copyright holder has a right to determine who may copy his words.  The right does not extend to who may discuss the ideas expressed by those words.  For instance, Einstein may copyright his essay on the theory of relativity, but he may not prevent others from researching his theory or presenting it in their own words. In recent years, copyright has been extended to cover not only books and journal articles, but also pictures, films, music, computer programs, and design elements of products.  

A trademark is a mark, typically stamped on a product, to indicate its producer.  The producer has control only over the mark, not over any features of the product. Examples of a trademark are the Nike symbol and the McDonald's golden arches.

Trade Secrets

• Trade Secrets The World Intellectual Property Organization has put together a very good introduction explaining what trade secrets are, how they differ from patents, and how companies can go about protecting their trade secrets.

A  Trade Secret  is information a firm reserves for its exclusive use, or for use by other firms to which it grants a license, such as the recipe for Coca-Cola. Trade secrets share some similarities with patents, but they differ in one meaningful way. Patents are only granted for a set length of time (currently 17 years), while trade secrets can be kept indefinitely. Trade secrets are also governed by state laws, unlike patents which are issued by the federal government, and must meet much less strict guidelines than patents, which require strict standards of novelty and unobviousness, and must represent a genuine advance in a particular field. A trade secret qualifies as a trade secret as long as the information has some degree of novelty, cannot be readily discovered by public introspection, and most importantly, is actively protected from disclosure by the firm.  Finally, trade secrets are not legally protected in the same way as patents.  A trade secret cannot be used if it is acquired by improper means (espionage, a former employer leaking the secret), but if another firm independently discovers the secret, they can freely use the information without having to pay a licensing fee, and cannot be legally prevented from using it. (Frederick, R.E. "Trade Secrets" Encyclopedia of Business Ethics, Blackwell, 1997.)

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Example Case Studies

• Whose Intellectual Property? A number of students working on an innovative technology are thinking about setting up a company. What questions about intellectual property do they need to answer? What are the rights of their advisor and others involved in the project? more... less... Case Study from the Online Ethics Center

Below are a handful of case studies exploring questions of intellectual property.  

• Whose Intellectual Property? A scenario dealing with the ownership of intellectual property.
• The Case of the X979 Jumpstart Who owns ideas? That question comes up again and again in the start-up environment. This fictional case study asks us to consider the ethical boundaries involved in intellectual property

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Copyright and Open Access to Scientific Publishing

• Open access
• Published: 27 May 2024

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The internet has broadened the communication of digitized journals and books among scholars and the perception that academic commercial publishers use copyright law to restrict the free circulation of scientific knowledge. Open access is changing the business model of academic publishing to the extent that copyright law is increasingly being viewed as needing to be balanced against the right to benefit from science. Some have called for copyright law to be revised to promote open access to academic publishing. The question of just how copyright law should be revised to achieve this is today more topical than ever. However, there is a need to clarify and question the role that copyright law should play and there is much to be gained from consideration of the role that competition law can play. Additionally, initiatives to implement open access have been taken by stakeholders (academic authors, publishers, universities, libraries, and research funding agencies) such as open access policies and the new “read and publish” agreements between publishers and universities’ libraries. But the transition towards sustainable universal open access will be a long, complex process since the interaction between these stakeholders can lead to conflicts of interest. This article also evaluates these initiatives and suggests the best approach.

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Open Access Publishing in the European Union: The Example of Scientific Works

Academic Freedom, Copyright, and Access to Scholarly Works: A Comparative Perspective

The evolving role of commercial publishers and the future of open access repositories: the potential of corporate social responsibility.

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1 Introduction

Progress in science benefits society; yet new findings in scientific research – published in books, articles, conference papers and presentations – are copyright protected. As such, copyright can be seen as the instrument publishers use to exercise control over the circulation of knowledge, enabling them to prevent access to scholarly publications. Indeed, it has been pointed out that, by limiting the ability to share published scientific knowledge, this prevailing restricted-access dissemination model inhibits the emergence of a truly global and collaborative scientific community. Footnote 1

The open access (OA) paradigm that has emerged with the advent of the internet is a reaction against this model. As one of the leading proponents of OA stresses, open access literature is “digital, online, free of charge, and free of most copyright and licensing restrictions”. Footnote 2 Nonetheless, OA is not antithetical to copyright: in fact, OA publishing is based on copyright licenses granted by scholars. The authors themselves lift the barriers imposed by copyright and agree to publish the output of their research and to disseminate their findings with the sole restriction that their authorship be mentioned and any commercial uses be impeded. Thus, OA is enabled by copyright. Footnote 3

Importantly, in the case of OA literature, authors are unpaid, yet publishers claim a fee to publish their articles and books in OA – the so-called “article processing charge” (APC) or “book processing charge” (BPC) that allows publishers to recoup the costs incurred in improving the quality of the article or book and processing it in a publishable form. In this sense, publishers address OA publishing as a new business model, in which APCs and BPCs are substitutes for subscription license payments and book sales. No remuneration of authors is contemplated in APCs or BPCs.

OA to scholarly publishing is also feasible without paying publishers’ processing charges if the pre-print version of paywall publications is made publicly available in institutional repositories (so-called green OA). Indeed, the EU and some national research bodies have implemented measures to ensure that scholarly publications resulting from their funding are made publicly available in public depositories immediately upon publication. Footnote 4 However, publishers claim that embargo-free green OA is not financially sustainable, since it threatens their subscription business model and undermines their potential support for OA journals based on APCs. Footnote 5 Hence, it is evident that publishers will only agree to OA publishing if they can find a sustainable business model to achieve it at scale. Therefore, any claim that copyright is the main obstacle to the implementation of OA is highly questionable. Despite this, many voices call for amendments to copyright law to facilitate OA to scholarly publishing.

This paper seeks to examine the implications of copyright for OA to scholarly publishing. First, it considers the extent to which copyright constitutes a barrier to scientific knowledge, and whether the right to benefit from science and culture justifies mandatory OA to scholarly publishing or rather requires an adjustment to copyright law. Second, this paper analyses the copyright issues and challenges associated with different initiatives to foster OA, including open access policies, amendments to copyright legislation, and the new read and publish agreements between publishers and research institutions. Finally, the economic and competition law issues that arise in relation to OA publishing are examined.

2 Copyright as a Barrier to Scientific Advancement

The shift from analog to digital publications has increased the perception that copyright protection of scientific works impedes access to knowledge that should be free. However, as stressed in the Introduction of this article, the OA movement does not oppose copyright protection of scientific publishing: what the leading voices of the OA movement claim is that copyright on research articles traditionally protected publishers, not authors, Footnote 6 and that copyright is being used by some publishers to keep their business profitable. Footnote 7

The academic publishing market has been characterized by a number of long-standing disruptions: many researchers agree to publish their contributions in journals (and even in books) without any remuneration. Academics view scholarly publishing as a means of facilitating the dissemination of their research and building a reputation, both by publishing in high impact factor journals and via the system of citations. Footnote 8 For this reason, it has been argued that conventional copyright rationale does not serve as an economic incentive for researchers and should be abolished for academic works. Footnote 9 However, such a view is open to debate. The fact that most academic authors do not share in the publishers’ profits does not justify depriving them of the right to claim copyright royalties from publishers. Nor does it affect the role and function of copyright. As discussed, the view that academic authors spurn the idea of making money from the use of copyright works for research and education, being satisfied with the enhancement to their reputation and funding opportunities, may be philosophically sound, but is contractually anomalous. Footnote 10

Criticism has also been expressed of the limited concern shown by copyright law for the scientific perspective, as well as the weak research exceptions to copyright exclusive rights and the general trend towards broadening copyright protection – all elements that conspire against freedom to access and exchange information, disseminate knowledge, and preserve research results. Footnote 11 The recent COVID-19 pandemic served to highlight the right to science together with the urgent need to address a new copyright regime. Footnote 12 Copyright laws are said to act like a lock on the open circulation of research and scholarship. They fail to serve their original purpose of promoting science in the digital era. Footnote 13 Some authors contend that reconceptualizing copyright in relation to research activities can provide powerful arguments for substantive changes in copyright law; Footnote 14 hence, the question of the most suitable copyright design for academic works is today more topical than ever. Footnote 15

Before assessing whether copyright law should be amended or even abolished in the case of scholarly publishing, so as to guarantee access to scientific knowledge, it is necessary, first, to consider the scope of the right “to benefit from science” and its legal implications for access to academic publishing and, second, to assess how copyright might act as a barrier to scientific knowledge.

2.1 The Right to Benefit from Science

To date, the right to benefit from science has been inadequately discussed, despite being recognized, with a variety of different wording, in instruments of human rights. In fact, some scientists describe this right as “obscure” and its interpretation as “neglected” to the point that few are aware of its existence. Footnote 16

The right to enjoy the benefits of science has traditionally been invoked as a counterweight to the expansion of intellectual property (above all patents), whereas the “right to participate in culture” is seen as articulating a series of values that limit copyright. Footnote 17 Yet, copyright protects scientific works and, as such, can impede access to research findings.

2.1.1 Scope of the Right to Benefit from Science

The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, was the first international legal instrument to recognize the fundamental right to “share in scientific advancement and its benefits”, along with cultural rights and the protection of authors’ rights (Art. 27 UDHR). Footnote 18 The drafting history of Art. 27 shows that the inclusion of individual author’s and inventor’s rights in an article on public rights of access to science was strongly debated, but that the primary concern was that the protection of these individual rights should not cut across the public good of facilitating access to knowledge, culture, and science, whether for liberal, utilitarian, or communitarian reasons. Footnote 19

Almost twenty years later, the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the United Nations in 1966, recognized the right of everyone to “enjoy the benefits of scientific progress and its applications”, after recognizing the right to “take part in cultural life”, while guaranteeing the protection of intellectual property (Art. 15.1). Footnote 20 In the travaux préparatoires of the ICESCR, some countries objected to incorporating the provision on intellectual property on the grounds that everyone’s right to benefit from science and participate in culture should not be intermixed with property rights. Footnote 21 However, it was argued that the three rights were substantively interrelated, each being instrumental to the realization of the others. The rights of authors and scientists to prevent others from altering their creations were understood to be essential preconditions for cultural freedom and participation and scientific progress. Footnote 22

In the case of the UDHR, the wording of the right to benefit from science has been described as being more akin to that of a freedom than a positive right that states must enable. Footnote 23 In contrast, the ICESCR sets out specific obligations incumbent upon states for guaranteeing the right to benefit from science, such as taking the steps necessary for “the conservation, the development, and the diffusion of science” (Art. 15.2). Footnote 24 Indeed, today, there is a growing consensus that the core content of the right to benefit from science in the ICESCR includes an obligation on states to enable access to scientific information. Footnote 25

The European Convention on Human Rights (ECHR) (1950) does not include any provision on the right to benefit from science; rather the right is understood as a form of collective freedom of expression: Art. 10 talks of the freedom to “receive and impart information and ideas without interference”. As such, the states’ obligations are negative and limited to not interfering with this freedom, rather than requiring a proactive realization of the right to benefit from science. Footnote 26

Regarding academic freedom, the Charter of Fundamental Rights of the European Union (2000) recognizes scientific research as the scientist’s autonomy to conduct research: Article 13 states that “[t]he arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Accordingly, in the case of Commission v. Hungary , the Court of Justice of the European Union (CJEU) declared that “academic freedom in research […] should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and to distribute knowledge and truth without restriction”. Footnote 27

Thus, it seems that international recognition of the right to benefit from science and the right to conduct research free of any constraints contained in human rights instruments cannot be considered as granting researchers individual rights to access scientific output, but rather as obliging states to protect science as a public good. For instance, Art. 44 of the Spanish Constitution (1978) provides that culture and science and scientific research be promoted by public authorities. Yet, some authors argue that a new fundamental right to research is derived from the interplay between the right to benefit from science (as recognized under the UDHR and the ICESCR), freedom of expression and academic freedom, in combination with the European Union’s aims and objectives regarding sustainability and technological advancement. Footnote 28 According to these authors, the fundamental right to research enables access to information to conduct research . Footnote 29 This opinion is supported by those who believe that EU legislation is under an obligation to create a more favourable, enabling environment for scientific research. Footnote 30

But what are we supposed to understand by the argument that the right to benefit from science should enable access to information to facilitate research? Does this imply that access to scientific publications should be free and without copyright restrictions?

2.1.2 The Right to Benefit from Science, and Access to Scientific Publishing

The United Nations, in its legal instrument, appears to explicitly link science and technology with human rights, considering such ties beneficial to human lives. Footnote 31 As such, it could be argued that the right to benefit from science justifies mandatory OA only in the case of research publications that contribute to human well-being and better life conditions. But it might also be concluded that OA should be mandatory for scholarly publishing across the board, since all journal articles are scientific , regardless of their area of knowledge.

How can scientific publications be defined? Neither the UDHR nor the ICESCR chooses to define what science is. The Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications , adopted by experts convened by UNESCO in 2009, declares that the right to enjoy the benefits of scientific progress is applicable to all fields of science, Footnote 32 where science is deemed, among other things, an instrument for “advancing knowledge of a specific subject matter” and “procuring a set of data and testing hypotheses that may be useful for some practical purpose”. Footnote 33

Indeed, science can be distinguished from other domains of culture and knowledge by its progressive nature. Footnote 34 The natural sciences, as well as the human and social sciences, including history and economics, also advance thanks to research findings based on procuring sets of data and testing hypotheses. Since the first journals with a specific orientation emerged in 1870, scientific publications have been defined according to a methodology that meets the following conditions: identification of the problem tackled in the publication, sequential development of the argument, description of the methods used, presentation of empirical evidence, obligatory links – using citations – to earlier communications by other scientists, and admissibility of presenting speculative thought. Footnote 35 This methodology has been adopted by all academic journals regardless of their area of specialization (be it the natural sciences, philosophy, or even law). Thus, the right to benefit from science might be expanded to all scholarly publications, as all of them can be considered scientific.

Yet, to argue that the right to enjoy the benefits of science means states should be obliged to impose mandatory OA on scientific publishing does not seem entirely admissible. The UNESCO Draft Recommendation on Open Science (November 2021) Footnote 36 identifies a set of actions whereby Member States can promote OA infrastructure, including journals and OA publication platforms, repositories and archives. According to the Recommendation , mandatory OA is only required in the case of research promoted by public funding. Footnote 37 Thus, the right to benefit from science requires that states encourage , rather than actually impose, OA for all scientific publications.

2.2 Copyright Protection of Scientific Works

In 1907, Josef Kohler, the German jurist accredited with establishing the concept of rights to immaterial goods and laying the foundations for copyright in Germany and Europe, described scientific works protected by copyright as explanations of research findings and clarifications of their grounds. Footnote 38 For Kohler, scientific works were literary works that explained discoveries and research findings. But inasmuch as scientific works may also include figures, drawings, photographs and images describing these findings or elements of nature, they can also be considered plastic or artistic works, which – provided they are original – enjoy copyright protection. Other examples of scientific works protected by copyright include audiovisual works (such as documentaries explaining discoveries) and scientific databases.

Interestingly, participants at the 1883 conference organized by the Association Littéraire et Artistique International debated whether or not to include the term scientific in the title of the Berne Convention for Protection of Literary and Artistic Works adopted in 1886, Footnote 39 but deemed it irrelevant. Footnote 40 Nonetheless, Art. 2 of the Berne Convention states that the expression “literary and artistic” works shall include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression” . However, the term scientific production does not refer to such things as scientific discoveries. The use of “literary, scientific and artistic” to qualify the productions protected by the Berne Convention derives from earlier bilateral conventions on copyright between Member States; as some scholars point out, the term should not be taken at face value. Footnote 41

Indeed, most European national copyright laws hold that the object of copyright protection is literary and artistic works , and make no mention of scientific works, although the latter are included in their illustrative lists of copyrighted works. Footnote 42 However, both German and Spanish Copyright Acts explicitly hold that copyright protects literary, scientific, and artistic works. Footnote 43 German commentators point out that any difference between these three categories is irrelevant in terms of law, since scientific works may also be literary or artistic works; what defines the category of scientific works is the subject matter. Footnote 44 Meanwhile, Spanish commentators describe scientific works as those that deal with scientific discoveries, theories, methods, and ideas, and note that their content is free, but the wording, images or figures created by the author to explain the content is copyright protected. Footnote 45

In short, scientific works are defined by their science-related content. However, they have a hybrid character, as their form contains elements of personal expression, and they constitute non-substitutable building blocks of information. Footnote 46 Research publications are an example of scientific works that are protected by copyright if they “reflect the author’s personality”. Footnote 47 But how does a researcher make free and creative choices in a scientific work? What part of a scientific article or book results from the author’s original creativity, if it deals with research findings and scientific information?

2.2.1 Author’s Creation versus Research Findings

As Kohler noted, a research finding is not the creation of an author but a “scientific truth”. Footnote 48 The Scottish philosopher Dugald Stewart, in distinguishing discovery from invention, remarked that the object of the former was “to bring to light something which did exist, but which was concealed from common observation”. Footnote 49 Research findings are, or should be, free because they result from obtaining, contrasting, and verifying empirical evidence about facts or truths that were previously unknown. For instance, if an article reports the risk factors for COVID-19 in inflammatory bowel disease, or new findings about Russian exiles in Spain between 1914 and 1920, the respective authors did not create the results obtained, but rather found evidence to demonstrate them . Yet, research findings were considered a possible object of intellectual property (in addition to patents and copyright) in discussions conducted at international level between the First and Second World Wars, although interest eventually declined and then completely dropped away with the advent of the global crisis. Footnote 50

In the case of contributions that count as authorial from the standpoint of science – such as research publications – the focus for copyright is on verbal expression, on the choice and ordering of words, rather than on the generation of data or ideas. Footnote 51 Consequently, copyright prevents copying of the original explanations used by a researcher when clarifying hypotheses or describing the procedures used and difficulties encountered when conducting the study, as well as of the final conclusions drawn in the publication. Likewise, copyright prevents copying of any original images, graphics or photographs created by the author to illustrate the processes, data, formulae, or elements related to the study’s theories, findings or discoveries. Conversely, those elements of a research publication that are not created by the author (i.e. data, empirical evidence, research processes, experiment results, formulae, elements of nature, etc.) are not copyright protected. They can therefore be copied, distributed, and further communicated to the public. As Art 9.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) states: “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such”.

This leads to the conclusion that copyright does not protect the scientific information in research publications but rather the originality of the author in expounding the findings, data, hypotheses, or procedures. Originality is what authors give material form to and what justifies the granting of copyright, Footnote 52 whereas science is concerned with the empirical evidence. But creativity and science are not antithetical. The original explanations written by scientists, the conclusions they elaborate from the research conducted, or the images created to present their findings may also be relevant for scientific advancement, and help other researchers to understand their findings more fully, since they complement the information provided in the rest of the article or book. From this perspective, it can be argued that copyright does not put a lock on the scientific information contained in research publications but rather prevents copying of the content created by researchers when explaining or expounding their findings in their publications.

However, if scientific journals are included in databases, publishers may be entitled to prevent extraction of the scientific data contained in their journals under the sui generis right provided for in EU Directive 96/9/EC on the legal protection of databases. Footnote 53 This right is granted to a publisher if they can prove substantial investment in obtaining, verifying, or presenting the contents of a journal’s database. As a result, national legislators have limited the scope of copyright and the sui generis right by introducing certain exceptions, thereby allowing limited free use of scientific works and scientific data for research purposes.

2.2.2 The Adjustment of Copyright Law to Facilitate Research

To date, EU copyright law has recognized two main exceptions regarding science: the research exception , as introduced by the Information Society Directive (ISD) in 2001, Footnote 54 and the text and data mining exception for the purposes of scientific research , which was implemented by the Directive on Copyright in the Digital Single Market (DSMD) in 2019. Footnote 55 However, the scope of the ISD research exception is narrow, especially when applied to research publications, and the new text and data mining (TDM) exception of the DSMD raises a number of controversial legal questions.

Article 5(3)(a) ISD allows copyrighted content to be reproduced and communicated to the public for scientific research, solely for non-commercial purposes, as long as the source and the author’s name are indicated. Footnote 56 In the case of research publications, this exception is basically the equivalent of quotation. As has been noted, reproduction and extraction for scientific peer review and joint research are not necessarily exempt under national implementations of the somewhat vague Art. 5(3)(a) ISD; Footnote 57 indeed, some scholars argue that the scope of this exception should be broader. Footnote 58 Moreover, the ISD makes the research exception optional throughout the EU Member States when it ought to be mandatory and have the same scope to provide legal certainty to researchers across Europe. Footnote 59

By contrast, the new TDM exception for the purposes of scientific research, as laid down in Art. 3 DSMD, is mandatory throughout the EU. This new exception – where TDM is defined as “the automated processing […] of large volumes of text and data to uncover new knowledge or insights” Footnote 60 – can play an important role in research projects that require the extraction of data from protected literary and artistic works. Footnote 61 The exception allows universities and research institutes, acting on a not-for-profit basis, to reproduce and extract data from research publications to carry out TDM for scientific research; importantly, it requires that they have lawful access to content. Footnote 62 The EU Directive clarifies that “lawful access” to content may be provided by OA licenses or through contractual arrangements, such as subscriptions . Footnote 63

As noted, subscriptions to journal databases give publishers too much scope for limiting TDM initiatives by means of contracts or technical protection measures. Footnote 64 The TDM exception for scientific research implies that publishers should be unable to use their contractual powers and technical protection measures to limit researchers’ ability to engage in TDM by imposing restrictions on access and use of their database content in exchange for making this content available. Footnote 65

In conclusion, copyright law has already been adjusted to facilitate research but not to facilitate the transition to open access. Additionally, other legal initiatives to foster open access have been undertaken by the main stakeholders in scientific publishing.

3 Initiatives to Foster Open Access

Sustainable universal OA to scientific publishing would undoubtedly benefit the research community. However, the transition to OA is set to be long and complex, as the interests of research funders, authors, universities, and commercial publishers clash with each other. Indeed, the tensions between these different stakeholders are currently reflected in the opposing stances they adopt in relation to any transition to OA. Yet, various initiatives have been taken: funders, higher educational institutions (HEIs) and research centres are adopting OA policies; some European countries have recently recognized a new right for scholars to publish in OA; and publishers are transforming their subscription agreements with institutions and authors to facilitate OA publishing.

3.1 Open Access Policies of Funders and Research Institutions

National governments are under growing pressure to promote the OA of scientific publishing. In the UK, following publication of the Finch Report in 2012, OA has become government policy, Footnote 66 and UK research and innovation policy on OA has not permitted a publisher-requested delay or “embargo period” between the publication of an article and public access to that article in a public depository since 2022. Footnote 67 In the same year, the Spanish Science Law was amended, requiring researchers who benefit from public funding to deposit the manuscript version of their articles in a public repository at the time of publication . Footnote 68 The European Commission Footnote 69 and cOAlition S , an international consortium of research funding organizations, recommend or impose OA policies to ensure that the research work they support is shared fully and immediately. Footnote 70 Universities and research centres are also adopting policies that impose OA mandates or right retention practices to make their researchers’ academic work immediately and openly available for scholarly communication. Footnote 71 Such policies are considered private instruments that have legal effects Footnote 72 and raise certain legal issues.

3.1.1 OA Policies as “Mandates” to Researchers

Research funders make it compulsory for researchers who accept the terms and conditions of their funding to publish in OA. In such cases, OA is a legal duty for the researcher, and should they fail to comply with that obligation and publish articles in paywalled journals, the funder may take legal action against them.

In contrast, the OA policies adopted by certain universities and research centres can be considered more controversial. Some HEIs make OA mandatory, while others’ policies serve as mere recommendations or simply guidance for their academic staff. Footnote 73 It might be argued that OA mandates are justified if researchers are employees of public universities, and their research output is publicly funded. Footnote 74 Indeed, if researchers are employees of public or private HEIs, and publish works in the course of their employment, copyright may belong to their employers, which means these institutions may be legally entitled to impose OA mandates. However, universities and research centres do not usually claim copyright of their staff’s scientific scholarly work, given the nature of their employment and the freedom of research, a right that is constitutionally protected in some countries. Footnote 75

Some academics are critical of OA policies on the grounds that they threaten to inhibit scholarly publishing and, as a result, reduce an author’s academic freedom to publish in top journals. Footnote 76 Yet, as discussed, the right to decide on the commercial exploitation of research articles is not based on researchers’ academic freedom but rather on their intellectual property. Footnote 77 Copyright gives authors the freedom to decide whether or not they publish their scientific contributions, in which journal they wish to publish and whether or not they wish to make their work publicly available. For this reason, it has been noted that OA mandates imply appropriation of the researchers’ copyright. Footnote 78

Certainly, as long as HEIs and research centres are not copyright holders of their academic staff’s work, they are not entitled to impose OA mandates or right retention practices. They may, however, recommend that their staff comply with the funder’s OA mandates and encourage them to publish in OA or to make their pre-print publications available for scholarly communication.

3.1.2 Conflicts Between OA Policies and Authors’ Publishing Agreements

A relevant legal question arising in relation to OA policies is their effect on agreements entered into between researchers and publishers. Scholars complain that OA policies increase the administrative burden on them, as they are left to negotiate an increasingly complex copyright landscape with multiple interacting licenses. Footnote 79 Problems manifest themselves when a researcher assigns an exclusive license to a commercial publisher to use an article, but the same article is covered by a prior non-exclusive scholarly communications license granted by the author to the institution, resulting from the university’s OA policy. In such circumstances, is the publisher entitled to prevent the author from depositing the article in the repository and enforce an embargo?

The answer to this question is to be found in national legislation and needs to be considered from the perspectives of both copyright and contract law. According to some national copyright laws, a prior license granted by the author to the institution prevails over the exclusive license entered into later with the publisher. Section 33 of the German Copyright Act specifically regulates the effect of licenses granted subsequently on the same work. This provision is applied when there is conflict between subsequent licenses, Footnote 80 and implies that a prior non-exclusive license to use a work should prevail over an exclusive right on the same work granted later. Footnote 81 A similar rule is found in Art. 14.6 of the Spanish Copyright Act. Footnote 82 Indeed, various decisions of the Spanish Supreme Court have recognized that prior licenses should prevail if the author grants successive licenses on the same work. Footnote 83

Contract law is relevant for determining the liability of an author in such cases. By entering into an exclusive publishing license agreement, the author guarantees that the publisher retains the right to use the article, so the author does not come into conflict with the publisher’s business. Footnote 84 A prior non-exclusive license for scholarly communication will damage the publisher’s exploitation in the case of paywalled articles with an embargo. Clearly, publishers have no interest in publishing content that is already publicly available. Therefore, when entering into a publishing license agreement, the author has a legal duty to give notice to the publisher of any prior non-exclusive license with the institution.

Contract law protects the publisher that acts in good faith for valuable consideration and without having received notice of a prior non-exclusive license. According to UK legislation, in the case of exclusive copyright licenses, prior subsisting licenses are binding except for bona fide purchasers that did not receive notice. Footnote 85 In this case, UK legislation empowers the publisher with an exclusive right, which is deemed binding vis-à-vis any prior licenses. Therefore, if the publisher is not given notice of the prior license, it will be entitled to publish the article and expect the same outcome as if prior non-contractual licenses did not exist; thus, the publisher could prevent the university from using the article for scholarly communication until the embargo period expires. Moreover, the publisher could sue the author for breaking a warranty and claim the loss suffered as a result of not having been given notice of the prior license. Footnote 86 A breach of contract gives rise to action for damages, whether the term breached is a condition, a warranty, or an innominate term. Footnote 87 Thus, the publisher could claim the gain of which it had been deprived, Footnote 88 that is, the APC it would have charged if the article were published in OA.

For all these reasons, the publishers’ response to the growth and development of institutional OA polices based on rights retention has so far been limited and inconsistent. Footnote 89 Publishers see zero-embargo OA policies as undermining their gold OA business, and the largest commercial European publishers still impose embargoes on making self-archived publications openly available. Footnote 90

HEI and research centre policies may become an effective instrument for making academics aware of their responsibilities towards funders and of the advantages of making their research output publicly available. However, at the same time, HEIs and research centres need to respect the decisions that their academic staff make regarding OA publishing. The majority of academic authors still prefer to publish their articles in prestigious high-quality journals, regardless of the fact that they cannot make them publicly available. Footnote 91

3.2 Changes in Copyright Legislation

Some European countries recently adopted legislative initiatives to provide academic authors with a Secondary Publication Right (SPR), which enables them to make their published contributions publicly available on the condition that certain requirements are met. In 2013, Germany amended its copyright law, introducing the SPR in the section governing the transfer of author’s rights. Footnote 92 The same initiative was subsequently adopted by the Netherlands and Austria, which both amended their copyright laws in 2015. Footnote 93 In 2016, France recognized the SPR in its Code of Science Law, Footnote 94 and Belgium introduced it in its Code of Economic Law in 2018. Footnote 95 Despite marked differences between these five national iterations of the SPR, they all adhere to the same basic structure: (1) the secondary publishing right is only granted to authors of scientific contributions (published primarily in journals); (2) the research should be, at least partly, publicly funded; (3) the right only allows the author to make the “accepted manuscript” available to the public; and (4) an embargo period must be respected. Footnote 96 Finally, the SPR is unwaivable and inalienable, so the author retains this right, regardless of any transfer of rights to publishers, and cannot renounce it.

The SPR was first formulated by a German jurist as a moral right of academic authors; hence its inalienable nature. Footnote 97 However, it has been argued that the SPR is nothing more than a copyright limitation for publishers in disguise, with weak justifications, that would unduly prevent application of the three-step test to copyright limitations contained in Art. 13 TRIPS. Footnote 98 This article requires that copyright limitations or exceptions be limited to certain special cases that do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

The embargo requirement to be met for exercising an SPR certainly looks like a copyright limitation. As observed, the basic idea underlying embargoes in copyright limitations is to ensure normal exploitation of a work. Footnote 99 The same idea underpins restricting the SPR to the “accepted manuscript”, that is to say the manuscript approved by the author for publication following peer review as opposed to the final typeset published version(“Version of Record”). The SPR takes sufficient account of the interests of scientific publishing firms, Footnote 100 which is a sign that national legislators formulated the SPR with a view to balancing researchers’ interests in publishing in OA with publishers’ investments.

Recognition of the SPR has not proved to be especially effective for the expansion of OA in those European countries that have adopted it. According to a 2021 study entitled “Open Access in Europe: a National and Regional Comparison”, the most “open” areas in Europe are the UK and the Scandinavian countries, owing to strong incentives from public agencies and the fact that several universities have adopted effective OA policies with dedicated staff and funds. Footnote 101

Harmonizing the SPR as a copyright exception or limitation at EU level has also been suggested. Footnote 102 However, this would be problematic because any legislative initiative to foster OA needs to balance all the interests at stake. If the SPR is formulated in such a way that it can only be exercised after an embargo, and it continues to be limited to “accepted manuscripts” to assure the publishers’ investment, the SPR is doomed to fail as a mechanism for expanding OA to scientific publishing. Embargoes frustrate researchers in their efforts at keeping up to date with the latest publications in their field; and researchers are not especially enthused by the use of their “accepted manuscript”, Footnote 103 because actual publication in a journal is critical for achieving a reliable, final, typeset, scholarly record. Footnote 104 Additionally, accepted manuscripts are deposited in vast institutional repositories that contain all kinds of academic output from the scholarly community (e.g. unpublished articles, conference papers, thesis, dissertations), which are not systematically organized and do not differentiate publications according to quality, Footnote 105 as a journal would normally do.

In short, copyright law is not the best instrument for fostering universal OA. When amending copyright law, the legislator must consider all the interests at stake: not only the concern of funders and researchers to expand access to scientific knowledge in the interests of society, but also the legitimate interest of publishers in profiting from their investments. In contrast, agreements between publishers and research institutions might provide a negotiated solution for the implementation of universal OA.

3.3 New “Read and Publish” Agreements

OA is also remodelling publishing agreements and changing the business of academic publishing. Subscription licenses, traditionally offered by publishers to universities or research institutions, to grant access to scientific journals, are being transformed into new “Read and Publish” (R&P) agreements or “transformative agreements” (TAs). By means of these R&P agreements, publishers grant universities the right to access, copy and download paywalled articles from their journals, and the right to publish a certain number of articles in their commercial journals in OA.

R&P agreements emerged as a result of a report published by the Max Planck Society Digital Library in 2015, which demonstrated that expenditure on subscriptions to scientific journals could be redirected and re-invested into OA business models to pay for APCs. Footnote 106 As such, these new agreements are not supposed to add APCs to subscription fees, but rather to gradually replace subscription income with that generated by APCs for OA publishing. Footnote 107 According to the ESAC Initiative (Efficiency and Standards for Article Charges), these new agreements will allow former subscription expenditure to be repurposed to support the OA publishing of the negotiating institutions’ authors, thereby gradually and definitively transforming the business model that underpins scholarly journal publishing from one based on toll access (subscription) to one in which publishers are paid a fair price for their OA publishing services. Footnote 108

The first R&P agreements were entered into between commercial publishers and institutions in 2018, and there has been a gradual increase in the number of agreements implemented since 2020. Footnote 109 Most have been signed between the major publishers (Elsevier, Wiley, Springer, Taylor & Francis, Walter de Gruyter, Cambridge University Press, Oxford University Press, etc.) and the libraries or consortia libraries of HEIs and research centres.

The primary innovation of R&P agreements lies in the clause referring to subscription fees and in the number of APCs included in the contract. Publishing fees are amalgamated with subscription fees, and depend on the number of researchers employed by an institution and the total number of articles they seek to publish in OA journals. For instance, the R&P agreement entered into between the Spanish National Research Council and Oxford University Press (OUP) in 2020 shows that the former will pay OUP almost EUR 1 million over five years to secure access to their journals and to publish 358 OA articles (with 24% of the fee corresponding to reading and 76% to publishing, and an APC of EUR 2,123 per article). Footnote 110 Although R&P agreements are not supposed to increase the cost of subscription licenses, they are associated with higher costs than traditional read-only subscriptions. Footnote 111 Additionally, in some cases, R&P agreements can result in overpayment (if the number of articles accepted for publication falls short of the agreed number) or under-availability (if some of the articles accepted for publication fall outside the bulk-sum payment and have to be covered separately). Footnote 112

R&P agreements also oblige “eligible authors”, whose articles are accepted for OA publication, to transfer their exclusive rights to publishers. Authors’ agreements are separately negotiated with the publishers. Footnote 113 Under these OA publishing agreements, the author grants the publisher an exclusive license, and the publisher states the Creative Commons License under which the article will be made publicly available. Footnote 114 The author receives no payment from the publisher, but the exclusive transfer of rights is justified as the article will be publicly available; hence, authors’ rights retention for scholarly communication is pointless.

Agreements between commercial publishers and institutions may be the best mechanism for providing a sustainable business model for OA, provided they rely on principles of party autonomy and contractual freedom. However, R&P agreements present the typical anomalies of contracts entered into between commercial publishers and HEIs or research centres. Commercial publishers impose high fees on these institutions to read and publish in OA, bundle all their journals into one single R&P agreement, and typically impose their own legal jurisdiction as the applicable law governing their contracts. Footnote 115 Determining which law applies to these agreements is a key issue, as US and UK copyright law tend to favour publishers’ commercial interests and permit the assignment of exclusive transfers of rights, whereas in civil jurisdictions the transfer of author’s rights is construed in favour of the author. Footnote 116

More importantly, the future of R&P agreements remains uncertain for publishers. If more institutions shift towards OA embedded in transformative agreements, the share of OA will dramatically increase. As a result, fewer research-oriented institutions will be tempted to cancel their subscriptions, reducing the journals’ income in the process. Footnote 117 The highest ranked universities will overpay APCs Footnote 118 compared to institutions with a lower publication output. Footnote 119 In the case of consortia, this behaviour may unbalance internal agreements on cost distribution. Footnote 120 Moreover R&P agreements will prove extremely challenging for smaller publishers and a few isolated journals.

4 Economic and Competition Law Issues Involved in Open Access Publishing

The journal publishing market is a complex, dynamic system, with journals constantly switching publishing houses, and publishing houses acquiring or merging with their competitors. Footnote 121 As a result of these dynamics, five big commercial publishers represent more than half the market for scholarly journals today. Footnote 122 These “big five” publish most of the high impact factor journals and, indeed, the majority of scientific papers. Footnote 123 This high degree of concentration of ownership of scientific journals has led to asymmetry in negotiating powers between research institutions and publishers. Thus, a publisher that owns a journal with a high impact factor enjoys a strong market position vis-à-vis not only researchers but also libraries. Footnote 124

The concentrated nature of the academic publishing market – including both OA and toll access journals – potentially offers top publishing companies a monopoly. Footnote 125 Indeed, in 2018, the European University Association (EUA) issued a statement expressing its concern about possible irregularities relating to pricing and market conditions in the research publishing sector. Their primary objections to the “big five” academic publishers were, first, their lack of transparency when pricing journal subscriptions and, second, their bundling of a large number of academic journals into one single agreement (a so-called “big deal”). Footnote 126

Academic publishers charge extremely high prices for subscriptions to individual journals, making it less attractive or nearly impossible to buy only the most interesting journals and skip the others. This means that libraries are left buying very large bundles, including journals that they might not actually be interested in. Additionally, the pricing structure for journal subscriptions and the fees for OA publishing remain quite obscure. The average APC for a journal article is, at present, USD 2,987, but there is tremendous variation in APCs across journals, which obviously cannot be explained by costs alone. Footnote 127 As OA publishing advances, subscriptions will gradually disappear, which suggests that APCs are being used by commercial publishers in lieu of subscription fees. If, eventually, universal OA is attained, subscriptions and book sales will cease and publishers will only charge once for publishing a scientific article or book in OA. However, as things currently stand, publishers’ income is based on thousands of subscriptions for the same journals and thousands of sales of the same book. Excessively high pricing of APCs and BPCs may become a potential risk in the OA publishing market.

Competition law may well have a key role to play in correcting the dominant practices of academic publishers in the publishing market. In the case of the EU market, Art. 102 of the Treaty on the Functioning of European Union (TFEU) prohibits abuse by dominant firms, and Art. 102(a) TFEU lists as examples of abusive conduct “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions”. Importantly, Art. 102 TFEU applies when one undertaking has a “dominant” position or where two or more undertakings are “collectively dominant”. Footnote 128 This could be considered the case of the “big five” commercial publishers that account for more than 50% of the market share for scholarly journals.

Difficulties may be encountered when seeking to determine whether the largest commercial academic publishers are indeed collectively abusing a dominant market position. According to the CJEU’s decision in the case of Compagnie Maritime Belge Transports and Others v. Commission , a finding that two or more undertakings hold a collective dominant position must, in principle, “proceed upon an economic assessment of the position on the relevant market of the undertakings concerned”. Footnote 129 Thus, the first step in ascertaining whether an undertaking or group of undertakings exercises a dominant position is to define the relevant market in which they compete. According to the EU Commission, obtaining this definition requires defining both the product market and the geographic markets , where the relevant product market comprises all products or services regarded as interchangeable or substitutable by the consumer by reason of their characteristics, prices and intended use. Footnote 130 In the case of academic publishers, the relevant market might be deemed to comprise the publishing market of academic journals and periodicals. However, this is highly controversial, because if the product market is drawn narrowly, with relatively few competing products, it is much more likely that an undertaking will be found to be dominant. Footnote 131 As for the geographic market, this is not readily defined for commercial scientific publishers, given that the large publishing houses have been transformed into digital platforms with multi-sided markets. Footnote 132

Yet, as discussed, an excessive pricing ruling is possible in any market, not only where firms abuse their dominant market positions. Footnote 133 Excessive pricing and bundling can also be considered a reflection of the publishers’ control over the agreements entered into with research institutions. Thus, at what point can a price be deemed excessive? There is no single adequate method for evaluating an excessive price, but cost-benefit balancing tests may help to chart the interface of competition and intellectual property for a particular commercial practice. Footnote 134 Furthermore, the CJEU has ruled that a price can be “objectively” determined excessive by “making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin”. Footnote 135

However, the current lack of transparency on the part of publishers regarding their article publishing costs hinders any assessment as to whether their costs and profits are well balanced. In the past, publishers had to invest in technology to transform articles and books into publishable forms and guarantee the print distribution, but digital publishing technologies have reduced such costs, especially in the case of online journals. Footnote 136 Nevertheless, commercial publishers have raised journal prices over the last 30 years, placing substantial pressure on library budgets. Footnote 137 Publishers claim these price hikes are justified by their need to invest in journal management and development and in expensive digital technology so they can build their databases and implement new publishing platforms. Footnote 138 They also seek to justify them on the grounds of the expertise they provide in improving academic content, which ensures the product quality of their journals: manuscripts submitted to a journal are assessed and selected by the journals’ editors, revised by peer reviewers, and proofread to ensure the manuscript includes all revisions and complies with style guides.

Yet, journal editors and peer reviewers are qualified members of the academic community, who are not usually paid for their services by the publishing companies. Footnote 139 Today, the typical academic journal receives all its content for free; writing, editing, reviewing, and all other processes related to knowledge production are conducted by academics and researchers, and indirectly paid for by their respective institutions. Footnote 140 Publishers’ contributions, which include proofing amendments, typesetting, language editing and publishing, can be done with very little material investment. For this reason, it has been suggested that academia might give some consideration to bringing more scholarly publishing functions in-house, instead of paying high fees to allow their researchers to read the work they themselves have done. Footnote 141

Obviously, neither journal subscriptions nor APCs or BPCs address solely the recouping of the cost of editorial input: they also serve to make profit. Indeed, various authors criticize the “black box” of academic publishing costs for charging excessively and for the disproportionate profit margins of around 40%. Footnote 142 All the signs are that large academic publishers are imposing abusive fees and bundling practices on research institutions, and that the sector should be subject to greater scrutiny under competition law. OA publishing could be an opportunity to adjust publishers’ income by setting fair APCs and BPCs that strike a better balance between their costs and profits.

5 Conclusion

The conventional model of scholarly publishing uses the copyright system as a lever to ensure that commercial publishers profit from disseminating the results of scholarly research. This is achieved by imposing copyright licenses on every copy, distribution, or further communication of their publications. OA publishing represents a significant change to this system, as publishers only charge a fee for their services, that is to say they make scholarly articles and books freely available from their journals and databases with virtually no copyright restrictions. If universal OA is achieved, journal subscriptions and book sales will cease, and publishers’ income will be based solely on a fee charged for each article and book published in OA.

The role of copyright in the development of OA scholarly publishing is limited, given that the main issue is how an OA system can be implemented financially; above all, it remains to be seen who will pay the commercial publishers, university presses and learned societies for OA publishing, and how fair publishing fees will be fixed.

Publishers have contributed to organizing and improving research publications, producing highly specialized journals over the last two centuries. They continue to play a vital role in scientific publishing. The path towards OA clearly has to be negotiated with these publishers, rather than restricting publishers’ rights or imposing compulsory licenses on them. Agreements between commercial publishers and institutions would constitute the most appropriate legal instrument in the search for a sustainable business model for OA, provided that those agreements include principles of party autonomy and contractual freedom to set fair publishing fees. In this new publishing market, competition law can play a key role in developing a model for sustainable universal OA.

Shaheed ( 2014 ), p. 17.

Suber ( 2012 ), p. 4.

Bammel ( 2014 ), p. 339.

The EU Research and Innovation Program Horizon (2021–2027) does not cover APCs in the case of subscription journals; Commission Staff Working Document, Impact Assessment Accompanying the document Proposals for a Regulation of the European Parliament and of the Council establishing Horizon Europe , Brussels, 7-6-2018, SWD (2018) 307 final, part 2/3, p. 106.

See the statement made by STM Publishers (Scientific, Technical and Medical Publishers) on embargo-free OA in repositories: https://www.stm-assoc.org/rightsretentionstrategy/ .

Suber ( 2012 ), p. 130.

Willinsky ( 2009 ), p. 47.

Guibault ( 2011 ), p. 160.

Shavell ( 2010 ), p. 302.

Suthersanen ( 2003 ), p. 602.

Moscon ( 2015 ), p. 116.

De la Cueva and Méndez ( 2022 ), p. 11.

Willinsky ( 2022 ), p. 3.

Geiger and Jütte ( 2023 ), p. 6.

Bellia and Moscon ( 2022 ), p. 61.

Chapman ( 2009 ), p. 1.

Helfer and Austin ( 2011 ), p. 234.

Art. 27 UDHR declares that “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author”.

Plomer ( 2013 ), p. 175.

Art. 15.1 ICESCR states that “[t]he States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author”.

Chapman ( 2009 ), p. 6.

Yotova and Knoppers ( 2020 ), p. 668.

Article 15.2 ICESCR states that “[t]he steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture”.

Yotova and Knoppers ( 2020 ), p. 682.

Yotova and Knoppers ( 2020 ), p. 671.

CJEU judgment of 6 October 2020 Commission v. Hungary ( Higher Education ), C-66/18 , EU:C:2020:792, para. 225.

Geiger and Jütte ( 2023 ), pp. 43–44.

Geiger and Jütte ( 2023 ), p. 44.

Senftleben ( 2022 ), p. 12.

Chapman ( 2009 ), p. 2.

See para. 12(a) of the Venice Statement “The Right to Enjoy the Benefits of Scientific Progress and its Applications”, UNESCO (Venice 2009).

Ibid para. 8.

Stichweh ( 2009 ), pp. 82–90.

“Draft Recommendation on Open Science”, adopted by the General Conference of UNESCO in November 2021, available at https://en.unesco.org/science-sustainable-future/open-science/recommendation

Ibid paras. 6 and 9.

Kohler ( 1907 ), p. 143.

See Bulletin de l’Association littéraire internationale (1883), No. 18, p. 5.

Gálvez-Behar ( 2011 ), p. 21.

Ricketson and Ginsburg ( 2006 ), p. 406.

The UK Copyright, Designs and Patent Act 1988 establishes in Art. 1 that “[c]opyright is a property right which subsists in accordance with this Part in the following descriptions of work – (a) original literary, dramatic, musical or artistic works”, the French Code de la Propriété Intellectuelle (Loi Nº 92-597 of July 1992) states in Art. L.111-1 that “[t]he author of a work of the mind shall enjoy in that work, by the sole fact of its creation, an exclusive intangible property right that is enforceable against all persons”, and Art L.112-2 considers “works of the mind within the meaning of this Code: 1. Books, pamphlets and other literary, artistic and scientific writings ”. [emphasis added]

The German Copyright Act of 9 September 1965 states in Sec. 1 that “[t]he authors of works in the literary, scientific and artistic domain enjoy protection for their works in accordance with this Act” and the Spanish Copyright Act of 1996 declares in Art. 1 “[t]he intellectual property in a literary, artistic or scientific work shall belong to the author thereof by virtue of the sole act of its creation”. [emphasis added]

Loewenheim and Leistner ( 2020 ), p.69.

Bercovitz Rodriguez-Cano ( 2017 ), p. 159.

Quaedvlieg ( 2016 ), p. 654.

CJEU judgment of 1 December 2011 Painer v. Standard Verlags GmbH , C-145/10, EU:C:2011:798, paras. 88-89.

Galvez-Behar ( 2011 ), p. 90.

Salitskaya ( 2019 ) , p. 464.

Bently and Biron ( 2014 ), p. 242.

Casas ( 2009 ), p. 102.

See Art. 7 of Directive 96/9/EC on the legal protection of databases.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

See Art. 5(3).(a) ISD.

Strowel and Ducato ( 2021 ), p. 303.

Geiger and Jütte ( 2023 ), pp. 54–55.

Geiger and Jütte ( 2023 ), pp. 53–54, and Angelopoulos ( 2022 ), p. 55.

See European Commission (2016), Commission Staff Working Document , Impact Assessment on the modernisation of EU copyright rules, Part I, Brussels, 14.9.2016 SWD (2016) 301 final, p. 104.

Senftleben ( 2022 ), p. 37.

See Art. 3 DSMD.

See Recital 10 DSMD.

Strowel and Ducato ( 2021 ), p. 301.

Griffiths et al. ( 2022 ), p. 13.

The Finch Report was drafted by a committee set up by the UK government to expand access to research publications, especially as regards publicly funded research. Available at https://commons.wikimedia.org/wiki/File:Finch_Group_report.pdf .

United Kingdom research and innovation OA policy 2022, 3 https://www.ukri.org/publications/ukri-open-access-policy/ .

Art. 37(2) of Ley 14/2011 de la Ciencia, la Tecnología y la Innovación (Spanish Law 14/2011 on Science, Technology, and Innovation).

Recital 5 of Commission Recommendation (EU) 2018/790 of 25 April 2018 on access to and preservation of scientific information, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018H0790

See https://www.coalition-s.org/addendum-to-the-coalition-s-guidance-on-the-implementation-of-plan-s/principles-and-implementation/ .

See SPARC Europe, “Opening Knowledge, Retaining Rights and Open Licensing in Europe in 2023”, p. 2. Available at https://sparceurope.org/opening-knowledge/ .

Bellia and Moscon ( 2022 ), p. 72.

In the UK, a growing number of HEIs have adopted the Scholarly Communications Licence, which allows authors to grant the university a non-exclusive license to make their accepted manuscript available without delay through the university’s OA repositories under the terms of a Creative Commons License (CC BY-NC). Cf . Baldwin and Pinfield ( 2018 ) p. 3 for a more detailed discussion of UK HEIs.

Angelopoulos ( 2022 ), p. 33.

Bellia and Moscon ( 2022 ), pp. 64–67.

Baldwin and Pinfield ( 2018 ) p.7 refer to UK academics. In Germany, Roland Reuß, professor of literary studies at the University of Heidelberg, criticized the German government proposal to make OA mandatory for all publicly funded research, ( see http://www.textkritik.de/digitalia/con_crema.htm ), and Jeffrey Beall, in the US, considers that a social movement that needs mandates to work is doomed to fail, Beall ( 2013 ), p. 594.

Moscon ( 2015 ), p. 107.

See , e.g. , Anderson, “cOAlition S’s Rights Confiscation Strategy Continues”, The Scholarly Kitchen, 20 July 2020, https://scholarlykitchen.sspnet.org/2020/07/20/coalition-ss-rights-confiscation-strategy-continues/ .

Khoo ( 2021 ), p. 6.

Peifer and Ohly ( 2020 ), p. 835.

Wandtke ( 2010 ), p. 185.

Rodríguez Tapia ( 1992 ), p. 294.

Cavanillas ( 2017 ), p. 930.

Owen ( 2013 ), p. 247.

Caddick et al. ( 2021 ), p. 488.

According to Art. 1:201(1) Principles of European Contract Law (PECL), “[e]ach party must act in accordance with good faith and fair dealing”; according to Art. 1:301(4) PECL “‘non-performance’ denotes any failure to perform an obligation under the contract, whether or not excused, and includes delayed performance, defective performance, and failure to co-operate in order to give full effect to the contract ”. [emphasis added]

McKendrick ( 2021 ), p. 392.

Art 9: 502 PECL states that “[t]he general measure of damages is such sum as will put the aggrieved party as nearly as possible into the position in which it would have been if the contract had been duly performed. Such damages cover the loss which the aggrieved party has suffered and the gain of which it has been deprived”.

Cf. SPARC Europe, “Opening Knowledge: Retaining Rights and Open Licensing in Europe in 2023” (Note 71) p. 17.

Cf. SPARC Europe, “Opening Knowledge: Retaining Rights and Open Licensing in Europe in 2023” (Note 71), p. 80.

De Castro ( 2020 ), p. 4.

See Sec. 38(4) German Copyright Act ( Bundesgesetzblatt 2013 Teil I , p. 3346).

See Art. 25fa Dutch Copyright Act ( Staatsblad 2015, p. 258), Art. 37(a) Austrian Federal Law on Copyright in Literary and Artistic Works and Related Rights ( Bundesgesetzblatt Teil I , No. 99/2015).

Art. 30 of Loi, n. 2016-1321 du 7 octobre 2016 pour une République numérique [Law No. 2016-1321 of 7 October 2016 for a Digital France] ( JORF , Journal officiel «Lois et Décrets», No. 0235 of 8 October 2016).

Art. 29 of the Law on Miscellaneous Economic Provisions of 30 July 2018] ( Belgisch Staatsblad No. 209, p. 68691)

Angelopoulos ( 2022 ), pp. 33–35.

Hansen ( 2005 ), pp. 378–388, p. 379.

Quaedvlieg ( 2016 ), p. 655.

Senftleben ( 2014 ), p. 10.

Visser ( 2015 ), p. 878.

Maddi et al. ( 2021 ), p. 3137.

On the difficulties of adopting SPR as an EU copyright exception, cf . Angelopolus (2022), pp. 37–53.

May ( 2020 ), p. 126.

Cf. SPARC Europe, “Opening Knowledge: Retaining Rights and Open Licensing in Europe in 2023”, (Note 71), p. 80.

Bell ( 2014 ), p. 144.

Schimmer et al. ( 2015 ), p. 5.

Szprot et al. (2021), p. 10.

See https://esac-initiative.org/about/transformative-agreements/ . The ESAC initiative was established in 2014 to promote workflow efficiencies and library-driven standards in the management of OA article processing charges.

See the registry of TAs at https://esac-initiative.org/about/transformative-agreements/agreement-registry/ .

The Spanish National Research Council comprises some 100 research institutes in disciplines that include medicine, chemistry, physics, and biology. The R&P agreement with OUP can be consulted at https://esac-initiative.org/about/transformative-agreements/agreement-registry/oxf2020csic/ . At present, the average APC per article is EUR 2,300. Cf . Borrego et al. ( 2021 ), p. 225.

Anders et al. ( 2021 ), p. 132.

Szprot et al. ( 2021 ), p. 51.

See clause 5.2.e of the Wiley “Read and Publish” framework agreement with the Spanish Conference of University Chancellors (CRUE) available at https://www.crue.org/wp-content/uploads/2021/09/MoU-WILEY.pdf .

See , for Elsevier’s copyright overview and authors rights on exclusive license for publishing in OA https://www.elsevier.com/about/policies-and-standards/copyright#0-overview .

English law is recognized as the governing law in the R&P agreement between the Spanish National Research Council and Oxford University Press (available at https://esac-initiative.org/about/transformative-agreements/agreement-registry/oxf2020csic/ ) and in the R&P agreement between the University of Barcelona and Cambridge Law Review. In contrast, the general collaboration agreement between Springer and CRUE covering R&P agreements between Springer and Spanish Universities recognizes Spanish law as the governing law, available at https://www.crue.org/proyecto/acuerdos-con-editoriales/ .

Westkamp ( 2022 ), p. 1044.

Bently ( 2021 ), p. 30.

Asai ( 2021 ) p. 32.

Mueller-Langer and Scheufen ( 2013 ), p. 365.

Borrego et al. ( 2021 ), p. 219.

Larivière et al. ( 2015 ), p. 3.

The “big five” are Elsevier (2,928 journals), Springer (2,920 journals), Taylor & Francis (2,508 journals), Wiley (1,607 journals) and SAGE (1,151 journals). See https://wordsrated.com/academic-publishers-statistics/ .

Eger and Scheufen ( 2018 ), p. 121.

Eger and Scheufen ( 2018 ), p. 17.

Puehringer et al. ( 2021 ), p. 2.

The EUA represents 800 universities across Europe and 33 National Rectors’ Conferences. The EUA’s statement entitled “The lack of transparency and competition in the academic publishing market in Europe and beyond” is available at https://eua.eu/news/188:scholarly-publishing-eua-asks-european-commission-to-investigate-lack-of-competition.html .

Budzinski et al. ( 2020 ), pp. 2185 and 2203.

Whish and Bailey ( 2015 ), p. 187.

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See EU Commission Draft of the “Communication from the Commission: Commission Notice on the definition of the relevant market for the purposes of Union competition law”, pp. 10–11, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_6528 .

Macculloch and Rodger ( 2021 ), p. 228.

Business Models and Market Structure within the Scholarly Communications Sector, International Science Council, p. 6. Available at https://council.science/publications/business-models/ .

McMahon ( 2023 ), p. 139.

Flynn ( 2010 ), p.150.

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May ( 2020 ), p. 122.

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Article Contents

1. introduction, 2. technical aspects of generative ai, 3. genai and copyright: legal considerations in tdm, 4. what framework for tdm in the eu, 5. conclusion and further research, acknowledgements.

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Copyright, text & data mining and the innovation dimension of generative AI

Kalpana Tyagi is Assistant Professor, Faculty of Law, University of Maastricht, Maastricht, The Netherlands.

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Kalpana Tyagi, Copyright, text & data mining and the innovation dimension of generative AI, Journal of Intellectual Property Law & Practice , Volume 19, Issue 7, July 2024, Pages 557–570, https://doi.org/10.1093/jiplp/jpae028

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The rise of Generative AI has raised many questions from the perspective of copyright. From the lens of copyright and database rights, issues revolve not only around the authorship of AI-generated outputs, but also the very process that leads to the generation of these outputs, namely the process of text and data mining (TDM). Does unauthorized TDM process infringe the economic rights of the rightholders? How does the TDM-debate transform and transmute in the age of Generative AI?

Generative AI tools create works that substitute the content creators whose very work that they learn from, and successively improvise themselves with every iteration. Generative AI, thus, also presents larger policy question as they substitute the romanticized human author that sits at the centre of copyright. In addition, as Generative AI tools, such as ChatGPT, can now also crawl the web, questions thus transcend the frontiers of copyright, and touch upon innovation and competition in the market for web browsers.

This research article contemplates on the foregoing issues, and makes some recommendations to create a balanced framework, whereby incentives to innovate are preserved, and the interests of the human author are suitably safeguarded in the age of TDM and Generative AI.

Generative AI, 1 or GenAI, simply put, refers to AI tools that help generate content upon prompt. This content may be written, audiovisual or even a programming code. 2 The rapid pace of launch and growth in the capabilities of Generative AI has garnered widespread attention. Technological disruption continually and habitually knocks on the gates of copyright. Copyright is, thus, famously referred to as ‘technology’s child’. 3 Within 3 months of its launch, ChatGPT, one of the many Generative AI solutions, had over 100 million plus active users worldwide, making it the fastest growing consumer app in digital history. 4 In addition, GenAI is anticipated to substantially effect and disrupt creative industries, artists, performers and professional writers. 5 As GenAI tools become ‘more accessible and robust, the lines of creative ownership will likely blur’. 6 Consider for example the interactive games industry that may see the rise of more dynamic creative characters that can act more fluidly. 7 GenAI will thus also help create outputs that were hitherto unimaginable or unachievable.

The rise of the deep fake technology, again a kind of GenAI, also offers the possibility to follow the presentation of content in preferred voices and avatars. This holds promise to revolutionize the field of education. Thanks to the rise of personalized GenAI education assistants, students may, in the near future, have the possibility to watch their knowledgeable Professor’s modules delivered by a digital avatar of their favourite celebrities. 8 Here, one sees an interesting interplay between deep fake and artificially generated inorganic synthetic data, an issue that is further developed in Section 2 that offers a technical perspective on Generative AI. Section 3 discusses the legal framework for text and data mining (TDM) in the EU, and offers a comparative overview from the USA and Japan. Section 4 offers a proposal for a more flexible, Charter of Fundamental Rights (CFR)-based TDM-framework for the EU. Section 5 concludes with some recommendations, and offers a roadmap for further research.

Authors regularly use various digital tools to fine-tune their writing. Consider, for example, the ‘spelling & grammar’ and ‘thesaurus’ feature in Microsoft Word. These tools are habitually used to correct and reflect on one’s work. In addition, various other tools, such as educational chat bots, too, are frequently used to facilitate learning and knowledge acquisition. All these acts are copyright compliant. Then what changes with the use of Generative AI models, such as ChatGPT, by content creators and firms? Earlier the technological tools helped one search and fine-tune the work. The author could call the result a culmination of their intellectual touch and thoughts. ChatGPT and other Generative AI tools change this human-technological interaction, as they go a step further by helping generate high-quality works with a mere prompt. ChatGPT is a natural language processing (NLP)-based tool that can not only extract valuable information from significant amounts of data (big data); it can also contextualize information, and further improvise itself based on the user feedback. 9 To offer a comprehensive view on the latest state of the art, GenAI tools, and how these rapid developments offer an impetus to look at (the currently narrow) TDM exception in the EU, and the larger equitable need to remunerate the human author, this section is organized as follows. Section 2.1 explains NLP, Generative AI and how the latest, state of the art GenAI models, such as ChatGPT, differ from earlier versions of GenAI models. Section 2.2 delves deeper into the technical aspects of Generative AI, and its interplay with synthetic data, and how together they may generate a conspicuous societal impact that is very distinct when compared with the earlier generations of AI. The sub-section also highlights how synthetic data may differently impact the General Data Protection Regulation (GDPR) and privacy framework on the one hand, and the IP rights (notably, copyrights) on the other. The follow-on sub- Section 2.3 , accordingly, also, emphasizes the need to timely remunerate the ‘romanticized’ human author, as s/he is progressively driven away from the core of creativity and copyright.

2.1 From the NLP to the ChatGPT: context independence to contextualization

NLPs, a subset of AI, are machine learning (ML) ‘tools that automate natural language functions by analyzing, producing, modifying, or responding to human texts and speech’. 10 While NLP has been around since 1940s, starting 2015, developments in machine-language-driven neural network models, availability of vast troves of data and increasing computational power led to the rapid rise of the NLP. 11 In 2016, for instance, Google transitioned from statistical machine translation to neural machine translation, whereby it relied on ‘large volumes of full sentence translations’ of data from various official sources available online. 12 This substantially contributed to and improved the search engine’s translation skills. Up until 2017, language models used recurrent neural networks (RNN) and convolutional neural networks (CNN) to manage NLP-related works. 13 In 2017, Google, for the first time, used ‘transformers’ in NLP-related queries. The introduction of ‘transformers’ to the NLP was disruptive as it transitioned the NLP models from unidirectional to bidirectional. It is this bidirectionality that makes the more recent GenAI models different from the earlier versions of GenAI. Unlike earlier versions of NLP, such as Word2Vec that were ‘context independent’, recent GenAI models (starting Bidirectional Encoder Representations from Transformers (BERT)) are ‘context dependent’. To appreciate this transition, let us look at ‘context dependency’ and ‘context independence’ with reference to Word2Vec, a pre-GenAI model and BERT, an early GenAI model and ChatGPT, a current (as of December 2023) state of the art GenAI model. The ability of ChatGPT to Contextualize, Iterate and Improvise (CII) itself is what makes ChatGPT distinct from the earlier versions of GenAI, namely the pre-Gen AI models (such as Word2Vec) and the early GenAI models (such as BERT). CII is a term that I coin to define the nuances of ChatGPT. The ability to contextualize and iterate (C & I in CII) means that ChatGPT and other recent GenAI models understand things in a given context. In ‘Context independent’ machine language models, each linguistic word is unidirectional and correlates with one numeric vector representation only. 14 GenAI models, such as BERT and ChatGPT on the other hand, are ‘context dependent’. This means that they have been ‘designed to pre-train bidirectional representations from unlabelled text by jointly conditioning’ all sides of the layer and at multiple levels. 15 This is exceptional, as traditionally, language models could read ‘text input [only] sequentially’. 16 Sequential text input means reading the text either from the left to the right or from the right to the left. This limited the ability of primitive ML models to understand and interpret the meaning of the words. GenAI models, such as ChatGPT, however, are bidirectional. Bidirectionality means that GenAI can simultaneously read in both the directions—meaning from the left to the right, as well as from the right to the left.

Does this newly incorporated bidirectional proficiency somehow impact AI’s functionality? The response is in the affirmative, as it offers the GenAI to have a more abstract, neural network like functioning. To illustrate with an example, when the user types the following in Word2Vec (representative of the more basic and earlier NLP tools), and BERT and ChatGPT (representative of the more recent GenAI tools)—each one of these models will understand and interpret these two sentences very differently:

A wise investor makes financially sound investment decisions. (Sentence 1)

Contemporary music shows are more sound , and less music. (Sentence 2)

Word2Vec will generate a unique vector. A unique vector is a single identifier for the word. The unique vector for ‘sound’ in both the sentences will be the same. Word2Vec cannot understand the distinct meanings of the word ‘sound’ in the two sentences. BERT and ChatGPT, on the other hand, can contextualize the word, ‘sound’. In other words, there are different vectors for the word, ‘sound’ in each one of these two sentences. This granularity in GenAI tools, such as BERT and ChatGPT, comes from the fact that they learn and understand ‘the representations at a sub-word level’. 17 Learning at a sub-word level helps identify the ‘sweet spot between character-level embedding and word-level embedding’. 18 This, in turn, helps BERT and ChatGPT to think creatively, and offer support ‘for [even] out-of-vocabulary (OVV) words’. 19 This facilitates a more granular representation of the knowledge base, as the example illustrates. The possibility of granular representation offers the new GenAI models to improvise (the second I in the CII model). Improvisation (the additional step in ChatGPT vis-à-vis early GenAI models) means that ChatGPT constantly improves itself with these iterative functions and may in the above example offer yet another creative and graded interpretation to the word ‘sound’, such as:

‘ The symphony of raindrops danced on the roof, orchestrating a sound and soothing lullaby for the sleeping city’ . 20

Overall, this ability of new generation GenAI models, such as ChatGPT, to contextualize, iterate and improvise (CII) is what makes them distinct from the earlier NLP models. To offer a complete picture, reference to parameters must also be made. Parameters in ChatGPT are the equivalent of neurons in the human body. Neurons transmit information to the brain, and determine suitable responses to a given stimuli. The more complex a biological organism, the larger are the number of neurons in the nervous system. Humans, being the most complex of all the biological creations, have on an average, 86 billion neurons. Similar to the human nervous system that comprises of neurons, GenAI is made up of parameters. The larger the number of parameters, the better is the model. Parameters are values added to an AI to train for pre-determined tasks. Adding parameters, or in other words, training a GenAI model, is expensive. It can cost anywhere between US$2500 to US$50 000 per parameter to train a 110 billion parameter model. 21 The number and the complexity of parameters multiply as the models become complex. GPT-3 comprises of about 175 billion parameters. 22 WuDao (meaning enlightenment in Chinese) has over 1.75 trillion parameters—that is about ten times the number of parameters in GPT-3. 23 GPT-4, an advance over ChatGPT (which is GPT 3.5), comprises over 175 trillion parameters. 24

These complexities, such as the number of parameters, add sophistication to the GenAI models, as they create a circular loop in the CII model. Circular loop means that, unlike a static unidirectional flow of instructions, CII-driven GenAI models think and improvise with every successive iteration. Graphically, it may be represented as in Fig. 1   infra .

The CII model to explain how ChatGPT functions.

Interestingly, while this circular flow and interaction may lead to some beautiful and creative works, and considering that creativity is abstract, whose limits are determined only by one’s thought process and imagination, 25 it may also lead to misleading and hallucinating outputs. Technically, this is known as ‘AI hallucination’ or ‘confabulation’. 26 ‘Confabulation’ must be particularly kept in account when one searches for information on ChatGPT, as ChatGPT may eloquently and convincingly present even completely ‘false and misleading information’ in a highly articulate and persuasive manner. 27 Hallucination may be defined as ‘completely fabricated outputs [by LLMs and presented] with confidence and authority’. 28 ‘AI Hallucination’ cannot be entirely explained, as the working of AI remains a black box even to its inventors. However, it can be added with certainty that the ‘data quality’ and the human biases therein are frequently cited reason for this AI hallucination. 29 Thus, as Generative AI is trained on input data, the limitations of these data, such as quality and bias therein, persist in the output of these Generative AI tools. The styles, biases and patterns in the available data, which are used to train these Generative AI models, may in turn also influence how these trained models perform. This observation has important implications for information flows and works generated by these GenAI models. Models trained on these biased datasets may carry the perceptions and vulnerabilities of certain under-represented groups, and this bias may, in turn, be reflected in the output generated by them. 30 Availability of data in a given language too may have a role to play here. As vast troves of data are available in English, Chinese (Mandarin) and Spanish—three of the most widely spoken languages—the Gen AI tools in these languages, at least currently, may be more effective and reliable. 31 This means that Generative AI may work better in some languages for which more rich and diverse training data are available then others. 32 This also means that the language spoken in a particular jurisdiction (especially if it is one of these widely spoken languages) may offer it a technical and competitive edge in the race for GenAI models. This is a vital observation, and an issue that I will develop in a follow-on article. At this point however, it may be important to underscore that, as innovation cycles become shorter, even a small lag in catching up with a wave of innovation may lead to a substantial geometric lag in catching up with follow-on innovations.

In addition to the language, the relevant legal regime, especially, copyright law, too plays a crucial role in the growth and uptake of AI. This implies that language is both an input as well as an output in the Generative AI value chain. Google’s translate feature and its position of strength in the market for digital virtual assistants is a good example to establish this interplay in the GenAI value chain. Both machine translation systems as well as virtual assistants use language models. In content moderation practices, it may be important to consider the accuracy of the content. 33 The data that the users input in Google translate enrich Google (as a company) to create better NLP-driven tools (such as virtual assistants). TDM is the tour de force that determines the rate, pace and direction of these GenAI models. TDM is subject to the relevant legal framework for copyright. Traditionally, a distinction was drawn between reading and copying. However, with the rise of the ‘reading robots’, namely Generative AI, this distinction between reading and copying blurs, as the output increasingly reflects the input. 34 Copyright protects an author’s original expression. It does not protect ideas. As per the scenes à faire doctrine, copyright does not protect ideas, facts or methods or elements therein. 35 In case an idea can be expressed in a limited number of ways, then it cannot benefit from copyright protection. When idea and expression merge into one such that it is nigh impossible to distinguish one from the other, it is referred to as the merger doctrine. 36 Learning from copyright-protected works, the output of a Generative AI tool may closely resemble, yet, be quite distinct in its own style and expressions. 37 While various waves of creative destruction—such as cable television, audio and video tapes and MP3 players—attracted and survived numerous copyright challenges, Generative AI seems closer in recent times to photocopying machines, as the latter too could not endure and eventually succumbed to copyright and licensing challenges. 38 The challenge of licensing content and remunerating the human author only amplifies with the rise of synthetic data. Before we turn to the two key copyright-related challenges discussed in this article, namely the remuneration of the human author and TDM exception, let us first add yet another emerging element, namely, synthetic data.

2.2 The rise of synthetic data and its interplay with GenAI

Large language models (LLMs) gouge on data. Data may be organically generated or (increasingly) also be generated synthetically. To understand the distinction, it may be useful to offer a working definition of synthetic data. Synthetic data may be defined as artificially generated data using real, organically generated data as input. This synthetic data ‘has the same statistical properties as the real data’. 39 Once a sufficient amount of data has been fed to the system to ascertain the style, mannerisms and pattern of a given author, it is possible to further synthetically generate works in their technique. Synthetic data is relatively easier to generate for creative works, as authors generally have a consistent style and rigour of writing. Their style may evolve over time; however, some elements remain individual and consistent to each author. These synthetic outputs may then be used to train the AI systems. In fact, it is expected that soon the use of synthetic data will surpass organically generated data. 40

The value of synthetic data can be gauged from the fact that if a computer scientist were to work with an original dataset and a synthetic dataset, they would, in both the cases, reach the same analytical findings and insights. 41 What factors have facilitated this transition from organic data to synthetic (an inorganic form of) data? It is the rapid uptake of computational abilities and the ever increasing storage possibilities that facilitate this transition. In addition, advanced and improved algorithms make systems increasingly less data dependent and more accurate. 42 Gupta et al., for example, generate a highly accurate ‘dataset, called “SynthText in the Wild” [that] is suitable for training high-performance scene text detectors’. 43 Synthetic data are increasingly ‘used to learn 44 generative models’. 45 Dosovitskiy et al. use synthetic images of chairs to train generative AI models on design considerations in furniture. 46

To train a model in a supervised learning environment, large amounts labelled as training data are required. 47 However, with the upcoming training models, such as the General Adversarial Network (GAN), unsupervised learning is a realistic alternative. GAN is an unsupervised language model that was developed by Ian Goodfellow, currently, working as a Research Scientist in lead of the AI projects at Google. GAN changes AI’s appetite for data as it focuses on unstructured learning, instead of the regular structured learning method. Unstructured learning is a close approximation of how an average human mind learns and imbibes information. 48 In a GAN model, the system is deliberately and actively fed with both good and bad data. Whereas the good data comprises of the correct information (also known as the generative neural network), the bad data (the discriminative neural network) creates the noise in the network. The resulting GAN model is a multi-task system that can perform a range of tasks with minimal amount of data. One sees that the two phenomena take place simultaneously—while systems become less data dependent, they are also starting to generate more (synthetic) data.

Overall, this uptake of synthetic data increasingly blurs the boundary ‘between true and false, real and imaginary’. 49 In case of deep fakes for instance, not all the data are organic. In fact, a substantial part of it is synthetic in nature. Variational autoencoders (VAE) are a good example to deconstruct the real and synthetic elements of data. VAEs, like GANs, ‘pair a differential network with a second neural network’. 50 In a typical VAE model, facial expressions are denoted as ‘mathematical representations of an image’. A live real time video is superimposed on a pre-selected targeted monocular video clip. These images are run in quick successions to ‘create a real time high-quality’ GenAI output, such as, a deepfake video. These works can be generated at reasonable costs and on a much larger scale. 51 The VAE models thus adds scalability to the production of AI-generated outputs.

This is but, one example of synthetic data. Synthetically generated data can be wide and diverse—ranging from datasets, images, to audio-visual works. 52 AlphaGo, trained and developed by Google’s DeepMind, is another interesting example of how synthetic data can be used not only to train an AI system, but also generate new insights. 53 The DeepMind algorithm was initially trained on real-world inputs—such as the rules of the game and the key strategic moves of renowned AlphaGo players. The algorithm was then put in a state of repeat simulation to repeatedly learn from and successively improvise these strategic movements. 54 The results of the training model were impressive. The trained model identified a blind spot—a simple, yet strategic move that had, for centuries, remained obscure from human oversight, and effortlessly defeated the best AlphaGo player. 55

Synthetic data not only effectively responds to the limitations of access to quality data and its analytics: it can also detect new data and output. The rise and widespread acceptance of synthetic data, thus, invariably touches upon various facets of law. 56 As synthetic data may comprise of both personal as well as non-personal information, it also touches upon data protection and privacy laws. Synthetic data, while different and artificially derived, ‘preserves the statistical properties’ 57 of the original dataset, and can be an important mechanism for data sharing, while complying with the personal data protection laws. 58 The 2016 EU General Data Protection Regulation (GDPR) offers protection and safeguards over personal data. As synthetic data may, at least in the earlier stages of generation, involve the processing of personal data, thus, ‘the right to rectification of data subject’ becomes relevant to the discussion at hand. 59 Article 16 GDPR offers data subjects the right to obtain ‘without undue delay… the rectification of inaccurate personal data’. Once generated with real-world data, synthetic data can also facilitate compliance with the GDPR. Synthetic data retains the value and the properties of the original data, without actually identifying the data subject. In light of this ‘technical and legal advantage of synthetic data’, it may be deemed the equivalent of a ‘rich, calorie-free cake’. 60 Such a data can also qualify as ‘pseudonymous data’. 61 Anonymized data can help comply with Article 29 of the Data Protection Working Party Opinion (and Recital 26) of the GDPR. 62 The said provisions suggest that an effectively anonymized information escapes ‘the principles of data protection’, as it no longer comprises of any personal data. For meaningful compliance with the GDPR, synthetic data can thus be used as an anonymization tool, as the addition of further information therein ‘may not pinpoint the data subject’ and thereby prevent the identification of the subject. 63 Thus, from the perspective of privacy and data protection laws, synthetic data helps compliance by anonymizing, and in certain situations, even de-biasing the real-world datasets. 64 Moreover, such assurances and results can be statistically tested and verified. 65

While, on the one hand, synthetic data may facilitate compliance with the GDPR, on the other, it may bring forth new challenges for copyright and related rights. The key issue here is how synthetic data may distance the ‘romanticised’ human author that sits at the core of copyright. ChatGPT, a large-scale language model based on GPT 3.5, for instance, uses large datasets, very high computational power and agile algorithms to extract valuable information from large amounts of data and produce complex works that mimic human-like works. 66 In the recently filed case by the Authors Guild, the Plaintiffs raise the question whether the use of copyright-protected works by these LLMs is a ‘systematic theft on a mass scale’. 67 OpenAI (with Microsoft as its key investor) has allegedly used a substantial amount of copyright-protected content without paying any licensing fees to the authors and other rightholders. 68 Thus, both the process of extracting information as well as the outputs generated therefrom raise copyright concerns. 69

2.3 GenAI, synthetic data & the need to remunerate the human author

Central to the entire value chain of Generative AI is the process of machine reading of large volume of data to discover patterns, generate new knowledge and extract insights. This process is referred to as TDM. It is debated whether the permission of authors and other rightholders permission is a pre-requisite to use their works for training these generative ML systems. 70 Common to all the ongoing lawsuits—over 16 in the USA and one in the UK—is the allegation that the defendants (be it OpenAI, Stability AI, Meta or GitHub) used publicly available works to train their GenAI models. 71 In the EU, the forthcoming AI Act may have some relevant provisions to address this issue. Based on inputs received from authors and the authors’ associations, the European Parliament has proposed amending Article 28 of the draft Act, requiring a detailed account on the use of training data used in training generative AI systems 72 In addition, the draft AI Act also contains safeguards for AI-generated content moderation (such as, for example, in relation to deep fakes). 73

The LLM models are trained on large datasets. The ‘ingestion and analysis of large “training” datasets’ helps these LLM detect and mimic human response. 74 As observed by the US Patent and Trademark Office (USPTO), ‘training invariably involves the reproduction of entire works or substantial portions [of the work] thereof’. 75 Use of protected works without permission, in the absence of any relevant exceptions and limitations (E&Ls), is copyright infringement. 76 When works are fed in the GenAI tools to generate new works, these outputs now increasingly reflect the input. 77 In the Authors Guild case, for instance, the Plaintiffs offer numerous instances of how ChatGPT used protected works as training material. This co-relation can be established by indicating the style of the works generated or the use of similar characters in a plot. 78 The outputs generated are indicative that copyright-protected or public domain works (as the case may be) have been used in training the model. 79 Certain aspects of these cases are covered, depending upon the nature of the undertaking, under Article 3 or Article 4 of the 2019 CDSM, discussed infra .

However, what happens when the Generative AI goes a step further, such that there is no longer any ‘direct resemblance to a specific pre-existing work?’ 80 This may, for example, be the case with outputs of algorithms that are trained on the above-referred synthetic data. This may increasingly and irreversibly distance the ‘works’ [traditionally copyright-protected] from the ‘romanticized human author’ [that sits at the core of copyright]. To address this ever increasing gap between human author and remuneration, timely and adequate remuneration of the human author must remain a pre-requisite. 81

Author remuneration must be kept into consideration to design a balanced TDM framework, one that preserves the human author’s incentives to create, while simultaneously ensuring an innovation framework for EU-based firms to engage in TDM. 82 To address this gap, among other commentators, Geiger and Iaia propose a ‘statutory license [fee] for machine learning processes’. This solution, if implemented, promises to offer a balancing framework to facilitate the development of the AI technology on the one hand and the rightful remuneration of the human author on the other. 83 With this foundational principle in sight—that also finds support in the EU’s Charter of Fundamental Rights 84 —let us next explore the process of TDM, and the legal framework that determines the permissibility of unlicensed TDM in the EU.

The entire value chain of GenAI is copyright-driven. 85 Consider for instance the input, that is the content, and datasets that are used to train these models. 86 Likewise, questions about the authorship of the AI-generated content are central to the GenAI debate. 87 While this article does not delve into detail on the issue of authorship of AI-generated works, it may nonetheless, for comprehensiveness, be vital to refer to Stephan Thaler’s invention, an algorithm called, ‘The Creative Machine’ that generated the work, ‘A Recent Entrance to Paradise’. Thaler’s multiple requests to register the work as ‘work for hire’ was refused by the US Copyright Office on the grounds that the doctrine of ‘work for hire’ was inapplicable for the lack of a human author. 88 The Copyright Office’s decision was upheld in entirety by the US District Court for District of Columbia on the grounds that ‘human involvement [is a] bedrock requirement for copyright protection’. 89 To address the issue of whether AI-based output with human creative contribution can be copyright-protected, Militsyna proposes a five-step test. 90 However, Militsyna too recognizes that the rise of artificial ‘general’ intelligence [the next step for Generative AI], and the increasing popularity of AIaaS (AI as a Service) may soon ‘give rise to a class of “authorless” output produced by distributed collective intelligence where no individual creative contribution is sufficient’ to get copyright protection. 91 Thus, the authorship of AI-Generated works may soon meet more complexities. This observation further emphasizes the need to remunerate the human author.

Data is the key to unlock the process of TDM. Data is the food that algorithms need to digest, and regurgitate in order to radiate some patterns and insights. While data per se is ‘not’ copyright-protected, it is the ‘creative form’, namely the ‘work’ that is protected by copyright. 92 Copyright-protected works are converted into a format that forms the basis of TDM. IP Rights (IPRs), notably copyright and database rights, thus, become central to the discussion. In the EU copyright debate, the distinction between ‘works as works’ and ‘works as data’ dates back to the early 2010s, when Borghi and Karapapa questioned the ‘de-intellectualized use’ of human intellect via ‘mass digitization projects, such as the Google Book Search [project]’. 93

In addition, the process of TDM is in a constant state of evolution. 94 Whereas the earlier process of TDM resulted in some patterns and insights, the Generative AI-driven TDM creates not only insights, but also, as discussed above, content and other innovative output. In the field of computational linguists, that is NLP, TDM is a substantial 25–30 per cent of the overall research project. 95 This TDM process generally passes through three steps—first, access to content; second, the extraction and/or copying of content and third, the mining of text and/or data and finally, deriving meaningful information therefrom. 96 The third step, namely, the mining of text and/or data to derive meaningful insights is where the actual TDM takes place. The first two steps that form the basis for this third step are the ones that principally revolve around infringement of copyright-protected content, and accordingly, we look at these first two steps in more detail below.

As regards the first step, namely access to content, content may be available either open source or it may be closed behind paid walls. Even when content is freely available, for example, as in case of the Creative Commons (CC) licences, it does not mean that the content can be mined freely and without any restrictions. A special licence may, nonetheless, be required to mine the content. 97 To mine the content for TDM, one may require a specific licence. 98 This implies that firms that own and/or create the LLM tools are required to ‘fairly license authors’ works for use in LLM training’. 99 In the EU, E&Ls in the 2001 InfoSoc Directive as well as in the 2019 CDSM require lawful access to content.

Following the availability of the content, the next step is mining that is the extraction and/or copying of the content. This is a step distinct from the availability of content, because access to content does not automatically imply the right to engage in TDM. What are the relevant E&Ls that allow TDM? Early on, there was a debate whether unlicensed TDM could be covered by some of the E&Ls available under Article 5 of the 2001 InfoSoc Directive. 100 Notable amongst them are the temporary copies exception (Article 5(1), InfoSoc Directive) and the scientific research exception (Article 5(3) (a), InfoSoc Directive). 101

Article 2 of the InfoSoc Directive harmonizes and offers a very broad scope for the right of reproduction. If offers an exclusive right to direct or indirect, temporary or permanent reproduction irrespective of the means and form to the rightholders. However, temporary acts of reproduction that meet conditions under Article 5(1) of the InfoSoc Directive can benefit from the exception. If the conditions under Article 5(1) are not met, this may then be an infringement of Article 2 of the InfoSoc Directive. 102 Thus, not only was this only mandatory E&L, ‘very limited in scope’, it could ‘hardly cover most TDM activities’, and it could not offer the requisite legal certainty to engage (or not engage) in TDM. 103 Likewise, the other relevant E&Ls such as the scientific research exception (under Article 5(2) (a), 2001 InfoSoc Directive) had limited efficacy and was optional in nature. This meant that not all the Member States offered the scientific research exception. Moreover, the exception was limited to non-commercial uses in teaching and scientific research only. 104

Considering that the foregoing E&Ls were insufficient to provide legal clarity, the 2019 Copyright in the Digital Single Market Directive (CDSM) introduced, in Title II: Measures to adapt E&L to the Digital and Cross-Border Environment, two E&Ls targeted specifically at TDM. Whereas Article 3 offers a mandatory E&L for TDM for scientific research by research organizations and cultural heritage institutions, Article 4 offers a general E&L, available for all, albeit with the possibility of a contractual opt-out. 105 Article 3 of the 2019 CDSM is a ‘very narrowly designed’ E&L, as it is targeted at only two categories of beneficiaries, namely research organizations and cultural heritage institutions. Moreover, Article 3 allows TDM only for the purposes of a targeted objective, namely, research by these limited class of beneficiaries in an institutional setting. 106

Thus, even though Articles 3 and 4 of the 2019 CDSM clarify the scope and permissibility of TDM, they offer this breathing space only to a certain extent. 107 The possibility of contractual opt-out under Article 4 brings back uncertainty as regards permissibility of TDM by commercial actors. Let us next explore the different elements of this uncertainty. According to the Database Directive, a database may be electronic or non-electronic, and may comprise of any collection of works, whether as text, data, sound, images or even numbers and facts. This offers the owner of the database a sui generis right as well as a copyright. In addition to the sui generis rights and copyright, the database owner may regulate the use by the licensee via contracts. These contracts are, in turn, governed by national laws. In addition, the press publishers right, under Article 15 of the 2019 CDSM Directive, may also limit the possibility of unhindered TDM. The possibility of a contractual opt-out under Article 4, 2019 CDSM thus remains the Achilles’ heel in the EU TDM framework. 108 Moreover, as Articles 3 and 4 only accommodate ‘extraction and reproduction’, it implies that ‘subsequent acts’ remain uncovered under the current E&L framework. 109 This may include instances whereby a lawfully trained GenAI model reproduces and/or communicates and makes available to the public third-party protected content. 110 Divergences may also emerge as Articles 3 and 4 will be applied by national courts following the national transposition of these provisions, considering that the EU directives do not have a horizontal direct effect. 111 All these issues merit urgent policy attention, as these may constitute a significant impediment to effective TDM by commercial players, which includes start-ups, big firms and small and medium enterprises (SMEs) alike. Why should this be a pressing concern for policy-makers? This is because, as is increasingly visible, research is not undertaken only by universities and research institutions. Notable disruptive digital innovations, in the recent times, have come from private players. The need for a more flexible TDM in the EU is further strengthened by the currently uneven global landscape of TDM, whereby the leading AI-driven jurisdictions such as USA and Japan offer a broader, and in certain cases, an open-ended E&L. Let’s next explore the TDM framework in the USA and Japan.

On the other side of the Atlantic, the TDM is assessed largely by the US courts—as ‘intermediate copying for non-expressive uses or under the fair use doctrine as bulk non-expressive copying’. 112 More recently, one sees a deluge of GenAI-related TDM copyright lawsuits in the USA. As of 22 January 2024, there were over 16 pending lawsuits in the USA alone. 113 These include 13 class action and 3 other lawsuits. 114 Notable amongst these are the lawsuits against Stable Diffusion, GitHub, OpenAI and Meta. 115 While this article does not aspire to summarize all these lawsuits, as it is topic of research within itself, it may, nonetheless, be relevant to share the key arguments of the plaintiffs and the court’s order(s), as available (as of 22 January 2024). It is useful to share a gist of the arguments in these ongoing lawsuits, as the outcome therein will determine the US approach to GenAI and thereby can have a substantial impact on the rate of innovation and the future of the GenAI-driven industry. It may, thus, be no exaggeration to compare the potential impact of the outcome in these lawsuits with the Google Books and HATHI Trust decisions. In a class action complaint against Meta (formerly, Facebook), Chabon et al. complain how Meta copied large datasets, including their works, to train its LLaMA, an autoregressive LLM, without seeking the Plaintiffs’ permission. 116 The class action, first amended complaint, requesting jury trial, filed by Joseph Saveri law firm against Github, Microsoft and OpenAI, likewise, establishes how, contrary to the Defendants’ claim that their AI-based support to software programmers, Codex and Copilot do not retain copies of the training material; Codex and Copilot’s output ‘is [in fact] often a neat-identical reproduction of the code from the training data’. 117 As the US courts are inundated with GenAI-related lawsuits on almost a daily basis, some of these cases have also received a quick (and not a particularly pro-Plaintiff) decision from the courts. The US District Court for the Northern District of California recently offered its decisions in Andersen v Stability AI and Kadrey v Meta. The Californian court dismissed Andersen and Kadrey’s complaint in entirety for lack of sufficient supporting evidence to substantiate a copyright infringement claim. 118 In Kadrey v Meta, the US District Court allowed Meta’s motion to dismiss ‘all the claims [with the exception of] unauthorized copying of the plaintiffs’ books for the purposes of training LLaMA [constituting] copyright infringement’. 119 The Court was, however, dismissive of the Plaintiff’s claim that ‘every output of LLaMA language models is an infringing derivative work’ as the Plaintiffs had failed to offer ‘contents of the output’ that convincingly established their theory of harm. 120 The decision is along the same lines of an earlier decision by the same court, whereby it granted the motion to dismiss in entirety, with the exception of ‘direct copyright infringement claim’ by Sarah Anderson against Stability. The Court therein also offered an opportunity to the Plaintiffs to serve an amended complaint. 121 Notably, the Court was dismissive of Plaintiff’s arguments that ‘all Output Images are derivative infringing works’ without offering a substantive basis therein. 122 Compared to these earlier (and currently pending) complaints, the New York Times’ (NYT) claim against OpenAI goes a step further, as it is clearer in its arguments, and offers many clear cut examples to substantiate its claims. In its 27 th December lawsuit against Microsoft and Open AI, the NYT alleges how ‘[the Defendants’] GenAI tools [that] rely on LLMs that were built by copying and using millions of the Times’ copyrighted news articles, in-depth investigations, opinion pieces, reviews, how-to-guides etc.’ . 123 As per NYT, not only does ChatGPT ‘copy, reproduce and paraphrase Times content without consent or compensation’, it also causes material harm to the reputation of NYT and its journalists by ‘hallucinating and misattributing content to The Times’ that it had never published. 124 NYT alleges that this ‘unauthorized copying’ of the works constitutes ‘substitutive use that is not justified by a transformative purpose [under the US fair use test]’. 125 NYT has requested a jury trial for the claims. 126

Common to the Google Books, HATHI Trust, and the recent GenAI cases is TDM. The extent, quantity and variety of IP-protected materials used to train these GenAI models, however, is a notable difference that distinguishes these GenAI cases from the earlier TDM cases. 127 In addition, the output produced by these Generative AI models may be a perfect substitute for ‘the training materials, at least for graphic works’. 128 As GenAI models start producing outputs that compete with human authors, the latter may suffer from ‘replacement effect’. 129 GenAI not only produces works that mimic the style of the human author, they also do so rapidly and at a more competitive rate. 130 A perusal of cases on the fair use doctrine suggests that the outcome in the above-referred GenAI cases may vary from case to case. This is in alignment with the common law approach of a case-by-case analysis. This is also an inherent flexibility in the US fair use test ‘whose scope and application evolve through case law’. 131 In Google/Oracle, whereby Google had copied 11 500 lines from Oracle’s Java computer programme, the majority opinion (6–2), written by Justice Breyer, held that Google’s use was transformative, and that Google had not infringed Oracle’s copyright. 132 It may be relevant to point out that the SCOTUS identified a ‘thin protection’ to code vis-à-vis other programmes or works, as the latter in the opinion of the court were ‘closer to the core of copyright’. 133 This is a nice and well-established distinction between computer programmes and other types of works. However, in its analysis, what SCOTUS did not evaluate was whether it was a case of, as Mossoff refers, ‘predatory’ or an ‘efficient’ infringement. 134 Other competitors in the market, such as Apple and Microsoft, chose not to copy Java’s declaring code, and instead, wrote their own code. 135 Google chose to engage in efficient infringement, as it could not negotiate a desired deal with Oracle in a timely manner. 136 Considering the short innovation cycles in digital markets, Google consciously chose infringement as a faster and more efficient route to commercially produce a successful smartphone platform. 137 The SCOTUS found this use non-infringing. If SCOTUS’s Google/Oracle ratio decidendi is followed in the pending GenAI cases, TDM might as well be seen as a transformative fair use. 138 Judge Leval’s ‘prescient’ suggestion ‘to make transformative use the predominant factor’ merits attention. 139 Sag goes a step further in the analysis and suggests that, in light of the idea/expression dichotomy, if ‘the original expression is not transmitted to a new audience’, then gathering of training data ‘is just as much as non-expressive use as were the uses in the reverse engineering cases, [such as] iParadigms, HathiTrust and Google Books ’. 140 Thus, in the opinion of the authors such as Carroll, Sag and Samuelson, GenAI’s TDM may in certain situations be deemed transformative. 141

Like the USA, Canada, Singapore and Japan too have taken a relatively liberal route to TDM. Notably, Japan, with its civil law tradition, may be closer to the EU’s droit d’auteur approach. Hence, a Japanese model may also be relatively easier to implement in the EU. The TDM exception in Japan is much broader than the EU’s TDM exception. 142 In the Japanese approach, a distinction is drawn between the use of works for enjoyment and the use of works for non-enjoyment purposes. 143 This distinction is then used as a basis to develop a more broadly worded exception for TDM. 144 Considering the close parallels between the Japanese copyright law (which in turn is largely inspired from the German Urheberrechtsgesetz , the German copyright law) and EU’s droit d’auteur tradition, Japan’s broadly worded and ‘dedicated TDM limitation for any purpose ’ has been identified as a potential proposal to broaden the currently restrictive TDM exception in the EU. 145

The above section elaborates on the distinction between the EU, the Japanese and the US approach to TDM. It may, in fact, be no exaggeration to suggest that the divergence between the two sides of the Atlantic is as wide as the Atlantic itself. In light of the potential of the TDM to offer an impetus to the much larger debate on competition and innovation in the digital economy, one wonders whether it may be important to conceive a more broadly worded E&L, whether generally or for TDM specifically, than the one offered by Articles 3 and 4, 2019 CDSM? It must also be questioned whether a restrictive approach to TDM may be in non-compliance with the three-step test, as referred to in Article 9(2) Berne Convention, Article 13 TRIPS (Trade-Related Aspects of Intellectual Property Rights) and Article 10 of the WCT (WIPO Copyright Treaty). 146 This three-step test is articulated under Article 5(5) of the 2001 InfoSoc Directive. As per article 7 of the 2019 CDSM Directive, the TDM exception (under Article 3 and Article 4) is further subject to the three-step test under Article 5(5) of the InfoSoc Directive. In the Infopaq case, the CJEU articulated that the E&Ls ‘must be interpreted in the light of Article 5(5) of the 2001 InfoSoc Directive’. In other words, E&Ls be available only in certain special cases (i) that does not conflict with the ‘normal exploitation’ of the work (ii) and that does not unreasonably prejudice the legitimate interests of the rightholder (iii). 147 The E&Ls must, in addition, offer ‘legal certainty’ to the authors and the users alike. 148 In other words, E&Ls must neither be so vaguely nor so broadly defined that they create uncertainty as regards the scope of protection of work.

To understand the scope and limitation of the three-step test, reference to the US Copyright Act case at the World Trade Organisation (WTO) is useful. Article 13 TRIPS (Trade-Related Aspects of Intellectual Property Rights) was put to the WTO Panel’s litmus test in ‘United States – Section 110(5) of the US Copyright Act’, whereby the European Community (since European Union) requested the panel to adjudicate the legality of the limitations in Section 110(5), US Copyright Act with the TRIPS and the Berne Convention. As per Section 110(5) (B), food, drinks and other smaller establishments could communicate radio and television broadcasts comprising of non-dramatic musical works, provided that the size of the establishment did not exceed the prescribed square footage limit. This was referred to as the so-called ‘business exemption’. The other exemption, namely the ‘home-style exemption’ under Section 110(5) (A), permitted public use of a radio or television, such as the one used in private residences. 149 The Panel found in favour of home-style exemption; however, the business exemption failed to meet the requirements of the three-step test. 150 The TRIPS three-step test is closely modelled along Article 9(2) of the Berne Convention. 151 As per the first step, namely ‘certain special cases’, a distinction was drawn between ‘certain’ and ‘special’. The expression was, thus, interpreted to mean ‘narrowness in scope and reach’. 152 The normal exploitation of the work offered ‘the Panel to factor into the equation both currently existing and potential future markets when determining a conflict with “a normal exploitation of the work” [and thereby] served as a vehicle to widen the perspective’. 153 As regards the third step, the prejudice to the legitimate interests was deemed ‘unreasonable’ when the E&L could limit the income of the copyright owner. 154 This solicits the question whether the large quantitative use of works for TDM can be challenged on the basis of step (1), namely narrowness in scope and reach. 155 If one were to look at scientific TDM (under Article 3, 2019 CDSM), then indeed this seems to be a special case, and TDM datasets are shared in a restrictive manner with a team of researchers dedicated to the project. 156 So far, at least, the third step, that is ‘no unreasonable prejudice to the rightholder’ requirement, was also met, as TDM did not quite lead to an erosion of the original market for publications. 157 However, the ability of the GenAI to create outputs that mimic, and may even outperform, the rate and quantity of human-generated works may, in my opinion, call for a re-think, especially in light of the third element in the three-step test. This may, likewise, also be seen as a window of opportunity to broaden the TDM exception.

In addition to the already restrictive nature of the TDM, as permitted under Articles 3 and 4 of the 2019 CDSM Directive, these exceptions are further subject to the limitations of Technological Protection Measures (TPM). Article 6 of the 2001 InfoSoc Directive mandates Member States to offer legal safeguards against the use of any device that circumvent the rightholders’ use of TPM to protect their content. The TDM continues to be subject to the provisions under Article 6(4) of the InfoSoc Directive. In other words, the rights of the user to benefit from exceptions and limitations too must be taken into account. 158 However, even this safeguard is not devoid of loopholes, as the provisions therein have neither been consistently adopted nor implemented across the EU Member States. 159

Moreover, Article 3(3), 2019 CDSM permits rightholders to use proportionate and reasonable security measures to maintain the ‘security and integrity of the networks and databases’. Recital 16 of the 2019 CDSM offers a safeguard that these protection measures should not be used as a cloak to undermine the effectiveness of the TDM exception. 160 Above, and beyond the above, lawful access to content remains a pre-requisite to benefit from the TDM exception in the EU. 161

Overall, all these nuances result in a complex framework for TDM in the EU. From the perspective of ease of doing business, this complexity may be deemed as an additional cost. For a small EU-based start-up, this may be too high an opportunity cost. This means that even though the current TDM exception may well meet the above-referred three-step test, there remains a possibility as well as an evident need to add more flexibilities to the TDM exception. In addition, the question emerges whether the case of Generative AI is different, and if so, can there be a more refined approach that better accommodates the interests of the rightholders?

4.1 What (new elements) does generative AI add to the TDM debate?

Marc Andreesen, the programmer of the first ever web browser, ‘Mosaic’, once famously said that ‘[the] software is eating the world’. 162 In case of Generative AI, it may be no exaggeration to add that Generative AI is eating the creativity of the world. The question, therefore, is whether something be done to avert this parasitic behaviour. Philosophical foundations of copyright and related rights affirmatively support the need to remunerate human authors. Generative AI systems, whether it’s OpenAI’s GPT-n or Google’s BARD, can generate human-like outputs, as they have had, thanks to TDM, an opportunity to ‘analyse human creations’. Therefore, this ‘parasitic usurpation of the market for literary and artistic productions’ by GenAI that created in them an ability to create means that the original, human author should be reasonably compensated for his works. 163 It is important to remunerate the authors whose works form the basis to train these AI models. What is copyright? Can it be seen in terms of a privilege? As Peukert argues, a privilege permits a third party to do something. The fact that unlike the earlier system, whereby a ruler, a monarch offered one such privilege, today it is offered by statue, a law. 164 How can this view benefit content creators? This view of copyright as a privilege will strengthen the authors’ bargaining position, as it will help them negotiate how their privileges (that is their works) are being exploited, and in turn, also proactively participate in, and contribute to ‘shape the ecosystem [that] they are [a] part of’. 165 From the perspective of works what this means is that once a sufficiently large number of original works have been fed into the GenAI systems, it will generate an output that can then form the basis for the further training of these AI systems. This, in other words, will work like a progressive loop, and the romanticized and celebrated human author that sits at the centre of copyright will be progressively driven away from the rightful fruits of their labour. As the human author is distanced from the value creation process, this will also impact their bargaining position vis-à-vis the producers and larger firms situated at various levels in the value chain. In addition, we also see the uptake of the phenomenon called synthetic data that further takes away the human author from the core of copyright (see supra   Section 2.2 for a discussion on the concept), and thereby strengthens this need and call for the remuneration of the author.

4.2 TDM & lawful access to content

As articulated early on by Ducato and Strowel, ‘the relationship between TDM and access to content is going to be a crucial knot to untangle [in AI]’. 166 If the recent ongoing cases in the USA are any indication, this has, in fact, emerged as the key issue in the legal discourse on GenAI. The Plaintiffs in the Authors Guild/Open AI case illustrate how ChatGPT (a technical equivalent of GPT 3.5) engages in ‘direct infringement’ of copyright-protected works, as OpenAI is ‘trained’ on ‘caches of pilfered copyrighted works’. 167

In the EU, access to lawful content is a pre-requisite to benefit from the TDM exceptions. Whereas EU’s licensing-driven approach may certainly lead to a fairer outcome for the romanticized human author, it must also be added that ‘the need to obtain individual authorizations and manage remuneration payments’ by the EU-based high-tech industries creates a substantial additional transaction cost. 168

An alternative and more efficient remedy could be a levy on these generative AI systems. 169 This levy system can, for example, be designed along the lines of Article 8(2) of the Rental and Lending Rights Directive that could ‘ensure a single equitable remuneration paid by the provider of generative AI system…… to foster and support human literary and artistic work’. 170 Frosio too generally supports the idea of a general levy, as proposed by Senftleben, Geiger & Iaia, at a more abstract level. However, Frosio further fine tunes the discussion on levies and, to offer one such normative basis, draws a distinction between inputs (for TDM purposes) and outputs (by GenAI tools). 171 The author suggests that statutory remuneration models may be designed along the lines of a private copying exception; however, this levy should be limited to the input level only. 172 This general payment of levy [irrespective of whether at the input, or whether both at the input as well as the output level] has the advantage that it not only sustains the attractiveness of the EU for tech companies by offering a standard and reasonable levy that is equally applicable to all the players; it can, in addition, also be easily implemented via the mandatory collective rights management system. 173

4.3 Proposal for an EU-driven TDM framework: a CFR-driven three-step test

For copyright to achieve its fundamental objective, that is enhance creativity, each new generation of authors and creators must enjoy similar freedom as their predecessors to use ‘pre-existing works as building blocks for new creations’. 174 Here, E&Ls have an important role to play in balancing the interests of users as well as rightholders. E&Ls were, as far back in 2004, recognized by the Canadian Supreme Court as an equivalent of user rights. 175 In the three joint decisions issued by the European Court of Justice (ECJ) on 21 July 2019, one hears a similar echo, as the ECJ states that E&Ls confer ‘“rights” on the users of works or of other subject matter’. 176

If there be a broader E&L, then what should be the design of such a framework? Should the scope of the broader E&L be confined only to TDM? As regards TDM, there has been a recurrent call for a broadly framed TDM in the EU, designed along, for example, the above—referred, Japanese concept of the [non] enjoyment of a work as under Article 30-4 of the Japanese Copyright Act.

This article, however, calls for an even more broadly (but well-defined) general E&L in the EU. Various copyright scholars have repeatedly called for a fair use-type doctrine in the EU. Hugenholtz, as far back in 1989, recommended a US-style fair use regime that ensures balance between copyright on the one hand and the freedom of information on the other. 177 The restrictive nature of E&Ls, and the broadly framed economic and moral rights, may inadvertently undermine the very fundamental freedom that copyright promises to protect. 178 At a judicial level, the Dior v. Evora decision by the Dutch Supreme Court in 1995, that pre-dates the above-referred decisions of the European Court of Justice, was a precursor to ‘open up the closed catalogue of exceptions’ in Dutch Copyright law. 179 Taking the Dior decision as a starting point, the Dutch Copyright Committee recommended that a US-inspired fair-use provision be included in the Dutch Copyright Act. 180 At the EU-level, the Dutch Government even called for an open-ended US-style fair use provision to complement the closed-ended exceptions and limitations in the pre-discussion on the Information Society Directive. 181 The three-step test was subsequently incorporated in the 2001 Information Society Directive, albeit in a sense and spirit that was in complete contradistinction to this request. The 2001 InfoSoc Directive, contrary to the Dutch proposal, comprises of closed-ended E&Ls that are further subject to the three-step test referred under Article 5(5) of the Directive. 182

Considering the indeterminate boundaries of innovation and creativity, the question is whether the time is now ripe to reflect and re-consider a broader and more general framework for E&L? This broadly framed E&L may not only take account of issues such as TDM, but also any further unanticipated demands of the digital economy. In general, the restricted and closed-ended nature of E&Ls has on several occasions restricted uses that may be neither excessive nor disproportionate in light of their contribution to follow-on creativity. Sampling of music is a case in point. In the classic Pelham case, 183 Sabrina Seltur’s use of a two-second sample from the Kraftwerk’s classic electric music work ‘Metall auf Metall’ led to a 20+ year-long dispute, and a preliminary reference to the CJEU. 184

Closed-ended exceptions and limitations offer a sense of legal certainty and, hence, also relatively less case law on E&Ls in the EU, vis-à-vis the cases that request clarity on fair use provisions in the USA. It may be true that legislative clarity offers legal certainty; however, this need not be the sole prerogative of the legislature. 185 As a matter of fact, the fair use criteria affords the judiciary an opportunity to develop a special situation and ‘particularize’ it and add an ‘element of certainty’ in the sense, purpose and effect of the three-step test. 186 This suggests how ‘fair use’ leverages on the common law system and develops in a judicial setting. 187 In a common law set-up, such as is the case in the USA, judges make decisions wherein the substantive decision comprises of two principle components, namely res judicata and obiter dicta . While a closed-ended framework undoubtedly offers certainty, the digital reality calls for flexibilities in the interpretation of the E&Ls. This can be explained on the grounds that technology is disruptive, and digital developments can follow an incalculable number of paths to development. An open and flexible E&L offers space and scope to accommodate these unpredictable paths treaded by innovation and creativity. In light of the digital disruption, many a jurisdictions, such as Singapore, Israel, Philippines and Taiwan, have recently ‘moved from a closed to an open-ended system of E&Ls’. 188 Fair dealing, for example, now harmoniously co-exists with the ‘newly’ introduced ‘fair use’ test in the 2021 Singapore Copyright Act. 189

What is the significance of E&Ls no longer being merely identified as exceptions and limitations? How does our perception and interpretation of these E&Ls as user rights alter the dynamic? Based on Wesley Hohfeld’s theory on jural correlatives, when E&Ls are identified as user rights, users of copyright-protected work become lawful users of the work. 190 Once users are identified as lawful users, their use of the protected work is no longer identified as an exception to an exclusive copyright; instead, they enjoy a right and have ‘correlative duties in a Hohfeldian sense’. 191 The most notable implication of this user right is that such a use is neither deemed as an exception to a right nor as an infringement. 192 The flexibilities inherent in copyright law not only effectively balance the authors’ and the users’ rights, they also offer a constructive environment to take the fundamental rights into account to offer a more balanced framework for copyright. In Pelham, Spiegel Online and Funke Medien NRW, three notable copyright decisions, all delivered on the same day in July 2019, the Court of Justice of the European Union read the limitations and exceptions in the InfoSoc Directive in light of the EU Charter of Fundamental Rights (CFRs). 193 Copyright scholars view this as a trend towards ‘constitutionalization of copyright’, as this offers an opportunity to more liberally interpret the E&Ls. 194 The task of constitutionalization, however, has only begun. One may either look at successively, and step-wise opening of the E&Ls, or alternatively, one may explore a more general and broadly framed E&L. This broader E&L may be similar in approach to the USA’s fair use standard. It must, however, be grounded in the EU’s balancing framework that is rooted in the CFRs. 195 It is only if this balance is achieved that the evolved framework can offer a meaningful and sufficiently determinate E&L—one that offers legal certainty, while retaining its flexibility, and one that meets the requirements of the disruptive and ever evolving dynamic digital world.

The uptake of GenAI will become more and more mainstream as online services start offering AIaaS. This will give way to smaller, localized and more personalized GenAI models that better align with individual requirements. 196 This means that it is a matter of time that the use case and application of GenAI becomes more widespread. It is well-established that data is not copyright-protected. However, works that contain this data that the AI devours on are copyright-protected.

In the USA, against the backdrop of the ongoing AI-related lawsuits, there is an animated debate whether a pro-plaintiff decision can ‘trigger [an] “innovation arbitrage”, causing developers of generative AI systems… [to migrate to jurisdictions]… that regard the ingestion of copyrighted works as training data as fair use…’? 197 The question in the EU is whether the limited availability of Article 3 and the possibility to opt-out under Article 4, 2019 CDSM put the EU’s AI sector at a ‘strategic disadvantage’. 198

Against the foregoing normative discussion and policy considerations, this research article explored whether the current framework is robust enough to facilitate meaningful TDM in the EU? As it emerges, the current framework has its limitations, such as restrictive class of beneficiaries, the possibility to contractually opt-out and the use of TPMs. This article, accordingly, explores the possibility of a more broadly framed EU-driven open-ended fair-use exception.

As is well-recognized in the German innovation literature, exclusivity for the exploitation of IP is not the sole reason for the grant of such rights. 199 These proprietary IPRs are, in fact, a means to an end. 200 This end objective does not commence at the end of the protection period. It commences with the onset of the proprietary period of protection. This observation, while generally true across the entire spectrum of copyright and related rights, becomes even more prominent in the context of an AI-driven economy. Over a period of time, the extent, scope, duration and even the types of protection have been extended in EU copyright law. This scope of protection is expected to supplement the larger industrial innovation policy objective, which is to further creativity and innovation in the internal market. By extending one branch (exclusive rights) and keeping the other branch short (namely, the branch of exceptions and limitations), the tree looks somewhat imbalanced. For a well-balanced and positive result, the two sides need to be looked upon as equals and must develop uniformly. While we have extended the size of the room that is the scope of protection, we are yet to expand the size of the windows and doors that let the fresh breeze of creativity in this concentrated room, which is crowded with a handful of global digital players. This is where a liberal, user-rights centric and perhaps even an open-ended E&L comes into play. This is an important balancing framework and flexibility available in copyright law itself. Oftentimes, competition law is seen a key enabler of contestable markets. While it is true that competition can enable contestable markets, one should, however, not lose sight of flexibilities available in IP law in general and copyright in particular to ensure a balanced framework for innovation and creativity. Transaction cost economics calls for efficient policy recommendations that can be implemented with agility and efficiency. This research contribution calls for one such recommendation for TDM to foster innovation in the EU.

The work is author’s research output. The author is sincerely thankful to Professor Eleonora Rosati, Dr Luca Schirru, Professor Sabine Jacques, Professor João Pedro Quintais, Sarah Moran and Sarah Harris for their kind inputs and suggestions on this research article, and the blog on the topic, available here: https://copyrightblog.kluweriplaw.com/2023/12/13/generative-ai-remunerating-the-human-author-the-limits-of-a-narrow-tdm-exception/ . The author would also like to express her sincere gratitude to Professor Martin Senftleben whose feedback on author’s research on digital music sampling and AI-generated music at ATRIP 2021 Congress forms the inspiration and the basis of this research article.

In this article, the term Generative AI, GenAI and ChatGPT have been used interchangeably. Thus, unless otherwise stated, the said expressions refer to context dependent, bidirectional and new generation advanced Generative AI models that can contextualize words. This concept is further developed in Section 2   infra .

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Massililiano Palmiero ‘The relationships between abstraction and creativity’ Creativity and the Wandering Mind: Spontaneous and Controlled Cognition (2020), 73–90. Available at https://www.sciencedirect.com/science/article/abs/pii/B9780128164006000043 (accessed 31 January 2024).

Ben Lutkevich (2023) ‘AI hallucination’ WhatIS.com. Available at https://www.techtarget.com/whatis/definition/AI-hallucination (accessed 31 January 2024).

For a discussion, and some interesting examples, see Łukasz Białozor (15 June 2023) ‘Hallucinations of ChatGPT-4: Even the most powerful tool has a weakness’ Flyingbisons. Available at https://flyingbisons.com/blog/hallucinations-of-chatgpt-4-even-the-most-powerful-tool-has-a-weakness (accessed 31 January 2024).

Tim Keary (2023) ‘AI Hallucination’ Techopedia. Available at https://www.techopedia.com/definition/ai-hallucination (accessed 31 January 2024).

Vipula Rawte et al. (2023) ‘A Survey of Hallucination in Large Foundation Models’ Available at https://arxiv.org/abs/2309.05922 (accessed 31 January 2024).

Danah Boyd,‘Facebook’s privacy trainwreck: Exposure, Invasion and Social Convergence’ (2008) 14 Convergence 13–20.

Regina Ta and Nicol Turner Lee (October 2023) ‘How language gaps constrain generative AI development’ Brookings. Available at https://www.brookings.edu/articles/how-language-gaps-constrain-generative-ai-development/ (accessed 31 January 2024).

Danielle K Citron How to Fix Section 230 (Boston Law Review 2023) (forthcoming).

Sylvie Delacroix, ‘Data rivers? Re-balancing the data ecosystem that makes Generative AI possible’, 4.

See for example the Plaintiff’s claim in Authors Guild v. OpenAI.

Pamela Samuelson, ‘Generative AI meets copyright: Ongoing lawsuits could affect everyone who uses generative’ (2023) 381 AI Science 158–59.

Kaled El Emam (2020) Accelerating AI with Synthetic Data: Generating Data for AI Projects, Nvidia Report, 2.

Kaled El Emam (2020) Accelerating AI with Synthetic Data: Generating Data for AI Projects, Nvidia Report.

Ankush Gupta et al. ‘Synthetic Data for Text Localisation in Natural Images’.

Ankush Gupta et al. ‘Synthetic Data for Text Localisation in Natural Images’, 2315.

The authors here use the word ‘learn’ to mean teach or train the generative models.

Ankush Gupta et al. ‘Synthetic Data for Text Localisation in Natural Images’, 2316.

A Dosovitskiy and T BRox (2016) ‘Inverting visual representations with convolutional networks’In Proc. CVPR as referred in Ankush Gupta, Andrea Vedaldi and Andrew Zisserman ‘Synthetic Data for Text Localisation in Natural Images’, 2316.

Abid Ali Awan (July 2023) ‘What is Labeled Data?’ Datacamp. Available at https://www.datacamp.com/blog/what-is-labeled-data (accessed 31 January 2024).

Ian Goodfellow (2016) NIPS 2016 Tutorial: General Adversarial Networks pp. 8–16. Available at https://arxiv.org/pdf/1701.00160.pdf (accessed 31 January 2024).

Kalpana Tyagi ‘Deepfakes, Copyright and Personality Rights: An Inter-disciplinary Perspective’ in Klaus Mathias and Avilasham Tor (eds) Law and Economics of the Digital Transformation (Economic Analysis of Law in European Legal Scholarship 15, Springer, Switzerland, 2023) 191. Available at https://www.researchgate.net/publication/359711219_Deepfakes_Copyright_Personality_Rights_An_inter-disciplinary_perspective (accessed 31 January 2024).

Ian J Goodfellow et al. (2014) ‘General Adversarial Nets’ p.2 Advances in neural information processing systems 27. Available at https://proceedings.neurips.cc/paper_files/paper/2014/file/5ca3e9b122f61f8f06494c97b1afccf3-Paper.pdf (accessed 31 January 2024).

Kalpana Tyagi ‘Deepfakes, Copyright and Personality Rights: An Inter-disciplinary Perspective’ in Klaus Mathias and Avilasham Tor (eds) Law and Economics of the Digital Transformation (Economic Analysis of Law in European Legal Scholarship 15, Springer Switzerland, 2023) 193–94. Accessed on 31st January 2024.

Michal S Gal and Orla Lynskey, ‘Synthetic Data: Legal Implications of the Data-Generation Revolution’ LSE Law, Society and Economy Working Papers 6/2023 [forthcoming in Iowa Law Review 109 (2023)], 6.

Michal S Gal and Orla Lynskey, ‘Synthetic Data: Legal Implications of the Data-Generation Revolution’ LSE Law, Society and Economy Working Papers 6/2023 [forthcoming in Iowa Law Review 109 (2023)], 11.

Michal S Gal and Orla Lynskey, ‘Synthetic Data: Legal Implications of the Data-Generation Revolution’ LSE Law, Society and Economy Working Papers 6/2023 [forthcoming in Iowa Law Review 109 (2023)], 11–12.

For a detailed implications of synthetic data for competition policy, see Michal S Gal and Orla Lynskey, ‘Synthetic Data: Legal Implications of the Data-Generation Revolution’ LSE Law, Society and Economy Working Papers 6/2023 [forthcoming in Iowa Law Review 109 (2023)].

Mike Hintze and Khaled El Emam (2020) ‘Can synthetic data help organizations respond to “Schrems II”’? The International Association of Privacy Professionals (IAPP). Available at https://iapp.org/news/a/can-synthetic-data-help-organizations-respond-to-schrems-ii/ (accessed 31 January 2024).

César Augusto Fontanillo López and Abdullah Elbi (September 2022) ‘On synthetic data: a brief introduction for data protection law dummies’ European Law Blogpost 39/2022 (1). Available at https://europeanlawblog.eu/2022/09/22/on-synthetic-data-a-brief-introduction-for-data-protection-law-dummies/ (accessed 31 January 2024). See also Robert Riemaan, Synthetic Data European Data Protection Supervisor. Available at https://edps.europa.eu/press-publications/publications/techsonar/synthetic-data_en (accessed 31 January 2024).

Kirsten Ammon (2023) ‘Generative AI, Bias, Hallucinations and GDPR’ Fieldfisher Insights . Available at https://www.fieldfisher.com/en/insights/generative-ai-bias-hallucinations-and-gdpr (accessed 31 January 2024).

César Augusto Fontanillo López and Abdullah Elbi (September 2022) ‘On synthetic data: a brief introduction for data protection law dummies’ European Law Blogpost 39/2022 (1). Available at https://europeanlawblog.eu/2022/09/22/on-synthetic-data-a-brief-introduction-for-data-protection-law-dummies/ (accessed 31 January 2024).

Hao Yu (1 June 2023) ‘Reflection on whether ChatGPT should be banned by academia from the perspective of education and teaching’ Frontiers in Psychology , 3. Available at https://doi.org/10.3389/fpsyg.2023.1181712 (accessed 31 January 2024).

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at paras 1–2.

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at para 4.

Alain Strowel (2023) ‘ChatGPT and Generative AI Tool: Theft of Intellectual Labour?’ IIC , 492.

Paul Keller (20 February 2023) ‘Protecting creatives or impeding progress? Machine learning and the EU copyright framework’ Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/02/20/protecting-creatives-or-impeding-progress-machine-learning-and-the-eu-copyright-framework/ (accessed 31 January 2024).

See discussion in Section 3 .

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR p. 12.

João Pedro Quintais (9 May 2023) ‘Generative AI, Copyright and the AI Act’ Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/05/09/generative-ai-copyright-and-the-ai-act/ (accessed 31 January 2024).

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at para 55.

See reference to USPTO in Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at para 58.

Andreas Guadamuz, ‘A scanner darkly: copyright liability and exceptions in artificial intelligence inputs and outputs’ (2024) 73 GRUR International 6–7. https://doi.org/10.1093/grurint/ikad140 .

See discussion in Section 3   infra for an indicative account of these assertions by Plaintiffs in the ongoing GenAI cases.

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292.

Paul Keller and Zuzanna Warso (September 2023) ‘Defining Best Practices for Opting out of ML Training’ Open Future Policy Brief # 5. Available at https://openfuture.eu/wp-content/uploads/2023/09/Best-_practices_for_optout_ML_training.pdf (accessed 31 January 2024).

Christophe Geiger and Vincenzo Iaia, ‘The Forgotten Creator: Towards a Statutory Remuneration Right for Machine Learning of Generative AI’ (2024) 52 Computer Law & Security Review 105925. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4594873 (accessed 31 January 2024).

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR .

Christophe Geiger and Vincenzo Iaia (17 October 2023) ‘Generative AI, Digital Constitutionalism and Copyright: Towards a Statutory Remuneration Right Grounded in Fundamental Rights—Part 1’ Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/10/17/generative-ai-digital-constitutionalism-and-copyright-towards-a-statutory-remuneration-right-grounded-in-fundamental-rights-part-1/ (accessed 31 January 2024).

See generally Impact of Technology Deep Dive Report I European Union Intellectual Property Office (EUIPO) (2022) Study on the impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs.

Daniel Gervais (11 September 2023) ‘Checklist of Issues on Generative IP’ Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/09/11/checklist-of-issues-on-generative-ip/ (accessed 31 January 2024).

See for example , US Copyright Office’s refusal to register an AI-generated two-dimensional work titles, ‘A Recent Entrance to Paradise’ US Copyright Review Board (February 2022). Available at https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (accessed 31 January 2024).; Matt Hervey (2 February 2023) AI and Copyright in 2022, Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/02/02/ai-and-copyright-in-2022/ (accessed 31 January 2024).

Eleonora Rosati, US Copyright Office refuses to register AI-generated work, finding that ‘human authorship is a prerequisite to copyright protection’ (17 February 2022) The IP Kat. Available at https://ipkitten.blogspot.com/2022/02/us-copyright-office-refuses-to-register.html (accessed 31 January 2024).

Thaler v. Perlmutter (18 August 2023) Case No. 1:22-cv-01564-BAH US District Court for District of Columbia.

Kateryna Militsyna, ‘Human Creative Contribution to AI-Based Output—One Just Can(‘t) Get Enough’ (2023) 72 GRUR International 939–49.

See reference to PB Hugenholtz (1989) Auteursrecht op informatie , Kluwer, Deventer as discussed in Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko, ‘Text and Data Mining: Articles 3 and 4 of the Directive 2019/790/EU’, 6.

See reference to M Borghi and S Karapapa, ‘Non-display Uses of Copyright Works: Google Books and Beyond’ (2011) 21 Queen Mary Journal of Intellectual Property 21–52 in Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR , 8.

Eleonora Rosati (2018) ‘Briefing: The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market – Technical Aspects’, 2.

Eleonora Rosati (2018) ‘Briefing: The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market – Technical Aspects’, 4.

Luca Schirru and Thomas Margoni (22 August 2023) ‘Arts 3 and 4 of the CDSM Directive as regulatory interfaces: Shaping contractual practices in the Commercial Scientific Publishing and Stock Images sectors’ Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/08/22/arts-3-and-4-of-the-cdsm-directive-as-regulatory-interfaces-shaping-contractual-practices-in-the-commercial-scientific-publishing-and-stock-images-sectors/ (accessed 31 January 2024).

Michael W Carroll (2019) ‘Copyright and the Progress of Science: Why Text and Data Mining Is Lawful’ University of California, Davis 903–905.

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at para 126.

Christophe Geiger et al., ‘Text and Data Mining in the Proposed Copyright Reform: Making the EU Ready for an Age of Big Data? Legal Analysis and Policy Recommendations’ (2018) 49 IIC-International Review of Intellectual Property and Competition Law 814–44; Eleonora Rosati, ‘Copyright as an Obstacle or an Enabler? A European Perspective on Text and Data Mining and Its Role in the Development of AI Creativity’ (2020) 27 Asia Pacific Law Review 198–217.

Christophe Geiger et al., ‘Text and Data Mining in the Proposed Copyright Reform: Making the EU Ready for an Age of Big Data? Legal Analysis and Policy Recommendations’ (2018) 49 IIC-International Review of Intellectual Property and Competition Law 814–44.

C-5/08 Infopaq International A/S v Danske Dagblades Forening , at paras 54–55.

Christophe Geiger et al., ‘Text and Data Mining: Articles 3 and 4 of the Directive 2019/790/EU’, 13.

Articles 3, 4 and 7 of the 2019 CDSM.

Rossana Ducato and Alain Strowel, ‘Ensuring Text and Data Mining: Remaining Issues with the EU Copyright Exceptions and Possible Ways Out’ (2021) 43 European Intellectual Property Review 322–337. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3278901 , 11.

Luca Schirru and Thomas Margoni (22 August 2023) ‘Arts 3 and 4 of the CDSM Directive as regulatory interfaces: Shaping contractual practices in the Commercial Scientific Publishing and Stock Images sectors’- Kluwer Copyright Blog . Available at https://copyrightblog.kluweriplaw.com/2023/08/22/arts-3-and-4-of-the-cdsm-directive-as-regulatory-interfaces-shaping-contractual-practices-in-the-commercial-scientific-publishing-and-stock-images-sectors/ (accessed 31 January 2024). The said study explores how Articles 3 and 4 influenced the contractual relationship for licensing of works as training data. The authors identify that even with regard to Article 3, the publishing industry has adopted a more restricted approach then the one permitted by the provisions of the said article.

Paul Keller and Dr Zuzanna Warso (September 2023) ‘Defining Best Practices for Opting out of ML Training’ Open Future Policy Brief # 5. Available at https://openfuture.eu/wp-content/uploads/2023/09/Best-_practices_for_optout_ML_training.pdf (accessed 31 January 2024).

Eleonora Rosati (2023, forthcoming) ‘No step-free copyright exceptions: The roles of the three-step in defining permitted uses of protected content (including TDM for AI-training purposes)’, 16 European Intellectual Property Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4629528 (accessed 31 January 2024).

Sylvie Delacroix, ‘Data rivers? Re-balancing the data ecosystem that makes Generative AI possible’, 9. See also the references therein.

Lawsuits v. AI: The Trial of AI (22 January 2024) ChatGPT is Eating the World. Available at https://chatgptiseatingtheworld.com/2023/12/27/master-list-of-lawsuits-v-ai-chatgpt-openai-microsoft-meta-midjourney-other-ai-cos/ .

Christopher J Valente et al. (5 September 2023) ‘Recent trends in Generative Artificial Intelligence Litigation in the United States’ K&L Gate Hub. Available at https://www.klgates.com/Recent-Trends-in-Generative-Artificial-Intelligence-Litigation-in-the-United-States-9-5-2023 (accessed 31 January 2024).

Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder and Ayelet Waldman v. Meta Platforms Inc., Case 3:23-cv-04663 (9 December 2023) United States District Court Northern District of California—San Francisco Division, at paras 55–58.

Joseph Saveri Law Firm v. Github Inc., Microsoft Corporation and Open AI Case No. 4:22-cv-o6823-JST and 4:22-cv-07074-JST (21 July 2023) United States District Court Northern District of California Oakland Division, para 50, 17.

Maxime Jarquin et al. (26 January 2024) ‘Generating Litigation: N.D. Cal. Dismisses Some Copyright Claims in Andersen and Kadrey AI Cases’ Finnegan Incontestable Blog . Available at https://www.finnegan.com/en/insights/blogs/incontestable/generating-litigation-nd-cal-dismisses-some-copyright-claims-in-andersen-and-kadrey-ai-cases.html (accessed 31 January 2024).

Richard Kadrey v. Meta Platforms, 23-cv-03417-VC (20 November 2023) United States District Court Northern District of California. Available at https://casetext.com/case/kadrey-v-meta-platforms-inc (accessed 31 January 2024).

Sarah Andersen v. Stability AI Ltd (30 October 2023) United States District Court, Northern District of California, available here: 23-cv-00201-WHO. Available at https://casetext.com/case/andersen-v-stability-ai-ltd (accessed 31 January 2024).

The New York Times Company v. Microsoft Corporate et al Case 1:23-cv-11195 (27 December 2023) United States District Court of New York p. 2, para 2.

The New York Times Company v. Microsoft Corporate et al Case 1:23-cv-11195 (27 December 2023) United States District Court of New York pp. 51–52, paras 134–136.

The New York Times Company v. Microsoft Corporate et al Case 1:23-cv-11195 (27 December 2023) United States District Court of New York p. 59, para 155.

The New York Times Company v. Microsoft Corporate et al Case 1:23-cv-11195 (27 December 2023), 68.

Alain Strowel (2023) ‘ChatGPT and Generative AI Tool: Theft of Intellectual Labour?’ IIC 493.

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR 1.

W Patry ‘ Andy Warhol Foundation for the Visual Arts, Inc. v Goldsmith : did the U.S. Supreme Court tighten up fair use?’ (2023) 18 Journal of Intellectual Property Law & Practice 628 as discussed in Eleonora Rosati (2023, forthcoming) ‘No step-free copyright exceptions: The roles of the three-step in defining permitted uses of protected content (including TDM for AI-training purposes)’ European Intellectual Property Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4629528 (accessed 31 January 2024).

Google v. Oracle 141 S. Ct. 1183 (2021).

Google v. Oracle 141 S. Ct. 1183 (2021), at paras 1197–1202.

Adam Mossoff, ‘Declaring Computer Code Uncopyrightable with a Creative Fair Use Analysis’ (2020–2021) 20 Cato Supreme Court Review 256.

Michael W Carroll (2019) ‘Copyright and the Progress of Science: Why Text and Data Mining Is Lawful’ University of California, Davis .

Pierre Leval ‘Towards a Fair Use Standard’ (1990) 103 Harvard Law Review 1105. Available at https://www.jstor.org/stable/1341457 also discussed in Matthew Sag (2024, forthcoming) ‘Fairness and Fair Use in Generative AI’ Fordham Law Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4654875 (accessed 31 January 2024).

Matthew Sag (2024, forthcoming) ‘Fairness and Fair Use in Generative AI’ Fordham Law Review 24. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4654875 .

Matthew Sag (2024, forthcoming) ‘Fairness and Fair Use in Generative AI’ Fordham Law Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4654875 (accessed 31 January 2024).; Michael W Carroll (2019) ‘Copyright and the Progress of Science: Why Text and Data Mining Is Lawful’ University of California, Davis and Pamela Samuelson (2024, forthcoming) ‘Fair Use Defences in Distruptive Technology Cases’ UCLA Law Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4631726 (accessed 31 January 2024).

Tatsuhiro Ueno, ‘The Flexible Copyright Exception for “Non-Enjoyment” Purposes – Recent Amendment in Japan and Its Implication’ (2021) 70 GRUR International 145–52.

Tatsuhiro Ueno, ‘The Flexible Copyright Exception for “Non-Enjoyment” Purposes – Recent Amendment in Japan and Its Implication’ (2021) 70 GRUR International 145–52. Available at https://academic.oup.com/grurint/article-abstract/70/2/145/6102831 (accessed 31 January 2024).; See also Tatsuhiro Ueno (2021) Big Data in Japan: Copyright, trade secret and new regime in 2018.

Cf Thomas Margoni and Martin Kretschmer, ‘A Deeper Look into the EU Text and Data Mining Exceptions Harmonisation, Data Ownership, and the Future of Technology’ (2022) 71 GRUR International 685–701. Available at https://doi.org/10.1093/grurint/ikac054 (accessed 31 January 2024). and Tatsuhiro Ueno, ‘The Flexible Copyright Exception for “Non-Enjoyment” Purposes – Recent Amendment in Japan and Its Implication’ (2021) 70 GRUR International 145–52. Available at https://academic.oup.com/grurint/article-abstract/70/2/145/6102831 (accessed 31 January 2024).

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 2–3.

C-5/08 Infopaq International A/S v Danske Dagblades Forening , at para 58.

C-5/08 Infopaq International A/S v Danske Dagblades Forening , at para 59.

Martin Senftleben, ‘Towards a Horizontal Standard for Limiting Intellectual Property Rights? – WTO Panel Reports Shed Light on the Three-Step Test in Copyright Law and Related Tests in Patent and Trademark Law’ (2006) 37 International Review of Intellectual Property and Competition Law 408–10.

WTO Document WT/DS160/R.

Martin Senftleben, ‘Towards a Horizontal Standard for Limiting Intellectual Property Rights? – WTO Panel Reports Shed Light on the Three-Step Test in Copyright Law and Related Tests in Patent and Trademark Law’ (2006) 37 International Review of Intellectual Property and Competition Law 412.

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 3.

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 4–5.

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 5.

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 5–6.

Martin Senftleben, ‘Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?’ 6.

Rossana Ducato and Alain Strowel, ‘Ensuring Text and Data Mining: Remaining Issues with the EU Copyright Exceptions and Possible Ways Out’ (2021) 43 European Intellectual Property Review 322–37. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3278901 (accessed 31 January 2024), 16.

Rossana Ducato and Alain Strowel ‘Ensuring Text and Data Mining: Remaining Issues with the EU Copyright Exceptions and Possible Ways Out’ (2021) 43 European Intellectual Property Review 322–337. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3278901 (accessed 31 January 2024), 16–17.

Rossana Ducato and Alain Strowel ‘Ensuring Text and Data Mining: Remaining Issues with the EU Copyright Exceptions and Possible Ways Out’ (2021) 43 European Intellectual Property Review 322–337. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3278901 (accessed 31 January 2024), 17.

Cf Recitals 17 and 18, 2019 CDSM.

Marc Andreesen (20 August 2011) ‘Why Software Is Eating the World’ Andreesen Horowitz . Available at https://a16z.com/why-software-is-eating-the-world/ (accessed 31 January 2024).

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR 3–5.

See Peukert (2021) p. 149 as referred in Sylvie Delacroix, ‘Data rivers? Re-balancing the data ecosystem that makes Generative AI possible’, 14.

Sylvie Delacroix, ‘Data rivers? Re-balancing the data ecosystem that makes Generative AI possible’, 19.

Rossana Ducato and Alain Strowel ‘Ensuring Text and Data Mining: Remaining Issues with the EU Copyright Exceptions and Possible Ways Out’ (2021) 43 European Intellectual Property Review 322–337. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3278901 , 19. Accessed on 31st January 2024.

Authors Guild v. Open AI (Complaint filed on 19 September 2023) No. 1:23-cv-8292, at para 339.

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR 13.

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR 14. See also the references therein.

Giancarlo Frosio (2024, forthcoming) ‘Should we ban Generative AI, Incentivise it or Make it a medium for inclusive creativity?’ 18 usw in Enrico Bonadio and Caterina Sganga (eds) A Research Agenda for EU Copyright Law (Edward Elgar). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4527461 (accessed 31 January 2024).

Martin Senftleben, ‘Generative AI and Author Remuneration’ IVIR 20–21.

Martin RF Senftleben, ‘Quotations, Parody and Fair Use’, 346. See also the references therein.

CCH Canadian Ltd v. Law Society of Upper Canada 2004 SC 14 (CCH) as discussed in Stavroula Karapapa ‘The quotation exception under EU copyright law: Paving the way for user rights’ in E Rosati (ed) The Routledge Handbook of EU Copyright Law (Routledge London and New York 2021) 4.

Funke Medien, at para 70 and Spiegel Online, at para 54 as discussed in Stavroula Karapapa ‘The quotation exception under EU copyright law: Paving the way for user rights’ in E Rosati (ed) The Routledge Handbook of EU Copyright Law (Routledge London and New York 2021) 4.

Hugenholtz, Auteursrecht op informatie as referred in Martin RF Senftleben, ‘Quotations, Parody and Fair Use’ 374.

P Bernt Hugenholtz and Martin RF Senftleben, ‘Fair Use in Europe. In Search of Flexibilities’ IVIR , 6–7.

For a discussion, see referred in Martin RF Senftleben, Quotations, Parody and Fair Use’, 369.

Thomas Dreier, ‘The CJEU, EU Fundamental Rights and the Limitations of Copyright’ (2020) 69 GRUR International 223–4. Available at https://doi-org.ezproxy.ub.unimaas.nl/10.1093/grurint/ikz022 (accessed 31 January 2024).

Martin RF Senftleben, Quotations, Parody and Fair Use, 375. See also the references therein.

C-5/08 Infopaq International A/S v Danske Dagblades Forening .

Case C-476/17, Pelham GmbH v. Hütter.

For a discussion of the case, and the need for a more broadly framed mandatory exception for de minimis use, see Kalpana Tyagi ‘Sampling the ‘soul of music’ in a post-Pelham world: An Inter-disciplinary perspective’ in Schovsbo (ed) The Exploitation of Intellectual Property Rights: In Search of the Right Balance (Edward Elgar Cheltenham 2023).

Martin Senftleben, ‘The International Three-Step Test: A Model Provision for EC Fair Use Legislation’ (2010) 1 Journal of Intellectual Property, Information Technology and Electronic Commerce Law 67, para 67 at pp.76–77.

Eleonora Rosati (2023, forthcoming) ‘No step-free copyright exceptions: The roles of the three-step in defining permitted uses of protected content (including TDM for AI-training purposes)’ 14 European Intellectual Property Review . Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4629528 (accessed 31 January 2024).

Wesley N Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal as referred in Stavroula Karapapa ‘The quotation exception under EU copyright law: Paving the way for user rights’ in E Rosati (ed) The Routledge Handbook of EU Copyright Law (Routledge London and New York 2021) 27.

David Vaver, ‘Copyright Defences as User Rights’ (2013) 60 Journal of the Copyright Society of the USA 661 as referred in Stavroula Karapapa ‘The quotation exception under EU copyright law: Paving the way for user rights’ in E Rosati (ed) The Routledge Handbook of EU Copyright Law (Routledge London and New York 2021) 27.

Thomas Dreier, ‘The CJEU, EU Fundamental Rights and the Limitations of Copyright’ (2020) 69 GRUR International 223–224. Available at https://doi-org.ezproxy.ub.unimaas.nl/10.1093/grurint/ikz022 (accessed 31 January 2024).

Christopher Geiger and Elena Izyumenko, ‘The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!’ (2020) 51 IIC-International Review of Intellectual Property and Competition Law 282–306, 299.

Christopher Geiger and Elena Izyumenko, ‘The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!’ (2020) 51 IIC-International Review of Intellectual Property and Competition Law 282–306.

Magali Eben et al. (2023) ‘Priorities for Generative AI Regulation in the UK: CREATe response to the Digital Regulation Cooperation Forum’ CREATe Working Paper 2023/8 3.

Sylvie Delacroix, ‘Data rivers? Re-balancing the data ecosystem that makes Generative AI possible’, 9.

See P Kirchhof, Der Gesetzgebung rag zum Schutz des geistigen Eigentums gegenüber mpdernen Vervielfältigungstechniken ,34–35 as referred in Martin RF Senftleben, Quotations, Parody and Fair Use’.

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Intellectual property rights are the rights given to each and every person for the creation of new things according to their minds. IPR usually give the creator a complete right over the use of his/her creation for a certain period of time. 

Intellectual property rights are the legal rights that cover the benefits given to individuals who are the owners and inventors of work and have created something unique with their intellectual creativity or capability. Every person related to areas such as literature, music, invention, etc., can be granted such rights, which can then be used in their business practices by them. 

The creator/inventor gets complete rights against any misuse or use of work without his/her prior information. However, the rights are issued for a limited period of time to maintain equilibrium.

What are Intellectual Properties?

• Industrial designs
• Scientific discoveries
• Protection against unfair competition
• Literary, artistic, and scientific works
• Inventions in all fields of human endeavor
• Trademarks, service marks, commercial names, and designations

Types of Intellectual Property Rights:  

Intellectual Property Rights can be classified into four types: 

• Copyright: Copyright is a term that describes ownership or control of the rights to the use and distribution of certain works of creative expression, including books, videos, movies, music, and computer programs.
• Patent: A patent gives its owner the right to exclude others from making, using, selling, and importing an invention for a limited period of time. The patent rights are granted in exchange for enabling public disclosure of the invention.
• Trademark: A Trademark is a Graphical representation that is used to distinguish the goods and services of one party from those of others. A Trademark may consist of a letter, number, word, phrase, logo, graphic, shape, smell, sound, or combination of these things.
• Trade Secrets: Trade secret describes about the general formula of any product and the key behind any organization’s progress. It also includes various firms’ different secret formulas for the same products which differ in quality.

Advantages of Intellectual Property Rights:  

The advantages of intellectual property rights are as follows:

• IPR yields exclusive rights to the creators or inventors.
• It encourages individuals to distribute and share information and data instead of keeping it confidential.
• It provides legal defense and offers the creators the incentive of their work.
• It helps in social and financial development.
• It inspires people to create new things without fear of intellectual theft.

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Master the Art of Evidence-Based Arguments on Intellectual Property Rights

From August 2–4, 10,000 high school students will converge on Iowa for an intense three-day showdown, all aiming to emerge victorious in the National Policy Debate on Intellectual Property Rights (IPR) . Hosted by the National Federation of State High School Associations (NFHS) , this highly anticipated event promises to be a thrilling test of rhetoric and a masterclass in effective persuasion.

As voted on by more than 40 states and national organizations, this year’s prompt is: “The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.”

Given the recent developments involving copyright law and AI content, this year’s topic seems particularly pertinent, as it naturally raises questions about what’s considered an original creation and a derivative work.

The New York Times , for example, has taken legal action against Microsoft and OpenAI for allegedly using their content without authorization in AI training. Getty Images is embroiled in a high-stakes legal battle with Stability AI over similar issues. Even independent creators are calling for action, with a group of artists filing a lawsuit against AI-generated art platforms for exploiting their work without permission and threatening their livelihood by capitalizing on their distinctive art styles to create “new” images.

High schoolers will soon have a say in this new world of copyright legislation, so what better time for them to grapple with this quandary? The resources available on Gale In Context: Opposing Viewpoints include engaging real-world examples so educators can inspire grounded, evidence-supported discussions about the future of intellectual property rights.

Cover the Basics of Intellectual Property Rights

Most students likely understand the meaning of copyright at a surface level, but they need a more in-depth understanding of intellectual property rights to formulate educated, evidence-supported opinions on its uses. Given the amount of jargon and legislation surrounding it, this topic can easily become overwhelming. Students need teacher-led instruction at this phase of the learning journey, and Gale is here to help you make sense of it all.

The 2024–2025 National Debate portal on the Opposing Viewpoints platform is rich in reference pages and resources that present these concepts in a reader-friendly way, making it an excellent first stop for lesson planning.

Consider breaking down intellectual property rights into more digestible concepts by starting with the basics: patents, copyrights, and trademarks. This gives students a chance to ask questions and clear up any misunderstandings or misconceptions. It’s also an opportunity to assess which students may need additional support on the fly so they’re better prepared for more in-depth discussions and activities later.

What do the internal combustion engine (1898), a device for moistening postage stamps (1981), and a snake-repellent system (2001) have in common? They each have registered patents !

When an inventor patents their creation, it gives them exclusive property rights to use, sell, or manufacture the invention for a specific period—usually 20 years.

Extending the Lesson With Gale In Context: Opposing Viewpoints

Once students understand the basics of patents, it may be helpful to consider the topic in a wider context and how it impacts the world around them.

• Introduce real instances of patent case law , including the arguments and outcomes of those cases.
• Dive into the history of patents and other intellectual property rights and the implications for the future.
• Discuss the possible motivations behind patent trolls , or people and companies “that aggressively pursue patent infringement suits, usually with no intention of manufacturing or marketing the patent itself.”

Copyrights apply to original artistic and literary works, such as books, movies, ballets, etc., but they have a limited lifespan depending on when the copyright was issued.

All copyrights prior to January 1, 1978, have a maximum duration of 95 years from the publication date, which is why we see properties like Winnie the Pooh (1926) and “ Steamboat Willie ” (1928) entering the public domain. If granted a copyright after January 1, 1978, the creator has exclusive rights to reproduce, distribute, perform, or display the work for the creator’s lifetime plus 70 years. Fair use exceptions also exist that allow for commentary, criticism, and parody.

Copyright is particularly relevant to students because it’s incredibly easy to accidentally participate in intellectual property theft without even realizing it’s wrong—like listening to an audiobook on YouTube instead of paying for it, or posting a picture of someone else’s art on Instagram without their permission.

• Explain complex copyright law concepts in simpler terms with the copyright overview page.
• Learn about intellectual property theft and how it impacts the entertainment industry.
• Consider different perspectives with two Viewpoints essays, “ Fashion Designers Need Copyright Protection ” and “ Fashion Designers Do Not Need Copyright Protection .”

Brands rely on creating their own distinct identities to stand out from their competitors. To accomplish this, they need trademarks for things like symbols, words, or phrases that distinguish their goods and services. Trademark examples vary widely, from the word Coca-Cola to the Nike Swoosh logo and Geico’s gecko—even the smell of Play-Doh has its own trademark!

You can use a simple demonstration to show how much a trademark influences our perceptions of that brand and even competing products in the market.

Show students a facial tissue, adhesive bandage, and cotton swab, then ask them to name each item. There’s a good chance they’ll respond with Kleenex, Band-Aid, and Q-Tip. This phenomenon is called genericization , or when a trademarked name is so ubiquitous that it becomes synonymous with describing the general product or service.

• Read through an interesting trademark case in which Taco Bell filed a petition with the U.S. Patent and Trademark Office to cancel competing chain Taco John’s trademark on the phrase “ Taco Tuesday . ” Their justification is that the term “should belong to all who make, sell, eat, and celebrate tacos.”

Activity: Use Models to Develop Argumentative Writing

Students new to argumentative writing may need help knowing where to start when it comes time to take a stance on intellectual property rights. Instead of jumping right into the deep end, provide additional scaffolding using exemplars first. These models of effective argumentative writing support students by showcasing effective arguments and evidence usage.

To make reviewing exemplars more active and engaging for learners, teachers may want to consider flipping the assignment. That is, rather than asking them to gather evidence to construct an argument, give them a well-constructed argument that needs evidence to support the claim.

Not only will this remove some of the cognitive load of argumentative writing, it’s also an excellent opportunity to practice using research tools like Gale’s 2024–2025 National Debate Topic portal . With the platform’s user-friendly search function, learners can efficiently find content that supports views from either side of the debate using keywords from the provided exemplar arguments.

Below, we’ve provided an example of what this activity might look like in the classroom, including a real-world case study to provide context.

Case Study: Sky TV and Hello Games

In 2013, British broadcasting company Sky TV took legal action against several companies, including Hello Games, the studio behind No Man’s Sky . The core of the dispute was Sky TV’s claim that the use of “sky” in the game’s title infringed on their trademark of the word . They had previously won out against much larger companies, including Microsoft, who rebranded their cloud storage platform as “OneDrive” from “SkyDrive” after Sky TV pursued legal action.

To keep their title, Hello Games—a small studio trying to develop a AAA-level game with a team of 17 people—had to settle with Sky TV, whose revenue topped $7 billion in 2013, for an undisclosed amount after a multi-year legal battle.

Argument for Strong Intellectual Property Rights

Sky TV’s actions reassure other companies that they, too, can protect their branding efforts through trademark law. They invested money, time, and resources into building their brand. Allowing other companies to use similar names would only dilute their brand recognition or, in a worst-case scenario, lead to their name being associated with controversial or negatively viewed brands.

Argument Against Strong Property Rights

Overly strict intellectual property rights can stifle innovation and disproportionately harm smaller companies with limited resources. In the case of Hello Games, this legal battle illustrates how powerful corporations can use their extensive legal resources to intimidate and financially burden smaller entities. Enforcing such a broad trademark enables large corporations to bully other businesses into relinquishing their share of the market, no matter how small it may be.

Opposing Viewpoints: An Unbiased Resource for Arguing Any Side of an Issue

As innovation increasingly seems at odds with the things that make us distinctly human—creativity, emotion, values, and more—students will continue to encounter ethical dilemmas about the challenges and responsibilities we have when dealing with topics like data privacy, digital citizenship, and, of course, intellectual property rights. The National Policy Debate taking place August 2–4 gives real-world context to approach these discussions in your curriculum.

Rather than relying on the often skewed resources available through Google search results, look to Gale In Context: Opposing Viewpoints . The platform’s range of trusted materials offers your learners informed, differing views to support their critical thinking skills and help them draw their own conclusions.

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