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Patently Risky: Framing, Innovation and Entrepreneurial Preferences
Get PDFAn emerging common wisdom holds that courts have made it “too hard” to obtain patent protection in critical industries. The origin of this criticism dates back at least as far as the United States Supreme Court’s 2012 landmark opinion in Mayo Collaborative Services v. Prometheus Laboratories, Inc. which (the argument goes) triggered a chain reaction of judicial opinions rendering patent rights progressively more difficult to secure. Two years later, the Supreme Court decided Alice Corp. v. CLS Bank, another opinion widely viewed as restricting patent rights. And, barely three years after Mayo, the Federal Circuit cited it in invalidating a patent for a groundbreaking diagnostic test to detect fetal genetic conditions such as Down Syndrome early in pregnancy. Before the test at issue was available, clinical diagnostic methods involved invasive techniques that materially endangered the health of the fetus. But in 1996, doctors at Sequenom, Inc., a biotechnology company, discovered that maternal blood contains trace amounts of fetal DNA. Having made this discovery, the same team developed a noninvasive blood test that could screen for fetal genetic conditions without endangering the fetus. Sequenom’s invention garnered it significant acclaim and prestigious awards for medical innovation. The Federal Circuit was somewhat less impressed, and it invalidated the patent for failure to assert claims that were “significantly more” than a mere natural law
Climate Financing Options: An Assessment for Columbia World Project – Ghana Household Energy
Get PDFThis report was prepared for Columbia World Project: Ghana Household Energy (“the Project”) in order to identify climate finance options that would provide substantial additional funding for Project implementation. The Project will advance in two major stages. Phase 1 will identify policy measures and fuel options that will effectively promote community-level adoption of clean cooking technologies. Phase 2 will then implement the intervention based on findings from Phase 1. The funding this Project seeks will cover Phase 2 operations costs and likely contribute to subsidizing the cost of fuel and hardware in order to reduce the consumer end-price of the clean cooking technology this Project promotes.
The report identifies three potential sources of climate finance: 1) Carbon Finance; 2) the NAMA Facility; and 3) the Green Climate Fund (GCF). Carbon finance would provide the greatest amount of university ownership over the Project, and support a liquefied petroleum gas (LPG)-based intervention if Phase 1 identifies LPG as one of the fuel sources most likely to achieve a transition to clean cooking. However, the Project would not be able to generate funds from carbon finance before Phase 2, since Phase 2 itself would produce carbon credits for sale. Therefore, another financing source, outside carbon trading, is necessary to support Phase 2 implementation
Climate Recommendations For a New Democratic President and a New Congress: A Compilation
Get PDFCongress has not enacted a major new environmental law since 1990, when President George H.W. Bush signed the Clean Air Act Amendments and the Oil Pollution Act. He also supported, and the Senate ratified, the United Nations Framework Convention on Climate Change in 1992. The administration of President Bill Clinton supported the Kyoto Protocol, which was designed to achieve the objectives of the Framework Convention, but could not secure Senate ratification. President George W. Bush rejected the Kyoto Protocol and many other actions on climate change. President Barack Obama supported action on climate change; when he was unable to secure Senate passage of climate legislation, his administration utilized existing statutory authority to regulate greenhouse gas emissions and other environmental harms. President Donald Trump has systematically worked to reverse these actions, as followed in the Sabin Center’s Climate Deregulation Tracker and Silencing Science Tracker, though many of these attempts have been stymied by the courts, as followed in our Climate Change Litigation Databases
After Madrid, W[h]ither the COP?
Get PDFWith Madrid behind us and Glasgow on the horizon, it is a good time for Parties and others to consider the future of the annual COP. (By “COP,” I mean the climate conference writ large, rather than the “Conference of the Parties,” the narrower technical name for the Parties to the UN Framework Convention on Climate Change.) Madrid, while a remarkably successful venue in terms of logistics, left many not only disappointed at the Parties’ failure to reach agreement and signal an increase in ambition but also confused: Why was there such a disconnect between the scientific imperative (as well as the public outcry) and the official outcome? Why were the Parties unable to reach agreement, when the remit was so much smaller than the previous year and the compromises fairly apparent? Did the issuance by a subset of Parties of “principles” they intend to follow have broader significance for climate governance? Why was it like pulling teeth to get an important climate issue (the ocean/climate nexus) considered by the Parties to what is supposed to be the foundational agreement on climate change? Why were emerging issues (e.g., law of the sea implications of sea level rise, carbon removal technologies) discussed only on the sidelines? On the whole, why did the side events seem more like the main event
Mechanisms for Consultation and Free, Prior and Informed Consent in the Negotiation of Investment Contracts
Get PDFInvestor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.
This article explores how consultation and FPIC processes can be practically integrated into investor-state contract negotiations to better safeguard the land rights and human rights of members of project-affected communities. Based on a review of relevant international law standards and guidance documents, a close analysis of typical investor-state negotiations and of consultation and consent processes in other contexts, and a workshop with Indigenous and civil society representatives, the article provides three options for integrating consultation and consent processes into contract negotiations, the appropriateness of which will vary depending on local contexts and communities’ resources and decision-making structures
Incorporating Free, Prior and Informed Consent (FPIC) into Investment Approval Processes
Get PDFInvestment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.
Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.
Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, the Philippines, and Sierra Leone, this briefing explains how governments can incorporate FPIC and meaningful consultation into each stage of the investment, namely: Creating an enabling environment and attracting the right investors Registration of intent and screening Community consultations and impact assessments Permits, contract negotiation, and approval Throughout the life of the projec
Burrow-Giles v. Sarony (US 1884): Copyright Protection for Photographs, and Concepts of Authorship in an Age of Machines
No full textBurrow-Giles Lithographic Co. v. Sarony produced one of the Supreme Court’s first interpretations of the term “writings” of “authors” in the Constitution’s “copyright clause.” But Burrow-Giles also stands out in U.S. copyright jurisprudence for its analysis of the impact of new technological modes of creation on the concept of authorship.
Part I of this book explores the doctrine and debates over the copyright status of photographs before and immediately after the 1865 amendment in which Congress explicitly added photographs to the statutory subject matter of copyright. Part II assembles primary sources to lay out the story of the litigation over Sarony’s Oscar Wilde photograph, from Sarony’s initial complaint through the Supreme Court’s decision, including a postscript on the fate of Sarony’s photographic studio. Part III documents legislative and caselaw developments after Burrow-Giles, examining pre-1909 Act cases and subsequent legislative developments, the surprisingly sparse caselaw under the 1909 Act, and subsequent caselaw under the 1976 Act to the present. Notes and questions accompany each section, making the text idea as an elective or a supplement to any course in Intellectual Property or Copyright Law.
Twenty-first–century observers must determine whether that role is now receding in the face of digital methods of content-generation in which perhaps no human being, whether alone or in collaboration, conceives a vision for any particular work and controls its specific execution.https://scholarship.law.columbia.edu/books/1296/thumbnail.jp
Health Priorities for Sustainable Development
Get PDFThe right to health has been repeatedly recognized as one of the core human rights, essential for human functioning, human dignity, economic well-being and development. But the right to health continues to elude hundreds of millions and with Covid-19, perhaps billions of people. Poverty remains the most critical obstacle to the realization of the right to health in developing countries. Achieving universal health coverage, before the additional costs of Covid-19, would require roughly $50 billion per year, approximately 0.1 percent of the GDP of the high-income OECD countries. Yet despite this broad understanding of the vicious cycle of poverty and disease, and the means for scaling up health coverage and care, the international community has mustered only a laggard and insufficient response. In addition to the moral and economic imperatives to invest in the right to health, there is also a legal imperative grounded in binding international legal instruments, wherein States have undertaken to realize specific human rights, including through international assistance and cooperation. This chapter explores the legal basis for the universal right to health and the core obligation found in international law of all developed countries to assist in the realization of this core human right. Finally, it outlines possible steps that the international community can take to help achieve the right to health globally
Minimum and Maximum Protection Under International Copyright Treaties
Get PDFThis Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive
In Defense of Empiricism in Family Law
Get PDFIt is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication of legal actors, who may be unable to evaluate research adequately or to understand the limits for particular legal purposes of even well-designed and well-executed studies. For example, decisionmakers increasingly use algorithms that critics argue incorporate questionable factors. Also, researchers themselves may have biases that shape outcomes. And one study, or a handful, is a thin reed on which to base any policy. But skeptics also challenge family law’s turn to empiricism on more fundamental grounds, arguing that emphasis on empirical knowledge may obscure important value competitions in family law or have undue influence on how different values are prioritized. Ultimately, critics raise the concern that the use of empirical knowledge can reinforce bias and harm marginalized families and communities.
This Essay acknowledges these problems but suggests that most concerns can be alleviated by more careful and sophisticated use of science. The application of science to questions of family and juvenile law is a relatively recent phenomenon. Legal actors have already become skillful in the use of this tool, and interdisciplinary teams of legal scholars and researchers have played a key role in the design of research and translation of empirical knowledge to law. This trend holds extraordinary promise as a means to inform regulation in ways that enhance individual and social welfare. The Essay highlights issues on which the introduction of scientific knowledge has resulted in beneficial reforms. First, twenty-first century juvenile justice regulation increasingly has been shaped by developmental science clarifying that teenage offenders differ in important ways from adult counterparts. Second, policies supporting family preservation and healthy child development have gained support from a large body of research on child development as well as programmatic studies. These examples provide lessons for the use of research in this domain.
Finally, the Essay probes the foundational critique of empiricism in family law and argues that the threat may be less severe than critics fear. To be sure, values shape family law and policy, and competing values often cannot be prioritized solely (or even largely) on the basis of empirical knowledge. But values often have empirical content, and accuracy in evaluating the stakes of the value contests is important. Moreover, the evidence does not support the concern that answers offered by empirical studies will be given undue weight in values competitions. The likely alternative – reliance on conventional wisdom and assumptions about the world – is usually inferior as a basis of policy and possibly more likely to result in biased calculations harmful to marginalized families