| Editorial |
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| Special feature |
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Patents and Public Health: Principle, Politics and Paradox
Edwin Cameron and Johnathan Berger, pp.517-544
SCRIPT-ed is proud to host the draft text of the
inaugural British Academy lecture by Judge Cameron held at the
University of Edinburgh, Tuesday 19 October 2004. The final
version will be made available by the British Academy.
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| Peer-reviewed
articles |
- Inalienably Yours? The new case for
an inalienable property right in human biological material: Empowerment
of sample donors or a recipe for a tragic Anti-Commons?
Jasper A. Bovenberg, pp.545-584
Modern biomedical research into
the genetic component of common diseases calls for broad access to
existing and novel collections of samples of human biological material,
aka Biobanks. Groups of donors of these samples, however, increasingly
claim a property right in their samples. They perceive the recognition
of a personal property right in their biological material as the best
means to serve two goals: to secure ongoing control over their samples
after donation and to underpin their claim for a share in the proceeds
that the research on their samples may yield. Given the objective of
ensuring ongoing control, this property right is claimed to be
inalienable. Recognition of a personal property right in one’s
biological material is problematic, especially where the requirement of
inalienability seems at odds with the claim for a share of the profits.
Yet, property rights in human biological material may be justified in a
certain context, e.g. to enable subsets of patients to negotiate the
terms and conditions of the research into their specific disorders.
Biobanks, however, contain so many samples, which can be used for so
many research purposes, that the unrestricted exercise of personal
property rights by the sample donors will lead to a proliferation of
rights. This proliferation is likely to deter or slow down both the
creation of de novo Biobanks and the use of existing sample collections.
Thus, recognising inalienable property rights in human biological
material may lead to suboptimal use of these resources and create a
classic ‘anticommons property’ scenario. It would also undermine the
current trend to simplify existing informed consent requirements which
aims to facilitate broad and previously unanticipated research on de
novo and existing Biobanks. In addition, the tradition of altruistic
participation in research and the notion that large-scale collections of
human biological material are global public goods are arguments against
recognising inalienable personal property rights in human biological
material, at least in the context of Biobanks. To avoid uncertainty over
the issue of who owns collected human biological material, the principle
that the property rights in such material vest in the entity lawfully
collecting and storing the material should be implemented in
legislation. This way most individuals and their offspring will benefit
more than when they heed the call to stand up for their property rights
in their samples.
- In Code, We Trust? Regulation and
Emancipation in Cyberspace
Zhu Chenwei, pp.585-610
Code is one of the regulatory
modalities as identified by Lawrence Lessig. It is proposed that, in
cyberspace, code should not only regulate but also emancipate. However,
the emancipatory dimension of code has long been neglected since law and
market are increasingly operating in a normative vacuum. The
emancipatory approach is also supported by the practice of digital
commons, which is to liberate cyberspace from various constraints.
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La competenza per materia delle
sezioni IP
(Competence in matters relating to IP sections)
Luigi Carlo Ubertazzi, pp.611-627
Italian Law 12/12/2002,
n. 273 [0] as implemented through the Legislative Decree 168/2003
[1] has created "specialized sections" for IP-related matters in
the courts (both first and second level) of Bari, Bologna, Catania,
Firenze, Genova, Milano, Napoli, Palermo, Roma, Torino, Trieste
and Venezia. These sections "deal with cases of national and
communitarian trademarks, patents for inventions and new plant
varieties, utility models, pictures and models, author rights and
all cases of unfair competition when these cases interfere with
the protection of industrial and intellectual property".
This paper discusses the different positions of Italian law
scholars and lawyers as to whether the list of subjects, on which
the specialized sections are competent as written in the law, is
intensive or extensive - in other words, whether the specialized
sections should take care *only* of the matters that the law
clearly specifies, or whether they should take care of everything
"related to" intellectual and industrial property. In this paper
several justifications are made for giving full responsibility to
IP sections over all law cases dealing with intellectual property
(extensive interpretation), together with a rebuttal of the most
relevant positions advocating an intensive interpretation of the
law.
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| Analysis |
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The GPL prevails: An analysis of the
first-ever Court decision on the validity and effectivity of the
GPL
Julian P Höppner, pp.628-635
After many years of mostly
academic debate about the legal character of the GNU General
Public License (GPL) as well as its validity and enforceability, a
Munich District Court issued the first-ever judgement dealing with
a number of topics in the centre of the discussion. This paper
outlines the facts of the case as well as the ratio decidendi
of the Court. In addition, it aims to identify and comment on the
questions of law underlying the decision.
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Free Software Act
Maureen O'Sullivan, pp.636-638
This is the latest draft of the
Free Software Act.
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| Book Reviews |
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