Writing

Innovation and Intellectual Property: Collaborative Dynamics in Africa is the most recent of my five books in the fields of innovation, intellectual property, and global trade and development. While this volume of empirical case studies reports on current realities, its sister publication, Knowledge and Innovation in Africa: Scenarios for the Future, explores pathways ahead. Earlier publications include Implementing the World Intellectual Property Organization’s Development Agenda as well as Access to Knowledge in Africa: The Role of Copyright. I am also a co-author of Canada’s leading property law casebook, and managing editor and co-author of a practitioner’s handbook on aspects of administrative law.

I have published three dozen peer-reviewed chapters and articles across the disciplines of law, business, political science, and public policy. These scholarly publications—many in top-ranked journals—complement a range of national and international policy papers, business strategy briefings, and similar outputs designed to mobilize research into action. You can also find my ideas expressed in widely read newspaper and magazine editorials accessible to professional audiences or the general public.

 

Openair-books

Featured Articles

Canada’s Copyright Tariff-Setting Process

How are copyright royalties established in Canada? What is the tariff-setting process? How long does it take? What has been written about it? These are just some of the questions answered in my new empirical review of copyright tariff setting. The process of setting copyright tariffs in Canada is extremely important. The economic value of royalties set through this process is estimated at over $400 million per year. Some of the most recent and important Supreme Court decisions on copyright law originated from copyright tariff-setting proceedings. The Copyright Board of Canada, the tribunal charged with administering the process, is on the front lines of copyright policy. Copyright tariff-setting greatly impacts business issues around online music streaming, internet service provider liability, levies on iPods and other devices, peer-to-peer file sharing, radio and television broadcasting, access to educational materials, and much more. Copyright tariff setting is a key part of Canada’s cultural policy framework, as well as industrial and technology policy too. So it may be surprising that, until now, there has never been rigorous empirical analysis of Canada’s copyright tariff-setting process. My study for the first time synthesizes the existing work on this topic, schematically maps how tariff-setting happens; develops a methodology for empirical analysis; and collects and analyses data to begin measuring the time this process takes. My empirical research findings deliver unique understanding of Canada’s tariff-setting procedures, enabling more informed debate about copyright issues, and helping policymakers as well as the Board to better respond to the needs and concerns of copyright stakeholders. According to my data, 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013. There are 209 pending tariffs that were proposed for that period...

Best Practices for Intellectual Property in International Trade Deals

Intellectual property provisions in international agreements should not be negotiated secretly, but transparently. They should not serve special interests, but the public interest. And they should not be one-sided, but fair and balanced. This can be done by adhering to the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. My research identifies recent, fundamental changes and overarching patterns in the evolution in the procedures, institutions, and substantive outcomes of international intellectual property lawmaking. Specific analysis is provided of the Principles’ potential application to the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP), the Comprehensive Economic and Trade Agreement (CETA), the Pan-African Intellectual Property Organization (PAIPO), and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty). I conclude that the Principles and other best practice guidelines for international intellectual property lawmaking can be usefully applied beyond orthodox bilateral and regional trade agreements. By adhering to these best practice principles, international lawmakers can help make the global knowledge governance system more transparent, participatory, legitimate, and effective. As IP issues become ever more intertwined with international trade, environmental sustainability, human rights, and many other issues, the fundamental nature of international IP legal instruments and the way they are negotiated is evolving. Recent procedural and substantive changes in international IP lawmaking have triggered a variety of criticisms from both academics and non-governmental organizations whose work generally aligns with the “access to knowledge” movement. To address these systemic problems, the Max Planck Principles on Intellectual Property Provisions in Bilateral and Regional Agreements (the Principles) are a statement of principles...

Featured Audio & Video

 

Latest Articles

Canada’s Copyright Tariff-Setting Process

How are copyright royalties established in Canada? What is the tariff-setting process? How long does it take? What has been written about it? These are just some of the questions answered in my new empirical review of copyright tariff setting. The process of setting copyright tariffs in Canada is extremely important. The economic value of royalties set through this process is estimated at over $400 million per year. Some of the most recent and important Supreme Court decisions on copyright law originated from copyright tariff-setting proceedings. The Copyright Board of Canada, the tribunal charged with administering the process, is on the front lines of copyright policy. Copyright tariff-setting greatly impacts business issues around online music streaming, internet service provider liability, levies on iPods and other devices, peer-to-peer file sharing, radio and television broadcasting, access to educational materials, and much more. Copyright tariff setting is a key part of Canada’s cultural policy framework, as well as industrial and technology policy too. So it may be surprising that, until now, there has never been rigorous empirical analysis of Canada’s copyright tariff-setting process. My study for the first time synthesizes the existing work on this topic, schematically maps how tariff-setting happens; develops a methodology for empirical analysis; and collects and analyses data to begin measuring the time this process takes. My empirical research findings deliver unique understanding of Canada’s tariff-setting procedures, enabling more informed debate about copyright issues, and helping policymakers as well as the Board to better respond to the needs and concerns of copyright stakeholders. According to my data, 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013. There are 209 pending tariffs that were proposed for that period...

Best Practices for Intellectual Property in International Trade Deals

Intellectual property provisions in international agreements should not be negotiated secretly, but transparently. They should not serve special interests, but the public interest. And they should not be one-sided, but fair and balanced. This can be done by adhering to the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. My research identifies recent, fundamental changes and overarching patterns in the evolution in the procedures, institutions, and substantive outcomes of international intellectual property lawmaking. Specific analysis is provided of the Principles’ potential application to the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP), the Comprehensive Economic and Trade Agreement (CETA), the Pan-African Intellectual Property Organization (PAIPO), and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty). I conclude that the Principles and other best practice guidelines for international intellectual property lawmaking can be usefully applied beyond orthodox bilateral and regional trade agreements. By adhering to these best practice principles, international lawmakers can help make the global knowledge governance system more transparent, participatory, legitimate, and effective. As IP issues become ever more intertwined with international trade, environmental sustainability, human rights, and many other issues, the fundamental nature of international IP legal instruments and the way they are negotiated is evolving. Recent procedural and substantive changes in international IP lawmaking have triggered a variety of criticisms from both academics and non-governmental organizations whose work generally aligns with the “access to knowledge” movement. To address these systemic problems, the Max Planck Principles on Intellectual Property Provisions in Bilateral and Regional Agreements (the Principles) are a statement of principles...

All Articles

Canada’s Copyright Tariff-Setting Process

How are copyright royalties established in Canada? What is the tariff-setting process? How long does it take? What has been written about it? These are just some of the questions answered in my new empirical review of copyright tariff setting. The process of setting copyright tariffs in Canada is extremely important. The economic value of royalties set through this process is estimated at over $400 million per year. Some of the most recent and important Supreme Court decisions on copyright law originated from copyright tariff-setting proceedings. The Copyright Board of Canada, the tribunal charged with administering the process, is on the front lines of copyright policy. Copyright tariff-setting greatly impacts business issues around online music streaming, internet service provider liability, levies on iPods and other devices, peer-to-peer file sharing, radio and television broadcasting, access to educational materials, and much more. Copyright tariff setting is a key part of Canada’s cultural policy framework, as well as industrial and technology policy too. So it may be surprising that, until now, there has never been rigorous empirical analysis of Canada’s copyright tariff-setting process. My study for the first time synthesizes the existing work on this topic, schematically maps how tariff-setting happens; develops a methodology for empirical analysis; and collects and analyses data to begin measuring the time this process takes. My empirical research findings deliver unique understanding of Canada’s tariff-setting procedures, enabling more informed debate about copyright issues, and helping policymakers as well as the Board to better respond to the needs and concerns of copyright stakeholders. According to my data, 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013. There are 209 pending tariffs that were proposed for that period...

Best Practices for Intellectual Property in International Trade Deals

Intellectual property provisions in international agreements should not be negotiated secretly, but transparently. They should not serve special interests, but the public interest. And they should not be one-sided, but fair and balanced. This can be done by adhering to the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. My research identifies recent, fundamental changes and overarching patterns in the evolution in the procedures, institutions, and substantive outcomes of international intellectual property lawmaking. Specific analysis is provided of the Principles’ potential application to the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership Agreement (TPP), the Comprehensive Economic and Trade Agreement (CETA), the Pan-African Intellectual Property Organization (PAIPO), and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty). I conclude that the Principles and other best practice guidelines for international intellectual property lawmaking can be usefully applied beyond orthodox bilateral and regional trade agreements. By adhering to these best practice principles, international lawmakers can help make the global knowledge governance system more transparent, participatory, legitimate, and effective. As IP issues become ever more intertwined with international trade, environmental sustainability, human rights, and many other issues, the fundamental nature of international IP legal instruments and the way they are negotiated is evolving. Recent procedural and substantive changes in international IP lawmaking have triggered a variety of criticisms from both academics and non-governmental organizations whose work generally aligns with the “access to knowledge” movement. To address these systemic problems, the Max Planck Principles on Intellectual Property Provisions in Bilateral and Regional Agreements (the Principles) are a statement of principles...

Present Thinking About the Future of Intellectual Property: A Literature Review

This article presents the results of a systematic review and analysis of the way that “the future” is addressed in intellectual property literature. Co-authored with two of my brightest students, it is available as an open access download in HTML or PDF format through its publisher, SCRIPTed, a high-quality, online, international, interdisciplinary and multi-lingual journal of peer-reviewed articles. People have often mistaken the uncertain and non-predictive nature of the future as a reason to not consider it. However, those who insufficiently consider the future will find themselves reacting to it, rather than seamlessly adapting to, or possibly even shaping it. Not only is the future relevant in its own right, but the way we think about the future influences how we think and behave in the present. Thus, truly informative work about the future must do more than predict. It must identify our pre-conceptions and assumptions about the present, and challenge our understanding of how the future may unfold. Intellectual property (IP) researchers and practitioners seem concerned with what the future will bring. Nevertheless, despite the reviews of the growing body of empirical literature addressing historical and contemporary intellectual property issues, little is known about the extent and nature of literature considering the future of intellectual property. To understand better the current thinking on the future of intellectual property, this paper undertakes a systematic literature review, and provides corresponding recommendations for future scholarship. From the article’s abstract on the Social Sciences Research Network: Iterative methodical searches in key databases of published materials and targeted reviews of grey literature revealed a limited number of relevant works pertaining to the future. These...

Does Hyperlinking Create Liability for Copyright Infringement in Canada or the European Union?

This peer-reviewed article in the European Intellectual Property Review provides a timely comparative analysis of recent Canadian and European Union (EU) copyright cases regarding the nature and scope of communication rights, as applied to the issue of copyright infringement liability for hyperlinking. Mira Burri and I link possible copyright infringement for hyperlinking with the pertinent international law, in particular with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), together known as the WIPO Internet Treaties. Digital technologies, online communication, and electronic commerce have destabilized the traditional global copyright system. The WIPO Internet Treaties and subsequent domestic legal implementations have been the response to this, and our article takes a comparative analysis of judicial interpretation of domestic legislation in two regions. The specific focus is the European and Canadian practices of “making available” as a mode of communication to the public, particularly via hyperlinking. Our comparative findings suggest that preserving flexibility for courts to interpret domestic laws according to socio-economic conditions, technological developments, and local priorities is desirable. We argue that hyperlinking does not, and ought not, create copyright liability for infringement of the communication right. Making Available Via Hyperlinks by jeremydebeer The WIPO Internet Treaties ambitiously aimed to modernize global copyright law and make it fit for the internet age. Unfortunately, there was little or no understanding of the fundamental ways in which digital technologies have changed the conventional modes of creating, distributing, accessing, using and re-using cultural content and knowledge. As a result, the treaties have fallen short of their mission. Under the new treaties, copyright has expanded to include “making available.” It is found in the...

Knowledge and Innovation in Africa: Scenarios for the Future

Knowledge and Innovation in Africa: Scenarios for the Future grapples with the complex and dynamic forces that will shape innovation systems over the next two decades. The report distills three different but equally plausible future scenarios: one a world of “wireless engagement,” another where “informal is the new normal,” and a third that is “sincerely Africa.” Shirin Elahi and Jeremy de Beer, with Dick Kawooya, Chidi Oguamanam, Nagla Rizk and the Open A.I.R. Network ISBN: 978-1-55250-577-9 Published by Open A.I.R., 2013 Each scenario raises different issues for control of, and access to, knowledge in Africa. The key insight for policymakers, business leaders, scholars and civil society is that the question is not whether intellectual property rights will be relevant in the future, but rather which rights will be most important in different scenarios. These publications are the work of dozens of members of the Open A.I.R. research network, which I co-lead, from a range of disciplines and working in 14 African countries, who conducted empirical fieldwork across some of Africa’s most important domains of innovation. Based on qualitative and quantitative data collected through surveys, interviews, focus groups, workshops and other participatory techniques, the research uncovered the ways in which intellectual property rights can impact openness and collaboration – now and in the future. Visit the Open AIR project’s website to download the PDF version of the book, or contact us to obtain a hard...

Intellectual Property and Innovation: Collaborative Dynamics in Africa

Innovation and Intellectual Property: Collaborative Dynamics in Africa is a book of real-world case studies that show how intellectual property can play a positive role in collaborative innovation systems if policymakers prioritise the public interest. Editors: Jeremy de Beer, Chris Armstrong, Chidi Oguamanam & Tobias Schonwetter ISBN: 978-1-919895-99-4 Published by UCT Press, 2013 The book contains chapters examining innovators in nine countries – Egypt, Nigeria, Ghana, Ethiopia, Uganda, Kenya, Mozambique, Botswana and South Africa. These case studies explore many sites of innovation and creativity including music, leather goods, textiles, cocoa, coffee, auto parts, traditional medicine, book publishing, biofuels and university research. Copyrights, patents, trademarks, geographical indications and trade secrets, as well as traditional and informal mechanisms of knowledge governance are all explored in detail. These publications are the work of dozens of members of the Open A.I.R. research network, which I co-lead, from a range of disciplines and working in 14 African countries, who conducted empirical fieldwork across some of Africa’s most important domains of innovation. Based on qualitative and quantitative data collected through surveys, interviews, focus groups, workshops and other participatory techniques, the research uncovered the ways in which intellectual property rights can impact openness and collaboration – now and in the future. Visit the Open AIR project’s website to download the PDF or ePUB versions of the book, or purchase it through online retailers like Kalahari.com and...

Informal Sector Innovation and Intellectual Property: Concepts, Metrics, and Policy Considerations

How does innovation happen in the informal sector? What appropriation strategies are used to control or distribute social, economic, or technological benefits? To help answer such questions, our analysis connects concepts, definitions and data regarding the informal economy, innovation, and intellectual property in order to establish a framework for further qualitative and quantitative research and the improvement of public policies in respect of these issues. This interdisciplinary framework is the first of its kind, interconnecting previously separated areas of study. With this work my co-authors, Sacha Wunch-Vincent and Kun Fu, and I start to bridge the disciplines of law, economics, management, engineering, sociology, and other fields relevant to the appropriation of informal sector innovation. We first review the literature defining the informal economy, and present an original synthesis of statistical data regarding the informal economy’s social and economic significance. Second, we apply established and emerging concepts of innovation to the context of informal systems. Third, we discuss a spectrum of appropriation mechanisms, ranging from formal intellectual property rights to informal mechanisms of knowledge protection, sharing and exchange. Fourth and finally, we review existing policy approaches toward innovation in the formal economy, and establish a framework to consider future scenarios for the application of intellectual property concepts in this context. You can download “The Informal Economy, Innovation and Intellectual Property – Concepts, Metrics and Policy Considerations” from WIPO’s website, where it was published as Economic Research Working Paper No. 10 in the Economics and Statistics Series. It is also available on SSRN. Our research on this topic was also presented at a special seminar in Geneva, together with reports from case study authors. Online video of the...

Copyright Royalty Stacking: Multiple Payments for Music Licensing

Copyright is a bundle of rights which requires a variety of licenses to use. Copyright royalty stacking means the layering of multiple payments for permission to use copyright-protected materials. It is a phenomenon commonly encountered in copyright licensing transactions, especially music licensing. My book chapter in Michael Geist’s edited collection, “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law,” breaks down the complicated rights structure into a simplified matrix so it can be more easily understood which royalty payments are required for each particular licensee’s activities. The chapter is also based on my research into these issues as part of my legal practice. I acted as counsel for the intervener, the Canadian Internet Policy and Public Interest Clinic, in the Supreme Court of Canada cases. As a practical matter, I also thought frequently about this issue during my time as legal counsel counsel to the Copyright Board of Canada, the administrative tribunal where cases on this issue most often arise. To understand the layers of copyright protection, it is important to recognize that the creation of every original work comes automatically with copyright protection; no registration is needed. An example would be an original musical work (separated into composition and lyrics), which was later performed, recorded, and broadcasted. Rights in the music, performance, recording, and broadcast are separately protected. Each layer of protection comes with its own set of distinct rights that could potentially belong to different owners and be licensed separately. The taxonomy of protected economic rights can be broadly divided into four categories: (1) copy; (2) perform; (3) distribute; and (4) adapt/create a derivative work,...

International Trade in Biofuels: Legal and Regulatory Issues

Governments around the world are betting heavily on biofuels as one part of a solution to a wide range of public policy challenges, from environmental sustainability in the face of climate change, to energy security given rising geopolitical instability, to economic growth especially in rural regions and developing countries. Policy interventions typically take the form of legal and regulatory measures, for example, to drive demand for renewable fuels through mandates, or to subsidize costs through financial and other supports for production and processing of feedstock and output fuels. Such complex legal/regulatory mechanisms combine to create a multi-level or network system of governance. This peer-reviewed article, co-authored with Stuart Smyth and published in The Estey Centre Journal of International Law and Trade Policy, analyzes the implications of this complex framework for the production and international trading of biofuels. Download the paper via the Social Sciences Research Network. Content from this article is based on my research supported by the VALGEN project, and pre-published as a working paper on Network Governance of...

Supreme Court Copyright Decisions Will Grow the Market for Digital Content

Five landmark decisions released by the Supreme Court of Canada will streamline copyright licensing and help to grow the online market for digital content protected by copyright. That is my argument in this editorial published in the Financial Post. As well as my editorial, my comments on the case were reported widely in the media. The CBC, for example, quoted: Intervener Applauds Ruling   Jeremy de Beer, an associate professor at the University of Ottawa who was an intervener in the cases on behalf of the Canadian Internet Policy and Public Interest Clinic, said this is a good day for online music customers. Prices may not necessarily drop, but the marketplace might expand, he said.   “I think in the medium term we’re going to see an expansion of online music services — legitimate opportunities to buy and sell digital music on the internet — because the process for clearing the rights got a lot simpler and less expensive with these judgments,” he said.   A bigger online music market is also good for the artists and creators, de Beer said.   “I think the key to an online thriving music market is to make it simple and competitive, and the more services we have for consumers to chose from, the better and the less likely it is that they’ll use file sharing sites or other alternatives,” he said. David Fewer and I acted as co-counsel for the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, which intervened in all five...