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These debates are still ongoing and may not be resolved anytime soon. However, there may still be hope for the protection of culture in the laws we have today. Although the current copyright and trademark laws seem rigid and inconsiderate towards non-Western cultures, it was these very same laws that helped the Navajo Nation regain what was rightfully theirs. Scafidi suggests that more Indigenous communities could take stronger control of their cultural products by commodifying and profiting off of them: "although outsiders' commodification of a cultural product without the authorization of the source community may dilute or destroy the product or its identification with the source community, limited communal commodification may instead enhance the value of the product by forestalling inferior copies and providing an authentic version" (60). While cultural arts and knowledge cannot be copyrighted, it is possible to copyright the expression of that culture in the form of merchandise.

Janet McGowan also indicates the Lanham Act and the Indian Arts and Crafts Act as two ways of ensuring the protection of Native American culture. The Indian Arts and Crafts Act is an American law that prohibits people from falsely advertising arts and crafts as being made by or affiliated with Indigenous groups. "It is illegal to market an art or craft item using the name of a tribe if a member, or certified Indian artisan of that tribe did not actually create the art or craft item" ("The Indian Arts and Crafts Act"). Another law, she suggests, is the Federal Food, Drug, and Cosmetic Act, which prevents people from selling misbranded food, drug, or cosmetic products. Many companies profit from using the names of Indigenous tribes or locations on their products in order to suggest exoticness or tradition. "For example, Hopi Blue Popcorn appears to violate the Food, Drug & Cosmetic Act, since it does not contain true blue corn and its label strongly suggests it is made by the Hopi or from the Hopi reservation" (McGowan). With regard to the Indian Arts and Crafts and Food, Drug, and Cosmetic Acts, anyone can file a complaint or petition for dishonesty. It can also be helpful to the indigenous communities if more people could become aware of these false advertising issues and refuse to buy the offending products. The more people value authentic Native American products, the less likely they will be attracted to culturally appropriated products.

Over the last few decades there has been an outcry in the United States, Canada, and Australia for governments to do something to protect indigenous communities from the poaching of their artworks.

Naturally, indigenous peoples and advocacy groups are concerned about this problem and have sought legal avenues of redress. In an effort to prevent the appropriation and manipulation of their cultural images and texts, indigenous peoples, fighting for their cultural survival, are increasingly turning to intellectual property laws to protect their cultural heritage from external poaching.** Significantly, indigenous groups are willing to participate in the western intellectual property rights scheme from which they feel they have been excluded and therefore disadvantaged. They have invoked intellectual property laws to use as a shield to prevent further intrusions into their already pillaged culture.

Jones, whose members include companies like Microsoft, Amazon, Intel and Google, does not support PERA as written, but said there could be a way to get to consensus if stakeholders would agree to options such as offering sui generis protection for specific types of inventions or other concessions. Overall though, he said the current state of U.S. patent policy is “mixed but probably mostly positive” for his members.

But much of the fear over China’s technological rise is unfounded. Fundamentally, China is like most emerging economies around the world: still trying hard to close the enormous technological gap with advanced economies led by America. China has undoubtedly made more progress than many of its developing peers in that race. Its tech industries have grown at a faster pace and achieved a global scale beyond those of most developing countries. In a broad range of manufacturing sectors — notably consumer electronics, steel, ship building, high-speed rail systems and solar panels — China has established itself as the world’s leading producer. In areas such as consumer Internet and financial technology, it has arguably overtaken even the United States and now leads the rest of the world. Yet China hawks such as Robert Lighthizer and Peter Navarro charge that whatever progress China has made on the tech front is due to the country’s blatant theft of U.S. technology. Considering the enormous investments China has made in science and technology over recent decades, such claims do not hold water. China has devoted vast resources to research and development — $409 billion in 2015 (21 percent of the global total), according to the U.S. National Science Foundation. China’s investment in research and development grew over 20 percent annually between 2000 and 2010 and almost 14 percent from 2010-2015. U.S. research and development hovered around 4 percent over the same period. For a country with an average per capita income a mere one-sixth of America’s, China’s research and development investments reflect a real and sustained national commitment. At the same time, China has vastly expanded and improved STEM education and has one of the largest pools of STEM graduates in the world. The devotion of significant resources to research and development and human capital has in turn enabled China to reap some of the early fruits of innovation. China now tops the world in new patent filings. As the first country to receive more than 1 million patent applications in a single year — a record the World Intellectual Property Organization said reflected “extraordinary” levels of innovation — China accounts for almost 40 percent of the global total and more than that of the United States, Japan and South Korea combined. China has also significantly boosted venture capital investment, which supports the commercialization of emerging technologies. While the United States attracts the most investment worldwide (nearly $70 billion), venture capital investment in China rose from approximately $3 billion in 2013 to $34 billion in 2016, climbing from 5 percent to 27 percent of the global share — the fastest increase of any economy. China’s start-up ecosystem is both vast and vibrant; it has successfully incubated more tech unicorns than any other country except the United States. Too often, U.S. critics claim that Chinese industrial policies like Made in China 2025 are behind the country’s ascendancy in tech. In fact, virtually none of China’s leading tech firms, such as Alibaba, Baidu and Tencent, are state-owned or meaningful beneficiaries of state support. They are all founded and led by smart and risk-taking private entrepreneurs, just like their Silicon Valley brethren. Tellingly, many Chinese tech start-ups have received U.S. venture financing. And Chinese technology companies and venture firms have made significant investments in U.S. start-ups. Sadly, the virtuous two-way venture capital flows are now in jeopardy because of Washington’s growing paranoia about China. As impressive as China’s innovation and progress may be, however, it is premature to declare that China has caught up with the U.S. tech industry. Interventionist government bureaucracy, stodgy state-owned enterprises, a rigid school system and — above all — harsh restrictions on individual freedoms continue to stifle independent thinking and creativity and constrain China from realizing its full innovation potential. While China is well positioned to succeed in “strategic” industries such as semiconductors, pharmaceuticals and commercial aircraft due to its vast pool of engineering talent and the size of its domestic market, so far it has remained a laggard. China has failed to develop an indigenous chip industry despite a state-led drive to do so, with tens of billions spent over the past four decades. Despite its status as the “world’s factory,” making everything from cell phones and laptops to numerous other devices, China continues to import 90 percent of its microchips from foreign countries, predominantly from the United States. That is why the U.S. threat to cut off critical chip supply to ZTE, a Chinese telecom equipment firm, has been dubbed the “Sputnik moment” in China: a sober reminder of China’s continued weaknesses in critical technologies. While China has made spectacular progress on the tech front, the United States remains the undisputed global leader in science and technology. The United States holds most of the world’s leading research universities; it deploys the highest amounts of both public and private funding in research and development; attracts the most venture capital; awards the most advanced degrees; provides the most advanced business, financial and information services and is the largest producer in knowledge-intensive, high-tech sectors, from pharmaceuticals to semiconductors. The fear that China will displace the United States as the global tech superpower is grossly exaggerated. Unfortunately, such paranoia dominates the minds of protectionist U.S. politicians and China hawks and has already amplified a destructive trade war between the world’s two largest economies. For China’s part, its soul-searching is overdue. Beijing should resist the prevalent yet ill-justified self-complacency and triumphalism that contributed to the fear in Washington in the first place, and it should make serious efforts to reform and open its domestic economy. Unless Beijing amends its heavy-handed statist approach to economic development, China’s potential as a leading nation in science and technology could be seriously curtailed.

Hard constraints check---limited testing records, political resistance, and fissile shortages.

This is a serious misrepresentation. While it is true that digital technologies are transforming China's economy, this reflects the implementation of mobile-Internet-enabled business models more than the development of cutting-edge technologies, and it affects consumption patterns more than, say, manufacturing. This kind of transformation is hardly unique to China, though it is occurring particularly rapidly here, thanks to a huge consumer market and weak financial regulation.

Furthermore, it is not so obvious that these changes have anything to do with the government's industrial policies. On the contrary, the growth of China's internet economy has been driven largely by the entrepreneurship of privately owned companies like Alibaba and Tencent.

Some observers claim that Beijing could somehow set standards in critical technology areas and install tech hardware around the world, to the extent that China would be able to relegate the United States to a permanently inferior status in both the commercial and military realms, thus threatening the very existence of the country. This is also highly unlikely.

Chinese companies are certainly participating in standard-setting in key areas, including 5G. But this process is highly competitive globally, and U.S., Asian, and European companies all hold major portions of the standards and the standard-essential patents that undergird the global technology ecosystem. There is little if any chance that Chinese companies could come to dominate this process. Many tech experts state that the most likely worst-case outcome of Chinese gains regarding standards and hardware would be a fragmented technology ecosystem that would impoverish all countries, not give China a level of power that would enable it to vanquish the United States.

This modernization program has raised concerns over the past several years that China is currently attempting or might soon attempt a nuclear breakout. Concerns of a Chinese breakout come in two forms: either that Beijing will develop a nuclear warfighting capability that could neutralize U.S. conventional superiority, or that Beijing will expand its strategic arsenal to achieve parity with the United States, which could undercut U.S. security commitments to its regional allies.

While China is indeed in the midst of a significant modernization effort, the changes to its nuclear forces do not yet represent a fundamental strategic shift. Rather, China’s nuclear evolution appears to be driven by a desire to maintain a secure second-strike capability in the face of advancing U.S. capabilities, which Beijing believes might threaten its nuclear deterrent. As I demonstrate in a new article in the Nonproliferation Review, China’s nuclear arsenal and strategy are constrained by its limited views of the utility of nuclear weapons. Moreover, Beijing would face several “harder” technical constraints in pursuing the kind of nuclear breakout about which some commentators warn.

Finally, the latter set of supposedly existential normative or ideological threats consists of many elements, including Beijing’s possible overturning of the so-called global liberal international order, Chinese influence operations aimed at U.S. society, the export of China’s political values and state-directed economic approach, and its sale of surveillance technologies and other items that facilitate the rise or strengthening of authoritarian states. These threats all seem hair-raising at first glance. But while significant, they are greatly exaggerated and do not rise to the level of constituting an existential threat.

Beijing has little interest in exporting its governance system, and where it does, it is almost entirely directed at developing countries, not industrial democracies such as the United States. In addition, there is no evidence to indicate that the Chinese are actually engaged in compelling or actively persuading countries to follow their experience. Rather, they want developing nations to study from and copy China’s approach because doing so would help to legitimize the Chinese system both internationally and more importantly to Beijing’s domestic audience.

This book has demonstrated that the sui generis intellectual property regimes de facto serve as gap fillers for the protection of subject matter that cannot be adequately protected with the standard instruments of intellectual property protection. The analysis of sui generis intellectual property protection for databases, designs, and plant varieties in the EU and U.S. allows to make the following conclusions: 1. Introduction of sui generis rights does not always trigger innovation and public or private investment into the protected subject matter. It is generally considered that the introduction of new intellectual property rights helps enhance innovation. However, this book has demonstrated that this has not always been the case. In particular, the database sui generis right in the EU has not had any proven economic impact on the production of databases. The introduction of a design right specifically for vessel hulls under the VHDPA and granting a plant variety right under the PVPA in the U.S. have not had significant impact on the amount of investments or innovation in these areas

But is this a sufficient basis for the introduction of yet another intellectual property right, notably as the right in question appears to undermine essential principles of the current patent law? All intellectual property rights are predicated on the notion that inventions and creative works are in the public domain unless such works fulfil various thresholds, such as novelty or inventive step (in the case of patents), originality or distinctiveness (in the cases of copyright or trade mark).

Partly in deference to the high societal costs imposed by the conferral of a proprietary right, which will stifle competition for a short time, and partly to forestall duplication of patent protection for identical or similar inventions, the examination system is a major element of the patent regime. The justifications of the traditional patent law are reconfirmed during the examination process. Providing second tier rights for inventions that fail to meet such standards undermines both the public–private boundary and the doctrinal bases of intel- lectual property rights.

The specific overlap problem I’ve chosen to tackle in this paper relates to ownership. What happens when two (or more) different people own different rights whose object is the same? How should we approach a situation where objective cumulation is not mirrored by subjective cumulation?19

The following considerations assume that there are no express contractual provisions dealing with ownership issues. 20

However, technology has enhanced opportunities for imitation, which has triggered the creation of new forms of intellectual property for newly emerging subject matter. As Cornish writes, intellectual property may be extended to new subject matter either by accretion or by emulation. In case of accretion, an existing intellectual property right is redefined so as to cover the novel subject matter, whereas in case of emulation, a new right is created by analogy drawn from the existing intellectual property rights.18 Cornish offers two illustrative examples of these two forms of extension of intellectual property protection. Thus, major computer lobbyists in the United States pressed for computer programs to be protected by accretion, i.e., by treating them as literary works within the concept of copyright; whereas for the design of semiconductor chips, they insisted on protection by emulation, i.e., creation of a sui generis right, which was finally stipulated in the 1984 Semiconductor Chip Protection Act.19

Besides the newly emerging objects for intellectual property protection, there are other categories of subject matter, such as designs or geographical indications, that have existed for centuries and, despite their long history, have not received as strong protection through the existing intellectual property regimes as other categories of subject matter. Some jurisdictions have acknowledged the need for a sui generis intellectual property regime for these kinds of subject matter, i.e., have opted for emulation, whereas other jurisdictions offer protection through the already existing regimes, i.e., by accretion.

Suthersanen points out that sui generis intellectual property rights emanate from the inability of legislators and jurists to stretch the existing instruments of the intellectual property regime to accommodate new things to protect. Although sui generis rights incorporate an “ad hoc mixture of copyright, patent or trade mark principles”, it would be not correct to suggest that they are merely derivative instruments of the standard instruments of intellectual property protection that we use today. In fact, Suthersanen notes that some of the sui generis intellectual property rights have had long legislative histories and previously played important roles in textile industry, agriculture, mechanical product industries, as the modern notion of intellectual property was slowly evolving. Some of the early examples of sui generis intellectual property rights include the laws on protection of academic compilations in Prussia, regulations protecting geographical indications in China, etc.38

Indeed, the mentioned categories of subject matter can be protected by a combination of the standard intellectual property regimes. For instance, an ornamental feature of a design can be protected by a design patent, by copyright as the author’s expression, and by trademark law (in the form of a trade dress) as a source indicator. However, the overlapping rights make it difficult for intellectual property users to determine the scope of such different rights, particularly when those rights have different terms or limitations. In order to resolve this issue, some scholars suggested that courts should require intellectual property owners to choose the right they want enforced or follow the requirements of the regime whose protection term expires first. Besides, although the courts might not object to invoking overlapping intellectual property regimes as long as the requirements for each regime are met, it is not clear to what extent a particular intellectual property right should be enforced. Therefore, such doctrinal overlap presents a temptation to intellectual property owners to push for even stronger protection of their intellectual property rights.33

Another possible instrument of protection is the unfair competition laws. However, unfair competition laws are a completely different legal concept and are applicable only in certain situations and therefore do not provide enough protection. In particular, the law of unfair competition is only applicable in competitive situations, whereas the sui generis right also covers acts committed in non-competitive situations. Besides, the law of unfair competition sanctions unfair behavior a posteriori, whereas the sui generis rights create rights a priori and grant a term of protection.34

Additionally, this paper considers the creation of a sui generis right for trained AI models. The term “sui generis” means “of [its] own kind; in a class by itself; unique.”4 A sui generis right is created legislatively to protect a very specific type of work that may not be adequately protected by traditional forms of IP. Examples of current sui generis IP protections include integrated circuit layouts, ship hull designs, fashion designs, databases (EU), and plant varieties.

V. CONCLUSION Fashion design drives one of the largest global industries; that industry spurs the economy and provides employment to millions. Although fashion design is afforded relatively low IP protection, it is largely productive in terms of profit and creative output. Yet even with this robust industry, there still remains a clamor for stronger protection of fashion designs and the apparel manufactured from these designs. As discussed, full-dress copyright protection is unnecessary, impracticable, and harmful due to several reasons: despite the lack of full-dress copyright protection, there exists enough creativity and incentive to support a continually growing industry that produces new works and new designers at a regular pace; current IP laws already provide some protection to fashion;166 current copyright laws are incompatible with fashion due to the useful article doctrine167 and the difficulty of distinguishing original from non-original works;168 and providing full-dress copyright protection will likely increase litigation, chill creativity, and drive up costs.169

This article therefore proposes a middle-ground: a sui generis system of protection that only protects fashion designs and pieces of apparel that are exceptionally original, and does so only against other articles that are substantially identical. The term “exceptionally original” is defined in this article as a fashion design that is, upon reduction to a fixed and tangible medium with sufficient specificity, the result of a designer’s own creative endeavor;170 and its variation over prior designs for similar types of articles is the only one of its kind;171 can only be attributed to the designer;172 can be regarded as separate and different;173 is significant; and pertains to the article’s appearance and not its function.174

In sum, the advantages of sui generis protection of industrial design include (1) allowing Congress to design legislation to serve the specific needs of individual industries and (2) giving Congress the ability to pass design protection legislation with limited scope and effect, thereby allowing Congress to strengthen protection for industries that support stronger protection and avoid opposition from industries that do not. Although sui generis legislation does create new burdens for Congress and for the Copyright Office, methods exist by which both of these institutions can minimize and control these burdens. The bottom line is that sui generis design protection provides an efficient and effective way for Congress to meet the needs of the design community.

Sui generis protection for industrial design has characteristics that make it an ideal solution for the inadequacies of the current system. One advantage is that it allows Congress to custom-fit protection legislation according to the specific needs of the targeted industry. For example, one of the complaints reported in the joint report on the VHDPA was that the ten year term of protection afforded under the VHDPA was not long enough to justify registration of hull designs for many manufacturers.'39 The complaint was that when a design is registered, it is also made public. Therefore, in order for registration to be beneficial to the designer, the design must be protected for a sufficiently long period to allow the designer to recoup his investment in the design before others are allowed to copy it without infringing." For across-the-board design legislation that protects many different industries, responding to this type of complaint would be difficult for Congress because the decision would affect all industries covered by the protective legislation. Because the VHDPA currently only applies to boat hull designs, lawmakers have more freedom from industry influence when it comes to making changes to the statute. If the boating industry supports the change and Congress agrees with the alteration, then the adjustments can be made withoutaffecting other industries.

Another advantage of sui generis design protection is that it allows stronger protection to be given to industries that desire increased protection by avoiding opposition from other industries that oppose such measures. One of the biggest hurdles faced by Congress when it comes to passing design protection legislation is strong opposition from certain industries. 4' Utilizing sui generis design protection allows Congress to sidestep this problem by passing legislation with limited scope. If a particular industry is ready for stronger protection, then their efforts to obtain such protection will not be thwarted by vocal opposition from other industries.

The second vulnerability that must be prioritized is economic. As of writing (February 2016), economies the world over are going through serious challenges. Decision-makers must create a more stable global market system that provides development and human security for all. Economic development (discussed in the final part of this chapter) will allow states and decision-makers the ability to become more resilient to other threats. Economic development is thus the second most important vulnerability to prioritize because it instigates the best use of resources. By using resources efficiently, states can amass capabilities to neutralize other sources of vulnerability such as health, military and political. To stem economic vulnerability requires some protection from capitalism’s inherent flux: the cycles of boom and bust. The economy must be made to serve the community; it must be able to serve the needs of society and therefore must be re-embedded: Our thesis is the idea of a self-adjusting market implied a stark utopia. Such an institution could not exist for any length of time without annihilating the human and natural substance of society; it would have physically destroyed man and transformed his surroundings into a wilderness. Inevitably, society took measures to protect itself, but whatever measures it took impaired the self-regulation of the market, disorganized industrial life, and thus endangered society in yet another way. (Polanyi 2001, 4) More regulation is therefore needed to ensure the stability of world society, not just in terms of political stability but in environmental and other areas too. Allowing a totally liberal world economy is too risky given the known costs. Proper mechanisms must be put into place to ensure sustainable growth rates to build resilience to systemic vulnerability and its reach or distribution across states. Decision-makers must see this as important but certain industries continue to fight for deregulation. These industries are too greedy to be allowed into political discourse as they pervert the minds of decision-makers (Stiglitz 2013). Greed works in the short term but it is ultimately short sighted: in the long run we are all dead after all. The other vulnerabilities are serious but are on their way to being stable. States understand the power of Ebola, Zika and cyber-security, for instance, to destroy the world. States are well down the road to developing infrastructure to absorb the chaos that can result from proliferation of such issues. This is because decision-makers fully grasp the importance of establishing control over epidemics and cyber-insecurity. Cyber-defensive measures are being bolstered and increasing power is being given to institutions and regimes to help fight and neutralize outbreaks. More can be done but I am hopeful society is moving in the right direction here. Health invulnerability has a great deal to do with mental health. Many terrorist movements take advantage of people who are clinically depressed due to their being ostracized from society. Mental health issues are part of overall health and must be treated like any other disease. For this to occur, certain stigma must disappear in favor of treatment. In this way, environment and health protection can reduce recruitment to malicious organizations through prevention. Military vulnerabilities coming from states and political vulnerabilities such as terrorist networks are the lowest priority. Strategies already exist to deal with these problems. We have established that containment is the best form of engagement for both issues. If decision-makers perceive this as a viable option, then all that is missing is the will to implement the strategy. States such as China, Russia and the USA position themselves aggressively; but war has not broken out yet because of diplomatic channels, as well as the presence of nuclear weapons that deter aggression. Containment allows for a degree of understanding and freedom of state autonomy if certain lines are not crossed. As a consequence, state conflict is not a high priority at this juncture. The same goes for violent political networks. These do not pose a serious challenge to any hegemonic state and are contained in specific areas of the world. Once we cut off access to wealth, then groups like Islamic State are sure to fizzle out eventually if left alone to their own violent devices. The ranked order of vulnerabilities necessitates a fundamental shift of priorities, especially in the realm of health and humanitarian focus. It will need serious cooperation at the global level. States must be made to work together on these matters. This is, therefore, a responsibility for great powers and hegemonic actors, those who possess enough power to create and defend the system. These systems-creative actors (see Chap. 2) must guide this prioritization process by leading the world against systems-destructive forces described. The capabilities of great powers must be used to solve systemic vulnerabilities. These interactions guide state behavior and are the defining principle of any systemic theory of international politics. Given the multiplicity of systemic vulnerabilities and their distribution across units, states must further link respective resources. The more resources available and in use, the more effectively states can solve problems. The use of securitization and prioritization discourse is essential to achieve this goal. It is here that we see the application of the reprioritization process with regards to systemic vulnerabilities. Such action is a product of the securitization/desecuritization process of prioritization as vulnerabilities are perceived as threatening to human survival. Decision-makers must not look at one source of vulnerability, but must rather take a structural approach to determine the most efficient way to deal with the wide array of problems that undermine survival. Hence, to recover well during times of systemic crisis, whether financial, the result of the rapid influx of refugees or after natural disasters, is essential in dealing with sudden and rapid systemic shocks. States that cannot deal with these on their own are considered weak and vulnerable. Great powers are those that are economically developed with the resilience necessary to adapt quickly to any event. The root of success in neutralizing systemic vulnerability is through systems-creation, that is, the formation of an international system that supports economic development. Economic development allows for the efficient use of scarce resources and is the key to resilience given systemic vulnerability. It allows a state the flexibility to absorb and defuse external shocks in all forms: economic, political, environmental and so forth. Henry Bruton’s modernist definition of economic development understands states to be economically developed if they are sufficiently flexible and diverse to adjust to change (Bruton 1965, 1). Development designates any increase in gross domestic product (GDP) that is sustainable, multidimensional and durable enough to endure economic shocks. Undeveloped countries may suffer from productivity discrepancies due to sudden shock. For example, an undeveloped country would be a monocultural economy dependent on one or two sources of wealth. Rapid fluctuations in commodity prices may send the country into macroeconomic chaos. A developed economy must be able to produce prosperity for the population given potential instability. Conversely, an underdeveloped state is “low income … predominantly a primary producing and consuming area … production is food grains and fibers, although in several countries mining is an activity of importance” (ibid., 88). Underdeveloped economies, then, possess vulnerabilities. Bruton notes this: “The rich country seems to have an economy that has growth built into it, while the poor country seems to have an economy in which ‘nongrowth’ is built into it” (ibid., 2–3). Development specifically deals with eradicating systemic issues that hamper growth (ibid., 3). Accordingly therefore, “economic development presents a means to weather exogenous and endogenous economic, environmental, political and social shocks endemic to vulnerable states … there is a clear dichotomy between these two concepts, vulnerability and development” (Kassab 2014, 66). Economic development improves the resilience of states to recover from systemic shock. It allows for best use of resources to counter threats and allows for the provision of human security, an important concept to stem the proliferation of violent political movements. Other vulnerabilities, such as health, cyber, environmental, can also be dealt with given available resources. In the event of war, a developed state could very well outlast a lesser developed, revisionist state. Hence, economic sustainability is the root of any state’s success in the face of systemic vulnerability.