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Sujai Shivakumar, “Securing Global Standards for Innovation and Growth,” Center for Strategic and International Studies, 01-27-2022, https://www.csis.org/analysis/securing-global-standards-innovation-and-growth

China’s Growing Influence in Technology Standards

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

Ultimately, it will fall on standards development organizations to do the most to broaden participation. The increased importance and visibility of standards places SDOs at a watershed—especially with respect to AI. No technology has ever achieved the level of adoption and awareness generative AI has over the past 18 months and, as the 2023 pace of initiatives on AI policy demonstrates, demand for technologies that are safe and trustworthy is widely felt. This puts a spotlight on major SDOs that deal with information technology.

Sujai Shivakumar, “Securing Global Standards for Innovation and Growth,” Center for Strategic and International Studies, 01-27-2022, https://www.csis.org/analysis/securing-global-standards-innovation-and-growth

At the same time, the development and adoption of one set of standards over another can confer advantages to particular firms and national economies. For some technologies, the selection of a given standard often determines whose product will succeed in global markets. As explained in a recent Wall Street Journal article, “whoever has control of industrial norms for telecommunications, electricity transmission and artificial intelligence is in a position to dominate.” Alternatively, doubts about the fairness and quality of standards—or a bifurcation in the framework within which standards are developed—can disrupt technological development and negatively impact economic growth and innovation-driven improvements in consumer welfare.

Paul Berkman, “Could Science Diplomacy Be the Key to Stabilizing International Relations?,” Scientific American, 06-12-2018, https://www.scientificamerican.com/article/could-science-diplomacy-be-the-key-to-stabilizing-international-relations/

One key avenue is science. As a common and apolitical language, science brings allies and adversaries together with technology and innovation to address cross-border challenges that exist across the Earth—think climate, disease pandemics and international trade—which are out of reach for a single nation to address alone.

Brynne Stanton, Cassandra Padbury, Becky Donaldson, Chris Yates, “Biotechnology: From transforming healthcare to transforming our planet,” World Economic Forum, 09-14-2023, https://www.weforum.org/agenda/2023/09/biotechnology-sustainable-development-goals/

Biotechnology’s reach extends beyond the generation of life saving treatments to provide innovations that address critical planetary challenges.

Matthew Pangle, “A Modern Reconceptualization of Copyrights as Public Rights,” Vanderbilt Journal of Entertainment and Technology Law, 07-xx-2020, https://cdn.vanderbilt.edu/vu-URL/wp-content/uploads/sites/356/2022/07/20025356/2.Pangle-Article_FINAL_Master.pdf

As with the revisions to patent doctrine, modern copyright reforms set the stage for competing legal policies to conflict. For example, the DMCA was seen as overbroad; by limiting access to digital copyrighted material, the very purpose of copyright—with the public at large as the primary beneficiary of a protected work—was directly contradicted.270 Additionally, the DMCA’s overzealousness in protecting digital copyrighted materials put its provisions directly at odds with the Takings Clause and its rationale.271 By implementing what amounts to a digital lock to prevent reproductions of digital copyrighted material, the DMCA arguably acts as a “regulatory destruction of property’s economic value” and “render[s] large swaths of private property unsellable on secondary markets and, therefore, economically worthless”272 with no real recourse or compensation—thus contradicting the Takings Clause rationale balancing private property rights, government use, and just compensation.273 After all, depleting property of essentially all of its economic value is akin to a taking.274

Patricia A. Griffin and Maury Saunders, “ANSI Publishes Action Brief on IBR Landscape for SDOs,” American National Standards Institute, 05-09-2024, https://www.ansi.org/standards-news/all-news/2024/05/5-9-24-ansi-publishes-action-brief-on-ibr-landscape-for-sdos

For example, SDOs may urge that:

James Hamilton, “Brief for International Code Council, Inc. And the American Gas Association as Amici Curiae Supporting Partners,” Georgia et al. v. Public.Resource.Org, Inc., https://www.supremecourt.gov/DocketPDF/18/18-1150/114334/20190830152451138_Amicus%20Brief%20-%20ICC%20and%20AGA.pdf

The Constitution also prohibits governmental takings of private property without just compensation. See U.S. Const. Amend. V (“nor shall private property be taken for public use, without just compensation”). Although the Court has not yet held specifically that copyrights are property for Takings Clause purposes, there is no reason for doubt. The Court has long used the language of property to describe copyrights—describing copyright legislation as creating a “literary property of an author in his works.” Wheaton v. Peters, 33 U.S. 591, 657 (1834) (emphasis added). Congress’s copyright legislation proceeds from “the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors” and that “[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” Mazer v. Stein, 347 U.S. 201, 219 (1954).

John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further

Ultimately, the most important issue that the opinion raises is likely whether or not incorporation by reference now constitutes a taking sufficient to trigger the protections of the Takings Clause.37 Surprisingly, it is not clear if copyright is considered “private property” for the purposes of the Takings Clause,38 and vigorous scholarly debate has produced arguments on both sides of this issue.39 However, the Supreme Court has held that trade secrets are “private property” protected by the Takings Clause and that copyrights are a property interest protected by the Fourteenth Amendment’s Due Process Clause, which together suggest that copyrights likely fall within the scope of the Takings Clause.40 Even assuming this, however, it remains uncertain whether or not the losses that incorporation by reference causes for copyright holders would be considered a per se taking (mandating compensation) or a regulatory taking (requiring consideration of a balance of factors).41 Given that the copyright in the standard itself is not taken, but rather the value in holding the copyright is reduced by permitting fair-use publication, it seems that a regulatory taking is the more likely classification, though this would make it more difficult for SDOs to receive compensation.42

Paul Berkman, “Could Science Diplomacy Be the Key to Stabilizing International Relations?,” Scientific American, 06-12-2018, https://www.scientificamerican.com/article/could-science-diplomacy-be-the-key-to-stabilizing-international-relations/

Science diplomacy is different, operating across a continuum of urgencies from political to sustainability time scales. Nations are still coming together to discuss and resolve cross-border issues. But what’s on the table revolves around common interests revealed across generations by science—including natural sciences and social sciences as well as indigenous knowledge—providing a foundation for negotiation that is far less politically charged and divisive to discuss and resolve the topics of the day.

Alanna Marie Spero, “Sovereign Immunity, Intellectual Property, and the Life Sciences: Investigation and Analysis of the Preserving Access to Cost Effective Drugs Act,” Harvard University, 03-xx-2019, https://dash.harvard.edu/bitstream/handle/1/42004073/SPEROESQ-DOCUMENT-2019.pdf?sequence=1&isAllowed=y

Patent filings in the life sciences are one of the most significant influencers of modern technology as well as the most significant contributor to the advancement and availability of scientific knowledge for use of public benefit. However, over the past twenty-five years, changes have been made to patent law that have complicated an already competitive and at times cutthroat area of law, and as a result this valued intersection of science and law has been further muddled with discourse, patent challenges, and industry leaders seeking every legal avenue or “loophole” to improve their position in the patenting arena. Most recently, this has included the attempt of pharmaceutical company Allergan to circumvent a patent challenge through capitalizing on the sovereign immunity of a Native American Tribe. (Allergan, Inc. and the Saint Regis Mohawk Tribe v. Teva Pharmaceuticals USA, Inc., No. 2:15-cv-1455-WCB (Fed. Cir. Oct. 16, 2017). In July of 2018, a three-justice panel of the U.S. Court of Appeals for the Federal circuit (“CAFC”) issued a scathing decision against Allergan, though Allergan and the Saint Regis Mohawk Tribe have since filed for an en banc rehearing before the CAFC, a rarely granted review in which the full CAFC would preside over the rehearing, but which has yet to be granted. Presuming that the decision of the CAFC is affirmed, sovereign immunity would be rendered be inapplicable to patent law proceedings and, sovereign entities actually participating in invention and development within biotechnology and the life sciences may be penalized for the bad acts of Allergan and the tribe in their attempt to “rent out” sovereign status. The hypervigilant response to the Allergan case is likely to provide unwarranted deprivation of sovereign rights to deserving entities.

Julea Lipiz, “EYE SEE WHAT YOU’RE DOING: AN ANALYSIS OF ALLERGAN’S USE OF TRIBAL SOVEREIGN IMMUNITY TO EVADE IPR OF THEIR EYE PRODUCT, RESTASIS,” Berkeley Technology Law Review, https://btlj.org/data/articles2019/34_4/05_Lipiz_WEB.pdf

The Federal Circuit was correct in finding Allergan’s infamous use of tribal sovereign immunity to be inappropriate. However, the Federal Circuit decision did not address the underlying issues present. The opinion only looks at how FMC’s multi-factor balancing test weighs an agency adjudication. It doesn’t look at why certain agency adjudications have sovereign immunity to begin with. Without an analysis of the underlying purposes, which often serve as “goals” guiding the inquiry, multi-factor tests such as those of FMC become somewhat suspect. If a judicial body doesn’t know the reason for each factor of a test and the weight each factor should be given, then the “weight” of each factor becomes arbitrary and open to discretion.

Cecilia Cheng and Theodore T. Lee, “When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity,” The Yale Law Journal, 03-02-2018, https://www.yalelawjournal.org/forum/when-patents-are-sovereigns

In light of several recent cases that have acknowledged IPR immunity for the states, the Saint Regis Mohawk Tribe’s sovereign immunity theoretically could have also extended to IPR proceedings.45 In September 2017, the Tribe moved to use sovereign immunity as a shield during the IPR review process and dismiss IPR proceedings.46 If this strategy had succeeded, it would have funneled all patent challenges to Restasis towards the federal court system. As Judge Bryson stated in Allergan’s district court litigation in Allergan v. Teva, “Allergan’s tactic, if successful, could spell the end of the PTO’s IPR program.”47

Rebecca Blake, “In a Blow to Creators, Takings Clause Lawsuit is Dismissed in Copyright Case,” Graphic Artists Guild, 06-18-2019, https://graphicartistsguild.org/in-a-blow-to-creators-takings-clause-lawsuit-is-dismissed-in-copyright-case/

Last month, we reported on photographer Jim Olive’s lawsuit against the University of Houston for using his photograph without permission or compensation. Olive was blocked from bringing a typical copyright infringement lawsuit since the University, as a state agency, claimed sovereign immunity, a principle enshrined in the US Constitution that protects governmental agencies from many civil lawsuits. Instead, Olive sought compensation by bringing a lawsuit claiming that the University had engaged in an “unlawful taking” of his copyright. In a blow to copyright holders, the First District Court of Appeals in Houston has ruled that Olive is unable to sue under the Takings Clause.

Matthew Zorn and Shane Pennington, “Questions Raised By Laws That Use Copyrighted Standards?,” Law360, 08-02-2018, https://www.yettercoleman.com/wp-content/uploads/2018/08/Law360-Questions-Raised-by-Laws-That-Use-Copyrighted-Standards.pdf

While skirting these broader issues, the D.C. Circuit did not mention another issue lurking beneath the surface of these incorporation-of-copyright-into-law cases: the takings clause.[18]

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

The Takings Clause of the Fifth Amendment states that “private property [may not] be taken for public use, without just compensation.”112 In simple terms, the Takings Clause provides that the federal or state governments113 may take an individual’s property only when (1) it is for a public use;114 and (2) the government pays just compensation to the property owner.115 For example, consistent with the Takings Clause, the government may use its eminent domain power to appropriate real property for the construction of a railroad, as long as it pays the owner the fair market value of the land.116

John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further

III. Conclusion

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

The copyright status of IBR standards has been litigated in a number of significant federal cases since at least the 1980s. Despite more than 40 years of history, courts have not reached a definitive consensus on (1) whether technical standards remain protected by copyright after they are incorporated by reference into law, or (2) if IBR standards are protected, whether the fair use doctrine or the Constitution permits third parties to make them publicly available despite the copyright.

[Julian Adorney, "WANT PEACE? PROMOTE FREE TRADE.," Global Trade Magazine, 9-18-2020, https://www.globaltrademag.com/want-peace-promote-free-trade/, accessed 6-23-2021]

WANT PEACE? PROMOTE FREE TRADE.

David Kampf, "How COVID-19 Could Increase the Risk of War," World Politics Review, 11-12-2021, https://www.worldpoliticsreview.com/articles/28843/how-covid-19-could-increase-the-risk-of-war

But that overlooked the ways in which the risk of interstate war was already rising before COVID-19 began to spread. Civil wars were becoming more numerous, lasting longer and attracting more outside involvement, with dangerous consequences for stability in many regions of the world. And the global dynamics most commonly cited to explain the falling incidence of interstate war—democracy, economic prosperity, international cooperation and others—were being upended.