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At the end of September 2021, China released “The Outline of Building an Intellectual Property Rights (IPR) Powerhouse (2021-2035)” (“Outline”) . The Outline serves as an important milestone policy through a top-down design at the state level in the intellectual property system, which includes two dates:

By 2025, China to achieve clear results in its positioning as an intellectual property rights powerhouse;

WIPO, 2-28-2023, "International Patent Applications Defy 2022 Challenges, Continue Upward Trend," World Intellectual Property Organization,

Demand for patent protection continued to grow in 2022, with innovators in China, the United States, Japan, the Republic of Korea and Germany leading in filings under WIPO’s Patent Cooperation Treaty (PCT) which simplifies the process of seeking patent protection in multiple countries.

For decades, the United States was the leading advocate for a global trading system that respected and enforced intellectual property rights (IPR), both because the U.S. economy and millions of jobs depended on IPR and because policymakers understood how important IPR were to global advancement. Without that persistent and forceful U.S. voice, IPR around the world would have been considerably weaker, to the detriment of technological and other forms of progress.

Unfortunately, today, U.S. policymakers have walked away from that critical role, all too often arguing for weaker, not stronger, IPR and enforcement. In large part this is because many, including many in the Biden administration, have come under the influence of anti-IP proselytizers who see IP as a tool for corporate enrichment that limits access by working people, both at home, and abroad, especially in developing nations.1 For them, weak IP is a critical tool in the equity agenda: enabling cheaper drugs, free content, low-priced clean energy tech in less developed nations, and other redistributionist goals.

Not all ASIs are created equal. If a Chinese court said to a German or U.S. court, “you have no right to adjudicate the validity, infringement, or licensing rate of a Chinese patent,” that would be a “limited ASI” that may be consistent with U.S. practice. U.S. practice has generally been that absent consent or contractual obligations of the parties, ASIs should not determine the validity, infringement, or value of foreign patents.

Recently, China has been issuing what I would call “global ASIs.” Global ASIs attempt to prohibit other courts from adjudicating matters that could affect the ability of a court to determine a global licensing rate for patented technology. They may also be part of broader industrial or judicial policies to increase national influence, extend judicial jurisdiction, or even retaliate against other courts or governments. As you can imagine, when a Chinese court tells a German, Indian, or U.S. court to stop considering issues involving German, Indian or U.S. law and patents arising under that law, it evokes a strong reaction. These courts may respond with counter-ASIs, or AASIs. A judge in the United States called this type of order an “anti-interference” injunction.

How can the United States better cooperate with other countries to either change or respond to unfair Chinese IP practices?

In July 2021 the European Union formally raised concerns at the WTO about the increasing aggressiveness of Chinese courts in their issuance of global ASIs and the lack of publication of critical IP cases affecting foreigners. However, when the EU filed a transparency request, the United States declined to support it. Despite its many challenges, the WTO remains an important venue to raise issues multilaterally and can still be used to resolve IP-related disputes. This was evidenced when the United States achieved a notable success in a dispute over Chinese technology licensing at the WTO during the Trump administration.

The Hague System, also administered by WIPO, is an international registration system that allows design owners to seek protection for their designs in multiple nations through a single international application filed with WIPO. It simplifies the process of obtaining and maintaining industrial design protection internationally by enabling applicants to secure protection in any of the Hague System’s contracting parties through a single application, in one language, and with one set of fees. The Hague System has been operational since 1925 and currently has 77 contracting parties, although the United States only implemented the system in 2015.

The international IP community is moving toward further harmonizing legal protection for industrial designs. For almost twenty years, member states of the World Intellectual Property Organization (WIPO) have been negotiating a Design Law Treaty (DLT) that would streamline and align procedural requirements for obtaining registered design rights across jurisdictions. If successful, the DLT would make it “significantly easier for small and medium-sized enterprises to obtain industrial design protection overseas as a result of simplified, streamlined and aligned procedures and requirements.”[1] The DLT can be seen as parallel to the Patent Law Treaty (PLT) adopted in 2000 that helped to harmonize and standardize the formal patent procedures such as the filing requirements sufficient for obtaining a filing date.

Throughout this time, it has been difficult to implement almost any global IP treaty because of major north-south divides. For the DLT, negotiations have been stalled for the past several years over an African Group proposal that would permit countries to require design applicants to disclose the origin of traditional knowledge, cultural expressions and genetic resources used in creating protectable designs.[2] This same issue has arisen in other IP treaty negotiations over the past few decades.[3] A diplomatic conference is now scheduled for late 2024 to finalize the treaty, but it remains to be seen whether WIPO members be able to reach a consensus. The USPTO is currently soliciting public input to help formulate the U.S. negotiating position.

In addition to its successful, pro-innovation approach to digital policy domestically, the United States collaborated with other nations on multiple initiatives in the 1990s and early 2000s, establishing its position as a global digital policy leader. The United States took an active role in leading negotiations of global agreements on important issues such as IP and cybercrime.

For example, the United States was one of the leading countries to push for an international approach to IP via WIPO treaties, the WCT, and WPPT. This was in part because the United States’ domestic copyright proposals had met resistance in Congress and acting on an international stage produced faster results.35

What is clear is that for as long as the patent systems of the world are governed by national legal systems, as they presently are, an invention will only be protectable in a jurisdiction if a patent has been granted for that jurisdiction. A patent system may be seen as more or less inventor-friendly, by multiple different measures, but ultimately it is not substitutable by another system. The United States is a driving force in innovation and economic growth, so its patent system can expect to remain in demand.

Stepping back, it should perhaps be noted that the basic outline of the patent system is the same around the world—a highly examined monopoly lasting 20 years. That system derives from a time of much slower moving inventive pace, and has added complications and costs (office fees and translation costs), which make the obtaining of global coverage a time-consuming and very expensive exercise.

The United States is engaged in a competition for technology and innovation leadership with China, with both nations making significant investments in their domestic innovation systems while seeking to undermine the other’s innovation system. The United States, for instance, has implemented export controls and investment restrictions to slow China’s rate of technological innovation, while launching innovation initiatives covering emerging energy technologies, quantum computing, and wireless communications, among other industries.

As the competition intensifies, many policymakers and analysts are caught up in the blow-by-blow of this industrial policy race. However, by focusing on these high-profile policies, they risk overlooking a fundamental driver of innovation: a system of secure and market-based intellectual property (IP) rights.

We are facing an ever-growing gap between the phenomenal acceleration of technology and of connectivity, and the human capacity to manage these trends. The gap is well-documented in the fields of finance, climate change, pandemics and nuclear risks. But the contrast between the exponential growth of disruptive technology and the lacklustre supply of governance mechanisms is starkest in the fields of digital governance and artificial intelligence (AI).

That gap becomes existential when we consider the likely future development of artificial general intelligence (AGI) (Ord 2020) or superintelligence (Bostrom 2015) that can be misaligned with human values or even the goal of ensuring the continuity of human existence. This question of the governance of life with AI may be the most essential question of our time (Tegmark 2017), but you would not know it from the current output of global governance in this field. Summarizing the judgement of many scientists in the field, Toby Ord argues that unaligned AGI is actually the number-one global existential risk for humanity, with a 10 percent chance of human extinction within 100 years. The prophesized existential threats posed by extreme and accelerated technological advancement and expansion have never been as close to reality as they are now. As noted by Yuval Noah Harari and Daniel Kahneman (2021) in a recent conversation, the task of taming and governing the digital/AI revolution is daunting. Humanity may have no slack for a mistake this time around, given the existential consequences of such a mistake.

USTR Katherine Tai has said there are no plans to renew the phase-one agreement, citing China’s failure to fulfill purchase commitments. After the agreement expired in December 2021, what can the Biden administration do to improve IP enforcement in U.S.-China trade?

It is important to recognize that IP-related engagement has been ongoing with China throughout the trade war. The U.S. Patent and Trademark Office has had cooperative relationships with China’s IP agencies for many years. It also meets with China and the three other largest patent, trademark, and design protection offices in the world on an annual basis.

A. The World Patent System 1. Office Set-Up The overriding characteristic of a World Patent System (WPS) is that it would be a multinational organization established, managed and administered, not by national patent offices, but by international civil servants in a multinational setting established by treaty.218 In its primordial stages it would operate in parallel with national systems.219 However, to be truly effective, it will not grant a bundle of national patents -as is now done by the European PatentOffice220 -but a single unitary patent respected in all of the member states.221 2. Language Requirements Under the WPS, the first-to-file system would be implemented as well as the grace period, both discussed earlier.25 However, a language agreement would also need to be reached.226 "Currently, as many as two dozen languages must be used to reasonably cover a single invention internationally.'227 TheEP022' now has three "official" languages -English, German and French -in which examinations are conducted.229 However, the bundle of patents elected at the time of the EPO grant must be translated into the respective language of each selected country.2° No less than ten translations would be required at the end of the examination process by electing all of the EPO countries.3' With additional EPO memberships from Central/Eastern Europe,232 the costs of translations in the EPO alone could simply become overwhelming.233 "This European Tower of Babel will have many neighbors if the newly industrialized countries of East Asia and other regions insist on using their own languages in their emerging patent systems."'234 A WPS that would use all of the languages of the world would clearly not be reasonable.231 English should be considered the world language of trade, science, technology, and intellectual property.236 "By conservative estimates, 750 million persons speak English, almost half of them as their native language.237Two-thirds of the world's scientific information is published in English,38 and eight-five percent of all information now stored in computers is in English.239A large majority of EPO-filed cases are now in English, with those filed in French accounting for less than ten percent.240 "Cases in the EPO originating from outside Europe -notably from the United States and Japan -are virtually all in English.'24 The EPO, Japan patent office and Chinese patent office all require their patent examiners to be fluent in English.242 Choosing English as the language of the WPS24 3 simply recognizes that English is the only practical choice for a World Patent System that will demand a common worldlanguage.2" Given the success of the Japanese Patent Office (JPO) in moving to a “paperless" environment, and the corresponding strides in the United States and the EPO, the World Patent System would use a single electronic database of worldwide prior art against which to search and examine patent applica-tions.25 Eventually, machines may be fully capable of "conversing" with patent professionals.246 Even though patents would be examined and enforced in English, the WPS should take advantage of machine translations to provide patent disclosures to all countries in their own languages.2 47 " This will reinforce the use of patents as a uniquely rich source of scientific, technical and business information.248 3. The WPS Judicial System As noted," patents essentially are national instruments to be enforced by national courts.250 The WPS envisioned here would be in sharp contrast to this.251 "There would be a single World Patent Court (WPC) with branches or ‘circuit' courts at the locations of the regional patent offices to decide appeals from those regional offices of the World Patent System and to hear and decide enforcement actions, including both infringement and validity issues."252 "Under the treaty establishing the [WPS], decisions of the [WPC] would be given full faith and credit and implemented and enforced through national courts of all of the member states."253 Instead of appeals and enforcement actions being heard by national jurists, panels of expert multinational jurists, appointed through a merit system administered by the World Patent System would be used.254 Patent enforce-ment trials would be presided over by what the United States would refer to as hearing examiners or special magistrates, throughout the nations that establish the WPS.255 "To ensure impartiality, the multinational jurists who make up the [WPC] and the hearings examiners or special magistrates would be assigned, not based upon their nationality, but rather on their technical expertise and to assure a fair and competent balance in any hearing or enforcement action."256 For instance, an appeal in a United States regional court could be heard and decided by a three-judge panel - one from Europe, one from Latin America, and one from Asia - depending on the results of impartial, probably random, assignments.257 "The [WPC] would have to have firm control over pretrial and trial procedures in preparing cases for decisions, drawing upon the best experience of the member states?"8 Alternate dispute resolution based upon the best international models would be strongly encouraged to lower the cost of patent enforcement actions."9 B. Baseline Requirement System for World Patent System Unlike the detailed system outlined above, another alternative to a globalized patent law system may be based on a basic set of rules while each nation maintains similar performance levels.267 This system would only need to maintain certain characteristics instead of matters being decided by one central court with world-regional branches.268 The first characteristic of a harmonized system is that each nation need not be identical.269 Some feel that identical systems would require uniformity beyond that needed to achieve the beneficial effects of a uniform system.270 This system would not contain just one of one court of appeals or one single patent office.The second characteristic is congruence.272 Congruence would be based on robust similarities of outcome from one country to another, instead of identical statutory provisions.273 The congruence would allow the large issues to be easily considered without having to research nations individually.274 Any differences existing between nations would be handled by specialty attorneys?" The third characteristic is stimulation.276 "People involved in the process of invention, technical advancement, and creative expression will be stimulated by confidence that the results of their efforts can be safeguarded from misappropriation and unauthorized copying, no matter which country becomes the location of their activity."277 A quasi-numerical based model best exemplifies how these characteristics would create an efficient globally harmonized patent system.278 This system rates countries from a scale from one to one-hundred on intellectual property systems relative to one another.279 For this rating, the entire intellectual property system is taken into consideration.280 "As examples, Germany can be rated at slightly more than 90, the United States and some of the European countries in the high 80s, and Mexico after its . . . reforms at about 75, whereas Argentina and Brazil currently rank in the 30s and 405308" Only countries with a system above seventy will produce positive results.282 The results can be measured in terms of three critical occurrences: private venture capital firms become willing to invest in technology-based start-up companies, valuable technical knowledge flows more readily from university laboratories to the marketplace, and local firms' willingness to devote substantial resources to internal research.283 Some commentators feel that this kind of patent system would be better in the long run284 than a system such as the WPS?" This idea is based on the fact that some variation from jurisdiction to jurisdiction would be valuable.286 The theoretical literature on this ‘jurisdictional variation" posits that the primary reason for such variation is to permit each jurisdiction to match its laws to the unique tastes and preferences of its population?" This argument has a strong and weak version, with the weaker being more relevant to the international context.288 The weaker argument assumes a stable set of preferences within each jurisdiction and concludes that the diverse laws of each jurisdiction more closely match the individual preferences within the jurisdiction than would a uniform set of laws imposed across all jurisdictions.289 An example of this in the patent context exists relating to the TRIPS Agreement' 3290 flexibility?" The TRIPS Agreement itself recognizes the value of local diversity.292 An example showing the validity of jurisdictional variation exists when considering applying rules from highly-developed countries in the less-developed world.293 This uniformity could be considered inappropriate because the widest divergence of preferences might well be found between developed and less ‘developed countries."4 However, there are two significant limitations to the local preferences argument.295 First, harmonized patent law does not result in the same degree of uniformity as other harmonized laws, e. g., wage law.296 Second, and more importantly, the local preferences argument is less compelling where the diversity occurs between nations having similar preferences than where preferences are likely to be widely divergent.297 However, the case for jurisdictional variation does not rest solely on matching local preferences.298 Another justification for permitting jurisdictional variation is that tolerating variation will breed jurisdictional competition, in turn, checking governmental inefficiency and abuse.299 However, this argument does not present very powerful reasons for resisting global patent harmonization because even where harmonization is pursued in a number of legal issues, competition on other points can still provide an effective check on govern- ment.300 Also, patent law presents this argument with a problem because the variation now existing among nations' patent law is not imposing any significant check on government inefficiency.301 Jurisdictional variation may also allow legal innovation to occur more rapidly.302 A legal innovation can be valuable not only to the jurisdiction of the innovation, but to others based upon information produced by the results of the innovation.303 This innovation rationale has other implications apart from the others reasons supporting jurisdictional variation}04 The innovation rationale is different than a rationale based on matching local preferences because any innovations in patent law are probably more likely to occur in developed nations, which already possess a sophisticated understanding of the area.305 Innovations are less likely in less—developed nations, which do not have long experience with patent systems."S Because an experimentation rationale gives reason to tolerating diversity between developed nations, it may be sensible to tolerate more diversity between developed nations than between developed and less developed nations.307 However, even if only the developed countries are able to experiment through legal innovation, the history of patent law has shown that even experimentation conducted by large nation-states can produce significant new ideas in law.308

Scholars, who we believe have much to lose and little to gain from this new venue, have several points of entry into the CCB as policy. First, they can participate in the Copyright Office process, which is public. Large publishers, as usual, track these processes and vociferously participate. It will be important to document how important fair use is to scholarly practice and to show that typically universities do not carry legal responsibility for their scholars’ own work. Our survey research documents the level of intimidation of even what the Copyright Office (and large publishers) regard as “small” claims. Second, scholars can document the uses to which the CCB is put, and the effects—personal, cultural, and scholarly. We anticipate that the new venue will be used in many areas of interest to communication and Internet scholars, e.g., memes, TikTok videos, and “configurable culture” (Sinnreich, 2010). Third, scholars can act as public intellectuals. They can educate the public, particularly the creator public, about the implications of a process that operates extrajudicially, to further tilt the legal playing field away from the creator and toward large publishers. Further, they can widely share the fact that defendants have the right to opt out of the CCB proceedings. As one legal scholar, Peter Jaszi, told us repeatedly, “Just say ‘no’” (Jaszi, personal communications, February 4 & 5, 2021) Finally, they can educate themselves, their colleagues, students, institutions, and gatekeepers regarding the low risk of competently exercised fair use, as delineated for instance in the International Communication Association’s (2010) Code of Best Practices in Fair Use for Copyright Research. Non-U.S. scholars as well should take note of this innovation. There is a long history of U.S. copyright maximization strategies being promoted through bilateral and international treaties, in the name of harmonization. In short, scholars must take on the role of policy actors as well as researchers in the copyright arena. Copyright’s biggest issues touch immediately on communication and Internet studies research. Research-based advocacy must go hand in hand with empirical research.

Technological ingenuity and a skilled and creative workforce are at the center of American economic leadership. From mass production of automobiles to telecommunications to the dawn of the Internet, the United States has led the world for more than a century in the development and deployment of new technologies. Artificial intelligence (“AI”) presents an opportunity to continue that global leadership. AI technologies, especially those with generative capabilities, have recently entered the public consciousness and have brought a new age of possibility for businesses and workers, with the potential to solve some of society’s most pressing challenges. AI is developing quickly, as are the opportunities it brings to revolutionize industries, attract investment, and create new jobs. However, we are concerned that a patchwork of state-level proposals to regulate artificial intelligence could slow realization of these benefits and stifle innovation by making compliance complex and onerous, especially for small businesses that stand to benefit the most from the productivity boosts associated with AI. A federal framework is the best option to provide American businesses with the certainty they need to invest in AI development and adoption, and our workforce is prepared to transition to an AI-empowered economy. While there are roles for states to promote adoption of AI within schools, businesses, and government entities, the federal government should take the lead in developing a comprehensive framework for regulating AI. This is not an easy task, but federal agencies, leading technology companies, and other critical stakeholders including researchers are working in a collaborative manner alongside U.S. allies to establish governance frameworks for AI. On behalf of chambers of commerce and business voices across the U.S., the undersigned urge state leaders to embrace the benefits of artificial intelligence (“AI”) for their states, and to study whether legal gaps exist before pushing for new regulatory frameworks. States should conduct assessments of existing laws to identify those that already protect consumers from harm and that work as well for AI as for other technologies. States should also identify AI use cases that can make government more efficient and improve service delivery and constituent engagement. Finally, states should consider how to strengthen support for computer science education and digital skilling initiatives to ensure that American businesses can attract employees prepared to use AI technologies to improve their professional experience and increase their productivity.

Red teaming is a critical tool for improving the safety and security of AI systems. It involves adversarially testing a technological system to identify potential vulnerabilities. Today, researchers and AI developers employ a wide range of red teaming techniques to test their AI systems, each with its own advantages and disadvantages. The lack of standardized practices for AI red teaming further complicates the situation. Developers might use different techniques to assess the same type of threat model, and even when they use the same technique, the way they go about red teaming might look quite different in practice. This inconsistency makes it challenging to objectively compare the relative safety of different AI systems.

Insert theory is desired

Artificial intelligence (AI) companies disincentivize safety research by implicitly threatening to ban independent researchers that demonstrate safety flaws in their systems. While Congress encourages companies to provide bug bounties and protections for security research, this is not yet the case for AI safety research. Without independent research, we do not know if the AI systems that are being deployed today are safe or if they pose widespread risks that have yet to be discovered, including risks to U.S. national security. While companies conduct adversarial testing in advance of deploying generative AI models, they fail to adequately test their models after they are deployed as part of an evolving product or service. Therefore, Congress should promote the safety and trustworthiness of AI systems by establishing bug bounties for AI safety via the Chief Digital and Artificial Intelligence Office and creating a safe harbor for research on generative AI platforms as part of the Platform Accountability and Transparency Act.

Pursuing other remedies beyond technical mitigation. Importantly, even if technical mitigation strategies managed to keep foundation models within the confines of fair use, these models may still create harms in many other ways—including disrupting creative industries, exploiting labor, and more. See extensive discussion by, e.g., Bender et al. (2021); Bommasani et al. (2021); Blodgett et al. (2020); Mahelona et al. (2023). It is important to note that we do not suggest that technical mitigation strategies will solve everything and neither will fair use doctrine. Our goal here is to point out that currently there is more work to be done even within the confines of fair use to make foundation models more in line with case law. Other strategies to prevent harms should be pursued in conjunction with the strategies we outline here, but they should be carefully weighed against other potential harms from excluding data under overly restrictive copyright standards (Levendowski, 2018). For example, complementary approaches to what we describe here could include statutory licensing schemes, taxation and redistribution, or other policy mechanisms. While these may be worthy of considering, each may have its own challenges and are outside the scope of this work. Furthermore, there are other aspects of fair use that we do not consider here, and there well may be cases where technical mitigation strategies will still not be enough for fair use.

The EU AI Act has far-reaching implications for US AI companies and policymakers. Companies developing or deploying AI systems in or for the EU market will have to navigate the Act’s strict requirements, which requires significant changes to their AI development and governance practices. This likely would involve investments to improve risk assessment and mitigation processes, ensure the quality and representativeness of training data, implement comprehensive policies and documentation procedures, and establish strong human oversight mechanisms. Besides significant penalties, noncompliance with the Act’s provisions may result in reputational damage which can be significant and long-lasting, resulting in a severe loss of trust and credibility, as well as widespread public backlash, negative media coverage, customer loss, partnerships, investment opportunities, and boycott calls.

The AI Act’s extraterritorial reach means that US companies will be impacted if their AI systems are used by EU customers. This emphasizes the importance for US AI companies to closely monitor and adapt to the changing regulatory landscape in the EU, regardless of their primary market focus.

Despite the potential risks inherent with adopting AI in nuclear systems, many of the potential benefits to both deterrence and arms control have been overlooked or ignored. Additionally, many in the nuclear policy community rely on the most extreme negative examples to make the case that AI is too dangerous to adopt into nuclear policies and practices. These views are short-sighted and ignore the reality that AI will increasingly play a role in all aspects of our civil and military policies—and that potential great power competitors such as China and Russia are investing heavily in AI-related military technology.10 The broader nuclear policy community should therefore start thinking now about how to harness the power of AI as a tool for greater stability, transparency, and security as well as steps that can be put in place to mitigate the most significant risk factors.