(2004) 1:4 SCRIPTed 514—640
Issue DOI: 10.2966/scrip.010404
Volume 1, Issue 4, December 2004
Welcome to the fourth issue of SCRIPTed. This is the list of contents:
- Patents and Public Health: Principle, Politics and Paradox
Edwin Cameron and Johnathan Berger, pp.517-544
SCRIPTed is proud to host the draft text of the inaugural British Academy lecture by Judge Cameron held at the University of Edinburgh, Tuesday 19 October 2004. The final version will be made available by the British Academy.
- Inalienably Yours? The new case for an inalienable property right in human biological material: Empowerment of sample donors or a recipe for a tragic Anti-Commons?
Jasper A. Bovenberg, pp.545-584
Modern biomedical research into the genetic component of common diseases calls for broad access to existing and novel collections of samples of human biological material, aka Biobanks. Groups of donors of these samples, however, increasingly claim a property right in their samples. They perceive the recognition of a personal property right in their biological material as the best means to serve two goals: to secure ongoing control over their samples after donation and to underpin their claim for a share in the proceeds that the research on their samples may yield. Given the objective of ensuring ongoing control, this property right is claimed to be inalienable. Recognition of a personal property right in one’s biological material is problematic, especially where the requirement of inalienability seems at odds with the claim for a share of the profits. Yet, property rights in human biological material may be justified in a certain context, e.g. to enable subsets of patients to negotiate the terms and conditions of the research into their specific disorders. Biobanks, however, contain so many samples, which can be used for so many research purposes, that the unrestricted exercise of personal property rights by the sample donors will lead to a proliferation of rights. This proliferation is likely to deter or slow down both the creation of de novo Biobanks and the use of existing sample collections. Thus, recognising inalienable property rights in human biological material may lead to suboptimal use of these resources and create a classic ‘anticommons property’ scenario. It would also undermine the current trend to simplify existing informed consent requirements which aims to facilitate broad and previously unanticipated research on de novo and existing Biobanks. In addition, the tradition of altruistic participation in research and the notion that large-scale collections of human biological material are global public goods are arguments against recognising inalienable personal property rights in human biological material, at least in the context of Biobanks. To avoid uncertainty over the issue of who owns collected human biological material, the principle that the property rights in such material vest in the entity lawfully collecting and storing the material should be implemented in legislation. This way most individuals and their offspring will benefit more than when they heed the call to stand up for their property rights in their samples.
- In Code, We Trust? Regulation and Emancipation in Cyberspace
Zhu Chenwei, pp.585-610
Code is one of the regulatory modalities as identified by Lawrence Lessig. It is proposed that, in cyberspace, code should not only regulate but also emancipate. However, the emancipatory dimension of code has long been neglected since law and market are increasingly operating in a normative vacuum. The emancipatory approach is also supported by the practice of digital commons, which is to liberate cyberspace from various constraints.
- La competenza per materia delle sezioni IP
(Competence in matters relating to IP sections)
Luigi Carlo Ubertazzi, pp.611-627
Italian Law 12/12/2002, n. 273  as implemented through the Legislative Decree 168/2003  has created “specialized sections” for IP-related matters in the courts (both first and second level) of Bari, Bologna, Catania, Firenze, Genova, Milano, Napoli, Palermo, Roma, Torino, Trieste and Venezia. These sections “deal with cases of national and communitarian trademarks, patents for inventions and new plant varieties, utility models, pictures and models, author rights and all cases of unfair competition when these cases interfere with the protection of industrial and intellectual property”.
This paper discusses the different positions of Italian law scholars and lawyers as to whether the list of subjects, on which the specialized sections are competent as written in the law, is intensive or extensive – in other words, whether the specialized sections should take care *only* of the matters that the law clearly specifies, or whether they should take care of everything “related to” intellectual and industrial property. In this paper several justifications are made for giving full responsibility to IP sections over all law cases dealing with intellectual property (extensive interpretation), together with a rebuttal of the most relevant positions advocating an intensive interpretation of the law.
- The GPL prevails: An analysis of the first-ever Court decision on the validity and effectivity of the GPL
Julian P Höppner, pp.628-635
After many years of mostly academic debate about the legal character of the GNU General Public License (GPL) as well as its validity and enforceability, a Munich District Court issued the first-ever judgement dealing with a number of topics in the centre of the discussion. This paper outlines the facts of the case as well as the ratio decidendi of the Court. In addition, it aims to identify and comment on the questions of law underlying the decision.
- Free Software Act
Maureen O’Sullivan, pp.636-638
This is the latest draft of the Free Software Act.