Ofer Tur Sinai | Ono Academic College (original) (raw)
Papers by Ofer Tur Sinai
SSRN Electronic Journal
Rebecca creates an artwork. David mints an NFT that links to Rebecca’s work. Is David making a co... more Rebecca creates an artwork. David mints an NFT that links to Rebecca’s work. Is David making a copyright infringement? This question—probably the most fundamental one at the intersection between copyright and the technology of non-fungible tokens (NFT)—is the focus of this Article. As surprising as this may sound, the answer is not at all obvious under the extant copyright law. This Article argues that from a policy standpoint, the answer must be positive. Expounding this issue is imperative in order for the NFT technology to fulfill its potential for creative works markets. In this Article, we analyze the markets for digital artworks and show that NFTs could potentially address the most pressing and long-lasting dilemma of art and the digital world: how to maintain the incentive to create digital art without overshadowing the big promise of the internet—to maximize access to content. This incentive-access friction was so far perceived as a necessary trade-off in copyright theory, and the internet presented a powerful manifestation of it. It has become a truism: the more enhanced the access to works has become online, the less likely artists were to benefit from their works. Everyone had to pick a side or draw the line somewhere on this incentive-access continuum. NFTs may open a way to move past the incentive-access paradigm. NFT transactions occur on the blockchain—a separate, parallel platform—and they do not affect the availability of the work outside of the platform. Thus, NFTs can revive scarcity and authenticity in the digital sphere, while at the same time not harming a bit the access to the works. While this could feature a dramatic improvement, this potential can only be realized if copyright law awards exclusive rights over minting to rightsholders. If all can mint NFTs, scarcity is lost again, and artists cannot benefit from art sales. This Article offers at least three novel contributions to the literature. First, it establishes the case for exclusive minting-rights to authors based on an analysis of art markets and the attributes of the NFT technology. It also shows that exclusive minting-rights to authors can promote other crucial objectives such as distributive justice and cultural diversity in art markets. Second, it analyzes the legal mechanisms that can effectuate the desired result of exclusive minting rights. Third, this Article’s analysis of NFTs illustrates more generally different approaches to the design of copyright law amid emerging technologies, which is a contentious and hotly debated issue.
Science
Outdated copyright laws around the world hinder research
University of Michigan Journal of Law Reform, Feb 23, 2014
This Article generally does not distinguish between the parties and their representatives and ass... more This Article generally does not distinguish between the parties and their representatives and assumes for the purposes of its analysis that their interests coincide. For a discussion of potential conflicts of interest between parties and their representatives, see, for example,
Social Science Research Network, Jan 9, 2021
Social Science Research Network, Aug 22, 2021
SSRN Electronic Journal, 2021
/whodeclares-the-coronavirus-outbreak-a-pandemic/. 2 WHO Coronavirus (Covid-19) Dashboard, Overvi... more /whodeclares-the-coronavirus-outbreak-a-pandemic/. 2 WHO Coronavirus (Covid-19) Dashboard, Overview, https://covid19.who.int/ (as of Oct. 24, 2021, citing 4,953,246 global deaths reported to WHO).
IO: Productivity, 2014
As the secret negotiations of the Trans-Pacific Partnership Agreement ("TPP") between t... more As the secret negotiations of the Trans-Pacific Partnership Agreement ("TPP") between the United States and eleven other nations approach the final stages, the recent release of the draft Intellectual Property Chapter provides a timely opportunity to examine its content. Among the myriad issues addressed in the draft is experimental use of patents, a topic that has been the source of much discussion and debate in recent years. This Article analyzes the proposed Experimental Use Clause and evaluates it in light of the policy considerations underlying the patent system.The analysis demonstrates that adoption of an international standard concerning experimental use of patents can have significant benefits in promoting uniformity and removing uncertainty. However, a close examination of the proposed Experimental Use Clause reveals that it falls short of attaining these goals due to a few notable shortcomings. First, the clause is drafted in a permissive manner, and thus, may e...
IRPN: Innovation & Intellectual Property Law & Policy (Topic), 2018
Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the paten... more Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the patentee’s rights with respect to that item, leaving the purchaser and subsequent owners free to use or resell it without fear of an infringement lawsuit. In 2017, the U.S. Supreme Court issued its landmark decision in Impression Products v. Lexmark International, which strengthened the exhaustion doctrine in various significant ways. The Court held that an authorized sale of a patented item exhausts all patent rights with respect to that item, regardless of any restrictions on use or resale the patentee purports to impose. The Court further held that exhaustion is triggered not only by local sales but also by authorized sales outside the United States. The decision is likely to have considerable implications across various industries. This Article examines the immensely valuable but underexplored role that the exhaustion doctrine could play in the context of cumulative innovation. Research a...
Environmental Law, 2017
Climate change poses a major challenge to humanity. In order to deal with our rapidly changing en... more Climate change poses a major challenge to humanity. In order to deal with our rapidly changing environment, there is a need for a broad range of new technologies that could assist in mitigating or adapting to climate change. Unsurprisingly, intellectual property (IP) scholars and policy makers have relied extensively on patents to provide incentives for the development of climate change technologies. This Article casts doubts over the prospect of relying on patent incentives to adequately promote innovation in this domain. It explores the manner by which patents foster innovation in a variety of settings— from upstream research to end-product development—and reveals that the patent system is far from an optimal incentive mechanism in the environmental field, and thus cannot be trusted to adequately promote the development of climate change technologies. The likely failure of patents to effectively incentivize environmental innovation stems to a large extent from the major role assig...
SSRN Electronic Journal, 2020
Recent years have seen a surge in the use of automotive telematics. Telematics is the integration... more Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the market for repair services. Our analysis highlights two main areas where the use of telematics for vehicle diagnostics may pose a threat to competition and consumer choice. First, we focus on the manner by which manufacturers communicate with their customers via the telematics system. Due to the special relationship between car manufacturers and their consumers, which is often based on trust and loyalty, alongside the "captive audience" status of drivers, we argue that communications emanating from the car's telematics system could be deceptive. Second, we explore the negative impact that the shift away from on-board diagnostics to telematics could have on independent repair shops' access to diagnostic information. Fortunately, the law can adapt to keep pace with these new technological and commercial developments. This Article articulates the combined multi-prong, multi-agency policy approach needed to maintain an effective right to repair cars in the new age of telematics. Among other things, our analysis supports an update of state consumer protection legislation and an increased policing by the Federal Trade Commission of practices employed by car manufacturers. In addition, we highlight the need to consider certain amendments to intellectual property laws that effectively aid car manufacturers in maintaining exclusive control over their telematics systems and diagnostic data.
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2019
pass the legislation, and recommends certain reforms that are necessary to accommodate the need f... more pass the legislation, and recommends certain reforms that are necessary to accommodate the need for a right to repair and enable it to take hold.
research and development. 2 Pursuant to this theory, absent exclusive legal rights to use an inve... more research and development. 2 Pursuant to this theory, absent exclusive legal rights to use an invention, there would be no incentive to invent, as free riders may imitate the invention and drive down its market price to a level that would not allow the inventor to recoup her research and development costs and make a reasonable profit. 3 By providing legal exclusivity, patents overcome this market failure and provide the missing incentive to engage in inventive activity, thus benefiting society. The "incentive to invent" theory has been complemented by other theories, including the "incentive to disclose" theory 4 and the "prospect" theory, 5 all of which set out to justify the need for a patent system from an economic point of view. 6 The economic justifications for the patent system have not gone unchallenged. Over the years, the various purported economic benefits of the patent system have been called into question. A central argument criticizing the "incentive to invent" theory has been that government intervention is not necessary to secure incentives to invent. As the argument goes, inventions are developed, with or without patents, when 2.
New innovation can be vastly dependent upon patented technologies. Despite growing awareness with... more New innovation can be vastly dependent upon patented technologies. Despite growing awareness within the legal community of the chilling effect that the patent system may have on research and development, U.S. patent law still does not provide adequate solutions to conflicts that may arise in a cumulative innovation setting. Against this background, this Article embarks on a comprehensive analysis of cumulative innovation. Examining the issue from the perspective of the well-versed incentive to invent theory - while accounting for certain important aspects that have been overlooked so far in legal scholarship - this Article suggests three main mechanisms that can work in tandem to ensure appropriate incentives in a cumulative innovation setting. The first mechanism, the Absolute Scope Principle, ensures the first inventor's incentive by including the exploitation of all follow-on inventions - including products developed through use of patented research tools - within the scope of the first patent, subject only to a narrow exemption doctrine based on a reasonable expectations test. This mechanism is balanced by a wide experimental use exception, allowing development of any follow-on invention without receiving advance permission of the original patentee (the second mechanism); and liability rule doctrines (the third mechanism) allowing non-consented exploitation of follow-on inventions in return for a reasonable royalty in case the inventors failed to reach a voluntary agreement. The Article concludes with a critical examination of U.S. patent law, offering concrete suggestions for patent law reform necessary in order for the U.S. to provide a supportive environment to cumulative research and maintain a leading position in innovation markets.
papers.ssrn.com
concerning the role of the endowment effect in intellectual property transactions. According to t... more concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine.
SSRN Electronic Journal, 2013
This article was published in an Israeli law review. It summarizes and evaluates recent developme... more This article was published in an Israeli law review. It summarizes and evaluates recent developments in Israeli intellectual property law.
SSRN Electronic Journal
Rebecca creates an artwork. David mints an NFT that links to Rebecca’s work. Is David making a co... more Rebecca creates an artwork. David mints an NFT that links to Rebecca’s work. Is David making a copyright infringement? This question—probably the most fundamental one at the intersection between copyright and the technology of non-fungible tokens (NFT)—is the focus of this Article. As surprising as this may sound, the answer is not at all obvious under the extant copyright law. This Article argues that from a policy standpoint, the answer must be positive. Expounding this issue is imperative in order for the NFT technology to fulfill its potential for creative works markets. In this Article, we analyze the markets for digital artworks and show that NFTs could potentially address the most pressing and long-lasting dilemma of art and the digital world: how to maintain the incentive to create digital art without overshadowing the big promise of the internet—to maximize access to content. This incentive-access friction was so far perceived as a necessary trade-off in copyright theory, and the internet presented a powerful manifestation of it. It has become a truism: the more enhanced the access to works has become online, the less likely artists were to benefit from their works. Everyone had to pick a side or draw the line somewhere on this incentive-access continuum. NFTs may open a way to move past the incentive-access paradigm. NFT transactions occur on the blockchain—a separate, parallel platform—and they do not affect the availability of the work outside of the platform. Thus, NFTs can revive scarcity and authenticity in the digital sphere, while at the same time not harming a bit the access to the works. While this could feature a dramatic improvement, this potential can only be realized if copyright law awards exclusive rights over minting to rightsholders. If all can mint NFTs, scarcity is lost again, and artists cannot benefit from art sales. This Article offers at least three novel contributions to the literature. First, it establishes the case for exclusive minting-rights to authors based on an analysis of art markets and the attributes of the NFT technology. It also shows that exclusive minting-rights to authors can promote other crucial objectives such as distributive justice and cultural diversity in art markets. Second, it analyzes the legal mechanisms that can effectuate the desired result of exclusive minting rights. Third, this Article’s analysis of NFTs illustrates more generally different approaches to the design of copyright law amid emerging technologies, which is a contentious and hotly debated issue.
Science
Outdated copyright laws around the world hinder research
University of Michigan Journal of Law Reform, Feb 23, 2014
This Article generally does not distinguish between the parties and their representatives and ass... more This Article generally does not distinguish between the parties and their representatives and assumes for the purposes of its analysis that their interests coincide. For a discussion of potential conflicts of interest between parties and their representatives, see, for example,
Social Science Research Network, Jan 9, 2021
Social Science Research Network, Aug 22, 2021
SSRN Electronic Journal, 2021
/whodeclares-the-coronavirus-outbreak-a-pandemic/. 2 WHO Coronavirus (Covid-19) Dashboard, Overvi... more /whodeclares-the-coronavirus-outbreak-a-pandemic/. 2 WHO Coronavirus (Covid-19) Dashboard, Overview, https://covid19.who.int/ (as of Oct. 24, 2021, citing 4,953,246 global deaths reported to WHO).
IO: Productivity, 2014
As the secret negotiations of the Trans-Pacific Partnership Agreement ("TPP") between t... more As the secret negotiations of the Trans-Pacific Partnership Agreement ("TPP") between the United States and eleven other nations approach the final stages, the recent release of the draft Intellectual Property Chapter provides a timely opportunity to examine its content. Among the myriad issues addressed in the draft is experimental use of patents, a topic that has been the source of much discussion and debate in recent years. This Article analyzes the proposed Experimental Use Clause and evaluates it in light of the policy considerations underlying the patent system.The analysis demonstrates that adoption of an international standard concerning experimental use of patents can have significant benefits in promoting uniformity and removing uncertainty. However, a close examination of the proposed Experimental Use Clause reveals that it falls short of attaining these goals due to a few notable shortcomings. First, the clause is drafted in a permissive manner, and thus, may e...
IRPN: Innovation & Intellectual Property Law & Policy (Topic), 2018
Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the paten... more Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the patentee’s rights with respect to that item, leaving the purchaser and subsequent owners free to use or resell it without fear of an infringement lawsuit. In 2017, the U.S. Supreme Court issued its landmark decision in Impression Products v. Lexmark International, which strengthened the exhaustion doctrine in various significant ways. The Court held that an authorized sale of a patented item exhausts all patent rights with respect to that item, regardless of any restrictions on use or resale the patentee purports to impose. The Court further held that exhaustion is triggered not only by local sales but also by authorized sales outside the United States. The decision is likely to have considerable implications across various industries. This Article examines the immensely valuable but underexplored role that the exhaustion doctrine could play in the context of cumulative innovation. Research a...
Environmental Law, 2017
Climate change poses a major challenge to humanity. In order to deal with our rapidly changing en... more Climate change poses a major challenge to humanity. In order to deal with our rapidly changing environment, there is a need for a broad range of new technologies that could assist in mitigating or adapting to climate change. Unsurprisingly, intellectual property (IP) scholars and policy makers have relied extensively on patents to provide incentives for the development of climate change technologies. This Article casts doubts over the prospect of relying on patent incentives to adequately promote innovation in this domain. It explores the manner by which patents foster innovation in a variety of settings— from upstream research to end-product development—and reveals that the patent system is far from an optimal incentive mechanism in the environmental field, and thus cannot be trusted to adequately promote the development of climate change technologies. The likely failure of patents to effectively incentivize environmental innovation stems to a large extent from the major role assig...
SSRN Electronic Journal, 2020
Recent years have seen a surge in the use of automotive telematics. Telematics is the integration... more Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the market for repair services. Our analysis highlights two main areas where the use of telematics for vehicle diagnostics may pose a threat to competition and consumer choice. First, we focus on the manner by which manufacturers communicate with their customers via the telematics system. Due to the special relationship between car manufacturers and their consumers, which is often based on trust and loyalty, alongside the "captive audience" status of drivers, we argue that communications emanating from the car's telematics system could be deceptive. Second, we explore the negative impact that the shift away from on-board diagnostics to telematics could have on independent repair shops' access to diagnostic information. Fortunately, the law can adapt to keep pace with these new technological and commercial developments. This Article articulates the combined multi-prong, multi-agency policy approach needed to maintain an effective right to repair cars in the new age of telematics. Among other things, our analysis supports an update of state consumer protection legislation and an increased policing by the Federal Trade Commission of practices employed by car manufacturers. In addition, we highlight the need to consider certain amendments to intellectual property laws that effectively aid car manufacturers in maintaining exclusive control over their telematics systems and diagnostic data.
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2019
pass the legislation, and recommends certain reforms that are necessary to accommodate the need f... more pass the legislation, and recommends certain reforms that are necessary to accommodate the need for a right to repair and enable it to take hold.
research and development. 2 Pursuant to this theory, absent exclusive legal rights to use an inve... more research and development. 2 Pursuant to this theory, absent exclusive legal rights to use an invention, there would be no incentive to invent, as free riders may imitate the invention and drive down its market price to a level that would not allow the inventor to recoup her research and development costs and make a reasonable profit. 3 By providing legal exclusivity, patents overcome this market failure and provide the missing incentive to engage in inventive activity, thus benefiting society. The "incentive to invent" theory has been complemented by other theories, including the "incentive to disclose" theory 4 and the "prospect" theory, 5 all of which set out to justify the need for a patent system from an economic point of view. 6 The economic justifications for the patent system have not gone unchallenged. Over the years, the various purported economic benefits of the patent system have been called into question. A central argument criticizing the "incentive to invent" theory has been that government intervention is not necessary to secure incentives to invent. As the argument goes, inventions are developed, with or without patents, when 2.
New innovation can be vastly dependent upon patented technologies. Despite growing awareness with... more New innovation can be vastly dependent upon patented technologies. Despite growing awareness within the legal community of the chilling effect that the patent system may have on research and development, U.S. patent law still does not provide adequate solutions to conflicts that may arise in a cumulative innovation setting. Against this background, this Article embarks on a comprehensive analysis of cumulative innovation. Examining the issue from the perspective of the well-versed incentive to invent theory - while accounting for certain important aspects that have been overlooked so far in legal scholarship - this Article suggests three main mechanisms that can work in tandem to ensure appropriate incentives in a cumulative innovation setting. The first mechanism, the Absolute Scope Principle, ensures the first inventor's incentive by including the exploitation of all follow-on inventions - including products developed through use of patented research tools - within the scope of the first patent, subject only to a narrow exemption doctrine based on a reasonable expectations test. This mechanism is balanced by a wide experimental use exception, allowing development of any follow-on invention without receiving advance permission of the original patentee (the second mechanism); and liability rule doctrines (the third mechanism) allowing non-consented exploitation of follow-on inventions in return for a reasonable royalty in case the inventors failed to reach a voluntary agreement. The Article concludes with a critical examination of U.S. patent law, offering concrete suggestions for patent law reform necessary in order for the U.S. to provide a supportive environment to cumulative research and maintain a leading position in innovation markets.
papers.ssrn.com
concerning the role of the endowment effect in intellectual property transactions. According to t... more concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine.
SSRN Electronic Journal, 2013
This article was published in an Israeli law review. It summarizes and evaluates recent developme... more This article was published in an Israeli law review. It summarizes and evaluates recent developments in Israeli intellectual property law.