Daniel Benoliel

Technological Standards, Inc.:Rethinking CyberspaceRegulatory Epistemology

Technological standardization by the private sector (de facto) is increasingly a means of evading existing law in network environments such as cyberspace. The U.S. government, the Federal Communications Commission (FCC), and theoreticians tend to view technological standards as the digital materialization of legal standards, and, like legal standards, technological standards are also optimally designed by decentralized regulatory institutions. This paper argues, however, that emerging classes of technological standards, such as digital rights management (DRM), should be analogized to legal rules, which are centralized, rather than decentralized legal standards. It does so from a critical viewpoint of the traditional law and economics literature on optimal lawmaking, with respect to the distinction and choice between rules and standards in the legal process. Arguably, for network environments, current developments show that technical standards are now going through a transformation from their traditional role of strictly regulating technical design of inanimate objects in the shape of legal form, to regulating behavioral performance of users in the shape of legal substance. Focusing on the latter, this paper concludes that when de facto standard setters create technological standards based on their policy preferences, rather than creating open-ended, less specific legal commands, they are turning their policy preferences into covert rules. Optimally, such rules would be created by centralized institutions. Nonetheless, this epistemological shift to technological standards regulating behavioral performance is also met by an opposite regulatory constraint due to high standardization costs for centralized institutions. Thus, while rulemaking is optimally performed by centralized institutions, the stealthy rulemaking activity of de facto standard setters requires an adapted checks and balances approach to technological standard setting. Given these invariable institutional constraints, this paper recommends treating the regulation of technological standards, such as DRM technology, with a rule-oriented approach.

Towards an Intellectual Property Bargaining Theory: The Post-WTO Era

This Article proposes a positive bargaining theory for intellectual property-based technologies in the post-World Trade Organization (“WTO”) era. It focuses on negotiations between patentsensitive industries and developing countries over legal endowments and access conditions in an archetypical patent-sensitive industry, namely the pharmaceutical industry. The ability of developing countries to issue, or threaten to issue, compulsory licenses over pharmaceutical products serves as a working example. This Article’s analysis of the bargaining power possessed by developing countries combines a conventional assessment of market size with a qualitative analysis that highlights the effects of these countries’ propensity to innovate. The ensuing bargaining

Patent Intensity and Economic Growth

Economic growth has traditionally been attributed to the increase in national production arising from technological innovation. Using a panel of seventy-nine countries bridging the North-South divide, Patent Intensity and Economic Growth is an important empirical study on the uncertain relationship between patents and economic growth. It considers the impact of one-size-fits-all patent policies on developing countries and their innovation-based economic growth, including those policies originating from the World Intellectual Property Organization, the World Trade Organization and the World Health Organization, as well as initiatives derived from the TRIPS Agreement and the Washington Consensus. This book argues against patent harmonization across countries and provides an analytical framework for country group coalitioning on policy at UN level. It will appeal to scholars and students of patent law, national and international policy makers, venture capitalist investors, and research and development managers, as well as researchers in intellectual property, innovation and economic growth.