Each year more than eighteen million human lives end in death from poverty-related causes, fully one-third of all human deaths globally. This amounts to fifty thousand deaths per day from causes such as respiratory infections, HIV/AIDS, tuberculosis, malaria, measles, and tropical diseases. Many of these are treatable, if not curable, conditions. The numbers are overwhelming and mandate an examination of the barriers to accessing medicines in developing countries, where the majority of these deaths occur. Admittedly this is an immense and complicated issue, and the economics behind pharmaceutical innovation and access is but one facet of a complete understanding of the problem. This paper describes the context of the problems surrounding access to medicines, highlighting the tremendously complicated web of issues that prevent medicines from reaching the world’s poorest. The following sections provide a bit of background on pharmaceutical patents, international intellectual property law, the pharmaceutical industry perspective, and the complicated elements that come together to create the most significant barriers to pharmaceutical access. While the international patent system is obviously flawed and in need of improvement, it is overly simplistic to blame drug patents and the global pharmaceutical industry for the access problem. The reality surrounding the challenges of access to medicines is more nuanced. In the debate over barriers to access, the culprits include corruption, poverty, taxes and tariffs, and pharmaceutical counterfeiting. Section two presents the fundamentals of the global pharmaceutical market. Section three introduces the challenges surrounding access to medicines. Section four provides analysis, and section five concludes.
Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper, An e-SOS for Cyberspace, that an analogous system should be established to respond to cyber distresses. Traditionally, an SOS call required ships in the area “to ‘proceed with all speed’ to provide whatever assistance” they could. Hollis argues that “international law needs a new norm for cyber-security: a duty to assist, or DTA.” This duty to assist (DTA) would be much like an SOS in maritime law, in that it would “marshal sufficient resources to avoid or at least mitigate . . . harm as much as possible.” Under Hollis’ proposal, individuals, businesses, organizations, and/or states should have a similar ability (and a similar corresponding duty) to seek and provide aid to the victims of cyber attacks. If the DTA is effective, Hollis argues that it will not only help avoid or mitigate cyber harms but that it will also act as a deterrent by making attackers “think twice about whether it is worth the effort to attack at all.” Hollis is careful to make clear that he does not “expect any resulting duty to remediate all threats nor to operate in all contexts,” but he lays out a framework, inviting the international community to accept the apparent need and to craft a solution that will provide the assistance required.
Recognizing that Hollis’ project here is not to propose a complete solution but merely a framework upon which to build, I will focus my comments on four points in Hollis’ paper: proximity, frequency, technology protection, and the continuing problem of attribution. While these four points are fundamental to Hollis’ proposal, I believe that they also present some difficulties.
Individuals, shadowy criminal organizations, and nation states all currently possess the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk—and the threat is growing in scale and intensity with every passing day.
The conventional response to such cyberthreats is self-reliance; but when self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws establish what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors—whether criminals or states—to deter cyberthreats.
This Article challenges the sufficiency of existing cyberlaw and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar have little deterrent effect. They may even create new problems when attackers and victims assume that different rules apply to the same conduct.
Instead of regulating bad actors, this Article proposes that states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist provides victims with assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance is reasonable. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient against any harm they impose. At the same time, an e-SOS would complement, rather than compete with, self-reliant measures and existing legal proscriptions against cyberthreats.
March 25, 2011
Harvard Law School
On Monday, November 16th, Beijing’s No.1 Intermediate People’s Court ordered Microsoft to pull some versions of Windows off of the Chinese market for violation of Intellectual Property rights. According to the court, Microsoft exceeded the scope of its licensing agreement with Chinese software company Zhongyi by using certain Chinese character fonts in Window’s 98, 2000, 2003, and Windows XP. Microsoft plans to appeal, claiming that its licensing agreement was not only for Windows 1995.
The suit comes after extensive pressure from the United States and European Union for China to enforce intellectual property rights on behalf of companies like Microsoft. Michael Vella, the head of China litigation for Morrison & Foerster, LLP sees this as the beginning of a trend in which Chinese companies will take their own IP claims to court.
The injunction is unlikely to affect Microsoft’s long-term business goals since roughly 80% of Microsoft’s operating systems in China were pirated from Microsoft in the first place. Chinese courts are, of course, working to prevent this piracy as well. In fact, a Chinese court recently sent four bootleggers to jail for selling illicit versions of Windows 7 in advance of its launch last month.
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On Thursday April 9, the French National Assembly rejected an Internet piracy bill that punished repeat illegal downloaders. The bill won preliminary parliamentary approval but was eventually defeated by a vote of 21-15. Under the bill, a first time offense of downloading illegal material would be punished by a warning and a second time offense would be punished by up to a one-year ban. The bill was supported by the International Federation of the Phonographic Industry, which represents the recording industry and opposed by the UFC-Que Choisir, a French consumer interest group.
Other nations in Europe have been struggling with balancing the protection of copyright materials and privacy concerns. In January 2008, the European Court of Justice found that telecommunication companies in Spain did not have to share the identities of Internet users suspected of illegal file sharing. A Belgium court in June 2007, on the other hand, ordered a file sharing website to filter users found sharing copyrighted material.
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