Governance of Standard Development Organisations (sdos) and Intellectual Property (ipr) Policies
Pierre Larouche (Université de Montréal)
Justus Baron (Northwestern University)
Jorge Contreras (Utah University)
Martin Husovec (Tilburg University)

Abstract : This paper is based on a research project carried out for the European Commission. That project had an empirical component, involving interviews of SDO leaders and a survey of SDO stakeholders. The SDOs in our sample are based in Europe, the United States and elsewhere, and the set of stakeholders is global. Some SDOs follow a more traditional model (broad-based, long established), others are narrower and driven by specific needs. This paper takes as a backdrop the debates surrounding IPR policies which have affected a number of SDOs in recent years. IPR policies govern the use of intellectual property (essentially patents) in standards development; they typically include requirements as to disclosure and licensing. Existing literature on SDOs is mostly concerned with standardization activities and the substantive rules concerning standardization. More recently, the applications of IPR policies has drawn much academic and practical attention, in the context of disputes surrounding FRAND commitments. Few articles and papers have ventured into the governance of SDOs as such. In this paper, we make a comparative investigation of SDO governance, and we attempt to link features of SDO governance with the outcomes observed as regards the IPR policies of the SDOs under study. We summarize the legal and other external constraints on governance. We describe and analyse the various options chosen by SDOs and observed in our sample for key elements of governance, such as membership, management, decision-making processes and dispute resolution. We also examine how SDOs implement basic governance principles such as transparency, openness and representativeness. We put forward a set of empirically and theoretically grounded explanations for why IPR policy evolves in a given direction at a given SDO.

On the Informal and Formal Institutions Protecting Creative Effort (intellectual Property)
Ejan Mackaay (Université de Montréal)

Abstract : Creation and innovation are crucial to economic growth. They can be stimulated variously by informal and formally legal means. The legal system must support the institutions through which innovators legitimately seek reward for their efforts, whilst avoiding these institutions turning into rent-seeking structures impeding follow-on innovation. Some institutions, such as the first mover advantage or 'lead time,' or black listing and community sanctions against free riders, are informal and not directly legal. Secrets and intellectual property rights (IP) are legal institutions supported in order to stimulate innovation. IP looks like a straightforward application of the ‘property rights’ paradigm. To manage scarcity and focus management skills and creative talent, create property rights whose incentive effects will do the job. But the story is more complicated since, unlike physical goods, information, the object of IP, is not inherently scarce; indeed, as information and communication technologies expand, the information is becoming ever cheaper to create and distribute, and is, in many circumstances, abundant, so that selection is of the essence ('on the internet, point of view is everything'). This would argue for free accessibility (public goods argument). But attracting creative talent often seems to require legally supported reward, which is what IP intends to provide. Yet if IP rights on information extend too far, their monopolising effect may hamper follow-on innovation. As internet use expands, this appears to be a major challenge of our time. The paper investigates the underlying structure of informal protections as well as formal IP rights and surveys what we know empirically about industries that flourish without formal IP (including the fashion industry) as well as about the incentive effects of formal IP rights. stimulating innovation.

Securities Law Enforcement in Canada: Towards a Consolidated Model?
Stéphane Rousseau (Université de Montréal)

Abstract : About 20 years ago, the Law and Finance movement was launched with a series of influential papers by La Porta, Lopez-de-Silanes, Shleifer & Vishny (LLSV). A central thesis of the movement is that “law matters”, that is regulation influences the level of investor protection, corporate ownership structures and, more generally, the development of financial markets. An additional wrinkle to this story is that enforcement matters. Indeed, even if the laws on the books are excellent, an ineffective enforcement regime will prevent the rules from attaining their outcome. In Canada, enforcement in securities regulation has generated much debate in policy and academic settings. A first debate relates to the role and place of public and private enforcement mechanisms. A second debate pertains to the efficacy of the decentralized (multi-enforcer) model of enforcement vis-à-vis the centralized (or consolidated) enforcement model. These debates have been fuelled by the perception that enforcement is suboptimal in Canada, prompting proposals to establish a national securities regulator. Recently, the proposed Cooperative Capital Markets Regulatory System and the Supreme Court decision in Theratechnologies have put these debates squarely at the forefront of the agenda in Canada. Taking into account the legal and institutional features of the Canadian securities regulation landscape, the paper surveys the theoretical and empirical literature regarding enforcement in securities regulation. It critically analyzes the decentralized and consolidated enforcement models in order to assess their efficacy in the Canadian setting.