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European Nanotechnology Law?

Friday, December 1, 2006

A few days ago the European Parliament issued an action plan on Nanoscience and Nanotechnologies. This action plan is not legally binding and is deemed simply as a declaration of intention in regulating nanotechnology further. In general, there is nothing special under the action plan as it only stresses on the importance of research and impact assessments. There are, however, some paragraphs that reflects the position of the European Union with regards to nanoscience and nanotechnologies.

For example, the action plan:
  • Recommends that lists of ingredients in consumer products identify the addition of manufactured nanoparticulate material;
  • Regrets the fact that the patenting of nanoscience and nanotechnology inventions in Europe is developing slowly; calls on the EU to create a nanoscience and nanotechnology patent monitoring system governed by the European Patent Office;
  • Encourages general reforms in the field of the European patent system in order to cut the costs of patenting and to improve accessibility to patents for SMEs; stresses the need for greater transparency and clear limits to the scope of patent protection;
  • Emphasises the need to respect high ethical principles and welcomes the planned reviews on issues such as non-therapeutic human enhancement and links between nanosciences and nanotechnologies and individual privacy; expects the reviews to be public and to include a thorough analysis of nanomedicine;
The above points suggests the EU position toward labelling and patent reform. The last point on human enhancement is especially important and this shows EU's high awareness on the interconnectedness between human enhancement and nanotechnologies. You can compare it with UNESCO's view on human enhancement here.

Currently, the status of european nanotechnology regulation is more or less equal to the US': There are no specific law regulating it. It is questionable whether existing regulations in the field of environmental (such as the REACH proposal), health, workplace and food and drugs can directly apply to nanotechnology, due to differences of characters. There are suggestions to put nanotechnology under the REACH proposal but there are also worries that it may not be able to cover "finished product" such as a transistor.

Nevertheless, there are general environmental regulations under EU auspices which applies to every risky activities, including nanotechnologies. The factories, laboratories and storing facilities of nanoproducts could be subjected to environmental impact assessment directive 85/337/EEC, or IPPC Directive 96/61/EC. Nevertheless, this is NOT without difficulties. Nanotechnology projects are not listed in the mandatory impact assessment list under the EU impact assessment directive (see Annex II), so states may exempt them from impact assessment obligation, by relying solely on the directive . Lack of effects data will also prevent stakeholders from conducting assessments.

The case with the IPPC directive is similar. The IPPC deals with limiting the amount of "emission" of pollutants, which is irrelevant with regards to nanoparticles. It has been mentioned in several researches that it is the size, surface structure, solubility and shape of the nanomaterials that contributes to its toxicity, and not the amount/weight.

Last but not least, although nanotech is not specifically regulated, there are general principles of EU Law that will safeguard public health and the environment. The EU is known to be a strict adherent of precautionary principle, so recklessness with regards to the production or research of nanomaterials will arise liability. There could be special cases where nanotech is categorized under strict liability, for example in its connection with military uses. There is yet an established due dilligence rule with regard to nanotechnology, but to avoid law suit, it could be safer to refer to the emerging "best practices" and to the formal position of the EU as reflected on its action plans, communications or existing directives and regulations.

(Hat Tip to Nanologue and Prof Geert van Calster!)

 

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Secondlife's copybot, nanofactory and the future model of constitution

Saturday, November 25, 2006

The economic downfall of a system can be caused by a machine that can copy everything. That is the lesson we get from online game, secondlife. And the remedy? Sue the software developer under DMCA. I consider that to be a bad option, and I will tell you why.

Secondlife's Constitution (read: Terms of Service) regulates:

3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

Users of the Service can create Content on Linden Lab's servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.

This was a post at the official secondlife blog:
Today I met with a large group of Residents, members of the Sellers Guild, to talk about the implications of a recently-developed LibSL product called CopyBot. CopyBot allows the user to create a replication of an object, including textures, that is fully permissive. Needless to say this product has caused tremendous worry among content creators who want to understand how its use may possibly affect their business. In particular, they are concerned about theft of their creations, and the potential for unscrupulous people to undercut their prices and essentially take away their business...
Merely copying something doesn’t mean that a copyright violation has occurred. The law discusses ‘fair use’, for example, as one type of copying that is not a violation. If you DO think someone has copied something you made and is violating your copyright by profiting from the copying then you do have the option of using the DMCA process to file a complaint.
I have not hear any case where online game disputes are brought to a court, and the decision is enforced. In my last blog post, I refer to a story in which the court decide not to enforce an oral agreement pertaining the sale and purchase of a virtual sword. However, if brought to a court, the current copybot case is slightly different to the case I mentioned earlier, as it deals with copyright, something that is adhered in a real world.

Copybot is a software provided by Libsecondlife. Its purpose is altruistic, the program itself is open-sourced. Libsecondlife applies disclaimer which exempts liabilities from the utilization of its software. Although Libsecondlife does not directly infringe copyright, it could still be held liable under contributory infringement. Contributory infringement is a form of direct infringement in which, a party is aware that (1) there is an infringing activity, (2) it provides assistance or inducement for the infringement. Contributory infringement usually occurs when a party uploads serial numbers or providing a website to upload/download unauthorized serial numbers.

However, this may not be exactly the case with Libsecondlife as they only provide a hack software to be used outside the game itself, via a third party channel. The only problem is that, players are using the software in an infringing manner. So, although Libsecondlife is acquittable to contributory infringement, the case is "thin".

Nanotech expert has been calling the falling down phenomenon of a system due to the birth of abundancy as "disruptive abundance". It is feared that when nanofactory is available for free, then the existing system could collapse. Some experts has suggested to apply artificial scarcity in order to prevent the disruption. This is created either by restricting the ownership of nanofactory or providing technical restrictions to productions.

The fundamental difference between secondlife and future application of MNT is of course, in second life, disputed parties can log off their computer, get back to the real world and settle their dispute in a court. In the future MNT society, there is no way to log off.
Now, how are we going to settle our dispute? The only way of settling the dispute is by referring to our own rules of the game, the Constitution of the post-MNT society. What would the constitution look like? I don't know.

It would be great if parties in the second life disputes settle their case out of court, inside their own virtual world. We shall see, would they be able to settle their own problem or not? Can they use their rationality and refer the case to their own Constitution (read: Terms of Service)? I would suggest that they form their own internal dispute settlement mechanisms. I want to know how it work, as the results can be used to model the legal system of the future societies. If Secondlife citizens fail to solve their dispute and would need a court settlement, then it would be depiction of our future society: we will fail in settling our dispute and would require some extra terrestrial help (which of course, will never arrive).

When arguing about the existence of a law in international relation, Hugo Grotius said in latin: ibi societas, ubi ius. When there is society, there is law. When there is international society, there is an international law. When there is a virtual society, there has to be a "virtual" law.

 

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Should online gaming be prohibited?

Friday, November 24, 2006

There is a good comment in this blog a few days ago, which responds to my post on the story of a gamer who killed his friend over a virtual sword. The commentator said:
Surely the whole point of the news story is that you must claim the enforcement of virtual items in the interests of public order. If the swords value had been enforced a man wouldn't have died. Surely the whole reason for the law is to settle disputes of exactly this nature.
The law might evolve into this direction. However, it may also evolve to the opposite direction: online games can be prohibited for the reason of public ordre.

Consider an actual case involving computer game in Germany:

A long-simmering debate in Germany about banning violent computer games is burning again after an aloof teenager on Monday stormed his former high school, shot five people and later killed himself. The disgruntled 18-year-old ex-pupil from Emsdetten, Germany, near the Dutch border, was described by students and teachers as a youth with no friends who liked guns and played violent computer shooting games.

Wiefelspütz isn't alone in the SPD. A majority of members in his party have been lobbying for months for major changes in federal laws aimed at protecting minors, including an outright ban on violent computer games. And the opposition parties Christian Democratic Union (CDU) and Christian Social Union (CSU) agree that changes are necessary to the current laws governing entertainment software. Following the shoot-out in Erfurt, the German government revised its legislation on protecting minors, requiring, for instance, that all computer games and video movies be subject to a mandatory age-rating plan.

There could be a case where online games are prohibited, through blocking software. The EU e-commerce directive exempts ISP from intermediary liabilities. However, it must response to a court or authority's order to secure, prevent or terminate illegal content on its server.

 

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EPA's first nanoproduct-focused regulation

Thursday, November 23, 2006

The press and the blogosphere have been echoing EPA's new nanoproduct-focused regulation. Yes, EPA has decided to "regulate" silver nanoparticles used in various consumer products such as high-tech odor-destroying shoe liners, food-storage containers and air fresheners. The silver nanomaterials are used to kill germs. However, there are worries that they will harm beneficial bacterias:
Until now, new products made with tiny germ-fighting particles of silver did not have to pass muster with regulators. That has concerned environmentalists and others who think that the growing amount of nanosilver washed down drains may be killing beneficial bacteria and aquatic organisms and may also pose risks to human health.
Companies using silver nanoproducts will have to prove to the EPA that their product is safe. According to WP:
Under the new determination, first reported on Tuesday by the Daily Environment Report, a Washington publication, and confirmed yesterday by the EPA, any company wishing to sell a product that it claims will kill germs by the release of nanotech silver or related technology will first have to provide scientific evidence that the product does not pose an environmental risk. "We will be able to evaluate them and ensure that these products are not going to do damage to the aquatic environment," said Jim Jones, director of the EPA's Office of Pesticide Programs.
I have not really seen the so-called "regulation" so I am not able to give my analysis here. However, there are several questions that can be asked:
  1. What will happen to products already on the market? Does this apply retroactively? Do they need to be suspended pending the scientific findings?
  2. Does this mean that it shifts the burden of proof from EPA to producers? Supposed EPA declared that a product is OK, but then someday something happens to the product (i.e. it turn out to be harmful for the environment) to what extent would the producer be liable for the product, either under environmental, health or consumer law?
  3. Since it deals with nanosilver, is it OK to cover similar products in a single exam? Scientific assessment may raise the burden of cost for the industry, if there is a product that is more or less similar, it could be economical to cover them in one assessment, rather than doing multiple assessment. To what extent will this be regulated?
  4. What are the relationship between this regulation and other regimes?

 

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How the Nanotech Industry Practice Safety

Tuesday, November 21, 2006

Are you in the nanotech industry? Are you a lawyer doing compliance review for your nanotech clients? You both know that there is no hard-and-fast rule on how safety has to be practiced, yet. But, there is always a risk for a lawsuit.

International Council on Nanotechnology at the Rice University has completed a Survey of Safety Practices in the Nanotech Industry. It surveys around 20 organizations dealing with Nanotech and summarized its findings. The result is downloadable here.

(H.T. to Kristen Kulinowski)

 

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Nanotech the IP issues

Monday, November 20, 2006

I just realized that wikipedia just renewed its entry on nanotech, especially in its Intellectual Property part:
On the structural level, critics of nanotechnology point to a new world of ownership and corporate control opened up by nanotechnology. The claim is that, just as biotechnology's ability to manipulate genes went hand in hand with the patenting of life, so too nanotechnology's ability to manipulate molecules has led to the patenting of matter. The last few years has seen a gold rush to claim patents at the nanoscale. Over 800 nano-related patents were granted in 2003, and the numbers are increasing year to year. Corporations are already taking out broad-ranging patents on nanoscale discoveries and inventions. For example, two corporations, NEC and IBM, hold the basic patents on carbon nanotubes, one of the current cornerstones of nanotechnology. Carbon nanotubes have a wide range of uses, and look set to become crucial to several industries from electronics and computers, to strengthened materials to drug delivery and diagnostics. Carbon nanotubes are poised to become a major traded commodity with the potential to replace major conventional raw materials.
We have had discussions on these matters on the past (which you can view by clicking the labels below). There are also some explanations on these matters on the net. For example, a paper from Lawrence Letham which highlights general legal issues relating to nanotech, a general IP trend on nanotech from Chemical and Engineering magazine, Nanotech patent application in Japan from D. Kanama, Nanotech patent trends by Kallinger, Patent Trend survey from Foley Lardner and US Patent Reform for Nanotech from WLF.

 

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Israeli's nano weapon plan

Saturday, November 18, 2006

A new development in Unrestricted Warfare: the use of BionicHornet. Bionic Hornet is a kind of smart(er) UAV. CRN Blog hosted this discussion months ago. Here's a taste on what the press told us bout this so called "Bionic Hornet":

AHN:

Israel is using nanotechnology in a bid to create a robot, almost of a size of a hornet (a kind of wasp), which would have the ability to chase, photograph and kill its targets. An Israeli newspaper, Yedioth Ahronoth, reported on Friday that the robot, which is nicknamed the "bionic hornet", is made in such a way that it can travel down narrow alleyways to target small and unreachable enemies such as rocket launchers.

Of all those news bout Israeli's nano weapon plan, this one interest me most:
The report in the mass circulation daily Yedhiot Ahronot said that the emerging technology would allow weapons, based on "building blocks" the size of a millionth of a millimetre, and of the sort that "one sees today only in science fiction films."
Has the reporter mis-quoted or, is that guy actually talking about nanoblocks?

Speigel:

The "bionic hornet," writes Israel's daily Yedioth Ahronoth, could chase, photograph and kill, say, a terrorist hiding with a rocket launcher in a civilian neighborhood -- as an alternative to bombing the neighborhood. "The war in Lebanon proved that we need smaller weaponry," said Deputy Prime Minister Shimon Peres. "It's illogical to send a plane worth $100 million against a suicidal terrorist. So we are building futuristic weapons."

Dont get happy too quickly Mr. Peres. Maybe in the future there won't be any more suicide bombers. It's illogical to send suicide bombers if they can send cheap Unmanned Aerial Vehicles to spread germs, drop grenades or hit a plane! War is cheaper and easier, for everyone...!