Mar 302017

Here is the Trump administration’s draft notice of intent to renegotiate NAFTA, which was put out by Inside U.S. Trade.  The administration says many elements of the agreement as it currently stands are “clearly outdated,” and that FTA provisions on intellectual property rights have been “improved in newer trade agreements.”

A few excerpts of interest to readers of this blog follow.  These are what are listed in the letter as “specific negotiating objectives.”

Intellectual Property Rights:

  • Seek to establish standards to be applied in NAFTA countries that build on the foundations established in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights and other international intellectual property agreements, such as the World Intellectual Property Organization (WIPO) Copyright Treaty, the WIPO Performances and Phonographs Treaty, and the Patent Cooperation Treaty;
  • Seek to secure fair, equitable and nondiscriminatory market access opportunities for U.S. persons that rely on intellectual property protection.
  • Where appropriate, seek commitments from the NAFTA countries to strengthen their laws and procedures on enforcement of intellectual property rights, such as by ensuring that their author4ities have authority to seize and destroy pirated and counterfeit goods, equipment used to make such goods, and documentary evidence.
  • Seek commitments from the NAFTA countries to: (1) strengthen their measures that provide for compensation of right holders for infringements of intellectual property rights, and (2) provide for criminal penalties under their respective laws that are sufficient to have a deterrent effect on priacy and counterfeiting.

Digital Trade, and Cross-Border Data Flows:

  • Seek commitments from the NAFTA countries not to impose customs duties on digital products or unjustifiably discriminate among products delivered electronically.
  • Seek to ensure that the NAFTA countries refrain from implementing measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data, including with respect to financial services, and that where legitimate policy objectives require domestic regulations that may affect such trade or flows, obtain commitments that any domestic regulations are the least trade restrictive, non-discriminatory, and transparent and promote an open market environment.

In addition we will take into account other U.S. objectives including, but not limited to, the protection of health, safety, environment, essential security, and consumer interests.


Mar 272017

Author: Antoni Terra

Abstract: Digital piracy is a worldwide concern. Both very high and very low rates of intellectual property infringement threaten innovation, thus implying that some level of effective copyright regulation is required to incentivize the creation of original works. However, although Article 27 of the Universal Declaration of Human Rights advocates for social access to culture as well as the protection of copyright, many countries do not yet have an economic and legal balance between authors and consumers. Continue reading »

Mar 222017

[Catherine Saez for IP Watch, Link (CC-BY-NC-SA)] As the ratification by the European Union of an international treaty creating an exception to copyright for visually impaired people nears, a leaked text shows that the directive implementing the treaty in the EU might come with safeguards limiting the scope of the treaty, allegedly pushed by the publishing industry. Continue reading »

Mar 222017

It Falls to the European Parliament to Undo Deeply Damaging Digital Policies of the European Commission

March 20, 2017, Open Media, Link (CC-BY-NC-SA)

In response to today’s release of Copyright Rapporteur Therese Comodini Cachia MEP’s draft report on updates to the European Union Copyright Directive, OpenMedia’s Digital Rights Specialist Ruth Coustick-Deal said:

“This is an issue of fundamental rights, and once again we see the need for the European Parliament to step in and undo the damage being inflicted by the European Commission. Cachia’s proposed updates to copyright legislation are a strong step in the right direction, but more needs to be done to ensure the ability of all Europeans to access information online and express themselves freely.” Continue reading »

Mar 202017

[Originally posted on, (CC-BY) Link] Last month, I traveled to Australia and New Zealand as part of a group of experts to discuss copyright fair use and fair dealing. The trip included several public talks, meetings with government officials, a book launch on Reimagining Copyright, and the chance to discuss copyright policy directly with publishers, educators, and librarians. Videos of some of the panels are available online, including a New Zealand forum on copyright and innovation and a panel on comparative copyright limitations and exceptions at the Australian Digital Alliance annual conference. Continue reading »

Mar 202017

Photo: Constance Wiebrands (CC-BY)

Last month, the Program on Information Justice and Intellectual Property, the Australian Digital Alliance and Internet NZ hosted a series of meetings and workshops on user rights in copyright reform in Australia and New Zealand. Both countries are debating copyright reform, and Australia is debating a proposal to add fair use to its copyright exceptions.

Participants in the events included Michael Geist, Bill Patry, Sang Jo Jong, Kimberlee Weatherall, Rebecca Giblin, Suzy Frankel, Jessica Coates, Heesob Nam, Peter Jaszi, Patricia Aufderheide, Sean Flynn and Meredith Jacob.

Below you will find video from two of the events, some of the follow up blogs and news stories from the trip.  Continue reading »

Mar 202017

Authors: Matthew Sag and Jake Haskell

Abstract: In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. Continue reading »

Mar 202017

Authors: Amy Kapczynski, Bhaven N. Sampat and Ken Shadlen

Abstract:  The upward-ratcheting of patent protection through trade agreements has generated significant concerns about potential effects on prices of drugs and access to medicines in developing countries. The Trans-Pacific Partnership (TPP) included even more extensive pharmaceutical patent provisions than any before. While President Trump withdrew the US as a signatory to the TPP, the potential for new trade agreements to raise the same set of concerns generated by the TPP remains high. Previous work assessing the TPP argued that new data on pharmaceutical expenditures (and other measures) from countries with recent trade agreements with the U.S. indicated that concerns about pharmaceutical patent protection and drug prices are overblown and it may be time to move on from these debates. Continue reading »

Mar 192017

NAFTA dispute panel arbitrators are reported to have issued a decision in the dispute brought by Eli Lilly against the government of Canada, though the decision has not been made public yet. Lilly had alleged that Canada’s patentability requirements had an overly high standard of what was considered ‘useful’, causing it to lose patent cases, and that this had violated NAFTA’s requirement that each country grant patents on inventions  that “are new, result from an inventive step and are capable of industrial application.”  Continue reading »

Mar 172017

On March 29, PIJIP will team up with the American University International Law Review  and a number of other organizations to host a one-day conference: Globalizing Fair Use: Exploring the Diffusion of General, Open and Flexible Exceptions in Copyright Law.

9:00 – 3:30: An academic symposium co-hosted by PIJIP and the American University International Law Review will exploring new directions in domestic and international copyright law promoting adoption of general copyright exceptions that are open and flexible. Click here for the symposium agenda. Continue reading »

Mar 132017

[Anna Mazgal, Communia Association, Link (CC-0)] It is great that ITRE Rapporteur Zdzisław Krasnodębski joined IMCO Rapporteur Catherine Stihler in thinking that the right to read is the right to mine. As we explained in detail, his draft proposal opens up TDM exception to anyone and makes sure any safeguarding measures won’t stand in the way of applying the technology. As progressive as it is, however, the fact that ITRE’s Rapporteur focused only on TDM and proposed a minor tweak of article 14 is also a statement. What is not mentioned is as significant as the changes that are proposed. Continue reading »

Mar 132017

Author: Victor B. Nzomo

Abstract: In 2014, the Supreme Court of Kenya had to determine whether the broadcast rights in free-to-air (FTA) programme-carrying signals were infringed by allowing the re-broadcasting of these signals pursuant to the so-called “must-carry” rule in the Broadcasting Regulations of the Kenya Information and Communication Act. In a unanimous decision, the apex court ruled that the ‘must -carry’ rule fell under the fair dealing provisions of the Kenya Copyright Act despite the fact that the dealing in question did not fit within one of the enumerated allowable purposes. Continue reading »