The Role of Courts in Implementing TRIPS Flexibilities: Brazilian Supreme Court Rules Automatic Patent Term Extensions Unconstitutional

[Vitor Henrique Pinto Ido] This policy brief provides a background, summary and analysis of the Brazilian Federal Supreme Court decision of 6 May 2021 that ruled automatic patent term extensions unconstitutional, striking down Article 40, Sole Paragraph, of the Brazilian Industrial Property Code of 1996. It concludes that this is a landmark ruling that contributes to the implementation of a more balanced patent regime in Brazil, with a positive impact on access to medicines in the country. It is an important precedent in relation to the role that courts may play in defining the contours of intellectual property protection and the TRIPS flexibilities.

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IFLA Statement on Controlled Digital Lending

[International Federation of Library Associations] Controlled Digital Lending (CDL) has become widely talked about over the last two years, and in particular in the context of the COVID-19 pandemic. While the specific term has only relatively recently come to be used[1], forms of controlled lending have been utilised for many years, for example in the context of document supply. As such, controlled lending has helped to fulfil the mission of libraries to support research, education and cultural participation within the limits of existing copyright laws. Licensed eBooks have opened the door to a radical undermining of the traditional public interest functions and freedoms of libraries. These still exist for paper books, but with the advent of licensed eBooks, libraries are no longer free to decide when or what to purchase, with some publishers even refusing to sell to libraries. Controlled digital lending provides an alternative to a licensing approach, and so a means of redressing the balance.

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ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

[Sean Flynn] At the 40th Session of the Standing Committee on Copyright and Related Rights, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. That Report is subject to comment by Member States. This Note provides analysis of the Report that may be useful to Delegates and stakeholders participating in the meetings of the SCCR. The Report helpfully summarizes a large amount of agreement about the main problems and solutions that need to be addressed by the international system. These problems include a lack of exceptions in a majority of countries for: Preservation for cultural heritage; Communications in online learning and research; Cross border uses for education, research, and the activities of libraries, archives and museums.

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Interfaces on Trial 3.0: Google v. Oracle America and Beyond

[Jonathan Band] The final version of Interfaces on Trial 3.0: Google v. Oracle America and Beyond is now available for free download here. This updated version includes an extensive discussion of the Supreme Court’s April 5, 2021, decision in the case, especially its impact on software interoperability. This is the third volume of a history of the global legal debate concerning copyright and competition in the software industry.

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South Africa Parliament Calls for Comments on Fair Use

[Sean Flynn] South Africa Parliament’s Portfolio Committee on Trade and Industry has invited a further round of public comments on the Copyright Amendment Bill provisions to introduce fair use and expand limitations and exceptions for libraries, education and other public interest uses. The Committee invites submissions with reference on the expansions on the Bill’s provisions fair use and for other purposes in Sections sections 12 and 19. It also invites comments on additional sections of the Bill that may implicate the “alignment” of the Bill with the provisions of several international treaties.

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The Impracticality of Relying on Compulsory Licenses to Expand Production Capacity for COVID-19 Vaccines

[Brook Baker] The complications and limitations of compulsory-license-reliant measures to respond to the COVID-19 pandemic need to be better explained. The European Union and several other countries espousing reliance on TRIPS-compliant compulsory licenses to overcome patent barriers have opposed the India/South Africa temporary intellectual property (IP) waiver proposal on COVID-19 health technologies at the World Trade Organization. Although compulsory licenses (CLs) on patent alone may be sufficient to allow generic production of small molecule medicines, CLs are unlikely to suffice with respect to vaccines, biologic medicines, including monoclonal antibodies, and more complex diagnostic tests, medical devices, and respirators.

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Disinformation, Diversion, and Delay: The Real Text of the European Union’s Communication to the WTO TRIPS Council – Urgent Trade Policy Responses to the COVID-19 Crisis

[Brook Baker] If the European Union’s Communication to the TRIPS Council – Urgent Policy Responses to the COVID-19 Crisis has no real substance, then it is fair to conclude that its true purpose is disinformation, diversion, and delay. The Communication purports to address clarifications needed to make existing TRIPS flexibilities more operational for countries that might need to issue compulsory licenses to access COVID-19 vaccines and therapeutics. However, the proposed clarifications have no substance beyond what is already well established in the text of Articles 31 and 31bis of the TRIPS Agreement and of the Doha Declaration on the TRIPS Agreement and Public Health. When a powerful group of nations, like the E.U., offers a set of “pseudo” proposals with no substance, we can look beyond the façade to see that their real intention is to misinform decision-makers, the press, and the public and to divert attention from the proposal by India, South Africa and 61 other countries to the WTO to waive intellectual property protections on COVID-19 health products and technologies for at least three years.

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A closer look at the final Commission guidance on the application of Article 17

[Communia Assocaition] Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.

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Reconceptualising Copyright Markets: Disseminative Competition as a Key Functional Dimension

[Cheryl Foong] Abstract: The notion of ‘markets’ occupies a prominent yet ambiguous position in copyright discourse. When the term is raised, the copyright owner’s market tends to be taken as its implicit meaning, perpetuating an assumption that the market needs to be protected solely to preserve incentives to create. This dominant narrative overshadows an important dimension of copyright markets – disseminative competition, which is characterised by rival disseminators competing for inputs (copyright content) and audiences (copyright consumers).

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The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

[Muhammad Zaheer Abbas] The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation.

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If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework

[Anthony Rosborough] Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets?

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The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] …This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal … We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more.

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The Proposed Pandemic Treaty and the Challenge of the South for a Robust Diplomacy

[Obijiofor Aginam] The motivation for a pandemic treaty is infallible because of the ‘globalization of public health’ in a rapidly evolving interdependence of nations, societies, and peoples. Notwithstanding the lofty purposes of the proposed pandemic treaty as a tool for effective cooperation by member-states of the WHO to address emerging and re-emerging disease pandemics in an inter-dependent world, the proposal nonetheless raises some structural and procedural conundrums for the Global South. The negotiation of a pandemic treaty should, as a matter of necessity, take into account the asymmetries of World Health Organization member-states and the interests of the Global South.

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Letter from 141 Scholars to USTR, re: United States Facilitation of the TRIPS Waiver

Dear Ambassador Tai: As members of the academy, we welcome your new leadership as an opportunity to both restore the standing of the United States as a global leader as well as to build global confidence in the United States as a reliable ally. The leadership of the United States as well as the confidence over the policies supported by the United States is important at this time when the globe seems to be reeling in a crisis caused from a pandemic. The pandemic has highlighted that a public health crisis in one part of the world can affect not just global trade but also affects issues that the United States as well as the WTO stands for, in unimaginable ways. Thus, the pandemic makes it imperative for countries to find solutions to promote global collaborations during the current crisis.

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Reversion of Copyright In Europe

[Martin Kretschmer, Ula Furgal, and Elena Cooper] Abstract: Reversion rights became a topical issue in Europe following the adoption of the Directive on Copyright in the Digital Single Market (2019) which introduced a new right of revocation to the EU copyright framework. The right gives effect to a “use-it-or-lose-it” principle, entitling authors and performers to reclaim their works when they are not being exploited. While reversion rights are not a novelty to a number of EU Member States, the current reversion rights landscape is fragmented, with provisions often limited to certain works or agreements. This paper assembles three contributions from a special section of the European Intellectual Property Review (May 2021), in the pre-print version by the CREATe Centre, University of Glasgow.

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A New WHO International Treaty on Pandemic Preparedness and Response: Can It Address the Needs of the Global South?

[Germán Velásquez and Nirmalya Syam] A recent joint communiqué by 25 Heads of Government and the WHO Director-General have called for the negotiation of a pandemic treaty to enable countries around the world to strengthen national, regional and global capacities and resilience to future pandemics. The COVID-19 pandemic has demonstrated the fragility of the mechanisms at the disposal of WHO for preparedness and response to pandemics. The use of binding instruments to promote and protect health in the context of pandemics is needed.

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Joint Academic Opinion on South Africa’s COpyright Amendment Bill (B-13B of 2017)

[Malebakeng Forere, Klaus D. Beiter, Sean M. Fiil-Flynn, Jonathan Klaaren, Caroline Ncube, Enyinna Nwauche, Andrew Rens, Sanya Samtani and Tobias Schonwetter] We offer the enclosed Joint Opinion on the President’s referral of the Copyright Amendment Bill back to Parliament. We address the President’s reservations about the Bill’s constitutionality, as well his expressed concerns about the Bill’s domestic application of international law. We analyse each of, and only, the specific clauses in the CAB that are mentioned in the President’s letter. The question we ask and answer is whether Parliament should take action to bolster the constitutionality of any of the provisions identified in the President’s letter.

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DSM Directive implementation update: With one month to go it is clear that the Commission has failed to deliver

[Communia Association] Today it is exactly one month until the 7th of June, the day on which the EU member states have to have implemented the provisions of the 2019 copyright in the digital single market directive in their national laws. And while the 27 Member States have had more than 2 years to complete their national implementations so far only two of them have managed to fully implement the directive: the Netherlands adopted its implementation law in December of last year and on the 28th of April the Hungarian parliament adopted its implementation law.

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Educators, Libraries & Researchers Praise President Biden for Endorsing Waiver of All IP for COVID in WTO TRIPS Waiver

[PIJIP] Today educators, researchers, libraries, academics and other advocates praised President Biden, USTR Ambassador Katherine Tai and the Administration for formally supporting the WTO TRIPS waiver, including for copyright. “By supporting a waiver of ‘intellectual property for COVID-19 vaccines,’ not just of patents, the statement would presumably extend, for example, to the copyright protection that can exist on computational algorithms needed to produce mRNA vaccines. It is less clear whether the Administration’s support extends to access to copyright for other needed activities, such as to repair software enabled devices or to enable text and data mining research. Clearly, however, this is a great advance for the cause of ensuring that intellectual property bends to the public interest, not the other way around.” said Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property.

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Third-Way Proposals from Big Pharma and the WTO are the Same-Old Way: Commercial Control of Supply, Price, and Distribution

[Brook Baker] This Policy Brief from the People’s Vaccine Campaign, written by Prof. Brook K. Baker, is highly relevant to the discussions of the India/South Africa TRIPS waiver proposal at the WTO. The Policy Brief distinguishes between (1) industry controlled efforts to manage the global supply of COVID-19 vaccines and other health technologies that results in the inevitable consequence of inadequate supply, needlessly high prices, and grossly inequitable distribution and (2) government-led efforts to free additional qualified manufacturers from intellectual property and technology transfer barriers that stand in the way of building near-term and sustainable biopharmaceutical manufacturing capacity in underserved developing country regions around the world.

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