Crunch Time in the NAFTA Negotiations: What’s at Play for Canada on Digital Policy?

As the NAFTA negotiations hit a possible home stretch this week, the focal point has been primarily on issues such as dispute resolution, the dairy sector, and the auto industry. However, the digital policy issues will have huge implications for Canada and the outline of the agreement between the U.S. and Mexico suggests that Canada is facing considerable pressure to agree to changes to our copyright, patent, IP enforcement, and digital policy rules, contrary to our preferred negotiation approach.

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Is the U.S. Fair Use Doctrine Compatible with Berne and TRIPS Obligations?

[Pamela Samuelson and Kathryn Hashimoto] Abstract: The compatibility of the U.S. fair use doctrine with international treaty norms has been questioned many times over the years by European and even American commentators. Does the fair use limitation on copyright’s exclusive rights comport with the “three-step test” that regulates the permissible scope of exceptions in national copyright laws under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works and in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)?

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Response to IIPA Comments to USTR Regarding South Africa’s Copyright Amendments Bill and AGOA Eligibility

[Sean Flynn and Peter Jaszi] We write in reference to the August 1, 2018, filing of the IIPA, in respect of South Africa’s proposed copyright amendments. IIPA claims that adoption of the South Africa copyright amendment bill “would place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” We find this claim wholly unsupported.

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Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy

[Ruth Okediji] Abstract:  A rapid succession of technological advances – big data, robotics, machine learning, and artificial intelligence – is steadily changing how firms engage in productive activity, how consumers interact, and how knowledge goods are acquired, shared, and governed. The rise of big data and the increasingly widespread adoption of artificial intelligence across many industries have complicated our understanding of the values of twentieth-century intellectual property rules. If anything, the expected social costs (such as privacy) of new technology have already intensified debates – both global and national in scope – about the nature of rules that best foster innovation, facilitate access to public goods, and enable economic development.

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IIPA Claims that South Africa’s Copyright Reform Bill Would Make the Country Ineligible for AGOA Benefits

The U.S. Trade Representative (USTR) is conducting its annual review of country eligibility for trade benefits under the African Growth and Opportunity Act (AGOA). This law allows beneficiary countries to export certain goods into the U.S. duty-free. The benefits are conditional upon a set of criteria, which includes the protection of intellectual property. The International Intellectual Property Association (IIPA) has filed comments to USTR arguing that South Africa’s copyright reform legislation, if it becomes law, “would place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” 

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What’s Going on With the EU Copyright Reform for Education?

[Lisette Kalshoven] The next major step in the EU copyright reform process is the vote scheduled for 12 September, when the entire European Parliament (about 750 people) will vote on amendments that are being put forward until 5 September. They will vote on amendments to the text put forward by the European Commission, which was shared back in 2016. The JURI report, which was rejected on 5 July by the parliament had several improvements for the education exception on article 4. It was, however, not nearly enough to truly make copyright work for education in Europe. For the purpose of the vote on 12 September, we need to work with the Commission text. Below we will share the three most important things to fix.

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Behind the Scenes of Online Copyright Enforcement: Empirical Evidence on Notice & Takedown

[Sharon Bar-Ziv and Niva Elkin-Koren] Abstract: Copyright enforcement was one of the early challenges to the rule of law on the internet and has shaped its development since the early 1990s. The Notice and Takedown (N&TD) regime, enacted in the Digital Millennium Copyright Act, offered online intermediaries immunity from liability in exchange for removing allegedly infringing materials upon receiving notice from rights holders. The unequivocal power of rights holders to request removal and the strong incentives for online intermediaries to remove content upon receiving a removal request have turned the N&TD regime into a robust clean-up mechanism for removing any unwarranted content. The N&TD procedure applies to private facilities, makes use of proprietary software, and is administered by private companies. This enforcement procedure is nontransparent and lacks sufficient legal or public oversight. Unlike copyright enforcement in court, where decisions are made public, we know very little about the actual implementation of the N&TD regime: Which players make use of the system? Who is targeted? What materials get removed and why? How effective is the removal of infringing materials, and does it comply with copyright law?

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A Sliver of Hope: Analyzing Voluntary Licenses to Accelerate Affordable Access to Medicines

Abstract: As a result of global AIDS activism, governments’ latent and exercised powers to bypass pharmaceutical monopolies, and halting pharmaceutical industry accommodation, a new form of voluntary licensing has emerged focused on first permitting and then facilitating generic production of certain pharmaceutical products for sale and use in many but not all low- and middle-income countries (LMICs). These so-called “access” licenses are pluralistic in detail and not free of commercial motivations for either originators or generic producers, but they do differ from arms-length, purely commercial licenses that have been broadly used in the industry for decades. Although the first of these access licenses were negotiated bilaterally by innovators at the receiving end of AIDS activism and threats of government action, including the issuance of compulsory or government-use licenses, the leading model of more public-health oriented voluntary licenses can be traced to the formation of the Medicines Patent Pool under the financial sponsorship of Unitaid in 2010.

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U.S. Congressional Research Service NAFTA Report: United States “Seeking to Restrict Exceptions for Fair Use”

Last week, the U.S. Congressional Research Service released a report, NAFTA Renegotiation and Modernization, which describes U.S. negotiating objectives chapter by chapter, citing publicly available information. It notes that the U.S. has tabled language on fair use that walks back the commitment to balance found in the TPP text.

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EU Copyright Law and the Cloud: VCAST and the Intersection of Private Copying and Communication to the Public

[João Pedro Quintais and Tito Rendas] Abstract: This article examines the applicability of the private copying exception to cloud services against the backdrop of the judgment of the Court of Justice of the European Union (CJEU) and the Opinion of Advocate General (AG) Szpunar in Case C-265/16, VCAST. The case raises the question of whether the exception protects services of an online platform allowing users to store copies of free-to-air TV programmes in private cloud storage spaces. The AG’s proposed answer was to consider that cloud copying could generally be covered by the exception, but the specific service of VCAST could not. The CJEU focused on VCAST’s service only, largely following AG Szpunar’s conclusion.

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Overpatented, Overpriced: How Excessive Pharmaceutical Patenting is Extending Monopolies and Driving up Drug Prices

[I-MAK] This report analyzes the twelve best selling drugs in the United States and reveals that drugmakers file hundreds of patent applications – the vast majority of which are granted – to extend their monopolies far beyond the twenty years of protection intended under U.S. patent law. These patents are used by drugmakers for the purpose of forestalling generic competition while continuing to increase the price of these drugs.

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Global Online Piracy Study

[University of Amsterdam Institute for Information Law (IViR)] This report deals with the acquisition and consumption of music, films, series, books and games through the various legal and illegal channels that exist nowadays, in a set of 13 countries in Europe (France, Germany, the Netherlands, Poland, Spain, Sweden), the Americas (Brazil, Canada) and Asia (Hong Kong, Indonesia, Japan, Thailand). The illegal channels studied are downloading and streaming from illegal sources (including via dedicated technical devices), and streamripping.

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Copyright User Rights and Remedies: An Access to Justice Perspective

[Pascale Chapdelaine] Abstract: In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system.

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Intellectual Property and Digital Trade in the Age of Artificial Intelligence and Big Data

CEIPI/ICTSD Publications Series, Issue 5: This new issue … edited by Xavier Seuba, Christophe Geiger and Julien Pénin, elaborates on changes in modes of innovation, production and commercialisation of innovation, which are central in current discussions and relate closely to intellectual property law and competition. The chapters of this volume feed the debate, identify the central aspects and may be instrumental at drafting a research agenda.

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I-MAK & Delhi Network of Positive People File Opposition to Prevent AbbVie Patent Grant on Hepatitis C Treatment

[I-MAK & Delhi Network of Positive People] On July 21, the Initiative for Medicines, Access & Knowledge (I-MAK) and the Delhi Network of Positive People (DNP+) filed a pre-grant patent opposition with the Indian Patent Office in Delhi against pibrentasvir (PIB), part of the drug combination that forms AbbVie’s hepatitis C (HCV) product, Mavyret. Filed on the eve of the 2018 International AIDS conference, the opposition has significant implications for millions of patients and families struggling to afford and access hepatitis C treatment: if granted, a pibrentasvir patent could block generic entrants from supplying the product in India and other low and middle-income countries, where the majority of people with HCV live.

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South Africa’s Proposed Copyright Fair Use Right Should Be a Model for the World

[Sean Flynn, Michael W. Carroll, Peter Jaszi, Ariel Katz, Leandro Mendonça, Diane Peters, and Allan Rocha de Souza] Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access. None of these and dozens of other digital issues were considered when most of our laws were drafted in the 1970s. South Africa is on the cusp of reforming its law with a new hybrid exception that contains both a set of modern specific exceptions for various purposes and an open general exception that can be used to assess any use not specifically authorized.

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