Author: Mike Palmedo

My Comments to USTR for the 2018 Special 301 review

PIJIP’s research indicates that American firms operating overseas in industries that rely on copyright limitations enjoy better outcomes on average when our trading partners’ limitations are more open – defined as being open to the use of any type of work, by any user, or with a general exception that is open to any purpose subject to protections of the legitimate interests of right holders. Econometric research on both the activities of foreign affiliates of U.S. firms and service exports by U.S. firms illustrate this conclusion.  At the same time, firms in the more traditional “copyright sectors” (i.e. – music, movies, and printed media), do not seem to be negatively affected by greater balance and openness in copyright limitations.

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USTR Requests Comments for the 2018 Special 301 Review

The U.S. Trade Representative has requested comments for the 2018 Special 301 Review, in which it seeks to “identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.” Any “interested person” can submit a written comment and/or request to testify at an open hearing. The deadline for comments and requests to testify is February 8, and the hearing will be held on February 27. For more information, see the USTR’s Federal Register...

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The Impact of Copyright Exceptions for Researchers on Scholarly Output

Abstract: Surveys of scholars in the science and health fields have identified high journal prices to be one of many impediments to the writing and publishing of new works. One possible solution to this problem is the expansion of copyright exceptions that allow unauthorized access to copyrighted works for the purpose of conducting further research. This paper tests the link between copyright exceptions for researchers and the publishing output of health and science scholars at the country-subject level, using data on change in copyright law from the PIJIP Copyright User Rights database.

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PIJIP Releases New Research on the Impact of Copyright Balance at the 35th WIPO Standing Committee on Copyright and Related Rights

Today, PIJIP released new research on the impact of copyright balance. The release was announced at the World Intellectual Property Organization Standing Committee on Copyright and Related Rights. The research finds that balanced copyright policies in other countries have had positive effects on net income, total sales, and value-added by foreign affiliates of U.S. firms. More generally, it finds that increases in PIJIP’s “openness score” are associated with higher revenues in the information sector, without harming traditional copyright-intensive industries. This builds on previous research that has illustrated the benefits of fair use in the U.S., where fair use industries represent 16% of annual GDP and employ 18 million American workers. One study found that the U.S. would lose 425,000 jobs and $44 billion in GDP each year without strong safe harbors. For more information: Presentation: Sean Flynn. The Impact of Balance. Presented at WIPO Standing Committee on Copyright and Related Rights, November 14, 2017. Paper: Sean Flynn and Michael Palmedo. The User Rights Database: Measuring the Impact of Copyright Balance. PIJIP Working Paper 2017-03. Handout: also available in Portuguese Data: Copyright User Rights Database Survey: PIJIP Copyright User Rights...

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The User Rights Database: Measuring the Impact of Copyright Balance

Today Sean Flynn and I are releasing the initial results of our research based on PIJIP’s Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the world. We intend to continue adding data from additional countries, but we feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. Our first results are based on tests of copyright limitation openness. We refer to “open” limitations as those that are open to the use of any kind of work, by any kind of user and for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author.  Although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. Developing countries in our sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text- and datamining. Among the 21 countries in our sample: More open user rights environments are associated with higher firm revenues in information industries, including software and...

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USTR Begins Section 301 Investigation of China’s Policies on Tech Transfer, Intellectual Property, and Innovation

On Friday, the U.S. Trade Representative announced its Section 301 investigation of China’s “acts, policies, and practices related to technology transfer, intellectual property, and innovation.” As part of the investigation, it is accepting comments from the public, which are due by September 28. The initiation of the investigation follows President Trump’s August 14 memo on intellectual property, which noted that “China’s conduct “may inhibit United States exports, deprive United States citizens of fair remuneration for their innovations, divert American jobs to workers in China, contribute to our trade deficit with China, and otherwise undermine American manufacturing, services, and innovation.” The full announcement of the investigation is here. The announcement specified the following as the initial focus of the investigation: First, the Chinese government reportedly uses a variety of tools, including opaque and discretionary administrative approval processes, joint venture requirements, foreign equity limitations, procurements, and other mechanisms to regulate or intervene in U.S. companies’ operations in China, in order to require or pressure the transfer of technologies and intellectual property to Chinese companies. Moreover, many U.S. companies report facing vague and unwritten rules, as well as local rules that diverge from national ones, which are applied in a selective and non-transparent manner by Chinese government officials to pressure technology transfer. Second, the Chinese government’s acts, policies and practices reportedly deprive U.S. companies of the ability to set market-based terms in...

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NAFTA Renegotiation to Begin on Wednesday

The U.S, Mexico and Canada will begin renegotiating NAFTA this Wednesday at the Marriott Wardman Park hotel in Washington DC. Inside US Trade reports that “initial talks will focus mostly on logistics and agenda-setting… Negotiators are expected to establish working groups for specific issue areas, identify their NAFTA-country counterparts and pinpoint the contentious issues that will take longer to negotiate. Negotiators will also exchange their priorities for the renegotiations, which could include agreeing on what issues will not be renegotiated. This will allow the negotiators to construct a chronology for the talks as they move forward.” Canadian Minister of Foreign Affiars Chrystia Freeland gave speech on Canada’s negotiating objectives this morning. She said that NAFTA should be updated to address changes in technology “in a way that ensures we continue to have a vibrant and internationally competitive technology sector and that all sectors of our economy can reap the full benefits of the digital revolution.” ICTSD reported last week that Mexico’s trade negotiations may include “updated rules of origin, while keeping market access gains seen under the original deal on goods and services trade, as well as updating intellectual property provisions in the accord.” Mexico may also want to change the way disputes are handled under Chapter 19. The U.S. Trade Representative released its negotiating objectives last month. The objectives for intellectual property are Promote adequate and effective protection...

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Information, Access, And Development: Setting A Course For The Sustainable Development Goals

Gerald Leitner, Secretary General of the International Federation of Library Associations and Institutions Reposted from IP-Watch, Link (CC-BY-NC-SA) Information is the raw material for decision-making. When individuals and groups make the right choices, based on good information, their chances of taking a full role in economic, social, cultural and civic life improve. They can better create and innovate, participate in politics, find and do their jobs well, and live healthily. Informed citizens and communities are also essential to the UN’s 2030 Agenda. We cannot have sustainable development when individuals are not able to deal with new choices and challenges autonomously, drawing on access to information. And we cannot have inclusive development, with no-one left behind, unless this access is real and meaningful for everyone. Libraries have long sought to do this, making sure that the world’s heritage is preserved and made accessible, allowing the sharing of knowledge between institutions and across borders, and giving children, families, students and others the chance to enjoy works which they could never afford to pay for individually. IFLA’s Development and Access to Information (DA2I) report 2017, produced in partnership with the Technology and Social Change Group at the University of Washington, underlines that access to information is as important as ever today for development. But just as important is the question of whether this is meaningful – simply having the possibility to connect to...

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South African Hearings on Copyright Amendment Bill

This week the South African Parliament’s Portfolio Committee on Trade and Industry will hold three days of hearings on the Copyright Amendment Bill (B13-2017). Witnesses will give 20 minute presentations, followed by 20 minutes of Q&A. The hearings will be on August 1, 2 and 4, and the testimony will be open to the public. The hearing schedule is available here. PIJIP’s collection of written statements to the Committee on the Copyright Amendment Bill is...

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Comments on South Africa’s Copyright Amendment Bill (B13-2017)

PIJIP has created a table of comments submitted to the South African Parliament’s Portfolio Committee on Trade and Industry regarding the Copyright Amendment Bill. It was last updated on July 19, 2017. Please send additional comments to mpalmedo@wcl.american.edu, and I will them to the table Table of Comments to South African Parliament re: Copyright Amendment Act...

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Five Easy Ways for CULT MEPs to Help Fixing EU Copyright

[Communia Association, Link (CC-0)] Tomorrow the Members of the Culture and Education Committee of the European Parliament (CULT) will vote on their position on the proposal on Copyright in the Digital Single Market directive. This will be the second vote in the European parliament after last month’s vote in the IMCO committee. While the CULT committee is nominally responsible for Culture and Education it seems rather likely that tomorrow’s vote will result in an one sided opinion that would  support the key elements of the flawed directive, making them worse in many areas. Below is a quick rundown of what is on the table during tomorrow’s vote. We have listed  voting recommendations for CULT MEPs interested in enacting real copyright reform that will foster Europe’s cultural and educational sectors: Expand the scope of the text and data mining exception We have argued many times that Text and Data mining should not be covered by copyright at all. A TDM exceptions such as the one proposed by the Commission would then be unnecessary. Any TDM exceptions enacted in spite of this would need to be as broad as possible both in terms of beneficiaries and in terms of purpose. Unfortunately the compromise amendment on the issue does nothing to broaden the scope of the proposed exception and merely reaffirms the Commission’s backwards looking proposal. MEPs should reject the compromise amendment and vote for AMs 337, 356, 360, 362...

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Comments on the Economic Benefits of Open Copyright Limitations, Submitted to South Africa’s Portfolio Comm. on Trade and Industry

Click here for the full comment (PDF) Excerpt:  This comment presents results of ongoing research on copyright limitations being conducted by American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP). The research demonstrates that positive economic outcomes are associated with greater openness in copyright limitations, and it supports arguments that South Africa will benefit from amendments to its copyright law that make limitations more “open.” PIJIP defines copyright limitations as more “open” if they are open to the use of any kind of work, by any kind of user and/or for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author. The research findings presented below have four main conclusions: Firms in high technology industries that South Africa is seeking to develop – including software development and internet services – enjoy better outcomes when their home countries have more open copyright limitations. Firms in the publishing and entertainment industries that rely on copyright are not harmed by greater openness in their home countries’ copyright law. Countries with more open copyright limitations produce more high-quality research. Middle-income countries tend to have less open copyright limitations, and therefore have an opportunity to benefit their information technology and research sectors by implementing changes to copyright law that makes them more open. These findings support many of the changes in the...

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Sen. Wyden: “NAFTA 2.0 Must Take a Balanced Approach to Copyright”

Inside U.S. Trade reports on a Capitol Hill event on digital trade and the NAFTA renegotation at which Sen. Wyden made the following remark regarding copyright: “NAFTA 2.0 must take a balanced approach to copyright that ensures the free flow of ideas around the world and allows American companies to continue to compete and win across the globe. Our agreements should enshrine a copyright system that looks to the future, not one that prevents computer researchers from doing their jobs or locks in restrictive copyright rules.” Click here for the full story on...

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Copyright Balance as a NAFTA Negotiating Objective: Testimony to the Trade Policy Staff Committee

NAFTA Modernization Hearing, International Trade Commission USTR-2017-0006 | June 27, 2017 See also: Written Comment on NAFTA Modernization, submitted jointly with Sean Flynn My name is Michael  Palmedo, and I work for the Program on Information Justice and Intellectual Property (PIJIP) at the American University Washington College of Law.  We have an interdisciplinary project that studies the economic effects of legal provisions in copyright laws, specifically copyright limitations that are relied upon by various firms in the information and research sectors.  I manage the economic side of this research, which is partially funded by Google. In this testimony, I will share information from our research indicating that the promotion of balanced copyright systems promotes U.S. trade interests, and should therefore be included in the NAFTA renegotiation objectives. One key element of an adequately balanced copyright system is having sufficiently “open” limitations for the digital environment. At PIJIP, we refer to “open” limitations as those that are open to the use of any kind of work, by any kind of user and for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author. Such openness is the hallmark of the U.S. fair use clause. These “open” aspects are crucial because the digital environment creates new opportunities to use different kinds of works, by different users and for different purposes than were envisioned by...

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NAFTA Hearings This Week – Details and Schedule

This week the U.S. government’s Trade Policy Staff Committee, an inter-agency group headed by the U.S. Trade Representative, will be holding a three-day open hearing on NAFTA.  The purpose of the hearing, as stated in the Federal Register Notice, is to “assist USTR as it develops its negotiating objectives and positions for the agreement.”  The hearing runs from Tuesday, June 27 through Thursday, June 29. It will held at the International Trade Commission building, and will be webcast on ustr.gov.  (Tuesday will definitely be webcast, and USTR is ‘awaiting livestream confirmation’ at the time I am writing this.) 143 people will testify. The panels with witnesses that seem the most dedicated to intellectual property run from 4:45 to 8:00 on Tuesday evening. The full schedule is...

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Trump Executive Order on Drug Pricing: Helping Pharmaceutical Firms Earn More Overseas Will Note Lead to Lower Prices at Home

Today’s New York Times features a story on a leaked draft outline the Trump Administration’s upcoming Executive Order on drug pricing. According to the Times, “the document directs the United States trade representative to conduct a study of price differences between the United States and other countries, and to review trade agreements that may need to be revised ‘to promote greater intellectual property protection and competition in the global market’.” It as many others have already pointed out (KEI, Public Citizen, UEAM), this will do nothing to reduce drug prices in the United States. Indeed, the level of intellectual property protection around the world has increased over the past two decades, especially in low- and middle-income countries, as WTO Members have implemented their obligations under the TRIPS Agreement. As they have done so, they have imported more medicines (at higher prices) from the United States. As the table below shows, this increase has been massive. 1992 Mil.$ 2016 Mil.$    Change Percent China     10.3 1,293.6 12,459% India       3.2 206.6 6,356% Average national imports from all other countries     22.4 339.1 1414%   [Source: UN Comtrade Database. Pharmaceutical imports identified by Harmonized System of Tariff Code HS3004] I chose to highlight China and India because they are both large countries which have increased patent protection as required by the WTO, have vastly increased their imports of medicines...

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Promoting Copyright Balance in NAFTA

Sean Michael Flynn and Michael Palmedo Comments to U.S. Trade Representative, re: NAFTA Negotiation The AU Program on Information Justice and Intellectual Property has been working over several years on empirical research pertaining to the impact of balanced copyright systems on trade and economic development. One key element of an adequately balanced copyright system is having sufficiently “open” limitations and exceptions for the digital environment. We refer to “open” limitations and exceptions for the digital environment as those that are open to the use of any kind of work, by any kind of user and for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author. Such openness is the hallmark of the U.S. fair use clause. These “open” aspects are crucial because the digital environment creates new opportunities to use different kinds of works, by different users and for different purposes than were envisioned in most copyright statutes. An open statute is a flexible one – and flexibility is needed to accommodate and encourage innovation in the digital environment.     Our research indicates: Greater openness is associated with better outcomes for foreign affiliates of U.S. multinational enterprises in the Scientific, Technical & Professional Services industries Commerce department data provides no evidence that affiliates of U.S. firms classified under the NAICS 51 heading – including publishing, music, and movies – perform more...

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New Timeline for Review of South Africa’s Copyright Amendment Bill

The South African Parliament’s Portfolio Committee on Trade and Industry, which is currently considering the Copyright Amendment Bill [B13-2017], has extended the deadline for the public to submit comments, and has postponed the public hearings which will now be held in August. The formal notice seeking comments on the legislation – with the new dates – is available here (PDF). The email sent from the Committee to stakeholders informing them of the change is below. [Related: May 30 post on an open letter to Parliamentarians from six legal scholars from the Global Expert network on Copyright User Rights regarding limitations and exceptions to copyright in the new bill. LETTER FROM THE COMMITTEE TO STAKEHOLDERS: Dear Stakeholder In light of the Committee decision taken on Tuesday, 30 May 2017 please note the following; No public hearings on 27, 28 and 29 June 2017. Closing date for submission is Friday, 30 June 2017. Public hearings will be scheduled in August 2017. Final dates for public hearings will be communicated by 30 June 2017. Clarity with regard to public participation at briefings. All meetings are open to the public but please note that during a briefing the interaction is between the Department and Members.  The purpose of the briefing is to afford Members with the opportunity to engage the Department on the content of the Bill. Members of the public in attendance can first...

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South Africa Releases 2017 Copyright Amendments Bill for Comment; Legal Scholars Weigh In on the Bill’s General Exception

South Africa has released the 2017 Copyright Amendment Bill for public comment.  The Portfolio Committee on Trade and Industry will accept written comments from the public through June 19, and will hold public hearings on the legislation June 27-29. Instruction for submissions and further information on the hearing are here. Six legal scholars from the Global Expert network on Copyright User Rights have sent an open letter to Parliamentarians to applaud the government for the Bill’s strengthening of user rights, and to make two suggestions. They write: We commend the Department of Trade and Industry for its recognition that inclusion of a modernised general exception (or “user right”) is an important part of updating South Africa’s copyright law. The Bill as a whole would modernise many of the law’s specific user rights. The provisions on temporary copies for technological processes, for educational uses, for library and archive uses, and for uses to provide access to people with all disabilities are notable examples where the Bill follows – and indeed establishes – international best practice in the field.[1] We focus here on the general exception in Article 12, which provides a very useful means for authorising rights of users with respect to copyrighted materials that are not authorised by specific exceptions.[2] We request that the general exception be crafted to be open to application to any purpose, kind of work or type of...

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