Author: Mike Palmedo

Eli Lilly Reported to Have Lost NAFTA Investor-State Dispute Against Canada

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.”  On Friday, the Investment Arbitration Reporter published a story saying that “a unanimous award was rendered on March 16, 2017, with arbitrators dismissing the claims on their merits,” and ordering Eli Lilly to pay $5 million of Canada’s legal fees. For more details about the original case, and for Eli Lilly’s Notice of Arbitration, please see my earlier post on this...

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PIJIP to Host Globalizing Fair Use: Exploring the Diffusion of General, Open and Flexible Exceptions in Copyright Law

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. 4:00 – 6:30: A policy roundtable will be co-hosted by PIJIP, the Computers and Communications Industry Association, Google, the Re-Create Coalition and the R Street Institute. This public event and webcast (live and on demand) will gather leading international experts to discuss global debates around extending fair use rights abroad. A panel discussion will lend insights from local copyright debates followed by a discussion of academic members of the Global Expert Network on Copyright User Rights. Click here for the roundtable agenda....

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My Testimony to the Special 301 Committee, Re: Foreign Affiliates of U.S. Firms in Countries That have Adopted Fair Use

Delivered March 8, 2017 at the Open Hearing that USTR conducted as part of the 2017 Special 301 Review Thank you for the opportunity to testify at this hearing. My name is Mike Palmedo, and I work for American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP). We are an academic research program that promotes the public interest in IP policy. Much of my recent research at PIJIP has involved the comparison of copyright limitations in different countries, and the examination of outcomes associated with different copyright limitation structures. My testimony has four key points: U.S. firms that rely on copyright exceptions benefit when foreign nations adopt open, flexible and general exceptions such as fair use Copyright industries still earn money from countries that adopt fair use The Special 301 Committee should include analysis of copyright limitations when evaluating whether a country provides adequate and effective protection of IP The 2017 Special 301 Report should highlight countries that are moving to adopt more flexible copyright practices in its “Best Practices” section U.S. firms benefit from open, flexible and general copyright limitations in other countries Intellectual property law in the United States balances the interests of those who own IP and those use it. In the field of copyright, this involves protections against infringement, and when appropriate, limitations allowing unauthorized reproduction and use. Robust copyright...

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Limiting the Snippet Levy to Commercial Use Is Tangling Up an Already Muddy Issue

[Natalia Mileszyk, Communia Association, Link (CC-0)] The Rapporteur Marc Joulaud of the Committee on Culture and Education (CULT) recognises the problem with proposed article 11 regarding protection of press publications concerning digital uses – it can threaten hyperlinking and various ways users use content online. In Communia’s opinion the Commission’s proposal to introduce a right for press publishers is poorly aligned to the objective of modernising the EU copyright framework and adapting it to the challenges of a fast-evolving digital environment. In the light of the above we believe that the only solution is to remove the whole idea from the directive. This is not the approach shared by CULT – instead 3 problematic changes were proposed: the limitation of the ancillary copyright is only for commercial purposes, the confusing and vague attempt to carve out snippets, and the term of protection is to be 3 years, which is still too long for news. Muddy area’s still unclear Instead of solving the problem, the Rapporteur Marc Joulaud made everything even more tangled by adding to the proposed scheme the requirement that press publication must be used ‘for commercial purposes’. As we raised before in freedom of panorama discussion, implementing a distinction between commercial and non-commercial use, namely two very vague terms, is never a good idea. It will muddy any legal certainty for citizens engaged in sharing press publications....

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US Trade Associations Write Congressional Leadership on IP in India, Suggest WTO Dispute Settlement As a Negotiating Tool

Twenty trade associations have written the House and Senate leadership urging Congressional engagement on the trade relationship between the U.S. and India. Their letter identifies intellectual property protection as an “ongoing challenge.” It highlights diplomatic structures where the countries have discussed IP and other issues, then notes that “WTO dispute settlement has played and should continue to play a key role in ensuring that India follows through on its international commitments.” The signatures on the letter include RIAA, MPAA, PhRMA, BIO, and the U.S. Chamber of Commerce. A recent International Trade Commission investigation into Indian barriers to trade surveyed businesses operating in the country, and found that intellectual property concerns were actually more muted than the rhetoric in DC would suggest. As I wrote in an earlier blog, the report found that “Overall, three quarters of the firms (73.9%) that answered the survey indicated they were not substantially adversely  affected by Indian policies. Among the firms that reported problems, “Measures in two policy areas — tariffs and customs procedures, and taxes and financial regulations — have the heaviest effect on U.S. companies  … IP-related impediments rated lower than tariffs and taxes as barriers to doing business in India, even by U.S. companies that considered IP protection very important to their operations.” Data from the survey that support this: Share of U.S. companies engaged in India that are substantially affected by...

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Intellectual Property Law and the Promotion of Welfare

Authors: Christopher Buccafusco and Jonathan S. Masur Abstract: The U.S. Constitution grants Congress the power “to Promote the Progress of Science and the Useful Arts” by granting copyrights and patents to authors and inventors. Most courts and scholars understand this language to entail a utilitarian or consequentialist approach to intellectual property (IP) law. Unlike IP systems in other parts of the world, U.S. IP law generally eschews so-called “moral” or deontological considerations such as justice and fairness. Yet while there is considerable consensus regarding U.S. IP law’s philosophical orientation, there has been little discussion of its deeper normative goals. Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. What, exactly, are the interests that IP law should promote? Various answers to these questions exist. One possibility would be to interpret the constitutional language literally and narrowly. On this view, IP law should encourage developments in knowledge and technology irrespective of broader interests. Another option would be to interpret the constitutional language broadly to encompass a general social welfare calculus. In this chapter we discuss a variety of ways of understanding the normative goals of a consequentialist IP regime. We argue that the best approach derives from recent work in the field of hedonic psychology. The principal consequentialist goal...

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Candidates for Director-General of the World Health Organization Outline Their Plans for Tackling Unaffordable Medicines and the Lack of Innovation in Priority Areas

[Joint press release from six civil society groups, Link] The six candidates for Director-General of the World Health Organization (WHO) – of whom one will be elected this May – have published responses to an open letter asking them to make clear their plans for the future of the WHO’s work in promoting a new system of equitable drug R&D. The original open letter was signed by 18 civil society organizations, and titled “Will you support a patient-centred R&D agreement?“. The WHO Executive Board convenes today to begin 9 days of meetings during which the candidates will be interviewed, and up to 3 of the 6 shortlisted for a final vote in May 2017. The candidates recognised that urgent problems exist in the current system of drug R&D. Dr Douste-Blazy (France) wrote that “past failures to invest in research and development are killing millions today”. Dr Nishtar (Pakistan) recognised “the failure of market mechanisms to incentivise innovation” and asserted that the “WHO already has a strong mandate for action”. Dr Bustreo (Italy) noted that “high prices of health technologies and lagging innovation […] impede people’s access to quality health care”. In her response, Dr Flavia Bustreo made the bold commitment to convening discussions with WHO member states on a “global agreement on research and development R&D for medicines, vaccines, and diagnostics” based on the decade of work undertaken at...

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USTR Requests Comments for the 2017 Special 301 Report

The U.S. Trade Representative has requested comments for the 2017 Special 301 Report, in which it lists countries that it alleges “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.” The content is based on written comments (mostly those submitted IP owners and business associations), testimony at a hearing, and on consultations with other governmental departments. Any interested party may submit comments, and any interested party may testify at the open hearing.  The deadline for submissions and requests to testify is February 9; the hearing is February 28; and the Special 301 Report will be released “On or about April 30.”  See the Federal Register notice for further details and submission instructions. Click here for the full Federal Register...

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Australian Government Productivity Commission Recommends the Introduction of Fair Use in Copyright Law

The Australian Government Productivity Commission has released its final report on ‘Intellectual Property Arrangements,’ which recommends a number of reforms to IP law, including changes to the law on patents, copyrights and enforcement. Regarding copyright and related rights, the Australian Government Productivity Commission warns that the scope of works eligible protection is too broad and the term of protection is too long, forcing copyright users face higher costs. It recommends clarifying the law on geoblocking and allowing parallel trade in books in order to expand access to works. The report recommends “Introducing a system of user rights, including the (well-established) principles–based fair use exception.”  Below is an excerpt that briefly presents the Commission’s case for introducing fair use in Australia: A fairer system of user rights Australia’s current limited exceptions, fair dealing being the most well-known, do little to restore the copyright balance. Australia’s exceptions are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material. Legislative change is required to expand the categories of use deemed to be fair. Even when this occurs, changes have simply ‘caught up’ with existing community practice — Australia did not legalise the wide-spread practice of home VCR recording until as late as 2006, by which time most VCRs were household relics. Universities Australia summarised the extent...

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Antigua & Barbuda: “Suspension of Copyright” on U.S. Intellectual Property If WTO Dispute Remains Unsettled by Year’s End

Last week, the government of Antigua and Barbuda announced to the WTO Dispute Settlement Body (DSB) that it will move forward with the “suspension of copyright on the sale of U.S. intellectual property” by the end of the year if the U.S. does not comply with the DSB’s findings in the long-running dispute regarding online gambling. Twelve years ago, the DSB found that the United States violates the WTO’s General Agreement on Trade in Services by discriminating against foreign providers of online gambling services. It found that various federal and state level laws forbade Antiguan firms from offering online gambling services comparable to services offered by domestic firms. The DSB ordered the United States to pay $21 million in annual compensation to Antigua and Barbuda until its laws were brought into compliance with GATS. Furthermore, it permitted cross-sector retaliation by Antigua and Barbuda in the event that the United States did not comply with the DSB’s findings.  Since the DSB found the United States in violation of GATS, no compensation has been paid, and the law has not changed.  Antigua claims that total damages now exceed $250 million, a significant sum considering its total GDP is around $1 billion. Click here for Antigua and Barbuda’s full statement to the WTO Dispute Settlement Body....

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