Author: Matthew Rimmer

The Foxfire of Fair Use: The Google Books Litigation and the Future of Copyright Law

Abstract:   This article considers the dynamic evolution of copyright exceptions and limitations in the United States in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress in respect of the scope of the defence of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google Inc. over The Authors Guild in the decade long copyright dispute is an important milestone on copyright law. The ruling of Leval J emphasizes the defence of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of The Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of ‘the Next Great Copyright Act’. Hearings have taken place within the United States Congressional system about the history, nature, and future of the defence of fair use under United States copyright law. There remains much debate about the internationalisation of the defence of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities in respect of copyright exceptions. There has been concern about...

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The High Price of Drug Patents: Australia, Patent Law, Pharmaceutical Drugs and the Trans-Pacific Partnership

[Cross posted from Medium] Published by the Australian Government on the 20th March 2014, the independent “Pharmaceutical Patents Review Report” recommends to shorten and reduce patent term extensions, to address the problems of evergreening and data protection, and to reverse Australia’s passive approach to the negotiation of intellectual property and international trade. The report emphasizes the need for Australia to protect its public health interests in the negotiation of the “Trans-Pacific Partnership.” This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim. On the 20th March 2014, the Australian Government published the final version of an independent policy report, the Pharmaceutical Patents Review Report, after much public pressure.[1] The report has significant implications in respect of patent law, pharmaceutical drugs, the Pharmaceutical Benefits Scheme, and trade policy -€“ particularly in respect of the Trans-Pacific Partnership. The independent report has also highlighted the opportunity of great savings for the Australian health-care system through shortening patent term extensions. The economist Peter Martin has warned: ‘€˜Australia’s enthusiastic approach to extending the life of pharmaceutical patents has cost the economy “€œbillions of dollars”€ an independent review has found.’€™[2] This paper provides a short review of the Pharmaceutical Patents Review Report, and highlights key recommendations. In particular, it looks at the call by the review for a...

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The Trans-Pacific Partnership Poses a Grave Threat to Sustainable Development

[Cross posted from The Conversation, Link (CC-BY-ND)] This month’s long-awaited release of the Trans-Pacific Partnership (TPP) text was the result of years of negotiations on trade ties between nations around the Pacific Rim. Some six weeks earlier, another set of deliberations came to an end as the United Nations unveiled its 17 Sustainable Development Goals (SDGs), which aim to eradicate poverty and reduce inequality by addressing critical issues such as food security, health care, access to education, clean and affordable water, clean energy, and climate action. Unfortunately, the two documents are incompatible. Several chapters of the TPP impinge upon the SDGs, potentially undermining the UN’s efforts to promote sustainable development and equality throughout the Pacific region. Moreover, many developing countries, least-developed countries, and small island states in the Pacific region are excluded from the preferential trade deal. What does the TPP say on development? The US Trade Representative has boasted that the TPP’s chapter on development will be a boon for developing Pacific nations, and that it will “focus attention on major development goals including inclusion of women, micro-enterprise, poverty reduction, and education, science, and technology”. But while the chapter is laden with aspiration, it lacks firm commitments or hard obligations. Here’s how it opens: The Parties affirm their commitment to promote and strengthen an open trade and investment environment that seeks to improve welfare, reduce poverty, raise living standards and...

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The Trans-Pacific Partnership: Copyright Law, the Creative Industries, and Internet Freedom

The Trans-Pacific Partnership (TPP) is a highly secretive trade agreement being negotiated between the US and eleven Pacific Rim countries, including Australia. Having obtained a fast-track authority from the United States Congress, US President Barack Obama is keen to finalise the deal. However, he was unable to achieve a resolution of the deal at recent talks in Hawaii on the TPP. A number of chapters of the TPP will affect the creative artists, cultural industries and internet freedom – including the intellectual property chapter, the investment chapter, and the electronic commerce chapter. Legacy copyright industries have pushed for longer and stronger copyright protection throughout the Pacific Rim. In the wake of the Hawaii talks, Knowledge Ecology International leaked the latest version of the intellectual property chapter of the TPP. Jamie Love of Knowledge Ecology International commented upon the leaked text about copyright law: ‘In many sections of the text, the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods.’ The recent leaked text reveals a philosophical debate about the nature of intellectual property law. There are mixed messages in respect of the treatment of the public domain under copyright law. In one part of the agreement on internet service providers, there is text that says that...

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Senator Elizabeth Warren fights the White House over the Secret Trans-Pacific Partnership #TPP

In his visit to the G20 in Brisbane, President Barack Obama sought to promote his ambitious Pacific Rim trade agreement — the Trans-Pacific Partnership. He told an audience at the University of Queensland: We’ll keep leading the effort to realize the Trans-Pacific Partnership to lower barriers, open markets, export goods, and create good jobs for our people. But with the 12 countries of the TPP making up nearly 40 percent of the global economy, this is also about something bigger. It is our chance to put in place new, high standards for trade in the 21st century that uphold our values. So, for example, we are pushing new standards in this trade agreement, requiring countries that participate to protect their workers better and to protect the environment better, and protect intellectual property that unleashes innovation, and baseline standards to ensure transparency and rule of law. Obama insisted: ‘It’s about a future where instead of being dependent on a single market, countries integrate their economies so they’re innovating and growing together.’ He maintained that the trade deal would be a historic achievement: ‘That’s why I believe so strongly that we need to get it done — not just for our countries, but for the world.’ The President recognised that the TPP would have stringent regulatory demands, and require ‘big transitions for a lot of these countries, including for the United States’. The Obama administration,...

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No Logo: Brand Bullies, Trade Mark Law, and The Trans-Pacific Partnership

The Trans-Pacific Partnership is a sweeping trade agreement, spanning the Pacific Rim, and covering an array of topics, including intellectual property. There has been much analysis of the recently leaked intellectual property chapter of the Trans-Pacific Partnership by WikiLeaks. Julian Assange, WikiLeaks’ Editor-in-Chief, observed “The selective secrecy surrounding the TPP negotiations, which has let in a few cashed-up megacorps but excluded everyone else, reveals a telling fear of public scrutiny. By publishing this text we allow the public to engage in issues that will have such a fundamental impact on their lives.”  Critical attention has focused upon the lack of transparency surrounding the agreement, copyright law and the digital economy; patent law, pharmaceutical drugs, and data protection; and the criminal procedures and penalties for trade secrets. The topic of trade mark law and related rights, such as internet domain names and geographical indications, deserves greater analysis. Amongst other things, the latest intellectual property text of the Trans-Pacific Partnership revealed by WikiLeaks reveals a concerted effort to protect the rights and remedies of trade mark owners. The secret agreement is intent upon protecting famous, well known brands. The Trans-Pacific Partnership is a trade deal designed to protect global brands — such as sporting brands like Nike; the information technology trade marks of Apple, Microsoft, IBM, and Google; the logos of Big Food such as McDonalds, and Big Soda, like Pepsi and Coca-Cola....

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Blue Future: Maude Barlow, Water Rights, Investor Clauses, and Trade Deals

Maude Barlow is the chairperson of the Council of Canadians, and the founder of the Blue Planet Project. She is a recipient of Sweden’s Right Livelihood Award, and a Lannan Cultural Freedom Fellowship. As well as being a noted human rights and trade activist, Barlow is the author of a number of books on water rights – including Blue Gold,[1] Blue Covenant,[2] and Blue Future.[3] She has been particularly vocal on the impact of trade and investment agreements upon water rights. Barlow has been critical of the push to include investor-state dispute settlement clauses in trade agreements – such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP). She has also been concerned by the Trade in Services Agreement (TISA) leaked by WikiLeaks. In her book Blue Future, Maude Barlow reflects upon the recognition by the United Nations General Assembly of the human right to safe and clean drink water and sanitation as ‘essential for the full enjoyment of the right to life’.[4] She observed: Recognizing a right is simply the first step in making it a reality for the millions who are living in the shadow of the greatest crisis of our era. With our insatiable demand for water, we are creating the perfect storm for an unprecedented world water...

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Submission to the Joint Standing Committee on Treaties on the Korea-Australia Free Trade Agreement (KAFTA)

ABSTRACT:  Australia and South Korea have signed a new free trade agreement – the Korea-Australia Free Trade Agreement (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement … Recommendation 4: The intellectual property chapter of the Korea-Australia Free Trade Agreement 2014 is controversial. The proposed regime is one-sided and unbalanced. The intellectual property chapter is focused upon providing longer and stronger intellectual property rights for intellectual property owners. There is a failure to properly consider other public interest objectives – such as access to knowledge, the progress of science and the useful arts, and the promotion of innovation and competition. Click here for the full...

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New Zealand, Plain Packaging, and the Trans-Pacific Partnership

The New Zealand Parliament is considering the adoption of plain packaging of tobacco products with the introduction of the Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill 2014 (NZ). There has been strong support for the measure amongst the major parties – including the National Party; the Maori Party; the Labor Party; and the Greens. The New Zealand parliamentary debate has considered matters of public health and tobacco control; the role of intellectual property law; and the operation of international trade and investment law. The Minister of Health, Tony Ryall, a member of the National Party, has been proud of the New Zealand Government’s work in respect of tobacco control and plain packaging: ‘We have created a turning point in the campaign against tobacco with more effective action than ever before on an unprecedented scale – annual tobacco excise increases, systematic screening and cessation support, the end of retail displays, and the inevitability of plain packaging.’ The Associate Minister of Health, Tariana Turia, an MP for the Maori Party, has been a driving force behind the introduction of the legislative regime. In her first reading speech, she emphasized the need to address the brand imagery deployed by Big Tobacco to recruit consumers to use their addictive products: In essence, the decision to introduce plain packaging for tobacco products in New Zealand is all about the branding. It takes away the...

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Ireland, Plain Packaging, and the Olive Revolution

A world leader in public health, Australia introduced plain packaging of tobacco products. Julia Gillard – the Prime Minister of Australia at the time responsible for plain packaging – has observed:  “Since 1 December 2012, cigarettes packets in Australia do not sparkle with gold or silver and do not have any other way to catch and please the eye. They’re a uniform drab colour, with most of the box taken up with the most graphic health warnings. Gruesome pictures of disease perhaps better described as real pictures of the ugly truth.” The public policy measure was designed to implement Australia’s obligations under international health law, and to address the public health impacts of tobacco. In particular, the measure was intended to address misleading and deceptive advertising by the Mad Men of the tobacco industry, which targeted consumers, including vulnerable populations, like children. After epic litigation, the Commonwealth Government of Australia successfully and decisively defended plain packaging of tobacco products in the High Court of Australia. The Australian Government is currently defending the regime against further challenges by Big Tobacco under investment agreements and trade agreements, emphasizing that it is defending its sovereign right to protect the public health of Australian citizens. It is heartening that a number of other countries have joined the ‘Olive Revolution’ in tobacco packaging. New Zealand has indicated that it will follow suit, and introduce...

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