Author: PIJIP

Patent Pseudo-Pools and Standards

American University Professor Jorge Contreras has recently proposed a “pseudo-pool” approach to addressing patent stacking and hold-up concerns for industry standards (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232515). The proposal has attracted some attention, including from the European Commission, which had the following to say in its recent report on patents and standards (European Comm’n, Patents and Standards: A Modern Framework for IPR-Based Standardization 140 (2014)) (http://ec.europa.eu/enterprise/policies/industrial-competitiveness/industrial-policy/intellectual-property-rights/patents-standards/): Pseudo pool aggregate royalty cap. One of the most original yet promising ideas was submitted by Jorge Contreras as a written contribution to the ITU Roundtable.231 It proposes an approach to be adopted by SSO that includes some features from patent pools, while preserving the flexibility and broad activity scope required in the SSO setting. In short (and not doing justice to the depth of his analysis) Contreras argues that (1) assuming bilateral licensing processes, the likelihood for FRAND terms is highest if the negotiations are concluded before inclusion of technology in standard; (2) in practice, however, such licenses are almost invariably negotiated after this inclusion, for a variety of reasons, (3) this creates risks for hold-up prices and risks for royalty stacking and (4) a process is proposed that would alleviate such risks. In his proposal, parties participating in the SSO would at the outset agree upon an objective reasonable maximum fee level and a distribution/allocation mechanism for the individual right holders. Several adjusting mechanisms are then...

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Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities

A new report by PIJIP Professor Peter Jaszi, AU Communications Professor Patricia Aufderheide, and AU fellows Bryan Bello and Tijana Milosevic. The College Art Association has commenced a project with American University Professors Jaszi and Aufderheide to develop a Codes of Best Practice in the Creation and Curation of Artworks and Scholarly Publishing inthe Visual Arts.  The first phase of the project was to conduct “interviews with one hundred visual arts professionals and a survey of CAA members” and produce a report on “current practices and attitudes among visual arts practitioners (including artists, scholars, editors, and curators) regarding copyright and fair use.”  The full report is available here. KEY FINDINGS 1. Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals,and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use — the limited right to reuse copyrighted material without permission or payment. Fair use is flexible, available, and even core to the missions of many visual arts activities. Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their...

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Nov 7: Prof. Bernt Hugenholtz Delivers the 2nd Annual Peter Jaszi Distinguished Lecture – “Flexing Authors’ Rights”

The global future of cultural institutions, information industries, and individual creative work hinges, in part, on present decisions about the scope and character of copyright exceptions and limitations. Almost everyone agrees that modern copyright law needs to be flexible in order to accommodate rapid technological change and evolving media uses. In the United States fair use is the flexible instrument of choice. Author’s rights systems in Europe are generally deemed to be less flexible and less tolerant to open-ended limitations and exceptions. But are they really? Bernt Hugenholtz, Professor of law and Director of the Institute for Information Law (IViR) at the University of Amsterdam, will address this question at the Second Annual Peter Jaszi Distinguished Lecture at American University Washington College of Law this Thursday, November 7th.  He will make the case that (1) author’s rights systems can be made as flexible as common law copyright systems, and (2) that the existing EU legal framework does not preclude the development of flexible norms at the national level. For registration, and for more details on the event, please click...

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Brazilian Officials to Launch Report Recommending the Incorporation of TRIPS Flexibilities into Domestic Law

Today at 2pm, an event will be held at the Brazilian Chamber of Deputies to launch Brazilian Patent Reform: Innovation Towards Competitiveness.  This report was developed through a long consultative process (including seven workshops in 2011 and 2012)  by a technical team led by FGV’s Pedro Paranaguá.  It proposes legislative reforms that would  incorporate lawful TRIPS flexibilities into domestic law, enhancing access to generic medicines.  C Proposed reforms include: eliminating patent term extensions and data exclusivity, restricting patents on new forms and new uses and tightening the the inventive step requirement (following the India example), adopting a government use procedures, and clarifying the role that ANVISA, its drug regulatory agency, plays in the patent examination system. There will be a formal launch ceremony by high level government officials, followed by a roundtable of international experts.  Click here for the full report (PDF). PIJIP Prof. Sean Flynn will participate in the roundtable.  Hewill present three documents – each endorsed by experts or organizations from around the world – in support of the proposed reforms.  The documents were jointly written by Flynn and Professors Brook Baker and Amy Kapczynski. Open Letter from International Intellectual Property Scholars and Experts Supporting Brazil’s Proposed Patent Reform (PDF) Brief Technical Review of Brazil’s Proposed Patent Law Reforms (PDF) Civil Society Statement in Support of Brazilian Patent Law Reform to Increase Access to Medicines for All...

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Letter from 67 Academics to Colombian Leaders Regarding Copyright Legislation

67 legal academics have endorsed a letter to Colombian leaders to express concern over copyright legislation intended to implement the country’s obligations under their trade agreement with the U.S.  The letter warns that the provisions in the legislation “restrict the activities of information consumers more than is necessary or appropriate, more than the FTA requires, and more than do the provisions U.S. copyright law itself.” It recommends that Colombia give “serious consideration” to a “flexible approach to limitations and exceptions” and offers other suggestions for provisions that protect user rights in copyright. The letter was circulated by PIJIP Professors Peter Jaszi and Sean Flynn.  It was sent to President of the Senate Roy Barreras Montealegre President of the Senate, President of the House of Representatives, Simón Gaviria Muñoz and Minister of Commerce Sergio Díaz-Granados Guida. Click here for the full letter....

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PIJIP Res. Paper: Intellectual Property Reform in Colombia and ISP Liability

PIJIP Research Paper no. 2013-03 Authors: Glushko-Samuelson Intellectual Property Clinic in Collaboration with Andrés Izquierdo and Fundación Karisma Introduction: In April 2011, Bill 201—known as “Ley Lleras 1.0”—was introduced by the Colombian legislature to implement certain provisions in the US-Colombia Free Trade Agreement (FTA).  The law placed strong burdens on Internet Service Providers (ISPs) to police the Internet and would have allowed ISPs to collect information about users, including which websites they frequent, what content they access or post, and with whom they communicate.  It also permitted ISPs to deactivate subscribers’ Internet access without a court order verifying that the subscriber had posted or accessed copyright-infringing material. Fortunately, Ley Lleras 1.0 was archived in November 2011 after civil society groups harshly criticized it as shattering the notion of privacy and standing as a barrier to the free access of information.  However, this attempt to pass an overly restrictive ISP law reveals how the Colombian legislature has not fully considered the impact such laws could have on the fundamental rights to expression, information, privacy, and due process.  Public discussion and debate are necessary so that future ISP liability laws will not violate these precious rights for all Colombians. Ley Lleras 1.0 developed out of Colombia’s attempts to foster more positive relationships with other democratic nations worldwide.  To further strengthen ties between Colombia and the United States, these two countries entered into...

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PIJIP Res. Paper: Intellectual Property Reform in Colombia

PIJIP Research Paper no. 2013-02 Authors: Glushko-Samuelson Intellectual Property Clinic in Collaboration with Andrés Izquierdo and Fundación Karisma Introduction: In January 2013, the Colombian Constitutional Court struck down on procedural grounds the controversial copyright law known as Ley Lleras 2.0, which presented Colombia with a tremendous new opportunity to draft balanced copyright legislation that meets the needs of its citizens. Ley Lleras 2.0 developed out of Colombia’s attempts to foster more positive relationships with other democratic nations worldwide.  To further strengthen ties between Colombia and the United States, these two countries entered into a Free Trade Agreement (FTA) in 2006.  This FTA emphasized market access for agricultural products and removed barriers between Colombia and its largest trading partner, which made selling goods more profitable and assisted the Colombia’s continued development. The Colombia-U.S. FTA included flexible language that gave Colombia wide discretion to create laws implementing the FTA in ways that best serve Colombians’ needs.  However, when the Colombian legislature attempted to pass two controversial and restrictive laws, it failed to take advantage of the flexibility afforded by the FTA in a way that maximized the benefits for all Colombians. The FTA required Colombia to provide creators of copyrighted works with control over their works in a way that was consistent with international intellectual property regimes; however, the agreement did not provide exceptions for incidental copies, educational use, satire, or commentary. ...

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PIJIP and the AU Center for Social Media Release Set of Principles in Fair Use for Journalism

[Reposted from pijip-impact.org] This document is a statement of principles to help journalists in the United States interpret the copyright doctrine of fair use. It is intended for anyone who engages in the set of practices that entails creating media of any kind that refers to real-life events of public interest, in service of public knowledge, whether that person is a full-time professional or an individual who takes it upon himself or herself to report about specific issues or events. In other words, the definition of “journalism” to which this document speaks is defined by acts, not titles, and is an inclusive one, reflecting (in part) the changing nature of the technologies that support and enable journalistic practice. The project was coordinated by American University Professors Peter Jaszi (Program on Information Justice and Intellectual Property, Washington College of Law) and Patricia Aufderheide (Center for Social Media, School of Communication). FULL REPORT:  Set of Principles in Fair Use for Journalism Organizations Endorsing the Principles: Association for Education in Journalism and Mass Communication Association of Schools of Journalism and Mass Communication Association of Alternative Newsweeklies J-Lab Mediashift NABJ Digital Journalism Task Force National Lesbian & Gay Journalists Association New America Media Poynter Institute Robert R. McCormick Foundation Additional Resources: Frequently Asked Questions on Fair Use for Journalism Fair Use and Journalism: You Be the Judge! American University Center for Social Media...

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Kirtsaeng v. John Wiley & Sons: A Post-Argument Discussion with Counsel for Parties and Amici

Today at 6pm, American University’s Program on Information Justice and Intellectual Property hosted a discussion of this week’s ruling in Kirtsaeng v. Wiley, in which the Supreme Court held that “the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” VIEW WEBCAST.    Supap Kirtsaeng helped to finance his doctorate in mathematics at the University of Southern California by having friends and family send him textbooks they purchased in Thailand for resale in the United States through eBay.  Although these books were lawfully purchased in Thailand, Kirtsaeng was sued by John Wiley & Sons for copyright infringement. In this case, the Supreme Court revisits the relationship between the Copyright Act’s limits on importation of a copyrighted work without the copyright owner’s permission and the first sale doctrine, which permits resale of copies of a work without permission.  The Court divided evenly over this issue in a 2010 case pitting Costco against Omega. On March 19, 2013, the Supreme Court held that “the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad.” Arguments were heard in October 2012. This spring,  PIJIP is pleased to welcome Counsel of Record for Petitioner along with Counsel for amici, to discuss the case, the oral argument, and the implications of the case going forward. Panel Peter Jaszi Washington College of Law, Moderator Eleonora Zlotnikova Sam P. Israel...

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Statement of Michael Carroll on the White House Open Access Policy Directive

Today, PIJIP Director and PLoS Board Member Michael Carroll commended the Obama Administration for issuing an historic policy Directive that opens up access to the crucial results of publicly funded research by directing all federal agencies with annual research and development budgets of $100 million or more to provide the public with free and unlimited online access to the results that research: “Today, the Obama Administration’s Office of Science and Technology Policy adopted a pro-Internet, pro-science, pro-innovation policy that requires research articles reporting the results of federally funded research to be made available over the Internet.  Importantly, the policy also addresses research data and directs that these data should be made public to the greatest extent feasible. Agencies should embrace these opportunities to increase the value and impact of the research they fund with vigor and creativity.” The federal government funds tens of billions of dollars in scientific research each year, with the understanding that this taxpayer investment will advance science, spur the economy, accelerate innovation, and improve the lives of all Americans or members of the public.  This research is then published in peer- reviewed scientific journals.  Yet most taxpayers – including academics, students, and patients – cannot access this public funded research because the publications are too expensive and hard to access. Today’s action directs that the results of government-funded research – including both unclassified articles and...

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PIJIP and Public Citizen Event October 16 – “IP, Trade and Development”

PIJIP and Public Citizen will co-host a multidisciplinary event that will bring together academics, civil society, and policy makers to 1) examine how intellectual property affects economic growth in countries at different levels of development, and 2) analyze the way the United States ratifies trade agreements through Executive Agreements. United States trade policy aims to increase levels of intellectual property protection abroad beyond the level required by current international law codified in the WTO’s Agreement on Trade Related Intellectual Property Rights. Trade agreements such as the Trans-Pacific Partnership (TPP) require the extension of intellectual property protection to new types of products, processes and works, as well as increased enforcement of the new obligations. Policymakers have argued that stronger intellectual property protection will help economies grow, through increased foreign investment and the encouragement of domestic innovation. Academic research often finds a more complicated relationship between intellectual property on the one hand, and foreign investment, innovation and growth on the other – a relationship that can differ from nation to nation. Our first panel will include professors of economics, law and business, each of whom have written on linkages between intellectual property and other determinants of growth. Our second panel will include one of the authors of the recent and often cited Department of Commerce report Intellectual Property and the U.S. Economy: Industries in Focus, a representative from the biotechnology industry,...

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Webcast: Recent Developments in Fair Dealing in Canada

Panelists Peter JasziWashington College of Law Ariel KatzUniversity of Toronto Howard KnopfMacera & Jarzyna, LLP Martin SenftlebenUniversity of Amsterdam Overview Recent copyright cases in the Supreme Court of Canada expanded fair dealing, Canada’s equivalent to U.S. fair use. These cases held, among other points, that users have rights that must be given a large and liberal interpretation”, that copyright law is about both “protection” and “access,” that “research” purposes are not strictly limited and there is no absolute requirement for transformative use in Canada. These cases stress that technological neutrality matters, paving the way for future innovation. WCL hosted a discussion of these cases with Canadian attorneys Ariel Katz and Howard Knopf, and with comments by Prof. Martin Senftleben on how civil law judges might look at open-ended norms such as those in the Canadian cases. A summary of the event by fellow PIJIP Jimmy Koo is found below. Description Jimmy Koo September 12, 2012 WCL’s event on recent developments on fair dealing in Canada was held on September 12, 2012, hosted by the Program on Information Justice and Intellectual Property at the American University Washington College of Law.  The event featured presentations by Professor Ariel Kats from the University of Toronto, Mr. Howard Knopf from Macera & Jarzyna, LLP, and Professor Martin Senftleben from the University of Amsterdam. Professor Kats kicked off the event by discussing three recent...

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Public Statement on the U.S. Proposal for a Limitations and Exceptions Clause in the Trans-Pacific Partnership

[UPDATE, AUGUST 3:  The text of the U.S. proposal has been leaked and posted online by KEI here.] Professors Peter Jaszi, Michael Carroll and Sean Flynn Program on Information Justice and Intellectual Property American University Washington College of Law PRINTABLE PDF VERSION The Office of the United States Trade Representative made a public announcement through its website on July 3, 2012, during the San Diego round of Trans-Pacific Partnership (TPP) negotiations, that it was proposing, for “the first time in any U.S. trade agreement,” a provision “that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” We offer the following points of analysis as academics interested in the role of copyright limitations and exceptions in providing enabling conditions for important social and economic purposes in all countries. The USTR’s proposal to require ‘balance’ in copyright systems can be seen as a first response by the U.S. to the growing chorus of calls for increased attention to the need for international harmonization of mandatory minimum limitations and exceptions to intellectual property rights. The Washington Declaration on Intellectual Property and the Public Interest, for example, recorded the views of hundreds of intellectual property scholars and other experts that limitations and exceptions are important “in countering expansive trends in...

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One Step Ahead Two Steps Back: Reverse Engineering 2nd Draft for 3rd Revision of the Chinese Copyright Law

PIJIP Research Paper no. 2012-09 Author: Hong Xue Abstract: On July 6, 2012, the National Copyright Administration of China released the 2nd Draft of the 3rd Revision of the copyright law, in which 81 provisions were changed from the 1st Draft. It does contain a few improvements, but it contains more compromises and even steps backward under the pressure of interest groups. It is unfortunate that China, the largest country by both population and Internet users, despite its fast-growing economy, seems missing the opportunities to craft a 21st-Century Copyright Law, but instead follows the old path of “the more the better” (more copyright protection and enforcement, the better economic growth and social development), “one size fits all” and “modeling on US law” (on draconic enforcement rather than general and robust limitations and exceptions). This paper looks into the inner design of the 2nd Draft and analyzes both its improvements and setbacks. Citation: Xue, Hong, 2012. One Step Ahead Two Steps Back: Reverse Engineering 2nd Draft for 3rd Revision of the Chinese Copyright Law. PIJIP Research Paper no. 2012-09 American University Washington College of Law, Washington, D.C. Click here to download the full...

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Yochai Benkler on Evolution of Networked Discourse on SOPA/PIPA

In a recent presentation before the Personal Democracy Forum, Yochai Benkler, the Berkman Professor of Entrepreneurial Legal Studies at Harvard and co-director of the Berkman Center for Internet and Society, discussed the media surrounding the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) as a case study for the evolution of networked discourse and activism. Benkler argues that, contrary to a perception in the 1990s that the internet was too “weak, polarized, and ineffective” to uphold a Jeffersonian model of democracy, networked discourse from tech media and individual blogs drove public perception on SOPA and PIPA. Over the course of eighteen months, ten thousand such stories were able to bring down legislation supported by the three most powerful lobbies in Washington, D.C. and politicians on both sides of the aisle. Benkler underscores the role of Techdirt, Public Knowledge, the Computer and Communications Industry Association, and the Electronic Frontier Foundation in acting as information clearinghouses. These groups were able to relay to the public periodic expert input on the legislation that would not have a place in traditional media. He highlights a technical paper put forth on infojustice.org that addresses how PIPA requirements could threaten internet security, as an example of how networked discourse and online activism created a carve-out for expert opinion, not found in traditional media. Another part of the success of activist groups lay in...

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ACTA Rejected by the European Parliament: is TPP next?

The European Parliament overwhelmingly rejected the Anti-Counterfeiting Trade Agreement today, 478-39. The rejection issued a massive blow to the prospects of the agreement itself, as well as to the larger international intellectual property agenda of the United States, now playing out in the ongoing Trans-Pacific Partnership Negotiation in San Diego, California this week. Michael Carroll, Director of American University Washington College of Law’s Program on Information Justice and Intellectual Property, explained: “ACTA failed because civil society advocates and academic researchers succeeded in publicizing the multiple problems with a one-sided approach to changing international intellectual property law through a non-participatory, secret process that reflects only the interests of particular industries. While the Internet freedom issues generated the most significant public opposition in Europe, ACTA suffered from other substantial deficiencies as well.” PIJIP’s international intellectual property and the public interest project has been promoting public information on ACTA and other trade agreements seeking to alter international intellectual property policy. Supported by funders including the IDRC and Open Society Foundation, PIJIP organized an international expert meeting in June 2010 to document ACTA’s substantive shortcomings.  This meeting led to the Urgent ACTA Communique, issued on June 23, 2010,http://www.wcl.american.edu/pijip/go/acta-communique. PIJIP also promoted and published research on the legal problems and likely effects of ACTA, including papers in a special issue of the American University Journal of International Law and PIJIP Working Paper series, referred to extensively in the reports...

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Limitations and Exceptions to Copyright in Israel

This overview of copyright flexibilities in Israel consists of two parts.  First, answers to a questionnaire on the state of copyright law, copyright flexibilities, and the current political context of copyright, which were provided by Michael Birnhack and Niva Elkin-Koren. The questionnaire was given to participants at a meeting on Limitations and Exceptions to Copyright hosted by IViR and PIJIP last December.  The authors reviewed their answers before this overview was uploaded. Second, a list of the limitations and exceptions to copyright in Israel’s laws, conducted by PIJIP fellow Marcela Palacio Puerta is presented. It is part of a larger project to map flexibilities in copyright law, and input is appreciated. Please send comments, corrections, or suggestions to pijip@wcl.american.edu. Click here for a printable PDF of the overview. I.  Questionnaire on Copyright Flexibilities Answers by Michael Birnhack and Niva Elkin-Koren 1. Please provide a short (e.g. 250 word) description of your country or region’s copyright legal framework and current statutory provisions and judicial doctrines providing for copyright limitations and flexibilities. You may include a general categorization (e.g. – closed list only, list plus fair use, list plus fair dealing) as well as a description of any notable or novel aspects to the law (e.g. a flexible quotation right, any open-ended exceptions, provisions for equitable remuneration, etc.). Please include a copy or link to your law. General Copyright Scheme: Israel’s Copyright Act...

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Beyond the Unrealistic Solution for Development Provided by the Appendix of the Berne Convention on Copyright

PIJIP Research Paper no. 2012-08 Author: Aberto Cerda Silva Abstract: The standards of copyright protection promoted by the Berne Convention are highly problematic for developing countries because these countries need to ensure a wide dissemination of works for teaching, scholarship, and research purposes. In order to accommodate these needs and to promote accession to this Convention, the 1971 Paris Act of the Berne Convention, included an Appendix that allowed developing countries to issue compulsory licenses for translating and/or reproducing foreign works into languages of general use in their territories. Unfortunately, the Appendix has not met the needs of developing countries, which, instead, have relied on idiosyncratic solutions. Additionally, the instrument does not provide solutions for other needs, such as those of linguistic and cultural minorities, and it is arguable whether the Appendix applies online. Section one of this paper provides background information on the needs of developing countries and shows how the Appendix of the Berne Convention tried to meet them. Section two analyzes the main limitations of the mechanism of compulsory licensing adopted by the Appendix. Although, the mere fact that the Appendix does not comply with its very purpose should be enough to warrant a new instrument, section three discusses two additional reasons in favor of adopting a new instrument to meet the needs of developing countries. In particular, this section focuses on general welfare and the...

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PIJIP Res. Paper: A Pragmatic Approach to Intellectual Property and Development – A Case Study of the Jordanian Copyright Law in the Internet Age

PIJIP Research Paper no. 2012-07 Author: Rami Olwan Abstract: On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and shows how, in practical terms, a pro-development-oriented approach could be implemented in the copyright laws of developing countries. It provides specific recommendations for developing countries to ensure that their IP laws are aligned with and serve their social and economic development objectives. Citation: Olwan, Rami. 2012. A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age. PIJIP Research Paper No. 2012-07. American University Washington College of Law, Washington DC. Click here to download the...

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Limitations and Exceptions to Copyright in China

This overview on copyright flexibilities in China consists of two parts:  first, answers to a questionnaire on the state of copyright law and second, a table organizing the limitations and exceptions to copyright in China’s laws. The first part includes an analysis of copyright flexibilities and the current political context of copyright provided by Hong Xue.  The questionnaire was given to participants at a meeting on Limitations and Exceptions to Copyright hosted by IViR and PIJIP last December.  The authors reviewed the answers before this document was uploaded.  The second part was compiled by PIJIP fellow Marcela Palacio Puerta. The compilation is part of a larger project to map flexibilities in copyright law, and input is appreciated. Please send comments, corrections, or suggestions to pijip@wcl.american.edu. Click here for a printable PDF of the overview. I. Questionnaire on Copyright Flexibilities Answers by Hong Xue   1. Please provide a short (e.g. 250 word) description of your country or region’s copyright legal framework and current statutory provisions and judicial doctrines providing for copyright limitations and flexibilities. You may include a general categorization (e.g. – closed list only, list plus fair use, list plus fair dealing) as well as a description of any notable or novel aspects to the law (e.g. a flexible quotation right, any open-ended exceptions, provisions for equitable remuneration, etc.). Please include a copy or link to your law. China is...

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