Author: Sara Bannerman

Why Universities Can’t Be Expected to Police Copyright Infringement

[Originally posted in The Conversation, Link (CC-BY-SA)] . As the new school year approaches, Canadian universities are grappling with the Federal Court of Canada’s recent copyright decision against York University. The court ruled that York could not rely on its fair dealing policy and per-use licensing to copy works as a part of course packs, but must pay millions of dollars in licensing fees to Access Copyright, which sells blanket copyright licenses to organizations. Publishers felt vindicated, while fair dealing advocates have argued that the decision is incorrect, fails to follow Supreme Court of Canada precedent and is likely to be overturned on appeal. York has announced that it will appeal the decision. Twin problems arise from the decision. One, as some have noted, is the danger of a new, more restrictive interpretation of fair dealing when it comes to educational materials. Fair dealing, which permits limited copying of copyright works and parts of works without permission or payment, was expanded by Parliament in 2012. The Supreme Court of Canada affirmed that teachers’ handouts for elementary school classes is fair dealing. The other problem, less discussed, is the danger that universities could be enlisted as copyright surveillance and enforcement watchdogs. Campus policing? The Federal Court emphasized a lack of enforcement mechanisms at York. It said that while York did “set up programs where instructors and students agreed to copy within York’s copyright guidelines and it did initiate procedures (on internal course web sites) to remind...

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Does IP Have a Role in Sustainable Development? Of Course It Does!

[Originally posted on sarabannerman.blogspot.ca] Does intellectual property have a role in sustainable development?  Of course it does!  But the World Intellectual Property Organization, a UN agency, seems uncertain as to whether it has a role to play in implementing the UN’s Sustainable Development Goals (SDGs). As I note in a draft book chapter, WIPO’s preliminary analysis of the ways in which its work supported SDGs viewed most of WIPO’s work as contributing to SDG 9, the building of infrastructure and industrialization, as well as goal 8, that of economic growth. Surprisingly few of WIPO’s activities were viewed by WIPO as contributing to the SDGs of education, hunger, protecting biodiversity, combating climate change, or ensuring human health. “Developed” countries argue “that only a few goals apply to the work of WIPO, and others argue that there should be no ‘cherrypicking’ as all the goals in one way or another do apply to WIPO’s work as a UN agency.”  The view of the “developed” countries, here, is completely ridiculous; it is clear that intellectual property plays an important role in relation to many SDGs, including those related to food and agriculture, health, innovation, climate change, biodiversity, and technology transfer. The world intellectual property system, at present, also sometimes works contrary to achievement of the SDGs, by locking up agricultural innovation, inflating drug prices, stalling innovation, rewarding the invention and sale of dirty...

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Who Should Own Big Data?

[Cross posted from sarabannerman.blogspot.ca] Big data has a lot to offer, from curing disease to fostering economic development to fostering transparency.  At the same time, from government mass surveillance to data leaks, the misuses of big data seem as pervasive as its uses. Who owns big data?  What rights do–and should–its owners have over what is done with it? Two different answers to this question have been posed.  The first would allow free use of big data for non-profit scientific research.  The second would release IP control of big data for commercial research also. As noted in a recent paper by Handke, Guibault and Vallbé, the answer to the question of what IP rights subsist in big data varies by country.  Research using mined data may, in some countries, be constrained by copyright and other IP laws, while in others (including Canada and the United States), copyright ownership in data may not stand in the way of researchers seeking to data mine. Two international initiatives: The Hague Declaration on Knowledge Discovery in the Digital Age and the World Intellectual Property Organization’s proceedings toward the creation of a new international instrument on limitations and exceptions for educational, teaching and research institutions and for persons with other disabilities, seek to ensure internationally that copyright does not stand in the way of the ability to mine data for research. At WIPO, the African Group of...

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A Balancing Act for the Blind and Visually Impaired

On Monday June 17, a diplomatic conference will be held to negotiate a treaty/international instrument that would allow accessible-format works to be exported from country to country.  Intended to address the problem that currently only 5% of copyright works are currently available in accessible format.  Copyright law in many countries currently prohibits the export of copyright works, including accessible-format works.   This creates a situation where works must be separately converted to accessible formats in each country, or where separate permissions must be requested for each country to create or export the works, inhibiting the flow of accessible-format works around the world. Recently, I noted that the negotiations have entered troubled waters.  Media conglomerates, copyright lobby groups, the Obama administration, and the European Commission have sought to weaken or derail the treaty. The Canadian government continues to stress “balance” in copyright as a way of navigating this issue.  It claims that the current Canadian copyright law, which does contains export measures for the visually impaired, is “balanced”.  Indeed, Canada was the first country in the world to put in place such provisions, including provisions that allow the circumvention of TPMs by the perceptually impaired or those working on their behalf. The idea that copyright is currently “balanced” in addressing the interests of the visually impaired is often questioned.  If only 5% of works are accessible to the visually impaired…this is is not balance.  Canada should not take...

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WIPO Treaty for the Visually Impaired Flounders

As negotiators at WIPO prepare for a June 17-22 diplomatic conference in Marrakesh to create a new international instrument/treaty for the benefit of the visually impaired.  The treaty is intended, by its proponents, to make copyright works more accessible to the visually impaired.  It is currently estimated that only 5% of works are available in a accessible format.  Stevie Wonder and other key activists have been proponents of the treaty. Negotiations have, according to reports, hit stumbling blocks that could foil the agreement.  WIPO held an “Informal and Special Session” to discuss the instrument in April that concluded by posting a draft text (of April 20) of the instrument/treaty, available here.  Media conglomerates, copyright lobby groups, the Obama administration, and the European Commission have sought to weaken or derail the treaty.  The draft text has been filled with brackets and alternatives that will make a final agreed text more difficult to come to.  It is now feared that the conference will end in a deadlock, or in a treaty that contains so much red tape it will be utterly useless.  I have observed in my book that this has been the result of many efforts to create copyright exceptions,  including the provisions of the 1971 Berne Convention, which was intended, but failed utterly, to create copyright exceptions for developing countries. Knowledge Ecology International held a discussion on the instrument/treaty. ...

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WIPO Meets on Genetic Resources: Participation of Indigenous Peoples at Issue

The Intergovernmental Committee on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (IGC) meets this week at WIPO.  The Committee is working on negotiating a new treaty or soft law instrument on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources.  This week’s work will focus on genetic resources, with future meetings this year on traditional knowledge, and traditional cultural expressions. The meeting begins today with a half day panel of indigenous and local communities – the IGC’s traditional way of beginning each meeting – in an effort to include indigenous and local communities in their work. The IGC’s efforts to include indigenous peoples in their work has been subject to both criticism and commendation by the United Nations Permanent Forum on Indigenous Issues.  In February 2012 indigenous delegates walked out of WIPO in frustration at their inability to adequately participate in the negotiations.  Indigenous delegates at WIPO meetings have no power to submit text proposals on  the texts under discussion, and must do so through state delegations.  Concerns have been raised that, under the draft texts, states – rather than indigenous peoples – could grant themselves control over the traditional knowledge, cultural expressions, and genetic resources of indigenous peoples. Many delegates to the Permanent Forum argued that the processes underway at WIPO “only barely masked States’ desires to appropriate indigenous resources.” Such views stem, in part, from the fact...

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Canada’s bid to join TPP threatens access for blind, print disabled

There is a danger that, in Canada’s quest to join the Trans-Pacific Partnership Agreement (TPP), Canada may cede whatever leadership it has gained in the field of progressive copyright provisions. Canada’s Bill C-11, the proposed “Copyright Modernization Act”, includes provisions that would allow people who are blind and print disabled to circumvent Technological Protection Measures(TPMs) to access works (s. 41.16). These provisions, while they have been criticized as not going far enough, at the same time could put Canada on the map as being among the first to enact such provisions for the benefit of the blind and print disabled. Under the last leaked text of the American proposal for the TPP, these types of provisions would not be allowed as a permanent exception. The proposal enumerates (Art. 4, 9 (d)) the various possible permanent exceptions to TPM infringement, and these do not include a specific exception for the benefit of people who are blind and print disabled. The proposed TPP allows for temporary exceptions, which could include an exception for the blind and print disabled, but these would have to be subject to review or renewal every 3 years (Art. 4, 9(d)(viii)). Bill C-11 does not provide for such a review/renewal process. The other possibility that has been suggested by many commentators, is to limit the provisions of Bill C-11 so as to prohibit only circumvention for infringing...

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