Author: Sean Flynn

NGOs Banned from WTO Ministerial

At this year’s WTO ministerial there will be debates about adopting a new E-Commerce agenda to regulate Internet trade – but one of Latin America’s leading NGOs working on the issue is not allowed to go. Derechos Digitales writes: With dismay and annoyance we have received the notification that the Argentine Government has decided to cancel our participation in the eleventh ministerial meeting of the World Trade Organization (WTO), which will be held in Buenos Aires from December 10 to 13, 2017. At least 63 civil society organizations are in a similar situation. The Argentine Government did not provide any explanation to support this decision. It is an unprecedented and surprising measure, contrary to any minimum democratic standard and which removes any vestige of legitimacy that the meeting might have had. In this way, once again, the representatives of civil society are excluded from the debate on the rules of world trade. We hope that the Argentine Government will amend this irregular situation and give the corresponding explanations. https://www.derechosdigitales.org/11789/gobierno-argentino-impide-la-participacion-de-derechos-digitales-en-la-reunion-ministerial-de-la-omc/ It is shocking that the WTO would move forward with a debate about regulating the internet through trade agreements and not include the leading voices on public and consumer interests in the...

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WIPO Broadcast Treaty Turns to Limitations and Exceptions

At the latest meeting of the WIPO Standing Committee on Copyright and Related Rights, there was new movement on copyright limitations and exceptions. Argentina and Brazil tabled language that adds more specificity to the limitations and exceptions that may be offered to the new exclusive rights of broadcasters that the proposed Broadcast Treaty would require. But the proposal fails to follow the most recent best practices in international law by requiring exceptions, protecting fair use and safeguarding the digital environment. The Argentina & Brazil Proposal states: (1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting [or cablecasting] organizations as they provide, in their national legislation, in connection with the protection of copyright in literary and artistic works, and the protection of related rights. (2) Any Contracting Party may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Treaty as regards: (a) private use (subject to clarification on scope); (b) use of short excerpts in connection with the reporting of current events; (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research; (e) the use to specifically allow access by persons with impaired sight or hearing, learning disabilities, or other...

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Ottawa NAFTA Round Turns to Copyright

OTTAWA: It was being reported among various observers of NAFTA over the weekend that the talks in the IP chapter are progressing toward Copyright. The US appears poised to table the first set of its demands for that portion of the IP chapter. But it is also rumored that that the US demand may exclude the issue of copyright balance. Civil society organizations, including internet freedom and information justice advocates from the US and Canada (Mexico was largely absent due to the earthquakes), gathered in Ottawa over the weekend to provide the public forum on NAFTA issues that the formal negotiation has yet to sponsor. The Canadian Internet Policy and Public Interest Clinic teamed with American University’s Program on Information Justice and Intellectual Property, OpenMedia, Public Citizen and the Electronic Frontier Foundation to discuss public interest concerns with the E-Commerce and copyright provisions of the potential agreement. PIJIP presented some of its research showing that copyright balance can promote trade. For example, foreign affiliates of US technology and service firms have greater net income and total sales when they reside in countries with more open and flexible copyright user rights. For a fuller account of PIJIP’s empirical research, click here. PIJIP also presented policy options for a more modern copyright balance provision. Such a provision would go beyond the TPP 18.66 requirement to “endeavor to achieve” balance, and instead...

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Why Fears About ‘Fair Use’ Copyright Law Are Unfounded

[Originally published in South Africa’s Business Day, Link] Over the past two weeks, I have been participating in a series of events and workshops explaining copyright “fair use” rights to South African stakeholders and officials. This week, Parliament has been hearing about fair use while it considers the Copyright Amendment Bill, part of which includes the introduction of a fair use right. Rights management organisations, which collect royalties from schools, venues and other organisations that use copyrighted works, are up in arms. A collection of these organisations and foreign media companies such as Sony Pictures, calling itself the Copyright Alliance, has claimed that fair use means: “No royalties will be paid to musicians if their music is used for educational purposes, so if [someone] uses [a song] in a school or an educational documentary, the artist who wrote the music will not get any royalties”; “Academic writers of prescribed university books [will be put] in the position where a university buys one copy of the book and makes free copies for its 2,000 students, without compensating the author at all”. These are serious claims, indeed. But they are completely untrue. It is time for a little light to go with the heat in this debate. The term “fair use” comes from a provision of the copyright act in the US that was passed in the 1970s, around the same...

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Lessons From South Africa: Protecting Non-Expressive Uses In Copyright Reform

[Matthew Sag and Sean Flynn, IP Watch, Link (CC-BY-NC-SA)] This week, the South African Parliament began accepting comments on its pending Bill proposing to amend the South African Copyright Act to align it with the digital age. We and other experts and civil society organizations submitted comments praising many of the Bill’s provisions and proposing that it adopt an “open” fair use right. Here we focus on one major reason to adopt an open fair use right – to authorize so-called non-expressive uses of works. We conclude with some reflectio ns on how international law could help in this regard. Analogue Law in a Digital World In the era of the printing press that gave birth to modern copyright law, making a copy of a work was a distinct activity with a well-settled meaning. Every new instantiation of a work in a physical copy made that book available to a new consumer or a new group of consumers. The exclusive right to make and sell copies made sense in this context; it created an economic system whereby copyright owners had a clear and distinct tolling point for remuneration. In the digital age, a large and growing number of technologies rely on intermediate copies that have no independent economic significance and do not communicate the author’s original expression to the public. These new and important Internet uses include machine learning, cloud computing,...

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User Rights Network Submission on Copyright Amendment Bill

Submitted jointly by the Global Expert Network on Copyright User Rights, Communia, Centrum Cyfrowe, and Creative Commons Click here for the full submission (PDF) Excerpt: We write to support the inclusion of a modern general exception in section 12 of the South African Copyright Act, and to offer refinements to the 2017 Bill’s proposal that we think would make it better serve the interests it promotes. General exceptions apply a single flexible balancing test (often defining what is “fair”) to authorise uses of copyrighted works for either an “open” or “closed” list of purposes. By open, we mean that the exception can apply to potentially any purpose, as in the United States, Israel, Malaysia and other countries. Closed list systems can only be applied to a purpose listed in the clause. Often, general exceptions authorise “fair dealing” or “fair use” with protected works. More than 40 countries with over one-third of the world’s population have either a fair use or fair dealing provision in their copyright law. The use of one common fairness test in a general exception promotes predictability and transparency in application because courts and users can refer to the same set of factors to be considered in individual cases. In this sense, a copyright general exception can operate much like the limitations clause in section 39 of the Constitution. An open exception can serve as a...

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Statement to SCCR 34 on Copyright in the Digital Environment

World Intellectual Property Organization 34th Meeting of the Standing Committee on Copyright and Related Rights May 5, 2017 Chair: I would like to support that aspect of the GRUAC proposal that focuses on the role of limitations and exceptions in the digital environment as a top priority for this committee. There is an increasing recognition that so-called non-expressive uses – uses necessary for technological processes that do not compete with the copyright owner – are necessary to enable the internet and the services that are offered over it. We at American university have been doing studies that suggest that the presence of open exceptions for technological processes isrelated to investment and growth of local digital technologies. Countries with more open exceptions do better at attracting investments in fields such as software engineering. We cannot have local streaming services without local buffering rights. We cannot have local search, artificial intelligence, machine learning, text and data mining, and internet based translation services without local rights to use whole works for purposes that do not compete with the original. Only a small number of countries around the world provide the clear limitations and exceptions in these areas. And only a small number of countries have robust industries in related fields. But all these services are international by nature, and therefore the lack of harmonization of enabling rights is increasingly perceived as a...

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Statement to SCCR on Educational Exceptions to Copyryight

World Intellectual Property Organization 34th Meeting of the Standing Committee on Copyright and Related Rights May 3, 2017 Chair: You and I are from countries that have educational exceptions that are open to the use of any work, for any education related activity or purpose, and by any user —  subject to a fairness test that takes into account the rights of authors and rights holders. This openness in the exceptions environment enables innovations that promote access to learning materials, including through new technologies and over the internet. Tomorrow at a side meeting over lunch, Communia and American University will be presenting the outcomes of different research projects that examine the operation of user rights in practice. That research shows that wealthy countries are developing openness in these factors much more quickly and thoroughly than poorer countries currently. But the research also shows that this is not a developing country problem alone. Many wealthy countries as well lack exceptions that allow such basic practices as showing a movie, streaming a video or performing a play in a classroom setting. These problems are compounded when we deliver educational products across borders through distance learning. A lack of harmonization on these issues will produce a race to the bottom where teachers like myself are forced to not deliver the best materials possible for our students because of the lack of rights...

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Protecting and Promoting Open Copyright User Rights in International Law

There is increasing attention in international trade and copyright forums to the question of how international law should protect and promote copyright user rights. I presented the following options at this year’s Creative Commons Global Summit as examples of provisions that (at least partially) promote the organization’s mission of promoting “nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.” Existing models included in trade and other international agreements primarily serve two ends – protecting rights of countries to enact “fair use” rights, e.g. from the challenge that such exceptions could be held to violate the Berne “3-step test” as not being sufficiently tailored to “specific” cases, and affirmatively promoting user rights in copyrights systems, either through broad mandates to achieve “balance” or through mandatory exceptions for some categories of use. The protective models normally only apply to “fair use,” without defining what elements of fair use they are protecting. The promoting models are often highly ambiguous, leaving it possible that they could be met by any system of limitations and exceptions. More robust models might seek to define the elements of fair use that should be protected from free step challenge, most importantly the element of fair use that the test is open to application to...

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South Africa Workshops on Copyright Reform

Originally posted Nov 29, updated Dec 5, 2016 A Copyright Amendment Bill will be tabled in Parliament by the South African government proposing to reform the current system of copyright law in the country to include a “fair use” clause modeled on US law. American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP) is visiting South Africa December 1 through 15 to participate in a series of workshops and lectures exploring how adoption of the proposed fair use standard may benefit creativity, innovation and development in the country. The workshops and presentations will include discussion of recommendations on the Bill submitted by legal scholars in a Joint Academic Submission on the Copyright Bill, consisting of a summary letter, table of section-specific comments, and proposed text for Sections 12 and 12A. Events being sponsored by PIJIP and partner organizations of the Global Expert Network on Copyright User Rights include: 1 December 2016. Joint Open Access Seminar. Hosted by Wits Library, Research Office, Centre for Learning, Training and Development (CLTD), and the Wider Gauteng IR Forum. Keynote Address – Copyright Flexibility for the Public Interest – Prof Sean Flynn, Washington College of Law, American University, USA.   Queries to Denise Nicholson Denise.Nicholson@wits.ac.za 5 December 2016 – Workshop on the Copyright Amendment Bill 2015, Parliamentary Information Centre. For parliament members and staff only. Queries to Tholakele Xulu.– EXT.:...

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