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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Copyright Industry Experts Signal “High Water Mark” in IP in Trade Agreements

Senior copyright industry experts described the Trans Pacific Partnership and other recent free trade agreements as likely setting a “high water mark” for intellectual property commitments in trade agreements. The statements came as part of a symposium last week on Trading in IP: Copyright Treaties and International Trade Agreements sponsored by Columbia Law School’s Kernochan Center for Law, Media, and the Arts. Steve Metalitz, Partner at Mitchell, Silberberg & Knupp LLP and long-time Counsel to the International Intellectual Property Alliance, kicked off the discussion of whether we have met the “high water mark” in copyright in trade agreements in a provocative introductory key note presentation to the symposium. “Past [Free Trade Agreements] were perhaps too specific and prescriptive” on many copyright issues to be broadly acceptable by other countries as a true international standard, he opined. He specifically mentioned as problematic the complexity of ISP liability and technological protection measures standards included in trade agreements negotiated in the mid to late 2000s through the Trans Pacific Partnership (TPP) Agreement concluded last year. One of the subjects discussed at the conference included the indications that an E-Commerce agenda may be negotiated in the World Trade Organization. Metalitz described the copyright industries as being in the early stages of developing their positions on such a negotiation. He indicated that the industries would push for the issue of combating digital piracy to...

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WTO Forum Signals Shift to e-Commerce Agenda

Reports from the WTO Public Forum held last week highlights a notable shift in the World Trade Organization toward an E-Commerce Agenda. The issue appears likely to be addressed substantively in the 2017 Ministerial Conference. Through then, the organization is likely to be increasingly discussing the form and objectives of a possible negotiation on the topic. The WTO has had an explicit E-Commerce agenda since 1998. But the issue is receiving substantially increased attention in the WTO now. Many participants in the Public Forum noted that this was the first time when so many presentations and panels – 23 sessions in all – were devoted to a single topic. Some compared the sense of momentum to other moments in the institution’s history when change appeared to be afoot. The E-Commerce issue presents some interesting possibilities of breaking the log jam on norm setting at the WTO if it is contained in a single issue agreement. It appears to many to be an issue that breaks divides between traditional north/south interests – of interest to large internet platforms and exporters and small and medium enterprises alike. It also could be fashioned into a set of norms that potentially could be embraced by industry and consumer groups – each of which have interests in harmonizing some elements of the agenda, such as net neutrality and ISP liability rules. And finally, it offers...

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Public Participation in the WTO e-Commerce Discussion

A workshop hosted by Electronic Frontier Foundation discussed the opportunity to use any WTO engagement with E-Commerce rules to expand transparency and participation processes for internet companies and users, academics and the greater public. My intervention at that panel discussed at least three major goals that the WTO may have in constructing a more open discussion of E-Commerce rules: Legitimacy: E-Commerce discussions on issues like net neutrality, data localization and the scope of permissible privacy regulation affect consumers generally. But international negotiations are perceived to be distant from effective control by representative democracy. Increased transparency and proxy representation through NGOs becomes necessary to give the broader public a reason to trust the process to reach the right outcomes. (See Jeremy Malcolm http://digitalcommons.wcl.american.edu/research/6/ ). Avoidance of Capture. Moneyed interests are already highly involved in trade negotiations, including through special consultative processes in-country (such as through the Industry Trade Advisory Committees of the US Trade Representative). Transparency and participation mechanisms are needed to prevent the capture of negotiations by these interests. In particular, the interests of users not always align well with those of platforms or content producers on the internet. (See Margot Kaminski, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354324 ). Access to expertise. Trade negotiators are not experts on the internet. And experts in industry that trade negotiators commonly consult are not fully versed in (nor do they have the interest to represent) the impacts...

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Statement on Copyright Exceptions and Limitations for Education to the 32nd WIPO SCCR

I am speaking on behalf of the American University Program on Information Justice and Intellectual Property. And I speak as an educator myself and also on behalf of a larger network that I coordinate called the Global Expert Network on User Rights which is a network of educators. Although I teach in a Northern school in Washington, D.C., I also spent some time teaching in a major university in South Africa where the context of access to educational materials is very different. When I taught an advanced constitutional class there of 70 students, only about five or six of the students could purchase the learning materials, the textbooks we were using for that class. The rest of them after each day would huddle in the library and attempt to share and read the copies that were on reserve in that space. And that’s the reality around much of the world – text books are priced similarly in poor countries and rich countries, but because of the disparities in income, students in poor countries cannot afford their learning texts. My experience was long before the advent of the Internet, so reprographic copies were really the only way students were accessing their materials and it was very hard to find students who had done their full reading. The advent of Internet technology and digital duplication provides the opportunities for overcoming some...

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Academic Response to PWC Report on Economics of Copyright Fair Use

Intellectual property scholars and researchers from prominent universities in the U.S., Canada and Australia have released a submission to the Australian Productivity Commission strongly criticizing a report by PriceWaterHouseCoopers (PWC) on the economics of fair use (PWC Report).” According to the Academics’ Submission: The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact. The PWC Report, commissioned by organizations representing copyright owners, has been widely characterized as concluding that “introducing US-style fair use would cost $1.3b due to the collapse of creative companies and increased legal and litigation costs,” and that there is “no evidence to support offset benefits to those losses.” It reaches these conclusions by assuming that the outcomes of adopting fair use in Australia will be a decimation of the publishing industry, a litigation explosion and the collapse of all collective copyright management organizations. The Academics’ Submission calls the PWC Report’s findings “preposterous,” and advises that they be “disregarded in their entirety.” Failing to identify the independent variable: defining fair use The Academics argue that the PWC Report fails to adequately define the nature of the real change being proposed in Australia. Australia already has...

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Special 301 Post-Hearing Submission, Responding to Questions from the Committee

This reply comment responds to key questions that we were asked of us and others at the Special 301 hearing. Flexible Exceptions Work in Developing Countries I was asked in the hearing to comment on the proposition that flexible exceptions like fair use are only appropriate for the U.S. or other countries with highly developed adjudication systems. As I noted in the hearing, this idea is based on some key fallacies. [Click here for a printable PDF of this Special 301 Submission.] There are three core elements that define fair use: (1) Openness: the exception can be applied to uses not specifically enabled by enumerated limitations and exceptions (as distinguished from a closed list); (2) Flexibility: the exception is applied through a flexible proportionality test that balances factors such as nature and importance of the new use, the interests of the author or copyright holder, and the impacts on third parties and society at large; (3) Generality: the exception applies to all uses, purposes and uses, including those covered by specific limitations and exceptions. I focused my comments before the committee on the first two factors. Openness is necessary to ensure that today’s copyright law is adaptable to tomorrow’s technologies and practices. A flexible factor-based inquiry restrains the test from impeding on the legitimate interests of authors and aids predictability by grounding the test within an international tradition. All...

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Joint Submission to the UN Secretary-General’s High Level Panel on Access to Medicines

Joint Submission by Sean Flynn, Cynthia Ho, David Levine, Gabriel Levitt, Heesob Nam, Alina Ng, and Andrew Rens This statement calls on the High-Level Panel to promote policy coherence in the international intellectual property, human rights and global health system in part through a strong articulation and examination of the implications of the human rights duty to interpret and implement all legislation to promote the right to health and corresponding rights to access needed medicines. The submission describes why such a mandate – from the lens of international economic theory – would lead to the conclusion that states must make maximum use of routine compulsory licensing programs for pharmaceuticals to rectify intellectual property and health concerns. It then articulates how adoption of the interpretive rule should justify and motivate specific government actions – including minimizing the scope of patent rights and maximizing the use of routine compulsory licensing – that would help reduce the incoherence between rights of inventors, international human rights laws, trade rules, and public health objectives. Click here for the full submission...

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Joint Special 301 Comment by Law Professors and Civil Society Groups

Joint Special 301 Comment by Professors Michael Birnhack, Peter Jaszi, David Levine, Srividhya Ragavan, and Lea Shaver; and civil society organizations Public Knowledge and the Karisma Foundation. The first part of this submission calls on USTR to adopt two interpretive principles in implementing the Special 301 statute. USTR should give proportional consideration to appropriate limitations and exceptions in evaluating foreign intellectual property systems, including by mentioning positive examples of limitations and exceptions in its “best practices” and “positive developments” identifications, and by listing countries on watch lists for egregious cases where a lack of limitations and exceptions stands as a barrier to US trade. The second part of the submission urges USTR to expressly abandon any intent to list a World Trade Organization member on Special 301’s priority foreign country list as an action that would violate either the WTO’s dispute settlement understanding or GSP enabling clause. Sean Flynn, American University Washington College of Law, requests to testify at the Special 301 hearing. Click here for the full Special 301...

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Copyright Legal and Practical Reform for the South African Film Industry

Flynn, S. (2015). Copyright legal and practical reform for the South African film industry. The African Journal of Information and Communication (AJIC), 16, 38-47. Abstract: Copyright’s interest in promoting creative production is often described as requiring a “balance” between exclusion and access rights. Owners of copyright receive exclusive rights to control copies of their works, which enables authors to earn returns on their creations through sales or licensing transactions. But as important to promoting creation are the user rights in copyright law which permit building on the work of predecessors. The necessity for balance in order to promote creation is clearly evident in the documentary film industry, where producers rely on copyright ownership to facilitate the dissemination of their works through broadcasters and other distributors, and on user rights to incorporate excerpts of other copyrighted material in their work. This article draws on a collaborative South African research project that has been working since 2008 to document influences of copyright law on the production of documentary films. The results of that research, summarised in the first part of the article, show that South African filmmakers are hampered by a legal environment that denies them copyright ownership in the majority of their projects while also denying them adequate rights to use, in their own works, elements of the works of others. The second part of the article describes capacity-building approaches...

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Concluding Recommendations of the User Rights Track of the 2015 Global Congress on Intellectual Property and the Public Interest

The Chairs of the User Rights Track of the 2015 Global Congress on Intellectual Property and the Public Interest adopted the following final plenary statement: Through the past four Global Congresses we have re-energized a movement, created and shared evidence, and set common agendas for the infusion of public interest objectives into intellectual property policy making. We recommend that the Steering Committee for the Congress strongly consider seeking to host the next Global Congress in Geneva, Switzerland. We so recommend in order to: Intersect with policy makers with concrete recommendations of policy proposals, which we should be working over the next two years to formulate and justify; Re-energize and support open and multilateral processes as an alternative to closed and secretive forums in which IP policy is too frequently made; Promote cross-region and cross-“track” mobilizations of experts, advocates and policy officials to construct together a positive agenda for the field; Use the forum to announce accomplishments and campaigns, including: Completion of a World Trade Organization Declaration on Balanced Interpretation of the 3-step Test; Consolidation of the limitations and exceptions agenda in WIPO toward one or more instruments promoting user rights to serve the needs of libraries, museums, archives and other institutions of memory, as well as for the purposes of education and other purposes; Initiation of a process to create a Development Agenda 2.0, including promotion of user rights in...

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