Author: Sean Flynn

The Temporary WTO Waiver to Fight COVID Must Include Copyright

Posted by Sean Flynn | Apr 10, 2021 | Academic Resources, AI, Coronavirus, Multilateral Fora

[Sean Flynn] Over 250 organizations, prominent researchers, and experts support South Africa and India’s recent proposal to temporarily waive World Trade Organization (WTO) rules on intellectual property — including copyright — for the “prevention, containment and treatment of COVID-19.”… Most of the public debate on the proposal focuses on patent barriers to the production of generic versions of vaccines. Some commenters have proposed a way forward by dropping the non-patent issues. Research by the Program on Information Justice and Intellectual Property (PIJIP) helps demonstrate why the inclusion of copyright in the waiver is needed. One reason the existing TRIPS “flexibilities” for countries to issue compulsory licensing for patents is not adequate to scale up vaccine and treatment production around the world is that patents are not the only barrier. Access to industrial designs, undisclosed information and, yes, copyright is also often necessary.

Comment to USTR for the Special 301 Review

Posted by Sean Flynn | Jan 29, 2021 | Coronavirus, Special 301, User Rights Network

[Sean Flynn] The Biden Administration has called for every agency to identify “[w]hether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs.” [1] USTR could promote the equity directive by adopting the following policy in relation the operation of the Special 301 Program

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

Posted by Sean Flynn | Aug 17, 2020 | Domestic Legislation, Fair Use, Limitations and Exceptions

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

South African President’s Reservations to Copyright Bill Not Supported by Law

Posted by Sean Flynn | Jul 13, 2020 | Domestic Legislation, Fair Use, Limitations and Exceptions

The President of South Africa recently exercised his power to return the long considered Copyright Amendment Bill back to Parliament because of reservations about its constitutionality. Specifically, the South African President declared unconstitutional the provisions in the bill that would require contracts with creators to include royalty payments, the reversion of ownership rights back to creators, and the introduction into South Africa of a fair use right and other common exceptions to copyright. The move was immediately heralded by representatives of collecting management organizations, multinational publishers and music labels as a win for creators. In fact, the provisions declared unconstitutional by the President serve the interests of individual creators vis a vis these well-heeled intermediaries who lobbied extensively against the bill. This note analyzes the specific constitutional reservations given by the President for his referral and concludes that all of them are acutely unsupported.

Statement of Sean Flynn, Principal Investigator, Global Expert Network on Copyright User Rights, at the Second Session of the WIPO Conversation on IP and AI

Posted by Sean Flynn | Jul 8, 2020 | AI, WIPO

I speak on behalf of a number of copyright academics that recently released a statement on Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level… Many countries have rights to reproduce materials for research purposes that are broad enough to permit text and data mining to train AI and for other purposes. But many laws are inadequate because they are restricted to non-commercial uses, excerpts of works, or do not extend to the communications between researchers necessary to enable collaboration and validation.

WIPO Responds to Call to Act with New Tools on IP/COVID

Posted by Sean Flynn | May 11, 2020 | Coronavirus, WIPO

The World Intellectual Property Organization has released two new initiatives and a policy statement on intellectual property and responses to the COVID pandemic. The new initiatives and policy statement respond to many of the issues raised in an earlier letter from a broad coalition to WIPO’s Director General asking for a clear stance on intellectual property and the COVID pandemic.

USTR gives South Africa a Special 301 Pass; GSP Sanction Unlikely

Posted by Sean Flynn | May 5, 2020 | Domestic Legislation, Fair Use, Special 301, User Rights Network

The United States Trade Representative’s Special 301 Report was published last week with one notable omission. Despite a concerted campaign by the International Intellectual Property Alliance, South Africa was not listed on any of the Report’s “Watch Lists” for its consideration of a sweeping copyright reform bill.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at the International Level

Posted by Sean Flynn | Apr 20, 2020 | Academic Resources, IP & Research, User Rights Network

[Sean Flynn, Christophe Geiger and João Pedro Quintais] Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We and other members of the Global Expert Network on Copyright User Rights contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining technology. This blog, and the article it is based on, describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic.

World Intellectual property Organization DG Addresses COVID-19; Statement on Patent Sharing Due this Week

Posted by Sean Flynn | Apr 9, 2020 | Coronavirus, Multilateral Fora

Outgoing Director General of the World Intellectual Property Organization (WIPO), Francis Gurry, made two public statements this week addressing what he termed the “policy issues” raised by the COVID-19 pandemic. His initial response was that it is “far too early” to address access to medicine and other IP policy issues raised by COVID-19. But in a follow up briefing with the press he revealed that he favors a “special mechanism to share drug patents” and would be releasing a statement or policy on the issue later this week.

Testimony to Special 301 Committee, Responding to IIPA’s Request to Place South Africa on the Priority Watch List

Posted by Sean Flynn | Feb 27, 2020 | Domestic Legislation, Special 301

IIPA has asked you to list South Africa on the second highest designation – on the Priority Watch List… USTR has not listed South Africa, or any Sub-Saharan African country, on any 301 list dating back to 1999. This should raise two key questions for you. What changed after 1999? What has happened since that would justify USTR altering its judgment?

WIPO and the US Copyright Office Examine Artificial Intelligence and, to Lesser Extent, Intellectual Property

Posted by Sean Flynn | Feb 11, 2020 | Events, News

[Andrés Izquierdo and Sean Flynn] On February 5, 2020, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) co-sponsored a well-attended event on Copyright in the Age of Artificial Intelligence (AI). The full-day event took an in-depth look at the development and operation of artificial intelligence (“AI”). It paid substantially less attention to the full range of intellectual property issues raised by this new field.

Post-Hearing Statement to USTR, re: Generalized System of Preferences (GSP) Review of South Africa

Posted by Sean Flynn | Feb 2, 2020 | Domestic Legislation, Fair Use, Trade Disputes

[Sean Flynn and Peter Jaszi] This statement provides additional information in regard to the complaint by IIPA against South Africa in both the GSP docket… As explained by the many participants in the public hearing, all of the issues complained about in the Copyright Amendments Bill (CAB) have analogues in U.S. law or in the law of other countries that have not been challenged by the U.S. (including in the Special 301 process or in any WTO or other trade forum). Accordingly, sanctioning South Africa for these rules would lack a “general” basis and could also be considered arbitrary and capricious under the Administrative Procedures Act.

Statement to USTR at Review of South Africa’s GSP Benefits

Posted by Sean Flynn | Jan 31, 2020 | Bilateral Trade Pressures, Domestic Legislation, User Rights Network

Here, you are presented with quite a conundrum. The IIPA accepts that the US complies with international law with a fair use clause in addition to many specific exceptions, but argues that these same factors render the South Africa bill a violation of international law.

Request to Testify and Public Comment, re: GSP Review of South Africa

Posted by Sean Flynn | Jan 21, 2020 | Domestic Legislation, Limitations and Exceptions, Trade Disputes, User Rights Network

…I would like to start with the standard of review in this matter. As noted in the Federal Register Notice, and as included in the relevant statutes, the statutory standard is “adequate and effective intellectual property” … The plain language of the statutes would suggest that this is a minimum standard. South Africa has a full panoply of intellectual property rights statutes that meet the requirements of all relevant international treaties. The inquiry should end there.

Making Sense of South Africa’s New Copyright Bill and US Trade Threats

Posted by Sean Flynn | Dec 16, 2019 | Domestic Legislation, Trade Disputes

The Office of the US Trade Representative has announced a review of South Africa’s eligibility for Generalised System of Preferences benefits. The office took the step after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. At issue is South Africa’s Copyright Amendment Bill, which has been waiting for the South African president’s signature for eight months. Charl Blignaut asked Professor Sean Flynn and lawyer Jonathan Band to explain the issues.

Could Sanctioning South Africa for Copyright Reform Violate the World Trade Organization?

Posted by Sean Flynn | Dec 2, 2019 | Trade Disputes

This note describes the limitations that the World Trade Organization agreements place on criteria for generalized systems of preference programs, such as those included in AGOA. First, the GSP enabling clause requires that factors be non-reciprocal, general, and oriented toward the recipients’ development. These standards may be violated when criteria are not based on a broad based international norm such as in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Second, the dispute settlement understanding prohibits unilateral litigation of TRIPS.

Five Reasons the U.S. Should Not Review Its Dealings With South Africa

Posted by Sean Flynn | Nov 25, 2019 | Domestic Legislation, Trade Disputes

[Sean Flynn and Jonathan Band] On November 13, 2019, BusinessTech published an article listing the International Intellectual Property Alliance’s five primary concerns with the Copyright Amendment Bill awaiting President Ramaphosa’s signature. These concerns have led the U.S. Trade Representative to review the eligibility of South Africa for trade preferences. An examination of these five concerns reveals that they have no merit.

USTR Launches Review of South African GSP Benefits

Posted by Sean Flynn | Nov 19, 2019 | Domestic Legislation, Fair Use, Trade Disputes, User Rights Network

The USTR has announced that its next GSP review hearing will include consideration of the complaint by the IIPA alleging that South Africa’s adoption of a US style fair use right would violate the adequate and effective intellectual property requirement for GSP (19 U.S.C. 2462(c)(5)) primarily due to passage (but not yet signed into law) Copyright Amendment Act.

WIPO SCCR Progresses L&E Agenda Amid Controversy

Posted by Sean Flynn | Oct 30, 2019 | Blog, Limitations and Exceptions, Multilateral Fora, User Rights Network

The 39th Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded with measured progress on the agenda to discuss international instruments on limitations and exceptions amid increasing controversy over the management of the Committee.

Harvard Professor Ruth Okediji Calls for New Public Interest Copyright System

Posted by Sean Flynn | Oct 17, 2019 | Events, IP and Human Rights, Limitations and Exceptions, User Rights Network

Professor Ruth Okediji Delivered the 8th Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property. Her lecture addressed The Unfinished Business of Copyright Limitations and Exceptions. Professor Okediji called for a new paradigm of thinking about the relationship between copyright and the public interest. “The excesses of the copyright system cannot be remedied by limitations and exceptions alone,” she exclaimed.

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