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.
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
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.
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:
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.
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.
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.
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.
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.
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.
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.
Standing Committee on Copyright and Related Rights: Thirty-First Session December 7-11, 2015 (Geneva, Switzerland)
Thank you for recognizing me on the issue of promoting limitations and exceptions for educational purposes, potentially within the discussions underway on the needs of libraries.