Author: Sean Flynn

Statement: Standing Committee on Copyright and Related Rights: Thirty-First Session

Statement of Sean Flynn, Program on Information Justice and Intellectual Property 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.  Although I have been monitoring the SCCR for the last two years intermittently, this is my first time addressing the committee. I would therefore like to begin by congratulating the Chair on his re-election and to the Secretariat for its leadership role. The Program on Information Justice and Intellectual Property is a research program of American University Washington College of Law. I also serve as the coordinator of the Global Expert Network on Copyright User Rights, a multinational research network of copyright scholars from over 30 countries around the world. Many of the issues that educational institutions face are the same as libraries. And therefore the proposal of merging parts of the two discussions is appropriate. I think it helpful to think of the desirable products of this Committee in two categories: a set of norms (whether in the form of principles or binding text) and, a set of soft law technical guidance materials. The set of norms should be abstract. They should accommodate multiple legal systems. The guidance should be more specific but less prescriptive. It should...

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Statement on the Release of the Trans Pacific Partnership Text

Today’s release of the TPP agreement confirms that its Investor State Dispute Settlement (ISDS) chapter would expand the rights of private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains broader provisions than are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s. The TPP includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text — clarifying that private expropriation actions can be brought to challenge “the cancellation or nullification of such [intellectual property] rights,” as well as “exceptions to such rights.” This expands the range of challenges that can be brought by companies against intellectual property limitations and exceptions. Instead of combatting the ability to bring cases such as Eli Lilly’s, the TPP’s investment chapter invites them. Any time a national court – including in the U.S. – invalidates a wrongfully granted patent or other intellectual property right, the affected company could appeal that revocation to foreign arbitrators. The new language would also make clear that private companies are empowered by the treaty to challenge limitations and exceptions like the U.S. fair use doctrine, or individual applications of it. Adoption of this set of rules in the largest regional trade...

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Letter from 76 NGOs and Seven Professors to USTR Asking the U.S. to Publish TTIP Negotiating Proposals

As U.S. organizations and academics interested in issues related to good governance and transparency, we write to urge you to match the level of openness embarked upon by your counterpart from the European Union and make publicly available U.S. proposals for trade and investment agreements currently under negotiation, in particular, the Trans-Atlantic Trade and Investment Partnership (known as the “TTIP”). We believe that the public release of U.S. and European Union (EU) proposals must be a step toward achieving full transparency, which would be achieved by releasing consolidated draft texts after each negotiating round… … Despite the expansive coverage of the TTIP across a host of policy areas (including but not limited to labor, the environment, healthcare, intellectual property, food safety, financial services regulation, public services, professional licensure, investment, and competition policy), the U.S. government has thus far failed to make its textual proposals or negotiating texts public  …  If the EU is willing to publish its textual proposals, there is no reason why the U.S. cannot immediately release its own textual proposals as well. This significant change from present practice would be a  major step toward the release  of composite draft texts after each round. It would also help produce trade negotiations guided by the principles of democracy, transparency, and political accountability. Click here for the full...

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Now we know: TPP is worse than ACTA

The negotiating parties to the Trans Pacific Partnership Agreement (TPP) announced today that they have reached an agreement on a broad international regulatory harmonization agreement that will bind the U.S. to a new set of international minimum standards on intellectual property and other issues. It is now clear that the TPP will be worse on both process and substance for public interest concerns than the last plurilateral intellectual property agreement that the U.S. negotiated — the Anti-Counterfeiting Trade Agreement (ACTA). What is notable about ACTA is that it failed. The EU Parliament overwhelmingly rejected it, and it was never submitted to Congress. And thus, as we consider the consideration of the TPP in Congress and other parliaments, ACTA is a useful reference point.  Process The TPP continues its shameful record of being more secretive than ACTA. ACTA should not be the baseline for transparency in international negotiations. If the TPP was negotiated as a multilateral treaty in the World Intellectual Property Organization, every draft of the agreement would be released to the public, including the one announced today. ACTA became hated in the public consciousness, and was rejected by the EU Parliament, in large part because of its secrecy. But the TPP is worse.  At the conclusion of ACTA, and twice during the negotiations, the official text of agreement as it then stood was released. There has not been...

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TPP Carve Out for Tobacco Shows Core Flaws in Investor-State Dispute Settlement (ISDS)

USTR has reportedly tabled a new provision for the Trans-Pacific Partnership Agreement (TPP) that would carve out tobacco regulation from the effect of its investor-state dispute settlement (ISDS) chapter, which allows private companies to challenge domestic regulations in secretive and unaccountable international arbitration forums. ISDS challenges can generally be brought against domestic regulations whenever a company claims an “indirect” expropriation by regulation of an “investment,” which is defined to include “the expectation of gain or profit.” Those with knowledge of the new tobacco text have revealed that the language proposed to be added to the investment chapter reads: Exception Article X Tobacco control measures Tobacco control measures shall not be subject to the dispute resolution procedures under section B (Investor-State Dispute Settlement) of Chapter II (Investment). Associated definition Tobacco control measure means a measure relating to the production or composition of manufactured tobacco products (including products made or derived from tobacco), their distribution, labelling, packaging, wrapping, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, recordkeeping, and reporting requirements. The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations. The carve out does nothing to halt the disturbing recent trend of companies using ISDS provisions in trade agreements to enforce...

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Academic Comments: South African Copyright Amendment Bill, 2015

Letter from South African and American Academics to Ms Meshendri Padayachi South Africa Department of Trade and Industry – Joint Academic Comment (PDF) – Accompanying Table (PDF) We write in response to your request for public comments on South Africa’s planned copyright legislation reform. We’re grateful for the chance to make a contribution in support of this extraordinary effort on the part of the Department of Trade and Industry to modernize South African copyright law and – in so doing – to make South Africa an international leader in the field at a critical moment in its history. We enclose (1) a separate statement on Balanced Copyright and the Importance of Flexible Exceptions, and (2) Joint Academic Comments on the South African Copyright Amendment Bill, 2015 in table form. Excerpts of the provisions of other laws cited in our comments and available for your research purposes can be found in Masterlist: Limitations and Exceptions Provisions in National Laws, available at http://infojustice.org/flexible-use. We also make extensive reference to EIFL’s Draft Law On Copyright Including Model Exceptions And Limitations For Libraries And Their Users (2014), available at http://www.eifl.net/resources/eifl-draft-law-copyright-including-model-exceptions-and-limitations-libraries-and-their. The University of Cape Town Intellectual Property Unit is separately providing a clean version of our proposed sections 12 and 12A, along with other of our proposals. We have also shared our draft comments with other organizations in South Africa, who will be...

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Workshop Commends South Africa Copyright Bill Goals; Offers Suggestions for Improvement

A workshop of academics and stakeholders on Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform commended South Africa’s Department of Trade and Industry (DTI) for its public release of a Copyright Amendment Bill that would expand and clarify many user rights in the Copyright Act. The general message from the stakeholders at the meeting to DTI was that the reform bill succeeds in addressing many of the most pressing issues for copyright reform today, putting in place a good structure through which the details of the provisions can be analyzed and improved. University of Cape Town IP Unit Director Tobias Schonwetter set the tone at the outset: “The law maker in South Africa needs to be commended by tackling these problems. If you look at the list of issues addressed in the preamble, nearly every issue is addressed there. That does not mean that everything is perfect. But the norms and principles are right. The goals are proper.” The meeting was particularly supportive of the bill’s intentions to include a flexible “fair use” clause, limitations and exceptions for people with disabilities (including disabilities beyond visual impairments), provisions to improve access to so-called “orphan works” (those where the rights holder cannot be identified or located), exceptions to prohibitions on circumventing technological protection measures, and prohibitions on the enforceability of contracts that limit user rights. In each...

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TPP Leak Clarifies Application to Medicare Drug Prices

For immediate release Sean Flynn is the Associate Director of the American University Washington College of Law Program on Information Justice and Intellectual Property 202-294-5749 A new leak of text from the Trans-Pacific Partnership Agreement contains new language — not included in any other trade agreement – clarifying application of trade law disciplines on drug pricing programs in the U.S. Two previous agreements — with Korea and with Australia — contained restrictions on drug pricing programs, but were often thought not apply to any U.S. program. The texts of those agreements left any U.S. application ambiguous. But new language in the TPP leak makes clear the application of disciplines to “The Centers for Medicare & Medicaid Services (CMS), with respect to CMS’s role in making Medicare national coverage determinations.”    The new language would not require any immediate change in US law. But it would bind the U.S. to not change its law to be inconsistent with the agreement. This may limit options, for example, for Medicare drug price negotiation proposals. It would also directly apply to current Medicare Part B hospital reimbursements. The primary requirement in the proposal is to provide an appeal to pharmaceutical companies over listing decisions. It does not have the same language as the Korea agreement requiring appeals on the prices set through reimbursement. It is not clear from the text whether the TPP...

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Statement: Blumenthal Offers Amendment on Trade Transparency

Sean Flynn, American University Washington College of Law, 202-294-5749,  sflynn@wcl.american.edu David Levine, Elon University School of Law, 336-279-9298, dlevine3@elon.edu Senators Blumenthal, Brown, Baldwin, and Udall introduced today a trade negotiation transparency bill that would require that all formal U.S. proposals for trade agreement restrictions on domestic regulations be posted on a website. This is a common sense policy that should be broadly supported. The bill would require policies similar to the transparency policies currently followed by the European Union and by intergovernmental organizations that set similar minimum regulatory standards. But it would be a major change in the current process for trade negotiations followed by the U.S. Trade Representative, which are infamously secretive (See today’s Financial Times). We all have an interest in the scope of international rules that would subject our intellectual property and other laws to challenge for failing to adhere to an international law standard — as trade agreements in the post-NAFTA period do. And therefore the setting of those standards – and especially what our government proposes such standards to be – should not be done out of public view. This is the basic tenet of the Blumenthal bill – which is one we endorse. Adding this basic layer of transparency is also sorely needed to encourage the process to produce the kind of balance and regulatory flexibility that our past trade agreements have lacked....

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Senate and House Endorse Balanced IP in Reports on Fast Track

The Senate and House Reports on the Trade Promotion Authority bills working through Congress include important, albeit limited, steps toward endorsing balanced intellectual property norms in trade policy. The Senate report, released today, states: The Committee has updated section (5)(A)(ii) to emphasize the critical importance of including in U.S. trade agreements IP provisions that facilitate legitimate digital trade. In particular, this section reflects the view of the Committee that U.S. trade agreements should contain copyright provisions that provide adequate and effective protection for U.S. right holders as well as foster an appropriate balance in copyright systems, inter alia by means of limitations and exceptions consistent with the internationally recognized 3-step test. The House Report contains similar language. This is a first for a Trade Promotion Authority bill. Although the bills themselves do not change the mandate the U.S. to pursue agreements that “reflect a standard of protection similar to that found in United States law,” the Report language guides USTR to interpret the “protection” of U.S. law to include user and public interests. It would certainly be more useful, however, to have included that clarification in the bill itself. The report language should be seen as further evidence of the growing consensus for balance in intellectual property policy. In particular, the language supports (but probably does not expand) the recent USTR policy of including a mandate to “seek to achieve balance”...

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