Category: Brazil

Submission to South African Parliament’s Portfolio Committee on Trade and Industry – RE: Copyright Amendment Bill [B13B – 2017]

by Sean Flynn | Jul 9, 2021 | Domestic Legislation, Fair Use, Limitations and Exceptions, User Rights Network

[Global Expert Network on Copyright User Rights] We provide this comment on Clause 13, section 12A of the Copyright Amendment Bill [B13B-2017]. Section 12A is an open general exception for “fair use” of copyrighted works. This provision is largely an updating of South Africa’s current general exception for “fair dealing” with a copyrighted work. The primary improvements of Section 12A over the current fair dealing exception are (1) to open the list purposes to which the exception can apply by virtue of including the words “such as” before the list of authorized purposes, and (2) providing an explicit balancing test to determine whether a particular use is fair.

An Endless Odyssey? Content Moderation Without General Content Monitoring Obligations

by Papers | Jul 9, 2021 | Academic Resources, Regional Fora, Takedown

[Christina Angelopoulos and Martin Senftleben] Abstract: In line with the E-Commerce Directive and the Directive on Copyright in the Digital Single Market, the proposed Digital Services Act provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature.

Public Lies and Public Goods: Ten Lessons From When Patents and Pandemics Meet

by Papers | Jul 8, 2021 | Academic Resources, Access to Medicine, Coronavirus

[Peter Drahos] Abstract: The paper examines three decades of the history of patents and pandemics that begins with the HIV/AIDS pandemic and TRIPS. This history demonstrates that the patent system is itself a huge source of risk when it comes to managing the risks of pandemics. From this history ten core lessons are extracted. The central message of the paper is that developing countries will have to focus on collaborations among themselves with the aim of building a wide base of rich manufacturing experience in the production of medicines and therapies. They can expect no priority of treatment under the present patent-mediated response to pandemics.

Save the Date – Global Congress #IPWeek2021 – October 25-29

by PIJIP | Jul 6, 2021 | Academic Resources, Access to Medicine, Events, IP and Human Rights, Limitations and Exceptions

[Fundación Karisma] The organizers of the Global Congress on Intellectual Property and the Public Interest will host an #IPWeek October 25-29, 2021. A call-for-proposals will be open soon, and in this edition, we will include a call for creative pieces about the intellectual property / public interest relationship in a post-pandemic world.

Who is terminating their copyrights? New research and open access datasets from the Author’s Interest Project

by Papers | Jul 6, 2021 | Academic Resources, Empirical Research

[Joshua Yuvaraj] …This research examines Copyright Office records created each time someone files a notice of termination under §§ 203 or 304 of the Copyright Act. Those sections grant authors and their heirs inalienable rights to end copyright grants and reclaim their rights 35 years after transfer. They were designed to give authors a ‘second bite’ of the cherry, giving some redress in situations like that involving the co-creators of Superman (who sold their rights for just $130 in 1938). We constructed new open access datasets that contain all the termination notices we could locate in the catalog. Our research also analyses who is filing such notices and for what types of work, and how publishers, record companies, and other intermediaries respond when notices are filed against them.

End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements

by Mike Palmedo | Jul 3, 2021 | Academic Resources, Empirical Research, Limitations and Exceptions

[Péter Mezei and István Harkai] Abstract: In the platform age, copyright protected contents are primarily disseminated over the internet. This model poses various challenges to the copyright regime that was mainly designed in and for the analogue age. One of these challenges is related to the fair balance between the interests of rightholders and other members of the society. Copyright norms try to guarantee this balance by granting a high level of protection for rightholders and preserving some flexibility for end-users. Regulation by platforms’ end-user license agreements might also be relevant to preserve that balance. The present paper focused on how these private norms allow for or diminish the exercise of user flexibilities. We collected, analysed and compared seventeen private ordering practices of service providers grouped in four main categories.

Interpreting the Flexibilities Under the TRIPS Agreement

by South Centre | Jul 2, 2021 | Access to Medicine, Multilateral Fora

[Carlos M. Correa] While the TRIPS Agreement provides for minimum standards of protection of intellectual property, it leaves a certain degree of policy space for WTO members, whether developed or developing countries, to implement the Agreement’s provisions in different manners, to legislate in areas not subject to the minimum standards under the Agreement, and to develop legal interpretations of such provisions to determine the scope and content of the applicable obligations. This paper focuses on some aspects of how panels and the Appellate Body of the WTO have interpreted said provisions.

ANALYSIS OF WIPO SCCR 41 AGENDA: Day 2, Limitations and Exceptions

by Sean Flynn | Jul 1, 2021 | Limitations and Exceptions, Multilateral Fora, User Rights Network

[Sean Flynn] This note provides analysis of the Limitations and Exceptions agenda item of the WIPO SCCR 41 Agenda, currently slated to be discussed on June 29-30. The Agenda calls for Members, IGOs and NGOs “to make general comments, with a focus on the Report on Regional Seminars and International Conference (SCCR/40/2), especially the sections on The Way Forward and Take-Away Considerations (pages 63-72).” It also invites “inputs on possible next steps, including the possibility of holding a number of regional consultations before the next session to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them.” This note analyzes these two issues separately, and concludes with suggestions of elements that be included in a work plan for SCCR going forward.

Compulsory Licensing of Trade Secrets: Ensuring Access to COVID-19 Vaccines via Involuntary Technology Transfer

by Papers | Jun 30, 2021 | Access to Medicine, Multilateral Fora

[Olga Gurgula and John Hull] Abstract: This paper considers how vaccine technology to meet the challenges of the COVID-19 pandemic can be made available to increase the production of the vaccines. Its primary focus is on trade secrets which are one of the main intellectual property rights protecting the complex manufacturing processes for vaccine production.

Analysis of WIPO SCCR 41 Agenda: Day 2, Limitations and Exceptions

by Sean Flynn | Jun 29, 2021 | Limitations and Exceptions, Multilateral Fora

ANALYSIS OF WIPO SCCR 41 AGENDA: DAY 1, BROADCAST TREATY

by Sean Flynn | Jun 28, 2021 | Limitations and Exceptions, Multilateral Fora, WIPO

[Sean Flynn] The WIPO SCCR 41 Agenda asks for comments on possible next steps on the discussion of the Broadcast Treaty proposed Chair’s text. One needed next step is to address the Limitations and Exceptions provision. This provision currently is more limited than the exceptions provided under the Rome Convention and fails to incorporate any of the priorities of the Action Plans on Limitations and Exceptions on preservation, online uses, and cross border uses for libraries, archives, museums, education, research, and people with disabilities. This provision requires significant expansion to ensure that the Broadcast Treaty is balanced and does not harm the public interest.

TRIPS Flexibilities and TRIPS-plus Provisions in the RCEP Chapter on Intellectual Property: How Much Policy Space is Retained?

by South Centre | Jun 28, 2021 | Blog

[Vitor Henrique Pinto Ido] This paper provides a broad overview of the RCEP agreement and discusses the details of the intellectual property (IP) Chapter. Significantly, it does not contain substantive TRIPS-plus provisions that undermine public health in developing countries—although it does contain such provisions in other areas such as copyrights, trademarks, and IP enforcement.

Letter from 7 Civil Society GroupS to USTR Supporting LDC Request to Extend TRIPS Waiver for As Long As They Remain LDCs

by PIJIP | Jun 28, 2021 | Multilateral Fora

[Program on Information Justice and Intellectual Property, Fight for the Future, IP Justice, Library Copyright Alliance, Library Futures, Public Knowledge, and the Software Preservation Network] We urge the United States to support the request of Least Developed Countries (“LDCs”) to the TRIPS Council of the World Trade Organization (IP/C/W/668) for a transition period from implementing the TRIPS Agreement for as long as they remain LDCs. The current transition period is due to expire on July 1, 2021.

Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals

by Christophe Geiger | Jun 28, 2021 | Academic Resources, Limitations and Exceptions

[Christophe Geiger and Elena Izyumenko] … The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

The Role of Courts in Implementing TRIPS Flexibilities: Brazilian Supreme Court Rules Automatic Patent Term Extensions Unconstitutional

by South Centre | Jun 18, 2021 | Access to Medicine, Domestic Policies

[Vitor Henrique Pinto Ido] This policy brief provides a background, summary and analysis of the Brazilian Federal Supreme Court decision of 6 May 2021 that ruled automatic patent term extensions unconstitutional, striking down Article 40, Sole Paragraph, of the Brazilian Industrial Property Code of 1996. It concludes that this is a landmark ruling that contributes to the implementation of a more balanced patent regime in Brazil, with a positive impact on access to medicines in the country. It is an important precedent in relation to the role that courts may play in defining the contours of intellectual property protection and the TRIPS flexibilities.

IFLA Statement on Controlled Digital Lending

by InfoJustice Eds. | Jun 18, 2021 | Fair Use, Limitations and Exceptions

[International Federation of Library Associations] Controlled Digital Lending (CDL) has become widely talked about over the last two years, and in particular in the context of the COVID-19 pandemic. While the specific term has only relatively recently come to be used[1], forms of controlled lending have been utilised for many years, for example in the context of document supply. As such, controlled lending has helped to fulfil the mission of libraries to support research, education and cultural participation within the limits of existing copyright laws. Licensed eBooks have opened the door to a radical undermining of the traditional public interest functions and freedoms of libraries. These still exist for paper books, but with the advent of licensed eBooks, libraries are no longer free to decide when or what to purchase, with some publishers even refusing to sell to libraries. Controlled digital lending provides an alternative to a licensing approach, and so a means of redressing the balance.

ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

by Sean Flynn | Jun 17, 2021 | IP and Human Rights, Limitations and Exceptions, Multilateral Fora

[Sean Flynn] At the 40th Session of the Standing Committee on Copyright and Related Rights, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. That Report is subject to comment by Member States. This Note provides analysis of the Report that may be useful to Delegates and stakeholders participating in the meetings of the SCCR. The Report helpfully summarizes a large amount of agreement about the main problems and solutions that need to be addressed by the international system. These problems include a lack of exceptions in a majority of countries for: Preservation for cultural heritage; Communications in online learning and research; Cross border uses for education, research, and the activities of libraries, archives and museums.

Interfaces on Trial 3.0: Google v. Oracle America and Beyond

by Jonathan Band | Jun 7, 2021 | Domestic Policies

[Jonathan Band] The final version of Interfaces on Trial 3.0: Google v. Oracle America and Beyond is now available for free download here. This updated version includes an extensive discussion of the Supreme Court’s April 5, 2021, decision in the case, especially its impact on software interoperability. This is the third volume of a history of the global legal debate concerning copyright and competition in the software industry.

South Africa Parliament Calls for Comments on Fair Use

by Sean Flynn | Jun 7, 2021 | Domestic Legislation, Fair Use, Limitations and Exceptions

[Sean Flynn] South Africa Parliament’s Portfolio Committee on Trade and Industry has invited a further round of public comments on the Copyright Amendment Bill provisions to introduce fair use and expand limitations and exceptions for libraries, education and other public interest uses. The Committee invites submissions with reference on the expansions on the Bill’s provisions fair use and for other purposes in Sections sections 12 and 19. It also invites comments on additional sections of the Bill that may implicate the “alignment” of the Bill with the provisions of several international treaties.

The Impracticality of Relying on Compulsory Licenses to Expand Production Capacity for COVID-19 Vaccines

by Brook Baker | Jun 6, 2021 | Access to Medicine, Coronavirus, Multilateral Fora

[Brook Baker] The complications and limitations of compulsory-license-reliant measures to respond to the COVID-19 pandemic need to be better explained. The European Union and several other countries espousing reliance on TRIPS-compliant compulsory licenses to overcome patent barriers have opposed the India/South Africa temporary intellectual property (IP) waiver proposal on COVID-19 health technologies at the World Trade Organization. Although compulsory licenses (CLs) on patent alone may be sufficient to allow generic production of small molecule medicines, CLs are unlikely to suffice with respect to vaccines, biologic medicines, including monoclonal antibodies, and more complex diagnostic tests, medical devices, and respirators.

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