I released a statement earlier today opining that the today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement (available at https://wikileaks.org/tpp-investment/WikiLeaks-TPP-Investment-Chapter.pdf) would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. This note gives further background and analysis supporting that statement.
Today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains the same provisions that 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 same language is also being used by Philip Morris to challenge Uruguay’s regulation of advertising on cigarette packages as an “expropriation” of their trademarks. But the TPP language goes farther. It 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.”
Updated on April 3, 2013, to include Liberia.
More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments.
Urs Gasser and Wolfgang Schulz
Berkman Center Research Publication No. 2015-5
February 2015 | Full Text (SSRN)
A review of online intermediary governance frameworks and issues in Brazil, the European Union, India, South Korea, the United States, Thailand, Turkey, and Vietnam creates a picture full of nuance, whether looking at the genesis of intermediary frameworks, the reasons for intervention, or the specifics of the respective governance models, including strategies, institutions, modalities, and the effects of regulation, among other dimensions. The country case studies both highlight and illustrate the importance of cultural and political context, which is not only reflected in the respective legal norms aimed at regulating intermediaries, but also expressed through different views and perceptions regarding the social function of intermediaries. In some sense, the case studies and the way in which the authors tell the story themselves mirror the same context and diversity. Similarly, the importance of the socioeconomic context has become clearly visible. Many of the features of various intermediary governance models can hardly be understood without considering their economic context, in conjunction with demographic characteristics and shifts.
[Reposted with permission from the Yale Journal on Regulation Notice and Comment blog. Link] On December 15th, the Ninth Circuit heard en banc oral arguments in a contentious copyright case: Garcia v. Google. The core questions in the case are interesting enough: whether performer Cindy Lee Garcia can claim copyright protection for her five-second performance in the film Innocence of Muslims, and whether Google should consequently be enjoined from showing the movie. The case raises important questions about online speech, about creativity, and about the recourse available for people who allege harm stemming from online content. A number of professors, myself included, wrote and joined amicus briefs on Google’s behalf. For a great write-up of the en banc hearing, check out Cathy Gellis’s summary over on techdirt.
Abstract: In this opinion, the European Copyright Society (ECS) puts on record its views on the issues raised by the Judgment of the Court of Justice of the European Union (CJEU) in Case C-201/13, Deckmyn, which departs from the doctrine of strict interpretation of exceptions and limitations in cases in which fundamental rights such as freedom of expression are involved.
[Reposted from Aro-IP, Link (CC-BY)] Moneyweb is suing Fin24 for copyright infringement arising out of Fin24’s (re-)publication of eight articles which had been initially published by Moneyweb (see a Mail and Guardian report here). Moneyweb has created a dedicated website (here) where it has posted all of the pleadings filed to date and media articles. This Leo rarely has an opportunity to read litigants’ court documents and is delighted that these documents are so readily available.
[Library Copyright Alliance Press Release, Link] The Library Copyright Alliance is extremely pleased with today’s decision by the US Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, finding in favor of fair use. The Library Copyright Alliance filed an amicus brief (PDF) in the case, supporting HathiTrust’s position and the lower court’s finding of fair use. Jonathan Band, counsel for the Library Copyright Alliance, said, “The decision is a significant victory for the public.”
30 international intellectual property law professors from around the world filed a brief in the U.S. Supreme Court today in ABC v. Aereo. Aereo is being accused of being directly liable for copyright infringement by supplying equipment for a remote DVR service that allows consumers to record and play back free-to-air television programming. The brief responds to arguments made by IFPI et al and some other amici supporting ABC that international copyright law — including the Berne Convention, WIPO Copyright Treaty and several Free Trade Agreements — control the case. This brief argues that international law is not controlling, but rather leaves countries free to hold that Aereo’s equipment only facilitates private copying by consumers.
[Electronic Information for Libraries, Link, CC-BY)] Libraries in EIFL partner countries perform a vital role getting reading and other materials into the hands of people who need information and knowledge for education, research, health or leisure. The seven point plan submitted by EIFL in response to the European Commission’s Public Consultation on the review of EU copyright rules highlights some issues that libraries want to see addressed.
“Librarians want to do their work effectively, efficiently and of course, legally,” said Teresa Hackett, EIFL-IP Programme Manager. “But sometimes, it seems as if the weight of the system is against this.”
Here are some of the things librarians in EIFL-partner countries told us for the European Commission consultation:
[Official Release, Link] The ALRC was asked to consider whether the current exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital era.
The Report, tabled on 13 February 2014, is the result of an 18-month Inquiry during which the ALRC produced two consultation documents, undertook 109 consultations and received 870 submissions.
The Report contains 30 recommendations for reform. The key recommendation is for the introduction of a fair use exception to Australian copyright law.