Australian Link Code May Violate Berne Convention and Provoke Trade Litigation

[Jonathan Band and Sean Flynn] Next week, the Australian Parliament is set to vote on the “News Media and Digital Platforms Mandatory Bargaining Code” (“Code”). The Code has been a top lobbying priority of Rupert Murdoch’s News Corp, which dominates the news industry in Australia. The Code is incredibly worrisome from an international copyright law perspective, as it is the latest attempt to tax quotation rights protected by the Berne Convention. According to a newly published analysis by two leading international copyright scholars, enactment of the Code would likely violate Article 10(1) of the Berne Convention. Click here for more. 

Vaccine: The Tragedy of the Market 

[Carolina Botera] The pandemic affects humanity, so the search for solutions should be collective, shared, a commitment to open science. I came to think that the challenge of the fans would open the way to the vaccine as a common good; otherwise, I thought, the disaster will be counted in lives and will widen the inequalities in the world. After ten months what did not happen frustrates me and it is also clear to me that the pandemic does have layers. Click here for more on El Sapectador (in Spanish). 

Fair Use in Practice: South Korean Film Directors’ Copyright Understanding

[Yoonmo Sang, Patricia Aufderheide, Minjeong Kim] Abstract: This study, based on a survey of 100 South Korean film directors, investigates their understanding and employment of fair use. South Korean film directors are largely unaware of this law that could improve their capacity to create work more effectively and at lower cost. Furthermore, they engage in self-censorship, which can limit their creative choices. Many such choices inhibit the exploration of South Korea’s vigorous popular culture and its history. These obstacles largely lie not with the law, but with knowledge and norms in the field. Click here for more. 

Comment to USTR for the Special 301 Review

[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.” USTR could promote the equity directive by adopting the following policy in relation the operation of the Special 301 Program. Click here for more.

See also: Full list of submissions to USTR for the Special 301 Review on regulations.gov. Link. 

Developing Countries Call for Text-Based Negotiations on TRIPS Waiver

[D. Ravi Kanth] A large majority of developing countries at the World Trade Organization (WTO) have joined forces to demand text-based negotiations on the proposed TRIPS waiver to combat the COVID-19 pandemic expeditiously, participants told the SUNS. The call by the developing countries has come amidst the worsening “vaccine wars” and escalating COVID-19 cases of more than 105 million so far, with the loss of 2.2 million lives globally. Despite a groundswell of support from international civil society organizations and pressure groups across the world, the so-called “protectors” of the exploitive international IPR (intellectual property rights) regime – the United States, the European Union, Japan, Switzerland, and Canada among others – have blocked the demand for text-based negotiations on the waiver, said participants, who asked not to be quoted. Click here for more on TWN.my. 

See also: D. Ravi Kanth for the Third World Network. Several Ministers Bring TRIPS Waiver to Center Stage at Ministerial Meet. Link.

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights

[Bernd Justin Jütte and João Quintais] Abstract: On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. Click here for more. 

WIPO Negotiations for an International Legal Instrument on Intellectual Property and Genetic Resources

[Nirmalya Syam] Abstract: Over the past few years, Member States of the World Intellectual Property Organization (WIPO) have engaged in negotiations for concluding an international legal instrument on intellectual property and genetic resources. While developing countries have a major interest in securing through this instrument a mandatory requirement for applicants of IP rights over innovations that utilize genetic resources or associated traditional knowledge to disclose their source or origin, certain developed countries that are major markets for such products are absolutely opposed to recognizing the disclosure requirement as an objective of the legal instrument under negotiation. Other developed countries are agreeable to a disclosure requirement with a narrow scope, broad exceptions, and weakened remedies against non-compliance. Click here for more. 

The Case for Integrating Copyright Law with the Constitutional Right to Education in Nigeria and Developing Countries

[Samuel W. Ugwumba] Abstract: The commitment to ensure access to education, particularly in developing countries, is a developmental imperative. Lack of education is life-threatening and, if there was any doubt, this is clear from the numerous studies that show a positive correlation between education and other development components. The sad reality, however, is that available data shows a growing crisis of access to education in developing countries exacerbated by socio-economic inequalities and legal obstacles. Particularly, the regime of copyright law, as a market institution, poses challenges to the achievement of education, a non-market good and a developmental imperative. Yet, there is very little analysis in many DCs on the interface between copyright and access to education, preferring instead to see the regime of copyright on a narrow legalistic normative lens that privileges wealth-maximization and undermines the value of access to education. Click here for more. 

Countries’ Policy Space to Implement Tobacco Packaging Measures in the Light of Their International Investment Obligations: Revisiting the Philip Morris v. Uruguay Case

[Alebe Linhares Mesquita and Vivian Daniele Rocha Gabriel] This Policy Brief aims to provide a concise analysis of the international investment dispute involving Philip Morris subsidiaries and the Republic of Uruguay. It depicts the main legal and political background that preceded the case, analyzes the decision reached by the arbitral tribunal, and assesses the award’s major regulatory and policy implications. It intends to contribute to the discussions on how and to what extent States can adopt tobacco control measures without violating their international obligations to protect the investment and intellectual property of tobacco companies. Click here for more. 

WEBCAST – Global Mandatory Fair Use: Book Talk With Authors Tanya Alpin and Lionel Bently

[Webcast of PIJIP online event held on January 29, 2021] In “Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works”, Tanya Aplin and Lionel Bently make the case that the quotation exception in Article 10 of the Berne Convention constitutes a global mandatory fair use provision. It is global, they argue, because of the reach of Berne and TRIPS, and its mandatory nature is apparent from the clear language of Article 10 and its travaux. It relates to ‘use’ that is not limited by type of work, type of act or purpose, and it is ‘fair’ use because the work must be made available to the public, with attribution, and the use must be proportionate and consistent with fair practice. By explaining the contours of global mandatory fair use – and thus displacing the ‘three-step test’ as the dominant, international copyright norm governing copyright exceptions – this book creates new insights into how national exceptions should be framed and interpreted. Click here to watch the webcast. 


Program on Information Justice
& Intellectual Property