SAVE THE DATE – Global Congress #IPWeek2021 – October 25-29

[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. Click here for more. 

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

[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. Click here for the full statements: Limitations and Exceptions | Broadcast Treaty 

See also –  Other statements to the WIPO SCCR

Over 200 Civil Society Groups to European Commission: Support the TRIPS Waiver

[Health Action International] Over 200 civil society organisations from around the world have signed a letter the European Commission and EU Member States urging them to engage in text-based negotiations for a TRIPS waiver. The signatories to the letter point out that communications from the Commission to the World Trade Organization’s TRIPS Council offer no meaningful solutions for equitable access to vaccines & other health technologies to combat the COVID-19 pandemic. Click here for more.

Interpreting the Flexibilities Under the TRIPS Agreement

[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. Click here for more.

YouTube/Cyando – an Important Ruling for Platform Liability

[Julia Reda and Joschka Selinger] The European Court of Justice (CJEU) ruling in joined cases C-682/18 (YouTube) and C-683/18 (Cyando), concerning platform liability for copyright-infringing user uploads under Art. 3 (1) InfoSoc Directive, has been eagerly awaited for a long time. Such a long time – almost a year has passed since the Advocate General opinion (see here) – that a casual observer of copyright law may conclude that the judgment has lost its practical significance. After all, on 7 June 2021, a new copyright liability regime for certain online platforms entered into effect: Art. 17 of the Directive on Copyright in the Digital Single Market (DSM Directive).  In this blog post, we explain why the judgment is still highly significant, coming at a time when the fundamental rights compatibility of Art. 17 DSM Directive is acutely in question, very few Member States have implemented the DSM Directive and the legislative process on the Digital Services Act (DSA), attempting to modernize EU law on platform regulation, is in full swing. In part 1, we analyse the Court’s clarification of the circumstances under which a platform performs an act of communication to the public, as well as the overall balancing of fundamental rights on which the judgment is based. Part 2 looks at the impact of the judgment beyond copyright law, by examining the Court’s application of the hosting safe harbour of Art. 14(1) E-Commerce Directive (ECD) and drawing conclusions for the upcoming DSA. Click here for more on the Kluwer Copyright Blog: Part One | Part Two.

Who Is Terminating Their Copyrights? New Research and Open Access Datasets from the Author’s Interest Project

[Joshyua 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. Click here for more.

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

[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. Click here for more.

Copyright Ownership in State Board Textbooks: Impediments to Accessibility

[Anupriya Dhonchak ] Equitable access to learning materials and textbooks for education, both online and offline, constitutes a basic requirement for the realisation of this goal. However, since a long time access to textbooks in India, has been riddled with distribution problems, and the impact of this differential access has only been exacerbated during the pandemic. In this post, I look at the question of the government’s copyright ownership in State Board textbooks, and its implications on access to knowledge and education. Click here for more on SpicyIP.

Compulsory Licensing of Trade Secrets: Ensuring Access to Covid-19 Vaccines Via Involuntary Technology Transfer

[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. The compulsory licensing of trade secrets presents some unique obstacles and consideration is given to some practical solutions which might balance the interests of technology owners and the public interest in increased access to vaccines. In particular, this paper suggests that to make the currently discussed proposals on accelerating the production of COVID-19 vaccines, including compulsory licensing of patents and the IP waiver, work an additional mechanism of compulsory licensing of trade secrets is required. Click here for more.