Big Win for Open Access to Law – Georgia v. Public.Resource.org

[Michael Carroll] On April 27, 2020, the Supreme Court decided an important case about copyright law and access to the law — Georgia v. Public.Resource.org, Inc. At issue was whether the state of Georgia owns a copyright in the Official Code of Georgia Annotated (OCGA). The Court held that it does not and that the code in the public domain. This case is a big win for the movement for open access to law. This movement runs parallel with the movement to make scholarly and scientific publications open access. I wrote about the relationship between these two movements in my article, The Movement for Open Access Law, and this case represents a big step forward. Kudos to Carl Malamud and the attorneys who represented him for having the courage of their convictions. Click here for more.

USTR Gives South Africa a Special 301 Pass; GSP Sanction Unlikely

[Sean Flynn] The United States Trade Representative’s Special 301 Report was published last week with one notable omission. Despite a concerted campaign by the International Intellectual Property Alliance, South Africa was not listed on any of the Report’s “Watch Lists” for its consideration of a sweeping copyright reform bill.  Click here for more.

Nonexcludable Surgical Method Patents

[Jonas Anderson] Abstract: A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?  Click here for more.

FDA: Release Research Data on Remdesivir for Emergency Use for Coronavirus Patients

[Public Citizen Press Release] The U.S. Food and Drug Administration should promptly release all research data supporting Gilead Sciences’ request for emergency use of remdesivir for treatment of patients hospitalized with the coronavirus infection (COVID-19), Public Citizen said today in a Freedom of Information Act (FOIA) request to the agency.  Click here for more.

See also: Christopher J. Morten, Amy Kapczynski, Harlan M. Krumholz, and Joseph S. Ross. To Help Develop The Safest, Most Effective Coronavirus Tests, Treatments, And Vaccines, Ensure Public Access To Clinical Research Data. Journal of Health Affairs, March 2020. Link. 

Research Data Alliance COVID-19 Guidelines and Recommendations

[Electronic Information for Libraries] The Research Data Alliance (RDA) COVID-19 Working Group has released draft guidelines and recommendations for sharing research data in ways that support scientific research and policy making during public health emergencies. The group is calling for feedback on the draft guidelines. Feedback will inform the Working Group’s discussions and be incorporated into the next version of the guidelines and recommendations. You can post your feedback here. The deadline is 24 May. Click here for more. 

The Chilling Effect of Copyright Permissions on Academic Research: The Case of Communication Researchers

[Patricia Aufderheide] Abstract: Communications researchers in the U.S., who routinely analyze copyrighted material, both qualitatively and quantitatively, face challenges from strict copyright. The doctrine of fair use permits some unpermissioned use of copyrighted works. Survey research shows that researchers routinely need access to copyrighted material; that they are often unsure or confused, even unknowing, about fair use; and that this lack of knowledge and/or familiarity leads to both failure to execute and failure to initiate, or “imagination foregone.” Creating a best practices code has improved knowledge but more institutional change is needed for knowledge to inform action.  Click here for more. 

USTR Should Seek Language in the Upcoming US-Kenya Trade Agreement that Protects the Right to Research

[Mike Palmedo] … U.S. negotiating objectives should be interpreted to include protection of the right to research, as it is a protection granted under U.S. law. The U.S. should negotiate language in the intellectual property chapter of the US-Kenya Trade Agreement that protects the right to research. The Covid-19 pandemic has highlighted the need for researchers to access to the latest scientific knowledge, as well as access the underlying data. In recent months, publishers have temporarily opened access to a range of scientific publications in order to provide researchers around the world with the information they need to search for treatments and vaccines for this one grave disease. But researchers’ need for access to previous scientific works is not new, and it is not temporary. When the current pandemic has run its course, researchers everywhere will still need access to the world’s stock of scientific knowledge in order to meet other challenges. Click here for more. 

See also: Docket #USTR-2020-0011 on negotiating objectives for the US-Kenya FTA. Link. 

South Centre Research Paper 108: Public Health and Plain Packaging of Tobacco: An Intellectual Property Perspective

[Thamara Romero] Abstract In 2018, a World Trade Organization (WTO) Panel ruled that plain packaging of tobacco products was consistent with Australia’s obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and was in the interest of public health. Plain packaging restricts the use of logos, colours and brand images to reduce the demand for and consumption of tobacco products by diminishing their advertising appeal. This paper discusses the intellectual property aspects triggered by the implementation of plain packaging, examines the best practices for its implementation and provides analysis of Australia’s case from the public health perspective. It also highlights the main arguments used in the dispute against Australia and provides practical guidance for WTO Members on implementing measures to protect public health. Click here for more. 

South Centre Policy Brief 76: Evolution of Data Exclusivity for Pharmaceuticals in Free Trade Agreements

[Wael Armouti] Abstract: Free trade agreements (FTAs) introduce higher intellectual property (IP) protection than those established in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS-plus provisions) that deprive the parties from benefits of the use of flexibilities found in the TRIPS Agreement to protect public health. One such TRIPS-plus requirement is that of data exclusivity. It establishes that the government should provide an exclusivity period for the test data developed by the originator company, on the grounds of an incentive rationale and considerations of fairness. The negative impact of the data exclusivity approach in developing countries means that the entry of cheap generic products is delayed, even under a compulsory license, which will affect access to affordable medicines. Countries that have already signed the FTAs can mitigate its effects on public health by limiting the scope of and providing exceptions to data exclusivity in national legislation. Click here for more.