American University Washington College of Law’s Program on Information Justice and Intellectual Property is pleased to announce the hosting of Fifth Global Congress on Intellectual Property and the Public Interest, September 27-29, 2018, Washington D.C. As with previous meetings, we will have space available for self-organized project meetings and trainings in the preceding days – September 24-26.
Abstract: With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty had success and became reality, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending.
Introduction: Copyright law is the subject of increasingly contested debates around the world. Much of this reform is being driven by a perceived need to adapt outdated copyright laws to the digital age. Copyright owners often advocate that these reforms should center on expanding the length, scope, and enforceability of exclusive rights. However, there is a growing recognition that the digital environment warrants expansions in so-called user rights – rights to use copyrighted material without the permission of owners to facilitate a range of modern activities from social media to Internet search.
Few empirical studies analyze the impact of different ways to expand user rights for the digital environment. Should we designate specific digital activities – like indexing, or linking or forwarding an email – that are lawful? Alternatively, should we adopt broader principles of fairness that can be applied to new uses over time? Some theories suggest the second option – adoption of user rights that are more open to unforeseen purposes subject to a flexible test of the fairness – is better for enabling innovation and many modern creative practices. But the existing empirical literature on copyright says little about whether more open and flexible or closed and narrow user rights are in fact better for the core purposes of copyright such as promoting innovation and creativity.
One reason for the lack of empirical research on the impact of more open and flexible user rights has been the absence of a tool to measure changes in this variable of the law. To promote additional and enhanced research into the impact of user rights, we created the User Rights Database. The User Rights Database is an open access repository of coded data showing how and when copyright user rights have changed over time in a representative sample of different countries. The twenty-one countries in our database thus far (with more coming), are split evenly between developing and wealthy countries and are representative of every major region and copyright legal family. The data documents changes in user right openness and flexibility in each country over a period stretching from 1970 to 2016.
We have begun to use the User Rights Database in empirical research projects. The first insight we draw is that there is a general trend toward more open user rights over time in all of the countries. Civil as well as common law systems, for example, have ample experience with exceptions that are openly applicable to any work, for any use, and by any user subject to a flexible “fair use” or “fair practice” balancing test. It is not true that only common law countries can or do implement open and flexible exceptions. That is not to say all countries are the same. More exceptions that are open are unequally distributed. Developing countries in our sample are now at the level of openness that existed in the wealthy countries about thirty years ago.
Another insight from our data is that very few countries have sufficient user rights most needed to support creativity and innovation in the digital economy. These crucial digital exceptions include those permitting transformative and non-expressive uses, including for text- and data-mining. Countries with an open general exception, such as the U.S. fair use right, have been quickest to authorize these new uses.
We used the database in a series of econometric tests. Our data supports the existing theoretical literature that suggests that more open user rights promote innovation and creativity. Namely, we find:
- More open user rights environments are associated with higher firm revenues in information industries, including software, and computer systems design.
- More open user rights environments are not associated with harm to industries known to rely upon copyright protection, such as publishing and entertainment.
- Researchers in countries with more open user rights environments produce more scholarly output and more high-quality output.
The rest of this paper describes our hypotheses, methodologies and results in more detail. Section II surveys the existing theoretical literature that suggests that more open user rights promote innovation and creativity. Section III describes the methodologies we used to construct the User Rights Database. Section IV reports the findings of our econometric analysis.
[Electronic Information for Libraries, Link (CC-BY)] An EIFL review of Malawi’s Copyright Act of 2016 has found that although the new law permits a range of library activities such as making copies for research and use of works in virtual learning environments, it places big limits on what libraries can do in practice, misses opportunities to enable digital activities, and restricts the making of accessible format copies.
The review assesses the Copyright Act from the library perspective.
It aims to raise awareness about the law, help librarians understand what the law means for library activities and services in Malawi, and highlight areas for future improvement.
France, Portugal and Spain have waded into the debate on the notorious Article 13 of the EU’s proposed Copyright Directive with a proposal that would oblige online content-sharing platforms to introduce mandatory automated filtering of uploads, as originally proposed by the Commission but recently questioned by a number of Member States.
[Inside U.S. Trade, Link] Industry groups are calling on the Office of the U.S. Trade Representative to elevate Colombia to its list of most egregious intellectual property violators, claiming that Bogota’s IP regime runs afoul of commitments it made in its trade agreement with the U.S. and violates World Trade Organization obligations. In USTR’s annual Special 301 report, released in April, Colombia was listed on what is known as the “watch list,” in addition to being one of three countries selected for an out-of-cycle review. …In that report, USTR knocked Colombia for not delivering on IP commitments outlined in the U.S.-Colombia Trade Promotion Agreement and said it would monitor the implementation of the country’s National Development Plan (NDP) for policies that could “undermine innovation and IP systems.” The agency also cited online piracy, copyright enforcement and regulatory approvals for pharmaceutical products as areas to watch in 2017.
[Creative Commons Urugualy, Link (CC-BY)] El 16 de octubre el Poder Ejecutivo firmó el decreto que reglamenta la excepción al derecho de autor aprobada por el Parlamento en octubre de 2013 en beneficio de personas ciegas o con dificultades para el acceso al texto impreso. Esta reglamentación hace efectivo el Tratado de Marrakech, firmado por nuestro país en 2013 y ratificado al año siguiente.
Today Sean Flynn and I are releasing the initial results of our research based on PIJIP’s Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the world. We intend to continue adding data from additional countries, but we feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers.
Our first results are based on tests of copyright limitation openness. We refer to “open” limitations as those that are open to the use of any kind of work, by any kind of user and for any purpose, as long as the use does not unreasonably prejudice the legitimate interests of the author.
Abstract: For cultural heritage institutions (CHIs) the divide between material and immaterial is epitomised by the impact of digital technologies. Ideally, in line with theories of cultural property and the objectives of CHIs, CHIs should be able to make use of the enhanced opportunities provided by digital technologies for effective archiving and preservation and for increased public accessibility to their collections. In practice however due to large numbers of works that are copyright orphan works in their collections, CHIs are legally unable to do this because effective digital archiving requires that many copies be made of the physical item.
[Desmond Oriakhogba, reposted from University of Cape Town IP Unit, Link] On 4 October 2017, Nigeria deposited during the 57th meeting of the WIPO general assembly in Geneva four ratification instruments concerning the WIPO Copyright Treaty (WCT) of 1996, the WIPO Performances and Phonograms Treaty (WPPT) of 1996; the WIPO Beijing Treaty on Audiovisual Performances of 2012 (Beijing Treaty); and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled of 2013 (Marrakesh Treaty) with the WIPO. The ratification instruments were signed by the President of The Federal Republic of Nigeria (President Muhammadu Buhari) on 24 August 2017.
Consequently, Nigeria has now accepted and undertaken to respect and implement the obligations under these treaties. However, the treaties do not have any force of law within the Nigerian territory unless domesticated (s12 Constitution of the Federal Republic of Nigeria, 1999) either by an enforcement and domestication Act or by including its provisions in the Copyright Act, Cap C20, Laws of the Federation of Nigeria, 2004 through an amendment. This piece argues that as we celebrate the ratification of the treaties, there is, however, a great need to pause and ponder on the effect of implementing ‘the standards stipulated in the treaties’ in Nigeria. What impact will the standards in the treaties have on creativity, innovation and access to information for educational purposes in Nigeria? Put broadly, what effect will they have on the knowledge economy and the overall development in Nigeria?
Reposted from michaelgeist.ca, Link (CC-BY)
It is open access week and this year I had the honour of delivering the keynote address at a terrific open access event co-sponsored by the Ryerson University Library and Archives and the University of Toronto Libraries. My talk – which can be viewed in full here or from the embed below – starts with a review of the remarkable success of open access over the past 15 years, but quickly shifts toward the continuing connection between balanced copyright and open access.
Catherine Tomlinson, Heather Moyo, Zain Rizvi, Claire Waterhouse, Salomé Meyer and Marcus Low on behalf of Fix the Patent Laws and the Cancer Alliance. Click here for the full report (PDF)
Executive Summary: Cancer rates in South Africa are expected to rise significantly over the next two decades. In sub-Saharan Africa, the number of new cancer cases is expected to increase by more than 85% from 2008 to 2030.