My Testimony to the Special 301 Committee, Re: Foreign Affiliates of U.S. Firms in Countries That have Adopted Fair Use

[Mike Palmedo] … My testimony has four key points: U.S. firms that rely on copyright exceptions benefit when foreign nations adopt open, flexible and general exceptions such as fair use; Copyright industries still earn money from countries that adopt fair use; The Special 301 Committee should include analysis of copyright limitations when evaluating whether a country provides adequate and effective protection of IP; The 2017 Special 301 Report should highlight countries that are moving to adopt more flexible copyright practices in its “Best Practices” section. Click here for more.

See also, my notes on the Special 301 hearing, here.

In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use

[Victor B. Nzomo] Abstract: In 2014, the Supreme Court of Kenya had to determine whether the broadcast rights in free-to-air (FTA) programme-carrying signals were infringed by allowing the re-broadcasting of these signals pursuant to the so-called “must-carry” rule in the Broadcasting Regulations of the Kenya Information and Communication Act. In a unanimous decision, the apex court ruled that the ‘must -carry’ rule fell under the fair dealing provisions of the Kenya Copyright Act despite the fact that the dealing in question did not fit within one of the enumerated allowable purposes. Click here for more.

Mitigating the Regulatory Constraints Imposed by Intellectual Property Rules under Free Trade Agreements

[Carlos Correa] IP provisions in FTAs may have implications on a wide range of public policy areas. A vast academic literature has addressed the “flexibilities” available under the TRIPS Agreement and the negative impact of FTAs in relation to access to medicines. For example, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard to Physical and Mental Health … recommended developing countries and LDCs to review their laws and policies and amend them to make full use of the flexibilities available to them. This paper explores the extent to which this recommendation to use “to the fullest extent possible, remaining public health related flexibilities available” may be effectively implemented in the context of FTAs. The basic question addressed in this paper is whether contracting parties to FTAs can mitigate their adverse effects through interpretation and implementing regulations. Click here for more.

OUP and other Publishers Withdraw Copyright Suit Against Delhi University and Photocopier

[Shamnad Basheer] In a stunning development, OUP, CUP and Taylor & Francis just withdrew their copyright law suit filed against Delhi University (and its photocopier, Rameshwari) 5 years ago! They indicated this to the Delhi high court in a short and succinct filing made this morning. This withdrawal brings to an end one of the most hotly contested IP battles ever, pitting as it did multinational publishers against academics and students. The law suit was filed as far back as 2012 and it dragged on for 5 long years! Click here for more on Spicy IP.

Industry, Research and Energy Committee’s Draft Opinion Is More Conservative Than It Would Seem

[Anna Mazgal] It is great that ITRE Rapporteur Zdzisław Krasnodębski joined IMCO Rapporteur Catherine Stihler in thinking that the right to read is the right to mine. As we explained in detail, his draft proposal opens up TDM exception to anyone and makes sure any safeguarding measures won’t stand in the way of applying the technology. As progressive as it is, however, the fact that ITRE’s Rapporteur focused only on TDM and proposed a minor tweak of article 14 is also a statement. What is not mentioned is as significant as the changes that are proposed. Click here for more.

Copyright Formalities: A Return to Registration?

[Dev Saif Gangjee] Abstract: Copyright law is an outlier. Unlike patent, trade mark or (with some qualifications) design protection, the recognition and enforcement of proprietary interests is automatic, arising upon creation. It is not conditioned upon the fulfilment of formalities. More specifically, Art 5(2) of the Berne Convention proscribes – to a large extent – the introduction of mandatory formalities. Responding to the invitation to reimagine copyright, this chapter conducts a thought experiment; one which is historically and empirically informed. Click here for more.

UN High-Level Panel On Access To Medicines Takes Next Step At Human Rights Council

[Catherine Saez] The United Nations Human Rights Council held a panel discussion yesterday to exchange views on good practices and key challenges relevant to access to medicines. The panel gave a large part of the discussion to the recent report of the United Nations Secretary General’s High-Level Panel on Access to Medicines, much to the chagrin of the European Union and the United States. Click here for the full story on IP Watch.