REVISED TRIPS WAVIER TEXT: Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of Covid-19
[WTO – Communication from the African Group, the Plurinational State of Bolivia, Egypt, Eswatini, Fiji, India, Indonesia, Kenya, the LDC Group, Maldives, Mozambique, Mongolia, Namibia, Pakistan, South Africa, Vanuatu, the Bolivarian Republic of Venezuela and Zimbabwe] With the aim to progress to text-based discussions, taking into account the discussions and feedback received, the co-sponsors are hereby submitting a revised draft decision text for the consideration of the Council for TRIPS… The operative paragraph (1) has been revised to add specificity to the decision text following concern that the original decision text was too broad. Hence the revised text addresses this concern by focusing the text on “health products and technologies” as the prevention, treatment or containment of COVID-19 involves a range of products and technologies and intellectual property issues may arise with respect to the products and technologies, their materials or components, as well as their methods and means of manufacture. The co-sponsors stress that the proposed waiver is limited in scope to COVID-19 prevention, treatment and containment. Click here for the full revised TRIPS Waiver Proposal, posted online by KEI.
See also: MSF Statement on Revised TRIPS Waiver. Link.
Reforming the Right to Remuneration in the South African Copyright Amendment Bill
[Malebakeng Agnes Forere] One of the core goals of South Africa’s Copyright Amendment Bill is to provide a right to fair remuneration for all authors and performers. This objective was motivated by the experiences of numerous famous South African creators who, despite their success in the creative industry, died as paupers. The problem that the Bill seeks to address is that the distributors of copyrighted work are dominated by multinational monopolies that are able to exact enormous concessions in their contracts with South African creators. Among the tools to address this problem in the Bill is a new right to a “fair royalty” for authors and performers, which applies to existing as well as future contracts. This provision is among those sent back to Parliament by the President for violating the Constitution. The President and others specifically criticize the retroactive effect of the royalty right with respect to existing contracts. This Article analyzes the Bill’s royalty rights and its potential constitutional infirmities, considers how other jurisdictions, especially the European Union has implemented fair remuneration rights, and proposes modest amendments that can help the Bill achieve its compelling purposes without running afoul of constitutional guarantees. Click here for more.
The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic
[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] …This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal … We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more. Click here for more.
The Proposed Pandemic Treaty and the Challenge of the South for a Robust Diplomacy
[Obijiofor Aginam] The motivation for a pandemic treaty is infallible because of the ‘globalization of public health’ in a rapidly evolving interdependence of nations, societies, and peoples. Notwithstanding the lofty purposes of the proposed pandemic treaty as a tool for effective cooperation by member-states of the WHO to address emerging and re-emerging disease pandemics in an inter-dependent world, the proposal nonetheless raises some structural and procedural conundrums for the Global South. The negotiation of a pandemic treaty should, as a matter of necessity, take into account the asymmetries of World Health Organization member-states and the interests of the Global South. Click here for more.
If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework
[Anthony Rosborough] Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets? Click here for more.
LDCs urged to drop “post-graduation” element under TRIPS Art. 66.1
[D. Ravi Kanth] The chair of the WTO’s TRIPS Council has apparently conveyed to the least developed countries (LDCs) to drop their demand of the “post-graduation” element in their proposal for extending Article 66.1 of the TRIPS Agreement that would expire at the end of next month, in a statement that appears to be aligned with five major developed countries, said people familiar with the development… In October last year, the LDCs submitted their request (IP/C/W/668) seeking an extension of the LDC transition period, for as long as a country remains an LDC, and an additional period of 12 years when a LDC transits to developing country status, to ensure smooth transition. Click here for more on twn.my.
Instagram Embed Feature Sparks Copyright Suit From Users
[Ashley Cullins] … Two users on Wednesday sued Instagram, claiming its embed feature is designed to flout copyright laws to make money for its parent, Facebook. “Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos by virtue of simply using the Instagram embedding tool,” writes attorney Solomon Cera in the complaint, which is embedded below. The suit was filed on behalf of a proposed class that includes any Instagram user who from July 1, 2013 to present uploaded content to the app that was embedded elsewhere without permission. They’re suing for inducement of copyright infringement, and contributory and vicarious copyright infringement. Click here for the full story on HollywoodReporter.com.
