WTO TRIPS Council Does Not Advance the Proposal by South Africa and India to Waive Certain TRIPS Obligations for Countries Responding to COVID-19

Last Friday, the TRIPS Council debated a proposal by South Africa and India to temporarily waive certain obligations to protect intellectual property in cases where countries are taking steps to prevent, contain, or treat Covid-19. The Council did not adopt the proposal, which may be further debated in early 2021. For more, see:

  • Amnesty International. WTO: A missed opportunity to put people before patents. Link. 
  • Thiru Balasubramaniam, Knowledge Ecology International. WTO TRIPS Council (October 2020): South Africa issues clarion call urging support for TRIPS waiver proposal. Link.
  • Statements of support for proposal:
    • Kanaga Raja, Third World Network. 380 Civil Society Organizations Call for Strong Support for TRIPS Waiver to Combat Covid-19. Link. 
    • UNAIDS Press Release. UNAIDS Supports a Temporary WTO Waiver from Certain Obligations of the TRIPS Agreement in Relation to the Prevention, Containment and Treatment of Covid-19. Link. 
    • Luis Villarroel, Corporación Innovarte. Chilean Congress Supports India and South Africa Request at TRIPS Council. Link.   

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action

[Sean Flynn, Christophe Geiger, João Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault and Michael W. Carroll.] Abstract: Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, including by providing guidance on the diverse mechanisms that countries may use to authorize TDM research and serving as a forum for the adoption of rules permitting cross-border TDM projects. Click here for more.

Access to Medical Supplies and Devices – The Lesser Known Story of COVID-19 and Medical Monopoly

[Salimah Valiani] Discussions around access to potential vaccines for COVID-19 are widespread, particularly in the global South. Much less discussed is the lack of access to already existing medical technology crucial to stemming the spread of the novel coronavirus and assisting its most severely affected victims. The latter is the outcome of the monopoly control of medical technology — a phenomenon stretching at least as long as the monopoly of Big PHARMA — though much less understood. Click here for more.

TRIPS Flexibilities on Patent Enforcement: Lessons from Some Developed Countries Relating to Pharmaceutical Patent Protection

[Joshua D. Sarnoff] Abstract: … This paper explains the existing legal standards for permanent and preliminary injunctions in the United States and Canada and discusses trends regarding the issuance or denial of injunctions for pharmaceutical patents in those jurisdictions (with occasional reference to other common-law jurisdictions). Although judges in these jurisdictions more routinely deny preliminary prohibitory injunctions, legislation linking generic pharmaceutical regulatory approvals to the patent system and imposing stays of such approvals normally avoid the need for such preliminary injunctions. Consistent with the TRIPS Agreement, developing country judges may make different choices, based on the ability to provide reasonable compensation for harms or based on a different weighing of the importance of assuring affordable access to medicines relative to providing innovation incentives. Click here for more.

Education Groups Drop Their Lawsuit Against Public.Resource.org, Give Up Their Quest to Paywall the Law

[Mitch Stoltz] This week, open and equitable access to the law got a bit closer. For many years, EFF, along with co-counsel at Fenwick & West and attorney David Halperin, has defended Public.Resource.Org in its quest to improve public access to the law — including standards, like the National Electrical Code, that legislators and agencies have made into binding regulations. In two companion lawsuits, six standards development organizations sued Public Resource in 2013 for posting standards online. They accused Public Resource of copyright infringement and demanded the right to keep the law behind paywalls. Click here for more.

Taming the Upload Filters: Pre-Flagging vs. Match and Flag

[Paul Keller] One of the most important elements of any implementation of Article 17 will be how platforms can reconcile the use of automated content filtering with the requirement not to prevent the availability of legitimate uploads. While most implementation proposals that we have seen so far are silent on this crucial question, both the German discussion proposal and the Commission’s consultation proposal contain specific mechanisms that are intended to ensure that automated content filters do not block legitimate uploads, and that uploads are subject to human review if they are not obviously/likely infringing. Click here for more. 

Upcoming Webinars: 

Sanya Samtani: The Right to Education and the South African Copyright Amendment Bill

[October 30, 2020 | 10:00am EST] Sanya Samtani will present a paper describing the constitutional implications of compliance with international law and the binding international obligations incumbent upon South Africa in respect of copyright and international human rights law. Her paper argues that the Bill of Rights acts as a magnet, compelling all organs of state to give greater normative weight to those international obligations that map onto the Bill of Rights as compared to those that do not. It explains how the provisions of the CAB that are specifically tailored to enable access to educational materials for all are not only permitted under South Africa’s international copyright obligations but are required by the Bill of Rights and South Africa’s international human rights obligations using the magnet analysis. Click here for more.

Carys Craig: COVID-19 Lessons for Culture, Learning, and Copyright Law

[November 6, 2020 | 10:00am EST] Carys Craig will present a working paper describing how the cultural and educational practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. Click here for more.

Jean-Frédéric Morin: Presentation of the TRIPS+ Preferential Trade Agreement Dataset

[November 15, 2020 | 4:00pm EST] Jean-Frédéric Morin will present a new and publicly available dataset of intellectual property (IP) provisions included in trade agreements. Until recently, these provisions have not been mapped in a comprehensive and systematic way. The T + PTA dataset fills this gap by documenting the existence of 90 types of IP provisions in 126 agreements signed between 1991 and 2016. The dataset reveals that, even for like-minded countries, significant variations exist in their reliance on TRIPs-plus provisions, their degree of consistency across trade agreements, and their preferences for some IP rights. Click here for more.