Author: Sean Flynn

Developmental and Cross Border Uses of Copyright Limitations and Exceptions

Posted by | Mar 15, 2023 | , , ,

[Sean Flynn] Where allowed by copyright law, digital uses for education, research and cultural heritage are contributing to social and economic development. This document describes some recent developmental uses of copyright limitations and exceptions that are relevant to the issues being discussed at the 43rd meeting of the WIPO Standing Committee on Copyright and Related Rights. The examples were collected by members of the Access to Knowledge Coalition.

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Public Interest Analysis of the WIPO SCCR 43 Agenda

Posted by | Mar 13, 2023 | , , ,

[Sean Flynn] I submit the following comments on limitations and exceptions issues in agenda items for the 43rd Meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights… The current draft of the Broadcast Treaty continues to raise important public interest concerns. Although the mandate of the Committee is to work on a “signal based” approach, the treaty continues to use a rights-based structure and language modeled on the Rome Convention rather than the more appropriate Brussels Convention. The use of a rights-based model causes particular problems of layering rights on top of each other because broadcast signals normally carry copyrighted content. Although there is now on opt-out in Article 10 – permitting alternative effective regulatory means – the dominance of the rights based perspective in the drafting will encourage adoption of its model.

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Limitations and Exceptions in Second Revised Draft Text of the Broadcast Treaty

Posted by | Mar 6, 2023 | , ,

The 43rd meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights will consider a Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty (“Second Revised Draft”). A question that is likely to be posed is whether the text contains sufficient consensus to move toward a diplomatic conference. Considerable questions have been raised about the need for and scope of rights in an anti-piracy treaty that would ultimately cover content of signals that are already protected by other copyright and related rights treaties, for example by KEI and Professor Bern Hugenholtz. This note focuses on the limitations and exceptions provisions of the Second Revised Draft. For comments embedded in a redlined version of the Draft showing changes from the version presented in SCCR 42, see PIJIP’s redlined version of the Second Revised Draft.

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A Right to Research in Africa

Posted by | Feb 6, 2023 | , , ,

[Sean Flynn] The Right to Research in International Copyright Project hosted a week of conferences in South Africa, January 23-27, 2023. The week of public and private meetings in Pretoria and Cape Town featured discussions of how African researchers are using modern digital technologies to address a range of pressing research questions that require use of research exceptions in copyright law. Academics, practicing lawyers and government officials from several African countries provided the legal and policy context for the researchers’ work, illuminating both the flexibility in many African laws that permit research uses, as well as  where changes in domestic and international law could serve the public interest. 

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Examples of Text and Data Mining Research Using Copyrighted Materials

Posted by | Dec 5, 2022 | , , ,

[Sean Flynn and Lokesh Vyas] Last week, Science Magazine published a joint academic opinion by leading copyright scholars from around the world calling for copyright reform to enable text and data mining (TDM) research. The opinion calls for all countries to evaluate their laws, and for international institutions to guide them, so that text and data mining research can take place everywhere, including through cross-border collaborations between researchers in different countries. In this article, we survey some of the kinds of important TDM projects that need copyright permission to be enabled everywhere. 

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South African Constitutional Court Reads Disability Exceptions Into Copyright

Posted by | Sep 21, 2022 | , ,

[Sean Flynn] In a huge court victory that may assist human rights and IP advocacy, the SA Constitutional Court released a quite remarkable judgment today that “reads in” the copyright amendment bill’s disability provisions into the current law because of the long delay in passing the bill. The Court finds that the lack of disability exceptions in current law violates the equality right of people with disabilities. It also finds a violation of free expression rights that uses reasoning with broader import.

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International Copyright Flexibilities for Prevention, Treatment and Containment of COVID-19

Posted by | Jul 25, 2022 | , , ,

[Sean Flynn, Erica Nkrumah and Luca Schirru] Abstract: Most policymaking attention with respect to intellectual property barriers to COVID-19 prevention, treatment and containment has been focused on patents. This focus is reflected in the World Trade Organisation (WTO) Ministerial Decision on the TRIPS Agreement, adopted on 17 June 2022, which provides a limited waiver of TRIPS rules on compulsory licences for production of COVID-19 vaccines. The original WTO proposal for a TRIPS waiver, however, explicitly applied to all forms of intellectual property, including copyright. This article outlines the numerous ways in which copyright can create barriers to addressing COVID-19. It also provides a description of international copyright treaty provisions that permit uses of copyright materials in response to the barriers identified, despite the exclusion of copyright from the final TRIPS waiver.

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PIJIP Statement at the 42nd Session of the WIPO Standing Committee on Copyright and Related Rights

Posted by | May 12, 2022 | , , ,

The Program on Information Justice and Intellectual Property provides the following comments and information related to the agenda items being considered at the 42nd session of the WIPO Standing Committee on Copyright and Related Rights. The comment includes sections on 1. our new study on research exceptions in comparative copyright, 2. limitations and exceptions in the broadcast treaty, and 3. the African Proposal for a Work Plan on limitations and exceptions.

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Research Exceptions in Comparative Copyright

Posted by | May 9, 2022 | , ,

[Sean Flynn, Luca Schirru, Michael Palmedo, and Andrés Izquierdo] Abstract: This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM.

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Enabling the Future of Youth Research Through Copyright

Posted by | Apr 27, 2022 |

[Sean Flynn] This year’s World Intellectual Property Day is being dedicated to the theme of youth empowerment. The focus is on recognition of the role of youth “stepping up to innovation challenges, using their energy and ingenuity, their curiosity and creativity to steer a course towards a better future.” Intellectual property exclusive rights may play some role in rewarding the innovative activities of youth. But more often, intellectual property exclusive rights may work in the other direction – posing a barrier to access and use protected materials that youth need to learn, innovate, and develop. This one reason why our attention to intellectual property on this day must include the limitations of and exceptions to intellectual property as well.

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Statement on the Leaked Covid-19 TRIPS Waiver Proposal

Posted by | Mar 16, 2022 | , ,

[Sean Flynn] The proposal to reach an agreement on a TRIPS waiver is a bit of a misnomer since it largely affirms and adds new requirements to TRIPS rather than waive its provisions. The proposal fails to accept the requests of researchers and access to knowledge organizations that the waiver extend to all intellectual property for vaccines, treatments and devices needed to combat COVID.

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Submission to South Africa on Copyright Amendment Bill, re: Proposed Removal of “Research” As Specifically Listed Purpose Allowed Under Fair Use

Posted by | Jan 28, 2022 | , ,

[Sean Flynn] We write on behalf of the Project on the Right to Research in International Copyright, which is an activity of the Global Expert Network on Copyright User Rights. We write to advise that Parliament not eliminate “research” from among the specifically enumerated purposes for which the fair use exception in Section 12A may be applied, and to add a reference to “computational analysis” as a permitted purpose.

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Kluwer Copyright Blog: Research Exceptions in Comparative Copyright Law

Posted by | Nov 22, 2021 | , , , ,

[Sean Flynn] Promoting research and access to its products has always been a core purpose of copyright law, often expressed in limitations and exceptions for research uses. Recent legal scholarship has examined the need for copyright exceptions for text and data mining (TDM) methodologies, and the doctrines recently enacted to achieve this purpose. Empirical scholarship has highlighted the positive impact on scholarship of copyright exceptions for TDM and of more “open” exceptions for research uses. Until now, however, there has not been a collection and categorization of the world’s copyright laws according to the degree to which they provide exceptions for research. The Program on Information Justice and Intellectual Property’s recent report, Research Exceptions in Comparative Copyright Law, fills this gap.

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Non-Patent Intellectual Property Barriers to COVID-19 Vaccines, Treatment and Containment

Posted by | Nov 1, 2021 | , ,

[Sean Flynn, Erica Nkrumah and Luca Schirru] Abstract: As the World Trade Organization considers a proposal to waive or otherwise address intellectual property barriers to the global response to the COVID-19 pandemic, most of the attention given by scholars and policy makers has been focused on patents. The original proposals by South Africa and India, as well as the groundbreaking support of the United States, however, explicitly applied to all forms of intellectual property. This paper documents many instances where non-patent forms of intellectual property create barriers to the global scale up of access to vaccines, treatments, and the ability to contain the virus through social distancing. Addressing the full scope of such barriers would assist the global efforts to combat COVID-19.

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Submission to Nigerian Copyright Office: Consultation on Copyright Amendment Bill

Posted by | Oct 11, 2021 | , ,

[Sean Flynn and Dick Kawooya] We are grateful for the opportunity to participate in Nigeria’s consultation on its copyright bill. Below, we present some of our research findings from PIJIP’s Project on the Right to Research in International Copyright relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). TDM is a critical element of numerous machine learning and “artificial intelligence” intelligence applications. Our research supports the adoption of the proposed open fair dealing exception for “research.” Our research also supports consideration of an additional specific exception for uses of works in TDM to supplement the proposed general fair dealing exception.

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Overview of SCCR 41 Progress on A2K Priorities: Broadcast, Copyright and COVID, Limitations and Exceptions

Posted by | Jul 19, 2021 | , , ,

[Sean Flynn] PIJIP and other members of the global Access to Knowledge (A2K) Coalition participated as registered observers in the 41st meeting of the WIPO Standing Committee on Copyright and Related Rights. This note summarizes the positions of delegations and the recorded outcomes of that meeting in relation to the policy aims of the Coalition.

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Submission to South African Parliament’s Portfolio Committee on Trade and Industry – RE: Copyright Amendment Bill [B13B – 2017]

Posted by | Jul 9, 2021 | , , ,

[Global Expert Network on Copyright User Rights] We provide this comment on Clause 13, section 12A of the Copyright Amendment Bill [B13B-2017]. Section 12A is an open general exception for “fair use” of copyrighted works. This provision is largely an updating of South Africa’s current general exception for “fair dealing” with a copyrighted work. The primary improvements of Section 12A over the current fair dealing exception are (1) to open the list purposes to which the exception can apply by virtue of including the words “such as” before the list of authorized purposes, and (2) providing an explicit balancing test to determine whether a particular use is fair.

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ANALYSIS OF WIPO SCCR 41 AGENDA: Day 2, Limitations and Exceptions

Posted by | Jul 1, 2021 | , ,

[Sean Flynn] This note provides analysis of the Limitations and Exceptions agenda item of the WIPO SCCR 41 Agenda, currently slated to be discussed on June 29-30. The Agenda calls for Members, IGOs and NGOs “to make general comments, with a focus on the Report on Regional Seminars and International Conference (SCCR/40/2), especially the sections on The Way Forward and Take-Away Considerations (pages 63-72).” It also invites “inputs on possible next steps, including the possibility of holding a number of regional consultations before the next session to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them.” This note analyzes these two issues separately, and concludes with suggestions of elements that be included in a work plan for SCCR going forward.

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