Sean Flynn | infojustice

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

Posted by Sean Flynn | Jul 9, 2021 | Domestic Legislation, Fair Use, Limitations and Exceptions, User Rights Network

[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.

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

Posted by Sean Flynn | Jul 1, 2021 | Limitations and Exceptions, Multilateral Fora, User Rights Network

[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.

Analysis of WIPO SCCR 41 Agenda: Day 2, Limitations and Exceptions

Posted by Sean Flynn | Jun 29, 2021 | Limitations and Exceptions, Multilateral Fora

[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.”

ANALYSIS OF WIPO SCCR 41 AGENDA: DAY 1, BROADCAST TREATY

Posted by Sean Flynn | Jun 28, 2021 | Limitations and Exceptions, Multilateral Fora, WIPO

[Sean Flynn] The WIPO SCCR 41 Agenda asks for comments on possible next steps on the discussion of the Broadcast Treaty proposed Chair’s text. One needed next step is to address the Limitations and Exceptions provision. This provision currently is more limited than the exceptions provided under the Rome Convention and fails to incorporate any of the priorities of the Action Plans on Limitations and Exceptions on preservation, online uses, and cross border uses for libraries, archives, museums, education, research, and people with disabilities. This provision requires significant expansion to ensure that the Broadcast Treaty is balanced and does not harm the public interest.

ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

Posted by Sean Flynn | Jun 17, 2021 | IP and Human Rights, Limitations and Exceptions, Multilateral Fora

[Sean Flynn] At the 40th Session of the Standing Committee on Copyright and Related Rights, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. That Report is subject to comment by Member States. This Note provides analysis of the Report that may be useful to Delegates and stakeholders participating in the meetings of the SCCR. The Report helpfully summarizes a large amount of agreement about the main problems and solutions that need to be addressed by the international system. These problems include a lack of exceptions in a majority of countries for: Preservation for cultural heritage; Communications in online learning and research; Cross border uses for education, research, and the activities of libraries, archives and museums.

South Africa Parliament Calls for Comments on Fair Use

Posted by Sean Flynn | Jun 7, 2021 | Domestic Legislation, Fair Use, Limitations and Exceptions

[Sean Flynn] South Africa Parliament’s Portfolio Committee on Trade and Industry has invited a further round of public comments on the Copyright Amendment Bill provisions to introduce fair use and expand limitations and exceptions for libraries, education and other public interest uses. The Committee invites submissions with reference on the expansions on the Bill’s provisions fair use and for other purposes in Sections sections 12 and 19. It also invites comments on additional sections of the Bill that may implicate the “alignment” of the Bill with the provisions of several international treaties.

The Temporary WTO Waiver to Fight COVID Must Include Copyright

Posted by Sean Flynn | Apr 10, 2021 | Academic Resources, AI, Coronavirus, Multilateral Fora

[Sean Flynn] Over 250 organizations, prominent researchers, and experts support South Africa and India’s recent proposal to temporarily waive World Trade Organization (WTO) rules on intellectual property — including copyright — for the “prevention, containment and treatment of COVID-19.”… Most of the public debate on the proposal focuses on patent barriers to the production of generic versions of vaccines. Some commenters have proposed a way forward by dropping the non-patent issues. Research by the Program on Information Justice and Intellectual Property (PIJIP) helps demonstrate why the inclusion of copyright in the waiver is needed. One reason the existing TRIPS “flexibilities” for countries to issue compulsory licensing for patents is not adequate to scale up vaccine and treatment production around the world is that patents are not the only barrier. Access to industrial designs, undisclosed information and, yes, copyright is also often necessary.

Comment to USTR for the Special 301 Review

Posted by Sean Flynn | Jan 29, 2021 | Coronavirus, Special 301, User Rights Network

[Sean Flynn] The Biden Administration has called for every agency to identify “[w]hether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs.” [1] USTR could promote the equity directive by adopting the following policy in relation the operation of the Special 301 Program

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

Posted by Sean Flynn | Aug 17, 2020 | Domestic Legislation, Fair Use, Limitations and Exceptions

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

South African President’s Reservations to Copyright Bill Not Supported by Law

Posted by Sean Flynn | Jul 13, 2020 | Domestic Legislation, Fair Use, Limitations and Exceptions

The President of South Africa recently exercised his power to return the long considered Copyright Amendment Bill back to Parliament because of reservations about its constitutionality. Specifically, the South African President declared unconstitutional the provisions in the bill that would require contracts with creators to include royalty payments, the reversion of ownership rights back to creators, and the introduction into South Africa of a fair use right and other common exceptions to copyright. The move was immediately heralded by representatives of collecting management organizations, multinational publishers and music labels as a win for creators. In fact, the provisions declared unconstitutional by the President serve the interests of individual creators vis a vis these well-heeled intermediaries who lobbied extensively against the bill. This note analyzes the specific constitutional reservations given by the President for his referral and concludes that all of them are acutely unsupported.

Statement of Sean Flynn, Principal Investigator, Global Expert Network on Copyright User Rights, at the Second Session of the WIPO Conversation on IP and AI

Posted by Sean Flynn | Jul 8, 2020 | AI, WIPO

I speak on behalf of a number of copyright academics that recently released a statement on Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level… Many countries have rights to reproduce materials for research purposes that are broad enough to permit text and data mining to train AI and for other purposes. But many laws are inadequate because they are restricted to non-commercial uses, excerpts of works, or do not extend to the communications between researchers necessary to enable collaboration and validation.

WIPO Responds to Call to Act with New Tools on IP/COVID

Posted by Sean Flynn | May 11, 2020 | Coronavirus, WIPO

The World Intellectual Property Organization has released two new initiatives and a policy statement on intellectual property and responses to the COVID pandemic. The new initiatives and policy statement respond to many of the issues raised in an earlier letter from a broad coalition to WIPO’s Director General asking for a clear stance on intellectual property and the COVID pandemic.

USTR gives South Africa a Special 301 Pass; GSP Sanction Unlikely

Posted by Sean Flynn | May 5, 2020 | Domestic Legislation, Fair Use, Special 301, User Rights Network

The United States Trade Representative’s Special 301 Report was published last week with one notable omission. Despite a concerted campaign by the International Intellectual Property Alliance, South Africa was not listed on any of the Report’s “Watch Lists” for its consideration of a sweeping copyright reform bill.

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

Posted by Sean Flynn | Apr 20, 2020 | Academic Resources, IP & Research, User Rights Network

[Sean Flynn, Christophe Geiger and João Pedro Quintais] 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 and other members of the Global Expert Network on Copyright User Rights contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining technology. This blog, and the article it is based on, describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic.

World Intellectual property Organization DG Addresses COVID-19; Statement on Patent Sharing Due this Week

Posted by Sean Flynn | Apr 9, 2020 | Coronavirus, Multilateral Fora

Outgoing Director General of the World Intellectual Property Organization (WIPO), Francis Gurry, made two public statements this week addressing what he termed the “policy issues” raised by the COVID-19 pandemic. His initial response was that it is “far too early” to address access to medicine and other IP policy issues raised by COVID-19. But in a follow up briefing with the press he revealed that he favors a “special mechanism to share drug patents” and would be releasing a statement or policy on the issue later this week.

Testimony to Special 301 Committee, Responding to IIPA’s Request to Place South Africa on the Priority Watch List

Posted by Sean Flynn | Feb 27, 2020 | Domestic Legislation, Special 301

IIPA has asked you to list South Africa on the second highest designation – on the Priority Watch List… USTR has not listed South Africa, or any Sub-Saharan African country, on any 301 list dating back to 1999. This should raise two key questions for you. What changed after 1999? What has happened since that would justify USTR altering its judgment?

WIPO and the US Copyright Office Examine Artificial Intelligence and, to Lesser Extent, Intellectual Property

Posted by Sean Flynn | Feb 11, 2020 | Events, News

[Andrés Izquierdo and Sean Flynn] On February 5, 2020, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) co-sponsored a well-attended event on Copyright in the Age of Artificial Intelligence (AI). The full-day event took an in-depth look at the development and operation of artificial intelligence (“AI”). It paid substantially less attention to the full range of intellectual property issues raised by this new field.

Post-Hearing Statement to USTR, re: Generalized System of Preferences (GSP) Review of South Africa

Posted by Sean Flynn | Feb 2, 2020 | Domestic Legislation, Fair Use, Trade Disputes

[Sean Flynn and Peter Jaszi] This statement provides additional information in regard to the complaint by IIPA against South Africa in both the GSP docket… As explained by the many participants in the public hearing, all of the issues complained about in the Copyright Amendments Bill (CAB) have analogues in U.S. law or in the law of other countries that have not been challenged by the U.S. (including in the Special 301 process or in any WTO or other trade forum). Accordingly, sanctioning South Africa for these rules would lack a “general” basis and could also be considered arbitrary and capricious under the Administrative Procedures Act.

Statement to USTR at Review of South Africa’s GSP Benefits

Posted by Sean Flynn | Jan 31, 2020 | Bilateral Trade Pressures, Domestic Legislation, User Rights Network

Here, you are presented with quite a conundrum. The IIPA accepts that the US complies with international law with a fair use clause in addition to many specific exceptions, but argues that these same factors render the South Africa bill a violation of international law.

Request to Testify and Public Comment, re: GSP Review of South Africa

Posted by Sean Flynn | Jan 21, 2020 | Domestic Legislation, Limitations and Exceptions, Trade Disputes, User Rights Network

…I would like to start with the standard of review in this matter. As noted in the Federal Register Notice, and as included in the relevant statutes, the statutory standard is “adequate and effective intellectual property” … The plain language of the statutes would suggest that this is a minimum standard. South Africa has a full panoply of intellectual property rights statutes that meet the requirements of all relevant international treaties. The inquiry should end there.

Author: Sean Flynn

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

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

Analysis of WIPO SCCR 41 Agenda: Day 2, Limitations and Exceptions

ANALYSIS OF WIPO SCCR 41 AGENDA: DAY 1, BROADCAST TREATY

ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

South Africa Parliament Calls for Comments on Fair Use

The Temporary WTO Waiver to Fight COVID Must Include Copyright

Comment to USTR for the Special 301 Review

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

South African President’s Reservations to Copyright Bill Not Supported by Law

Statement of Sean Flynn, Principal Investigator, Global Expert Network on Copyright User Rights, at the Second Session of the WIPO Conversation on IP and AI

WIPO Responds to Call to Act with New Tools on IP/COVID

USTR gives South Africa a Special 301 Pass; GSP Sanction Unlikely

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

World Intellectual property Organization DG Addresses COVID-19; Statement on Patent Sharing Due this Week

Testimony to Special 301 Committee, Responding to IIPA’s Request to Place South Africa on the Priority Watch List

WIPO and the US Copyright Office Examine Artificial Intelligence and, to Lesser Extent, Intellectual Property

Post-Hearing Statement to USTR, re: Generalized System of Preferences (GSP) Review of South Africa

Statement to USTR at Review of South Africa’s GSP Benefits

Request to Testify and Public Comment, re: GSP Review of South Africa

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