Author: Sean Flynn

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.

Making Sense of South Africa’s New Copyright Bill and US Trade Threats

Posted by Sean Flynn | Dec 16, 2019 | Domestic Legislation, Trade Disputes

The Office of the US Trade Representative has announced a review of South Africa’s eligibility for Generalised System of Preferences benefits. The office took the step after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. At issue is South Africa’s Copyright Amendment Bill, which has been waiting for the South African president’s signature for eight months. Charl Blignaut asked Professor Sean Flynn and lawyer Jonathan Band to explain the issues.

Could Sanctioning South Africa for Copyright Reform Violate the World Trade Organization?

Posted by Sean Flynn | Dec 2, 2019 | Trade Disputes

This note describes the limitations that the World Trade Organization agreements place on criteria for generalized systems of preference programs, such as those included in AGOA. First, the GSP enabling clause requires that factors be non-reciprocal, general, and oriented toward the recipients’ development. These standards may be violated when criteria are not based on a broad based international norm such as in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Second, the dispute settlement understanding prohibits unilateral litigation of TRIPS.

Five Reasons the U.S. Should Not Review Its Dealings With South Africa

Posted by Sean Flynn | Nov 25, 2019 | Domestic Legislation, Trade Disputes

[Sean Flynn and Jonathan Band] On November 13, 2019, BusinessTech published an article listing the International Intellectual Property Alliance’s five primary concerns with the Copyright Amendment Bill awaiting President Ramaphosa’s signature. These concerns have led the U.S. Trade Representative to review the eligibility of South Africa for trade preferences. An examination of these five concerns reveals that they have no merit.

USTR Launches Review of South African GSP Benefits

Posted by Sean Flynn | Nov 19, 2019 | Domestic Legislation, Fair Use, Trade Disputes, User Rights Network

The USTR has announced that its next GSP review hearing will include consideration of the complaint by the IIPA alleging that South Africa’s adoption of a US style fair use right would violate the adequate and effective intellectual property requirement for GSP (19 U.S.C. 2462(c)(5)) primarily due to passage (but not yet signed into law) Copyright Amendment Act.

WIPO SCCR Progresses L&E Agenda Amid Controversy

Posted by Sean Flynn | Oct 30, 2019 | Blog, Limitations and Exceptions, Multilateral Fora, User Rights Network

The 39th Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded with measured progress on the agenda to discuss international instruments on limitations and exceptions amid increasing controversy over the management of the Committee.

Harvard Professor Ruth Okediji Calls for New Public Interest Copyright System

Posted by Sean Flynn | Oct 17, 2019 | Events, IP and Human Rights, Limitations and Exceptions, User Rights Network

Professor Ruth Okediji Delivered the 8th Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property. Her lecture addressed The Unfinished Business of Copyright Limitations and Exceptions. Professor Okediji called for a new paradigm of thinking about the relationship between copyright and the public interest. “The excesses of the copyright system cannot be remedied by limitations and exceptions alone,” she exclaimed.

International IP Experts Debate Protecting Artificial Intelligence Research

Posted by Sean Flynn | Oct 14, 2019 | Events, Limitations and Exceptions

A panel of leading international law experts addressed how international and domestic copyright law can adapt to the needs of researchers, libraries, technology entrepreneurs and their users at the American Branch of the International Law Association at Fordham Law School, New York, on Saturday October 12. The panel addressed International Intellectual Property Law in the Age of Smart Technology and Intelligent Machines. The focus of the discussion was on how the proliferation of new transformative technologies, such as smart devices, Big Data and artificial intelligence, pose new challenges for the effective development of international intellectual property law.

Book Review -The Code: Silicon Valley and the Remaking of America by Margaret O’Mara

Posted by Sean Flynn | Sep 17, 2019 | Events

One of the stories in Margaret O’Mara’s excellent history of the technology industry in the United States focuses on the role of women as the first computer programmers in the post-World War II technology boom. Back then, she explains, there were want ads for men and for women. Computer programmers – called coders to reinforce a perceived nature of the job as clerical – was a woman’s job. This was occurring while some of her main characters – like Ann Hardy who went on to work for IBM and later started her own tech firm – were denied admission to the top engineering schools.

New User Rights Data: Ranking Openness in 21 Countries

Posted by Sean Flynn | Jul 10, 2019 | Empirical Research, Limitations and Exceptions, User Rights Network

I had the honor of presenting the latest updates to our User Rights Database at the 18th annual Congress of the Society for Economic Research on Copyright Issues. I include here some new analysis of our data released for the first time at SERCI, ranking the countries in our study and categorizing them based on whether they have a civil or common law tradition.

Karisma Foundation to Host 2020 Global Congress on Intellectual Property and the Public Interest in Cartagena

Posted by Sean Flynn | Jun 17, 2019 | Events

The steering committee of the Global Congress and IP and the Public Interest has unanimously approved the application of Karisma Foundation to hold the next Congress in Cartagena, Colombia, in (likely August) 2020. (By longstanding practice, the steering committee is composed of all past hosts of the Congress, as permanent members, and the track leaders of the last Congress, who serve on the committee for one year).

Regional Seminars on Copyright Limitations and Exceptions Described by WIPO

Posted by Sean Flynn | Apr 8, 2019 | Limitations and Exceptions, Multilateral Fora

The WIPO Secretariat held a briefing on its plans for regional seminars on limitations and exceptions to copyright for Libraries,
Archives, Museums and Educational & Research Institutions, on April 3. Sylvie Forbin chaired the meeting and led the description of WIPO’s plans.

Statement on the WIPO Broadcast Treaty at the 38th SCCR

Posted by Sean Flynn | Apr 1, 2019 | Limitations and Exceptions, Multilateral Fora

I speak here to point out an important, and likely unintended, problem with the current text of the limitations and exceptions provision of the Broadcast Treaty. Since the alternative text from SCCR/35/12 was removed — the limitations and exceptions clause in the consolidated text is more restrictive than the Rome Convention.

South Africa Moves Forward With Creator Rights Agenda

Posted by Sean Flynn | Mar 25, 2019 | Domestic Legislation, Fair Use, Limitations and Exceptions

South Africa took another step toward enactment of a Copyright Amendment Bill focused on improving the lot of creators. On March 20, the committee of jurisdiction in the National Council of Provinces voted 6-3 in favor of reporting the bill to the full house next week without amendment. The full house is likely to pass the bill, clearing the last hurdle before the President can sign the bill into law.

Posted by Sean Flynn | Mar 18, 2019 | Domestic Legislation, Fair Use

The Bill is exceptional in including what will be the world’s most well considered and detailed fair use right. The fair use and education rights are eminently reasonable for a country founded on the principle that all laws must promote the Bill of Rights, including rights to freedom of speech, to receive information, and to education.

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