By Sean Flynn Pedro Roffe Rosenfeld, the former Director of the UNCTAD-ICTSD Project on Intellectual Property and Development, and an important contributor to debates and policy making at the intersection of intellectual...
Read MoreMembers of the Access to Knowledge Coalition released an analysis of the major agenda items of the 44th session of WIPO’s Standing Committee on Copyright and Related Rights that will take place in Geneva from 6-8 November 2023...
Read More[Sean Flynn] Today, on WIPO’s World IP Day, the Right to Research project is participating in two launches of products on text and data mining in Africa. Andres Izquierdo is at the WIPO Committee on Development and Intellectual Property supporting the African Group and their proposal of a pilot project on copyright and text and data mining for research institutions… I am at Strathmore University in Nairobi for a launch of the Centre for Intellectual Property and Information Technology Law’s report on Right to Research and Copyright Law in Kenya
Read More[Sean Flynn] The 43rd Meeting of the WIPO Standing Committee on Copyright and Related Rights made substantial progress on issues of concern to a newly formed Access to Knowledge Coalition https://www.a2k-coalition.org/ These include the adoption of a work programme on limitations and exceptions, progress on the limitations and exceptions provision in the draft broadcast treaty, and the reviving of a second meeting of the SCCR. These advances were promoted in part by changes in representation from Brazil, Chile, Colombia and Argentina and the continuing expertise and leadership within the African Group.
Read More[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.
Read More[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.
Read MoreThe 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.
Read More[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.
Read More[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.
Read More[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.
Read More[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.
Read MoreThe 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.
Read More[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.
Read More[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.
Read More[Sean Flynn] The proposal appears to be a good faith and rigorous effort to find a way forward for the next steps of the Agenda that can take advantage of emerging consensus positions and define a process that once could imagine progress arriving from.
Read More[Sean Flynn] La propuesta parece ser un esfuerzo riguroso y de buena fe para encontrar un camino a seguir para los próximos pasos de la Agenda que pueda aprovechar las posiciones de consenso emergentes y permita definir un proceso.
Read More[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.
Read More[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.
Read More[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.
Read More[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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