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.
Read More…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.
Read MoreThe 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.
Read MoreThis 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.
Read More[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.
Read MoreThe 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.
Read MoreThe 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.
Read MoreProfessor 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.
Read MoreA 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.
Read MoreOne 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.
Read MoreI 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.
Read MoreThe 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).
Read MoreThe 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.
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.
Read MoreSouth 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.
Read MoreThe 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.
Read MoreSouth Africa and other countries are currently considering proposals to convert from a “fair dealing” to a “fair use” user rights system. Some critics of the change fill their arguments with hyperbole without describing the facts about what is really at stake. This note attempts to dispel some common myths about fair use by describing what fair use is, and what is not.
Read More[Sean Flynn and Peter Jaszi] We commend the Copyright Amendment Bill’s proposed introduction of an innovative, forward-thinking and South Africa-specific open general exception for “fair use.” The enclosed comments make the following main points: Fair use promotes innovation and free expression – as shown in the experience of other countries who have adopted it; The fair use provision, and the other limitations and exceptions in the bill, are fully compliant with the international “three step test”; The fair use clause will increase predictability under the law by adding an explicit fairness test; Experience in other countries does not support allegations that adopting fair use will increase litigation, shift burdens of proof onto copyright holders, decimate thepublishing industry or authorize widespread piracy.
Read MoreSingapore recently released its long awaited report on copyright reform. As expected, the report proposes to eliminate the fifth factor of its fair use test – which requires examination of whether a license is available for the activity in question. The proposed reforms go much further, echoing many of the policies and approaches of South Africa’s Copyright Amendment Bill in focusing on the rights of individual creators at the center of the reform.
Read MoreIt was a day of copyright drama in the South African Parliament on the anniversary of Nelson Mandela’s passing. The National Assembly was considering the Copyright Amendment Bill in the full chamber. …When the votes were taken, parties representing an overwhelming majority of the MPs had endorsed the bill, but it came up 12 votes short of what was needed to pass it on to the Council of the Provinces (the second house). The battle for copyright reform in South Africa appeared lost until the new year. But hours later the drama continued. After passing a new performers protection bill, more MPs from the ANC were whipped to join the chamber and the Copyright Amendment Bill was passed on a second vote.
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