infoJustice

Sean Flynn and Michael Palmedo
Docket No. USTR-2018-0037
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Introduction:

The Program on Information Justice and Intellectual Property (PIJIP) is the internationally recognized intellectual property and information law research and academic program of American University Washington College of Law (AUWCL).[1] This comment is informed by PIJIP’s ongoing multidisciplinary research project studying the economic impact of copyright limitations. See http://infojustice.org/flexible-use/research.

Please note that Sean Flynn requests to testify at the February 27^th Public Hearing of the Special 301 Committee.

Many academics and other researchers have expounded on the free expression and other public interest benefits of the open and flexible US fair use clause. Our research shows that general public interests in accessing and using information can be served by policies that also promote trade economic interests of both US and foreign firms.   

PIJIP’s research indicates that American firms in industries that rely on copyright limitations enjoy better outcomes when our trading partners’ limitations are more like fair use. Specifically, US firms in technology and related sectors do better in countries where copyright exceptions permit fair uses and practices of any type of work, by any user, and for any purpose – as long as the use itself is fair to the owner.

One area where the lack of limitations and exceptions in copyright poses a direct trade barrier to US firms is with respect to the right to research. Countries that do not permit uses of copyrighted material by commercial firms for data analysis, indexing and other research purposes create barriers to firms who seek to develop or market such services internationally. 

Our research further shows that firms in the more traditional “copyright sectors” (i.e. – music, movies, and printed media), are not negatively affected by having more openness in copyright limitations.

Based on this finding we make the following recommendations:

• The Special 301 Committee should include analysis of copyright limitations when evaluating whether a country provides adequate and effective protection of intellectual property. In particular, it should examine whether our trading partners permit rights to use copyrighted materials for research purposes, including for commercial data and information analysis needed to support indexing and machine learning services.  
• The 2019 Special 301 Report should highlight countries that are moving to adopt more flexible copyright practices or protect the right to research in its “Best Practices.” Two countries that should be highlighted, and encouraged to follow through on pending copyright reforms are:
  • Singapore: which has announced its intention to improve its existing fair use provision by removing the “fifth factor” in its current law and by recognizing a right to commercial and noncommercial data analysis.
  • South Africa: which has announced plans to implement fair use as part of its ongoing copyright reforms, which right includes a right to research.

[1][1]More information on PIJIP is available at https://www.wcl.american.edu/impact/initiatives-programs/pijip/