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?
[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.
[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.
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.
...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.
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.
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.
[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.
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.
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.
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.
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.