Category Academic Resources

End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements

[Péter Mezei and István Harkai] Abstract: In the platform age, copyright protected contents are primarily disseminated over the internet. This model poses various challenges to the copyright regime that was mainly designed in and for the analogue age. One of these challenges is related to the fair balance between the interests of rightholders and other members of the society. Copyright norms try to guarantee this balance by granting a high level of protection for rightholders and preserving some flexibility for end-users. Regulation by platforms’ end-user license agreements might also be relevant to preserve that balance. The present paper focused on how these private norms allow for or diminish the exercise of user flexibilities. We collected, analysed and compared seventeen private ordering practices of service providers grouped in four main categories.

Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals

[Christophe Geiger and Elena Izyumenko] ... The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

Reconceptualising Copyright Markets: Disseminative Competition as a Key Functional Dimension

[Cheryl Foong] Abstract: The notion of ‘markets’ occupies a prominent yet ambiguous position in copyright discourse. When the term is raised, the copyright owner’s market tends to be taken as its implicit meaning, perpetuating an assumption that the market needs to be protected solely to preserve incentives to create. This dominant narrative overshadows an important dimension of copyright markets – disseminative competition, which is characterised by rival disseminators competing for inputs (copyright content) and audiences (copyright consumers).

The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

[Muhammad Zaheer Abbas] The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation.

If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework

[Anthony Rosborough] Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets?

The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] ...This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal ... We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more.

The Proposed Pandemic Treaty and the Challenge of the South for a Robust Diplomacy

[Obijiofor Aginam] The motivation for a pandemic treaty is infallible because of the ‘globalization of public health’ in a rapidly evolving interdependence of nations, societies, and peoples. Notwithstanding the lofty purposes of the proposed pandemic treaty as a tool for effective cooperation by member-states of the WHO to address emerging and re-emerging disease pandemics in an inter-dependent world, the proposal nonetheless raises some structural and procedural conundrums for the Global South. The negotiation of a pandemic treaty should, as a matter of necessity, take into account the asymmetries of World Health Organization member-states and the interests of the Global South.

Reversion of Copyright In Europe

[Martin Kretschmer, Ula Furgal, and Elena Cooper] Abstract: Reversion rights became a topical issue in Europe following the adoption of the Directive on Copyright in the Digital Single Market (2019) which introduced a new right of revocation to the EU copyright framework. The right gives effect to a “use-it-or-lose-it” principle, entitling authors and performers to reclaim their works when they are not being exploited. While reversion rights are not a novelty to a number of EU Member States, the current reversion rights landscape is fragmented, with provisions often limited to certain works or agreements. This paper assembles three contributions from a special section of the European Intellectual Property Review (May 2021), in the pre-print version by the CREATe Centre, University of Glasgow.

Joint Academic Opinion on South Africa’s COpyright Amendment Bill (B-13B of 2017)

[Malebakeng Forere, Klaus D. Beiter, Sean M. Fiil-Flynn, Jonathan Klaaren, Caroline Ncube, Enyinna Nwauche, Andrew Rens, Sanya Samtani and Tobias Schonwetter] We offer the enclosed Joint Opinion on the President’s referral of the Copyright Amendment Bill back to Parliament. We address the President's reservations about the Bill’s constitutionality, as well his expressed concerns about the Bill’s domestic application of international law. We analyse each of, and only, the specific clauses in the CAB that are mentioned in the President’s letter. The question we ask and answer is whether Parliament should take action to bolster the constitutionality of any of the provisions identified in the President’s letter.

Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders

[Martin Husovec and João Quintais] Abstract: Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

Not the African Copyright Pirate Is Perverse, But the Situation in Which (S)he Lives-Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization “From Below” in IP Law

[Klaus Beiter] Abstract: ...This Article will demonstrate the significance of extraterritorial state obligations (ETOs) for IP law. It focuses on the issue of how the right to education under international huan rights law prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a “constitutionalization” of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

Ensuring Text and Data Mining: Remaining Issues With the EU Copyright Exceptions and Possible Ways Out

[Rossana Ducato and Alain Strowel] Abstract... The importance of TDM has been understood by the European legislator, which has introduced two specifically tailored exceptions in the Copyright in the Digital Single Market Directive. After a critical analysis of the new provisions, the paper argues that they still present several flaws that risk to stifle AI developments in Europe. Thus, the contribution outlines an interpretative framework, based on the analysis of the infringement test, to rethink the rights of reproduction and extraction in line with the economic rationale of copyright and the database right.