Category Academic Resources

Developmental and Cross Border Uses of Copyright Limitations and Exceptions

[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.

Public Interest Analysis of the WIPO SCCR 43 Agenda

[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.

Right to Research and Copyright Law in Kenya: Text and Data Mining

[Chebet Koros, Joshua Kitili, Cynthia Nzuki and Natasha Karanja] ...The Strathmore University Centre for Intellectual Property and Information Technology Law carried out a study to determine the relationship between Kenya’s technology and copyright legal framework that affect the use of TDM research. It had four specific targets: to determine if Kenya’s technology policy promotes technology, learning, and research; to understand the prospects and plans for enabling a legal environment for research and development of technology; to assess the role of copyright law in enabling TDM research, and finally to provide recommendations for national, regional, and international copyright policies that enable TDM research. This policy brief is a summary of that study with specific policy recommendations resulting from the study.

Effect of an Open Patent Pool Strategy on Technology Innovation in Terms of Creating Shared Value

[Deuksin Kwon, Ha Young Lee, Joon Hyung Cho, and So Young Sohn] Abstract: In open patent pools (OPPs), members share their patents to each other. What gains do they expect by sharing patents? In this study, we analyze the effects of an OPP strategy on technological performance in terms of creating shared value (CSV). A panel regression was performed to compare the technological performance of firms in the open invention network (OIN), which is a Linux industry OPP, to those of non-OIN firms using their patent data. Our results demonstrate that the leading groups in the OIN achieved innovation by having more patent applications, forward citations, and collaborative activities than non-participants. Furthermore, OIN firms play a more significant role in promoting knowledge spillovers than non-participants. We demonstrate the positive effects of an OPP strategy on innovation by empirically measuring the technological performance of CSV strategies. Our findings provide insights for institutions that consider implementing an OPP strategy for innovation, including other types of open innovation.

Limitations and Exceptions in Second Revised Draft Text of the Broadcast Treaty

The 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.

Video: Dr. Sanya Samtani on Research as a Human Right in International Copyright

In this, third video of PIJIP’S video series on the Right to Research in International Copyright Law, Dr. Sanya Samtani of the University of Pretoria discusses how access to knowledge in general and the right to research may be considered human rights in the context of international human rights instruments and the obligations of nation-states. Furthermore, she asserts that the state has a duty to respect research rights by making sure there are no unjustifiable limits on access, protecting research rights from third-party violations.

Evaluating the Impact of Data Exclusivity on the Price of Pharmaceutical Imports

[Mike Palmedo] I have a new paper in the Journal of Globalization and Development. "Evaluating the Impact of Data Exclusivity on the Price of Pharmaceutical Imports" finds large increases in the price of imported medicines when the U.S.'s trading partners implement data exclusivity to meet FTA obligations. The full impact of data exclusivity laws took many years to become apparent though observation of aggregated prices, because the laws themselves only applied to medicines new medicines.

Video: PROF. SEAN FLYNN GIVES A CONCEPTUAL OVERVIEW OF RESEARCH AS A HUMAN RIGHT IN INTERNATIONAL COPYRIGHT

Interested in learning more about research as a human right? In this informative video, Professor Flynn gives a conceptual overview of research as a human right in international copyright.  Further, he sheds light on the human rights aspect of the right to research and how it differs from a type of exception to copyright.  He continues to flush out how human rights duties are imposed by the state to act or refrain from acting in certain ways. He uses censorship as an example of a state affirmative action that reduces people's access to their right to research.

A Right to Research in Africa

[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. 

The Hidden Cost of University Patents

[C.J. Ryan, W. Michael Schuster, and Brian L. Frye] Abstract: Universities are encouraged to undertake research through grants from government agencies, foundations, and other organizations. The Bayh-Dole Act reinforces this incentive structure by allowing universities to take ownership of the resultant patents. Included in these rights is the ability to generate income by licensing patents and bringing patent infringement lawsuits. Undoubtedly, exercising these rights to financially benefit the university is economically rational. But might such actions also impose a cost on the public despite the fact that these very patents arose from public research subsidies?

TDM and Brazilian Copyright: Recent Developments

[Allan Rocha de Souza and Luca Schirru] Statutory limitations and exceptions (L&E) for copyright in Brazil are notoriously precarious. However, under the Constitutional framework, the courts have come to regard their interpretation as extensive and not limited to the situations set forth in the copyright law. As it stands now, they must be considered as a flexible set... Despite the flexible character of L&Es in Brazil, none of them directly addresses uses for the purpose of research or text and data mining (TDM). Nonetheless, policy discussions (both within the legislature and the executive) have started to address the issue, particularly in relation to innovation and the training of Artificial Intelligence (AI) systems.

UK Government Axes Plans to Broaden Existing Text and Data Mining Exception

[Eleonora Rosati]... In mid-2022, the UK Intellectual Property Office (IPO) announced that Government would consider broadening the scope for unlicensed TDM activities and introduce a new E&L that would allow TDM for any purpose (including commercial TDM), subject to a lawful access requirement to the relevant copyright works and other protected subject-matter. The latest news, however, is that such a reform will not go ahead. Indeed, yesterday the UK Minister for Science, Research and Innovation confirmed that any such plans have now been axed...