[PIJIP] On June 24, Sean Flynn presented "Responding to COVID Through Recognition of the Right to Research in Comparative Copyright" at the 40th annual meeting of the Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP).
[South Centre] ...The process leading to the Decision confirms the need to fully use the TRIPS flexibilities to address emergency and other situations where public health and other public interests are at stake, and to review the current international IP regime (including article 31bis of the TRIPS Agreement) to accelerate the sharing of technology, including know-how.
[International Federation of Library Associations] The report involved a survey of 114 libraries worldwide and 28 interviews during February and March 2022. Respondents were from 29 countries. 83% of responding library professionals said they had copyright-related challenges providing materials during pandemic-related facility closures. These intersected with ongoing challenges predating the pandemic, including budget pressures, external financial crises, difficult negotiations with publishers, and demand for eBooks that outpaces publisher offerings.
[Martin Senftleben] Abstract: ... lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure compliance with the three-step test laid down in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty. An imbalanced, restrictive interpretation of the three-step test, however, can lead to an overly cautious approach that stifles TDM and makes broad inroads into the right to research – instead of establishing a proper balance between copyright protection and the right to research that supports TDM activities. Against this background, the analysis raises the question whether international copyright law covers TDM activities at all.
[Muhammad Zaheer Abbas] Abstract: The current COVID-19 pandemic has highlighted the significance of the export-oriented compulsory licensing mechanism for countries lacking domestic manufacturing capacity. Article 31bis, the first amendment to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), is aimed at giving effect to the WTO General Council Decision 2003, which waived the domestic market requirement of compulsory licensing. In 2005, Canada became the first country to amend its patent laws to provide for Canada’s Access to Medicines Regime (CAMR) as enabling legislation to implement the WTO General Council Decision 2003. Canada clearly described its regime as a humanitarian initiative aimed at helping developing countries that lack sufficient drug and/or vaccine manufacturing capacity of their own and rely upon imports to address their public health problems. The legislation was compromised, however, by the conflicting desire to protect the corporate interests of patent-holding corporations.
[Alina Ng] Abstract: The Constitution grants Congress the power to promote the progress of science and the useful arts through the intellectual property clause. ... This article argues that intellectual property laws need to have a more contemporary understanding of progress, one that reflects the reality and practicality of how progress actually unfolds and shows how construing progress as making an impact on social and economic welfare through entrepreneurial activities may be a more contemporarily appropriate understanding we should strive for.
[Fernando dos Santos, Caroline B. Ncube, and Marisella Ouma] Abstract: We debate whether intellectual property (IP) protection of medical products and devices required to prevent, treat and contain COVID-19 should be waived, as proposed by South Africa and India, under the World Trade Organization (WTO)’s Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS Agreement). We discuss existing public policy mechanisms under the TRIPS Agreement and how these have been implemented at national level in Africa, and find that these have proven inadequate and that they have been sub-optimally implemented. We then consider the TRIPS Waiver proposal which has been tabled due to the inadequacy of existing mechanisms and outline the EU’s counter proposal which is founded on existing mechanisms.
[Martin Senftleben, Thomas Margoni, Daniel Antal, Bodó Balázs, Stef van Gompel, Christian Handke, Martin Kretschmer, Joost Poort, João Quintais, Sebastian Schwemer] Abstract: In the European Strategy for Data (COM(2020) 66 final), the European Commission highlighted the EU’s ambition “to acquire a leading role in the data economy.” At the same time, the Commission conceded that the EU would have to “increase its pools of quality data available for use and re-use.” In the creative industries, this need for enhanced data quality and interoperability is particularly strong (section 1). Without data improvement, unprecedented opportunities for monetising the wide variety of creative content in EU Member States and making this content available for new technologies, such as artificial intelligence (“AI”) systems, will most probably be lost (section 2).
[Muhammad Zaheer Abbas] Abstract: The current COVID-19 pandemic has put the problem of equitable access to health technologies in the limelight because governments across the globe are struggling to meet the health needs of their populations. Patent exclusivities add to the cost of healthcare by allowing supra-competitive prices of protected technologies. There is a pressing need to mobilize all means and resources to promote price-reducing generic competition. Civil society organizations can make an enormous difference by successfully opposing questionable patents. Patent opposition is an administrative safeguard which procedurally enables community organizations to play this crucial role as defenders of the public interest. This paper supports the adoption of the patent opposition procedural safeguard as it provides civil society organizations with an affordable and practically feasible mechanism to challenge validity of questionable patents.
[ReCreate] For our latest Copyright Corner Q&A series installment, Re:Create spoke with Sean Flynn, Director of the American University Program on Information Justice and Intellectual Property. Flynn helps explain the meaning of “information justice,” the restrictions that continue to constrain research and education – even in today’s digital age – and how global IP laws impact access to the Covid vaccine. Flynn also helps readers better understand how the ability to make and use research materials is core to the freedom of expression and how copyright law can become an unjustifiable restriction without adequate exceptions.
[Ximena Benavides] Abstract: ...This Article analyzes the power dynamics of vaccine manufacturing and distribution of U.S. pharmaceutical companies in the context of global COVID 19 vaccination. Drawing on the health-justice and law-and-political-economy scholarship of the last decade, this Article demonstrates how a “patent culture” shaped by intellectual property law fundamentally neglects health-equity principles as it politicizes healthcare access. These contemporary frameworks suggest that the global COVID-19 vaccine-access problem is the result of avoidable policy choices of big manufacturers and affluent governments. Despite a long history of inequities in access to healthcare, policy choices—as predicted by Hart’s inverse equity theory—have favored a purposely inequitable-by-design vaccination program driven by the wealth and power of those allowed to control vaccine production and supply globally.
The Program on Information Justice and Intellectual Property provides the following comments and information related to the agenda items being considered at the 42nd session of the WIPO Standing Committee on Copyright and Related Rights. The comment includes sections on 1. our new study on research exceptions in comparative copyright, 2. limitations and exceptions in the broadcast treaty, and 3. the African Proposal for a Work Plan on limitations and exceptions.