Category US Domestic Legislation

Kenya’s Intellectual Property Bill, 2020, and Its Shortcomings in Adopting all Lawful TRIPS Public Health Flexibilities

[Brook Baker] Abstract: Given the importance of access to medicines to human rights and well-being in Kenya, it is appropriate to analyze whether Kenya has currently incorporated the allowed public health flexibilities to the greatest extent possible in its draft Intellectual Property Bill, 2020. This analysis will focus on the patent, utility model, and enforcement measures only as they are the ones directly relevant to access to medicines and other health technologies. The analysis starts with the premise that Kenya wishes to avoid granting unwarranted patents on unworthy inventions, especially with respect to medicines and other health technologies.

June 16 2020: A Sad Day for South African Youth

[South African Democratic Teachers Union, Independent Beneficiaries Forum, South African Guild of Actors, ReCreate South Africa, Section 27 and BlindSA] On June 16th we celebrate the resistance by the youth of Soweto and across South Africa to oppressive laws that limited their future education prospects based on race. In 1976 black school students left their desks to protest the imposition of Afrikaans as a medium of instruction. The massacre of students that followed was one of the darkest days in the history of apartheid. Sadly, 44 years later on June 16th 2020, we faced another dark day for the prospects of our young people. In a letter which received little media attention, President Cyril Ramaphosa referred the Copyright Amendment Bill back to Parliament. This move by the President could dash the future education and employment prospects of millions more young South Africans.

South Africa’s Copyright Amendment Bill Returned to Parliament for Further Consideration

Last week, South African President Cyril Ramaphosa returned the Copyright Amendment Bill and the Performers' Protection Amendment Bill back to Parliament for further consideration. The legislation had been passed by the National Assembly and sent to the President to be signed into law, but it had generated strong opposition from rightholder groups, including those in the U.S. such as the IIPA.

COMMENTS BY WIPO COPYRIGHT DIRECTOR UNDERMINE IIPA’s SOUTH AFRICA PETITION

[Jonathan Band] The documents provided to Knowledge Ecology International in response to its Freedom of Information Act request to the U.S. Trade Representative concerning the South African Copyright Amendment Bill (“CAB”) led to the discovery of a set of comments on the draft bill prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization. These comments, dated October 1, 2018, in effect refute the central argument of the International Intellectual Property Alliance’s petition to USTR that South Africa should be denied U.S. trade preferences because the CAB, if signed into law, would not provide adequate and effective protection to intellectual property. Woods prepared these comments as a member of a panel of experts appointed by the Portfolio Committee of the South African Parliament to review the CAB. Woods stated that the comments reflected her views and are not official WIPO interpretations of international treaty obligations.

Copyright Exceptions Across Borders: Implementing the Marrakesh Treaty

[Laurence R. Helfer, Molly K. Land, and Ruth L. Okediji] Abstract: This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

Our DSM Implementation Tracker Is Out

[Teresa Nobre] Today we are launching our new DSM Directive Implementation Tracker. These tracking pages aim to provide information on the status of the implementation of the new Copyright Directive in all EU Member States. The information contained in each country page was collected by local organisations and individuals in each country and/or from public sources. This tracker is part of a wider implementation project of COMMUNIA and its members Centrum Cyfrowe and Wikimedia, which includes a range of activities (including our DSM Directive Implementation Guidelines) to make sure that local communities in as many Member States as possible are aware of their national legislative processes and participate in those processes.

EIFL COMMENTS ON KENYA’S IP BILL

[Electronic Information for Libraries] EIFL has provided comments to the Kenya Copyright Board (KECOBO) on the draft Intellectual Property Bill, 2020, which aims to consolidate existing laws relating to intellectual property. The draft Bill also proposes mandating the development of a national strategy and policy on intellectual property, a potentially useful means of framing copyright within national priority areas such as literacy and education, digital inclusion, research and innovation. A national strategy also provides the opportunity to highlight the place of libraries in national information infrastructures that help deliver on government policies, and the need for copyright laws to support library activities and services in pursuit of these public interest objectives.

Open letter to the EU Ambassador to South Africa on copyright laws

[Association for Progressive Communications and International Federation of Library Associations and Institutions] ... stakeholders across South Africa have being waiting for many years for the update of the country’s copyright laws. With the last reform having taken place 40 years ago, there is a pressing need to bring laws into the digital age, as well as to address the significant problems around the governance of rightholder organisations set out by the Farlam Commission. The resulting bill achieves many of these goals.

How did fair use get into the Korean Copyright Act?

As I explained in my previous blog post, the open-ended fair use clause in the Korean Copyright Act (“KCA”) was introduced in 2011 in the course of implementing the Korea-US FTA (“KORUS”). Yet, this does not mean that KORUS mandates legislation of fair use. Instead, KORUS restricts the scope of fair use. Footnote 11 of KORUS §18.4:1 mentions fair use, but it’s purpose is to make clear that any limitation or exception to the reproduction right to temporary storage is restricted to the controversial three-step test, and even when Korea or the US introduces or maintains fair use, the three-step test prevails... Therefore, it is fair to say that the fair use clause of KORUS is a sort of by-product produced in a way that Korean government blinds dark sides of the overly expansive KORUS protection of copyright in temporary storage.

Eighteen Years After Doha: An Analysis of the Use of Public Health TRIPS Flexibilities in Africa

[Yousuf A Vawda and Bonginkosi Shozi] Abstract: As we observe the 18th anniversary of the Doha Declaration on the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) and Public Health, it is appropriate to take stock of intellectual property developments and endeavour to present a comprehensive account of the situation in the African continent in respect of the implementation of TRIPS flexibilities, specifically those regarding access to medicines. This research paper provides an overview of the extent to which selected African countries have adopted legal and policy frameworks with regard to TRIPS flexibilities, examines the actual use of these flexibilities in enabling access to medicines in those countries, and suggests some recommendations for optimising the use of the flexibilities in pursuing public health imperatives.

South Africa’s Copyright Amendment Bill – one year on

On 28th March 2019, South Africa’s Copyright Amendment Bill was approved by the upper house of Parliament in South Africa, the National Council of Provinces, clearing the way for the President to sign the Bill into law. The long awaited Bill brings the 1978 Copyright Act, adopted in a pre-internet era, into the digital age - rules regarding libraries, archives, education and research had never been updated during this time. But one year on, the Bill has not been signed into law.