Category US Domestic Policies

Testimony to U.S. Senate Judiciary Subcommittee on Intellectual Property Artificial Intelligence and Intellectual Property

[Matthew Sag] ... Although we are still a long way from the science fiction version of artificial general intelligence that thinks, feels, and refuses to “open the pod bay doors”, recent advances in machine learning and artificial intelligence (“AI”) have captured the public’s imagination and lawmakers’ interest. We now have large language models (“LLMs”) that can pass the bar exam, carry on a conversation on almost any topic, create new music, and new visual art. The principal copyright questions that you as law makers must consider relate to (1) the copyrightability of artifacts made with generative AI; and (2) the legality of using copyrighted works to train machine learning models, without express consent.

Colombia to Challenge AIDS Drug Patents

[Public Citizen Press Release] Colombia will soon decide whether to authorize price-cutting generic competition with a critical patented AIDS drug, directly challenging pharmaceutical industry power under a new health ministry resolution in one of the hemisphere's most influential states. In anticipation of the decision, https://www.citizen.org/article/letter-to-colombias-minister-of-health-supporting-colombias-right-to-issue-a-compulsory-license-for-hiv-treatment-dolutegravir/ Colombian Minister of Health Guillermo Alfonso Jaramillo to support expanding access to dolutegravir, calling the move a "stand for health justice."

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.

Canadian Copyright, Fair Dealing and Education, Part One – Setting the Record Straight

[Michael Geist] Canadian copyright lobby groups have relentlessly lobbied the government to overturn decades of Supreme Court of Canada jurisprudence, seeking unprecedented restrictions on fair dealing that include eliminating it for educational institutions if a licence is available. In doing so, they have relied on a steady diet of misleading claims about the state of the law, the licensing practices of Canadian educational institutions, the importance (or lack thereof) of copying of materials in course packs, and the effects of fair dealing. This week is Fair Dealing Week, which provides an opportunity to set the record straight on Canadian copyright and education, backed by actual data on what takes place on university campuses across the country.

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...

Israel Ministry of Justice Issues Opinion Supporting the Use of Copyrighted Works for Machine Learning

[Jonathan Band] The Israel Ministry of Justice has issued an important opinion concluding that the use of copyrighted materials in the machine learning (ML) context is permitted under existing Israeli copyright law. In particular, the opinion found that ML typically will fall within the scope of the Israel Copyright Act’s fair use provision. The opinion thus adds to the growing body of law around the world permitting the use of copyrighted works for ML and text and data mining (TDM).

South African Constitutional Court Rectifies Copyright Discrimination for People with Disabilities

[Sanya Samtani] In a unanimous judgment, the Constitutional Court of South Africa confirmed the Pretoria High Court’s finding that the Copyright Act 1978 is unconstitutional and unfairly discriminatory to the extent that it fails to provide for for people with visual and print disabilities. This vindicates a decades-long struggle by BlindSA, the applicants, represented by SECTION27. It is also the first instance of a Constitutional Court requiring copyright legislation to provide for an accessible format shifting provision on the basis that constitutional rights are limited by overly restrictive copyright laws.

South African Constitutional Court Reads Disability Exceptions Into Copyright

[Sean Flynn] In a huge court victory that may assist human rights and IP advocacy, the SA Constitutional Court released a quite remarkable judgment today that “reads in” the copyright amendment bill’s disability provisions into the current law because of the long delay in passing the bill. The Court finds that the lack of disability exceptions in current law violates the equality right of people with disabilities. It also finds a violation of free expression rights that uses reasoning with broader import.

Big Win: White House OSTP Releases New Guidance on Access to Federally Funded Research

[PIJIP] The White House Office of Science & Technology Policy (OSTP) issued an updated memorandum updating the 2013 White House OSTP Memorandum on Public Access to Publicly Funded Research Results to make “articles resulting from all U.S. federally funded research freely available and publicly accessible by default in agency-designated repositories without any embargo or delay after publication.”  It eliminates the 12-month embargo and makes articles—and the underlying data needed to validate results—openly available in machine readable formats.

Competition Law and Intellectual Property: A Study Drawing from The Eli Lilly Case on ‘Sham Litigation’ in Brazil

[Pablo Leurquin] Competition authorities may be the best equipped institutions to penalize certain illicit practices that involve intellectual property rights. This article analyzes the decision by the Brazilian Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica – CADE) in the Eli Lilly case, in which the company was convicted for abusive use of the right to petition (sham litigation) with anti-competitive effects. It examines general aspects of technological dependence in the Brazilian pharmaceutical industry, presents the legal premises necessary for the understanding of the decision made by the competition authority, and analyzes the legal grounds for the sanction imposed on Eli Lilly.