Category US Domestic Policies

The Role of Courts in Implementing TRIPS Flexibilities: Brazilian Supreme Court Rules Automatic Patent Term Extensions Unconstitutional

[Vitor Henrique Pinto Ido] This policy brief provides a background, summary and analysis of the Brazilian Federal Supreme Court decision of 6 May 2021 that ruled automatic patent term extensions unconstitutional, striking down Article 40, Sole Paragraph, of the Brazilian Industrial Property Code of 1996. It concludes that this is a landmark ruling that contributes to the implementation of a more balanced patent regime in Brazil, with a positive impact on access to medicines in the country. It is an important precedent in relation to the role that courts may play in defining the contours of intellectual property protection and the TRIPS flexibilities.

Interfaces on Trial 3.0: Google v. Oracle America and Beyond

[Jonathan Band] The final version of Interfaces on Trial 3.0: Google v. Oracle America and Beyond is now available for free download here. This updated version includes an extensive discussion of the Supreme Court’s April 5, 2021, decision in the case, especially its impact on software interoperability. This is the third volume of a history of the global legal debate concerning copyright and competition in the software industry.

The Government of Canada Launches Consultation on a Modern Copyright Framework for Online Intermediaries

[Government of Canada] The Government of Canada is committed to ensuring the Copyright Act remains consistent with modern realities and that revenues of web giants are shared fairly with Canadian creators. Building on the stakeholder engagement and committee reports from the 2019 Parliamentary Review of the Copyright Act and other research, the Honourable Steven Guilbeault, Minister of Canadian Heritage, and the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, are launching a public consultation today on Canada’s copyright framework for online intermediaries to make sure it reflects the evolving digital world.

Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?

[Ariel Katz] Abstract: According to conventional wisdom, a fundamental difference exists between the American fair use doctrine and the Canadian fair dealing doctrine (or that of other Commonwealth countries): while American fair use can apply potentially to any purpose, fair dealing could only apply to the explicit purposes enumerated in the statute. Accordingly, the argument goes, fair dealing cannot apply to dealings for unenumerated purposes no matter how fair they might be. This conventional wisdom is false.

Call for Research Proposals

The Academic Network on the Right to Research in International Copyright is calling for research relevant to the development of global norms on copyright policy in its application to research. Text and data mining research, for example, is contributing insights to respond to urgent social problems, from combatting COVID to monitoring hate speech and disinformation on social media. Other technologies make it possible to access the materials of libraries, archives and museums from afar - an especially necessary activity during the COVID pandemic. But these and other research activities may require reproduction and sharing of copyright protected works, including across borders. There is a lack of global norms for such activities, which may contribute to uncertainty and apprehension, inhibiting research projects and collaborations. We seek to partner with researchers interested in exploring the means and ends of recognizing a “right to research” in international copyright law. In our initial conception, there are at least three overlapping dimensions to the concept.

Publishers Sue Sci-Hub and LibGen in India for Copyright Infringement, Seek to Have Websites Blocked

Three major academic publishers sued Sci-Hub and Libgen for copyright infringement in the Delhi High Court on December 21. Both sites provide unauthorized downloads of academic works to students and researchers. The publishers - Elsevier, Wiley and the American Chemical Society - are asking the judge to require dynamic blocking of the websites.

The Sale of Bob Dylan’s Catalogue and Reversion Rights in South Africa

Universal Music Publishing Group’s purchase of the copyrights to 600 of Bob Dylan’s songs for over $300 million demonstrates the importance of reversion rights to artists. In many countries, a creator who assigns his copyright to a publisher has an opportunity to recapture her rights at some point in the future. These “reversion” or “termination” rights recognize that early in the artist’s career, she has little bargaining strength, and may enter into a one-sided deal favoring the publisher. These reversion rights apply regardless of the contract the artist may have signed with the publisher.

TRIPS Flexibilities on Patent Enforcement: Lessons from Some Developed Countries Relating to Pharmaceutical Patent Protection

[Joshua Sarnoff] Authority for national judiciaries to issue permanent and preliminary injunctions is required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Articles 44 and 50. But the TRIPS Agreement does not require the issuance of injunctions in any particular circumstances, and does not harmonize the laws on which national jurisdictions derive their injunctive relief authorities. Thus, countries remain free to refuse prohibitory injunctive relief for adjudicated or likely patent infringement, particularly if “reasonable compensation” is offered in the form of an “ongoing royalty” or an “interim royalty” payment, which acts similarly to a compulsory license.

Justices Display Concern About Monopolization and Disruption in Google v. Oracle Argument

In yesterday’s oral argument in Google v. Oracle, several Justices expressed serious concerns that an Oracle victory could lead to legal monopolies over de facto standards and serious disruption of settled expectations in the software industry... Significantly, all the Justices understood that the case concerned only the lawfulness of Google’s use of the declarations in the Java application programming interface (“API”), as opposed to the copyrightability of computer programs more generally.

How Far Can Regulations Go? A South African Public Law Perspective on the Potential Response through Regulations to Legitimate and Genuine Issues in the Copyright Amendment Bill, B-13B of 2017

[Jonathan Klaaren] Abstract: This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in the Presidency as part of a section 79 process. This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

Communia Association Copyright Directive Webinars

[Natalia Mileszyk] The process of implementation of the new Copyright Directive is speeding up in various countries (see our Implementation Tracker). Therefore, COMMUNIA has decided to organize a series of webinars aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at the national level, to expand and strengthen user rights. The Copyright Directive Webinars are aimed at local advocates and national policymakers and will be conducted by COMMUNIA members and experts that were involved in preparing our Implementation Guidelines. We will hold four webinars of one hour each, as follows.