As the Industry Committee’s copyright review continues to hear from stakeholders from across the spectrum, a recurring theme has been demands that the government create a new, explicit Internet intermediary injunction that would allow for everything from site blocking to search engine result de-indexing to a ban on payment providers offering services to some sites.
[Thomas Faunce] Abstract: In Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113 the ACCC alleged that Pfizer’s ‘Project LEAP’ involved a scheme to lock pharmacists into substituting its generic version of the high sales volume anti-cholesterol drug patent-expired Atorvastatin (Lipitor) which took advantage of a substantial degree of market power for a purpose proscribed by s 46(1)(c) of the Competition and Consumer Act 2010 (Cth). The ACCC also claimed that Pfizer’s actions constituted a course of exclusive dealing pursuant to s 47(1)(d) and (e) for the proscribed purpose of lessening competition. Flick J in the Federal Court of Australia in a judgment heavy with quotations but sparse in reasoning, dismissed the ACCC’s Amended Originating Application alleging abuse of market power and ordered the ACCC to pay Pfizer’s costs. This column explores that case in the context of Pfizer’s broader strategies to preserve its income globally from this high sales volume drug.
[Gerald Leitner] IFLA specifically expresses support for the following points: A) Maintain the fair dealing exception for education... B) Retain the current copyright term of 50 years... C) Protect copyright exceptions from contract override and allow the circumvention of technological protection measures for non-infringing purposes... D) Provide clarity on the legal status of text and data mining (TDM)... E) Ensure e-book availability... F) Indigenous Knowledge.
[Sean Flynn, Michael W. Carroll, Peter Jaszi, Ariel Katz, Leandro Mendonça, Diane Peters, and Allan Rocha de Souza] Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access. None of these and dozens of other digital issues were considered when most of our laws were drafted in the 1970s. South Africa is on the cusp of reforming its law with a new hybrid exception that contains both a set of modern specific exceptions for various purposes and an open general exception that can be used to assess any use not specifically authorized.
[Initiative for Medicines, Access & Knowledge]… I-MAK’s years of research and successful legal challenges show that all too often, drug manufacturers hold unmerited patents on old science. This enables a few manufacturers to corner the market on entire diseases, artificially inflating the price of treatment, and blocking access to affordable generic drugs for decades. We believe America is facing two inter-related challenges: a drug pricing crisis and a patent system that is excessively tilted in favor of pharmaceutical manufacturers over patients.
[Delhi Network of Positive People] 10 July 2018: Delhi Network of Positive People (DNP+) has filed today two patent oppositions before the Indian patent office, challenging additional patent claims by US pharmaceutical corporation-Gilead Sciences for the hepatitis C medicines sofosbuvir and velpatasvir. These oppositions challenge Gilead’s patent applications for the tablet formulation of the fixed-dose combination of sofosbuvir/velpatasvir and the polymorph form of velpatasvir.
[Fix the Patent Laws Coalition, Link] The Fix the Patent Laws Coalition (FTPL) welcomes the news today that the Cabinet of the Government of South Africa has approved the new Intellectual Property (IP) Policy. After nine years of policy development, two different draft policies and various rounds of public consultation, we now finally have an agreed-upon government policy that can guide much-needed law reform. Though we await seeing the final policy until it is gazetted by government, we are optimistic that the policy will herald a new era for access to medicines in South Africa by prioritising people’ lives over the profits of pharmaceutical corporations.
[Tusi Fokane and Ben Cashdan] A new organization of South African creators has formed to press their views in favor of balanced copyright provisions in the ongoing amendment process. ReCreateZA (www.re-createza.org) represents a broad coalition of creatives, including “writers, filmmakers, photographers, educational content producers, software and video game developers, technology entrepreneurs, artists, poets, producers of accessible format materials and other South African creators.”
[Iniciativa Educação Aberta] The Brazilian Ministry of Education (MEC) published an ordinance on the 16th of may, that determines that any educational resources paid for by the Ministry, which is to be used for basic education (K-12) should be open educational resources, giving permissions for anyone to “access, use, adapt and distribute at no cost”. It further emphasises the importance of open formats and standards whenever technically viable.
The accessibsa project (accessibsa.org) has a new report out. Authored by Jonathan Berger and Andrew Rens, the report is titled - Innovation & Intellectual Property in South Africa: The Case for Reform. Jonathan and Andrew examined every patent granted in South Africa between 2005-2015, i.e. over a period of 10 years. Their central questions are whether the current IP regime in SA favours innovation as measured by patents, what the state of innovation as measured by patents in SA is, how it ties into the broader legal framework that governs patents, and how all of this related to the proposed IP reform process underway in SA.
On May 8, Professor Sean Flynn will release the latest PIJIP report - The User Rights Database: Measuring the Impact of Copyright Balance at a public lecture at University of Witwatersrand, Johannesburg, South Africa. The report is being released as the South Africa Parliament deliberates on a copyright amendment bill that includes a proposal to adopt a new open and flexible general exception modeled on the US fair use clause.
[Feroz Ali, Sudarsan Rajagopal, Venkata S. Raman & Roshan John] This report identifies pharmaceutical drug patents granted in likely contravention of anti-evergreening provisions under section 3 of the Indian Patents Act, from a cohort of 2293 patents granted between 2009 and 2016. An estimate of the rate at which the Indian Patent Office (IPO) erroneously grants such patents, as well as the rationale for grants were arrived at by analysing the prosecution history of some grants and the claim language of all granted patents.