Category Domestic Policy

Industry Weighs In on DOJ’s Standards Essential Patent Policy Reversals

Beginning in November 2017, Makan Delrahim, head of the U.S. Department of Justice Antitrust Division, signaled that he would reverse many of the DOJ’s prior positions regarding technical standardization and, especially, patents covering technical standards (so-called Standards Essential Patents or SEPs) (the 2017 announcement is discussed in detail here). The latest step in this DOJ reversal of direction came in December 2018, when Mr. Delrahim announced that the DOJ would withdraw from a 2013 joint Policy Statement that the DOJ issued with the U.S. Patent and Trademark Office (PTO). The DOJ’s unexpected withdrawal from the Joint Policy Statement has prompted significant reactions within the industries affected by standardization, including statements of strong support for the DOJ’s new position by an inventors’ alliance and a coalition of large SEP holders, and statements urging the DOJ’s reconsideration by the American Antitrust Institute (AAI) [note: the author serves on the Advisory Board of the AAI] and a coalition of technology companies.

Legislative and Regulatory Takings of Intellectual Property: Early Stage Intervention Against a New Jurisprudential Virus

[Frederick Abbott] Abstract: During the past year various members of the United States Congress have introduced legislation intended to ameliorate the high cost of pharmaceuticals, as well as to stimulate innovation using alternative mechanisms to the traditional patent system model. Several of the legislative proposals would authorize third-party importation of prescription pharmaceutical products from one or more countries. One issue considered by drafters of these legislative proposals was whether to include amendment of the United States Patent Act to authorize importation of pharmaceutical products first put on the market under the authority of the patent owner outside the United States. In other words, whether to provide for international exhaustion of patent rights, at least as to pharmaceutical products.

The New Copyright Directive Is a Lost Opportunity for Europe – And Shows Lack of Respect for User Rights

[Communia Association] The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.

EU COPYRIGHT REFORM SHOWS NEED FOR GLOBAL REFORM

[Teresa Hackett] ... a closer look at European copyright legislation, including the Directive adopted by the European Parliament on 26 March 2019, demonstrates that both blocs clearly recognize the inadequacy of the current international framework to address barriers created by national copyrights for cross-border activities by educational and cultural heritage institutions. And they have addressed the problem through the adoption of pan-European legislation. In other words, European copyright reforms demonstrate the need for global copyright reform.

South Africa Moves Forward With Creator Rights Agenda

South Africa took another step toward enactment of a Copyright Amendment Bill focused on improving the lot of creators. On March 20, the committee of jurisdiction in the National Council of Provinces voted 6-3 in favor of reporting the bill to the full house next week without amendment. The full house is likely to pass the bill, clearing the last hurdle before the President can sign the bill into law.

Say YES to Copyright and NO to Article 13

[Communia Association] Earlier today, on the eve of tomorrow’s vote, we distributed 750 copies a journal titled “Say YES to copyright and NO to Article 13” to the offices of the MEPs in Strasbourg. This is part of a last ditch effort by civil society organisations to prevent MEPs from approving a new copyright directive that includes the disastrous Article 13. You can download our journal here (pdf) and we are re-publishing the text of the editorial below.

ReCreate South Africa and Wikimedia ZA Panel on Copyright Amendment Bill

[ReCreate South Africa] The Copyright Amendment Bill has provoked a number of negative reactions in the wake of its passing before the National Assembly, with summits and symposiums by Copyright elitists claiming that the Bill will infringe on their copyrights. ReCreate in partnership with Wikimedia ZA feel that there is a need to remind the public of the true benefits and reasons we support the Copyright Amendment Bill.

Statement on South Africa’s Copyright Amendment Bill [B13-2017]

The Bill is exceptional in including what will be the world’s most well considered and detailed fair use right. The fair use and education rights are eminently reasonable for a country founded on the principle that all laws must promote the Bill of Rights, including rights to freedom of speech, to receive information, and to education.

Statement by Michael A. Carrier to Health Subcommittee of House Committee on Energy & Commerce

[Michael Carrier] My testimony to the Health Subcommittee of the House Energy & Commerce Committee supports legislation being considered to lower high drug prices. First, I support the CREATES Act and FAST Generics Act, which would ensure that generic companies receive the samples they need to enter the market. Second, I support the FAIR Generics Act, which would ensure that the 180-day exclusivity period is serving the purpose it was intended to by rewarding not just the first generic filer (who could settle with the brand by agreeing to delay entering for years) but also the first generic to win in court, demonstrating that the patent is invalid.

A Final X-Ray of Article 13: Legislative Wishful Thinking that Will Hurt User Rights

[Communia Association] The final version of Article 13 continues to be so problematic that as long as it remains part of the overall package, the directive as a whole will do more harm than good. This is recognised by an increasing number of MEPs who are pledging that they will vote against Article 13 at the final plenary vote. The flowchart below illustrates the main operative elements of Article 13. These include the definition of the affected services, the types of services that are explicitly excluded from its scope (the green box in the top right corner) and the reversal of the liability rules for the services covered by Article 13.

Dispelling Myths About Fair Use

South Africa and other countries are currently considering proposals to convert from a “fair dealing” to a “fair use” user rights system. Some critics of the change fill their arguments with hyperbole without describing the facts about what is really at stake. This note attempts to dispel some common myths about fair use by describing what fair use is, and what is not.