Category Limitations and Exceptions

End-User Flexibilities in Digital Copyright Law – An Empirical Analysis of End-user License Agreements

[Péter Mezei and István Harkai] Abstract: In the platform age, copyright protected contents are primarily disseminated over the internet. This model poses various challenges to the copyright regime that was mainly designed in and for the analogue age. One of these challenges is related to the fair balance between the interests of rightholders and other members of the society. Copyright norms try to guarantee this balance by granting a high level of protection for rightholders and preserving some flexibility for end-users. Regulation by platforms’ end-user license agreements might also be relevant to preserve that balance. The present paper focused on how these private norms allow for or diminish the exercise of user flexibilities. We collected, analysed and compared seventeen private ordering practices of service providers grouped in four main categories.

ANALYSIS OF WIPO SCCR 41 AGENDA: Day 2, Limitations and Exceptions

[Sean Flynn] This note provides analysis of the Limitations and Exceptions agenda item of the WIPO SCCR 41 Agenda, currently slated to be discussed on June 29-30. The Agenda calls for Members, IGOs and NGOs “to make general comments, with a focus on the Report on Regional Seminars and International Conference (SCCR/40/2), especially the sections on The Way Forward and Take-Away Considerations (pages 63-72).” It also invites “inputs on possible next steps, including the possibility of holding a number of regional consultations before the next session to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them.” This note analyzes these two issues separately, and concludes with suggestions of elements that be included in a work plan for SCCR going forward.

Analysis of WIPO SCCR 41 Agenda: Day 2, Limitations and Exceptions

[Sean Flynn] This note provides analysis of the Limitations and Exceptions agenda item of the WIPO SCCR 41 Agenda, currently slated to be discussed on June 29-30. The Agenda calls for Members, IGOs and NGOs “to make general comments, with a focus on the Report on Regional Seminars and International Conference (SCCR/40/2), especially the sections on The Way Forward and Take-Away Considerations (pages 63-72).” It also invites “inputs on possible next steps, including the possibility of holding a number of regional consultations before the next session to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them.”

ANALYSIS OF WIPO SCCR 41 AGENDA: DAY 1, BROADCAST TREATY

[Sean Flynn] The WIPO SCCR 41 Agenda asks for comments on possible next steps on the discussion of the Broadcast Treaty proposed Chair’s text. One needed next step is to address the Limitations and Exceptions provision. This provision currently is more limited than the exceptions provided under the Rome Convention and fails to incorporate any of the priorities of the Action Plans on Limitations and Exceptions on preservation, online uses, and cross border uses for libraries, archives, museums, education, research, and people with disabilities. This provision requires significant expansion to ensure that the Broadcast Treaty is balanced and does not harm the public interest.

Designing a Freedom of Expression-Compliant Framework for Moral Rights in the EU: Challenges and Proposals

[Christophe Geiger and Elena Izyumenko] ... The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

IFLA Statement on Controlled Digital Lending

[International Federation of Library Associations] Controlled Digital Lending (CDL) has become widely talked about over the last two years, and in particular in the context of the COVID-19 pandemic. While the specific term has only relatively recently come to be used[1], forms of controlled lending have been utilised for many years, for example in the context of document supply. As such, controlled lending has helped to fulfil the mission of libraries to support research, education and cultural participation within the limits of existing copyright laws. Licensed eBooks have opened the door to a radical undermining of the traditional public interest functions and freedoms of libraries. These still exist for paper books, but with the advent of licensed eBooks, libraries are no longer free to decide when or what to purchase, with some publishers even refusing to sell to libraries. Controlled digital lending provides an alternative to a licensing approach, and so a means of redressing the balance.

ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

[Sean Flynn] At the 40th Session of the Standing Committee on Copyright and Related Rights, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. That Report is subject to comment by Member States. This Note provides analysis of the Report that may be useful to Delegates and stakeholders participating in the meetings of the SCCR. The Report helpfully summarizes a large amount of agreement about the main problems and solutions that need to be addressed by the international system. These problems include a lack of exceptions in a majority of countries for: Preservation for cultural heritage; Communications in online learning and research; Cross border uses for education, research, and the activities of libraries, archives and museums.

South Africa Parliament Calls for Comments on Fair Use

[Sean Flynn] South Africa Parliament’s Portfolio Committee on Trade and Industry has invited a further round of public comments on the Copyright Amendment Bill provisions to introduce fair use and expand limitations and exceptions for libraries, education and other public interest uses. The Committee invites submissions with reference on the expansions on the Bill’s provisions fair use and for other purposes in Sections sections 12 and 19. It also invites comments on additional sections of the Bill that may implicate the “alignment” of the Bill with the provisions of several international treaties.

If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework

[Anthony Rosborough] Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets?

Letter from 141 Scholars to USTR, re: United States Facilitation of the TRIPS Waiver

Dear Ambassador Tai: As members of the academy, we welcome your new leadership as an opportunity to both restore the standing of the United States as a global leader as well as to build global confidence in the United States as a reliable ally. The leadership of the United States as well as the confidence over the policies supported by the United States is important at this time when the globe seems to be reeling in a crisis caused from a pandemic. The pandemic has highlighted that a public health crisis in one part of the world can affect not just global trade but also affects issues that the United States as well as the WTO stands for, in unimaginable ways. Thus, the pandemic makes it imperative for countries to find solutions to promote global collaborations during the current crisis.

A New WHO International Treaty on Pandemic Preparedness and Response: Can It Address the Needs of the Global South?

[Germán Velásquez and Nirmalya Syam] A recent joint communiqué by 25 Heads of Government and the WHO Director-General have called for the negotiation of a pandemic treaty to enable countries around the world to strengthen national, regional and global capacities and resilience to future pandemics. The COVID-19 pandemic has demonstrated the fragility of the mechanisms at the disposal of WHO for preparedness and response to pandemics. The use of binding instruments to promote and protect health in the context of pandemics is needed.

Joint Academic Opinion on South Africa’s COpyright Amendment Bill (B-13B of 2017)

[Malebakeng Forere, Klaus D. Beiter, Sean M. Fiil-Flynn, Jonathan Klaaren, Caroline Ncube, Enyinna Nwauche, Andrew Rens, Sanya Samtani and Tobias Schonwetter] We offer the enclosed Joint Opinion on the President’s referral of the Copyright Amendment Bill back to Parliament. We address the President's reservations about the Bill’s constitutionality, as well his expressed concerns about the Bill’s domestic application of international law. We analyse each of, and only, the specific clauses in the CAB that are mentioned in the President’s letter. The question we ask and answer is whether Parliament should take action to bolster the constitutionality of any of the provisions identified in the President’s letter.