Category Limitations and Exceptions

Not the African Copyright Pirate Is Perverse, But the Situation in Which (S)he Lives-Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization “From Below” in IP Law

[Klaus Beiter] Abstract: ...This Article will demonstrate the significance of extraterritorial state obligations (ETOs) for IP law. It focuses on the issue of how the right to education under international huan rights law prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a “constitutionalization” of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

Ensuring Text and Data Mining: Remaining Issues With the EU Copyright Exceptions and Possible Ways Out

[Rossana Ducato and Alain Strowel] Abstract... The importance of TDM has been understood by the European legislator, which has introduced two specifically tailored exceptions in the Copyright in the Digital Single Market Directive. After a critical analysis of the new provisions, the paper argues that they still present several flaws that risk to stifle AI developments in Europe. Thus, the contribution outlines an interpretative framework, based on the analysis of the infringement test, to rethink the rights of reproduction and extraction in line with the economic rationale of copyright and the database right.

Communia Analysis of the Croatian proposal to implement the new education exception

[Timotej Kotnik Jesih and Maja Bogataj Jančič] In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education. Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal.

Letter from 20 Civil Society Groups to USTR Promoting a Balanced Copyright Policy to Benefit All Americans

[Joint letter signed by 20 civil society groups] Dear Ambassador Tai: Congratulations on your confirmation as United States Trade Representative. We write to request that the Biden-Harris Administration return to the Obama-Biden Administration policy of protecting and promoting fair use rights in international copyright policy. The Trump Administration abandoned this policy, and took the contrary position of pressuring countries such as South Africa to abandon fair use proposals. The undersigned organizations, representing consumers, librarians, archivists, educators, and creators, urge this Administration to once again prioritize fair use as an engine of equity. In particular, the United States should praise, not punish, other countries that seek to incorporate fair use in their national copyright laws.

Update on Publisher’s Copyright Infringement Suit Against Sci-Hub and LibGen in India

[Anubha Sinha] This blog post is an update on the copyright infringement suit filed against Sci-Hub and LibGen in the Delhi High Court by Elsevier Ltd, Wiley India, and American Chemical Society... Indian science and academia realise that their right to research is at stake. In January, several Indian scientists and advocacy organisations applied to intervene in the case, to persuade the court to not issue an interim or permanent injunction for dynamic blocking of the websites.

Taking Access Seriously

[BJ Ard] Abstract: Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive.

EIFL CALLS ON WTO TO SUPPORT LDC REQUEST

[Electronic Information for Libraries] EIFL has called on the World Trade Organization (WTO) to grant a request by Least Developed Countries (LDCs) to extend the LDC TRIPS exemption for as long as a country remains an LDC. Article 66.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) grants Least Developed Countries (LDCs) an exemption from implementing the substantive obligations for protection and enforcement of IP rights, including copyright... It shields LDCs from having to adopt higher standards of copyright protection, provides policy space to craft copyright exceptions, such as for libraries and education, to support national priorities on education, literacy, research and innovation, and it avoids costly obligations with regard to the establishment of new criminal procedures, border controls, and other enforcement measures.

Australian Link Code May Violate Berne Convention and Provoke Trade Litigation

[Jonathan Band and Sean Flynn] Next week, the Australian Parliament is set to vote on the “News Media and Digital Platforms Mandatory Bargaining Code” (“Code”). The Code has been a top lobbying priority of Rupert Murdoch’s News Corp, which dominates the news industry in Australia. The Code is incredibly worrisome from an international copyright law perspective, as it is the latest attempt to tax quotation rights protected by the Berne Convention. According to a newly published analysis by two leading international copyright scholars, enactment of the Code would likely violate Article 10(1) of the Berne Convention.

THE CASE FOR INTEGRATING COPYRIGHT LAW WITH THE CONSTITUTIONAL RIGHT TO EDUCATION IN NIGERIA AND DEVELOPING COUNTRIES.

[Samuel W. Ugwumba] Abstract: The commitment to ensure access to education, particularly in developing countries, is a developmental imperative. Lack of education is life-threatening and, if there was any doubt, this is clear from the numerous studies that show a positive correlation between education and other development components. The sad reality, however, is that available data shows a growing crisis of access to education in developing countries exacerbated by socio-economic inequalities and legal obstacles. Particularly, the regime of copyright law, as a market institution, poses challenges to the achievement of education, a non-market good and a developmental imperative. Yet, there is very little analysis in many DCs on the interface between copyright and access to education, preferring instead to see the regime of copyright on a narrow legalistic normative lens that privileges wealth-maximization and undermines the value of access to education.

European Digital Single Market Directive Implementaion Update: More Propsals to Protect User Rights

[Communia Association] The implementation deadline for the Copyright in the Digital Single Market is a mere five months ahead of us. On the 7th of June, the EU Member States are expected to have implemented the 2019 update of the EU copyright rules. With less than half a year to go, it is looking increasingly unlikely that more than a small handful of Member States will manage to implement the new provisions by the deadline. In this post, we are taking stock of the implementation process focusing on what has changed since our update from a month ago.

Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?

[Rita Matulionyte] Abstract: Artificial Intelligence (AI) is an emerging technology that has a huge potential in contributing to the Australian economy and addressing economic and social problems in society. However, Australian copyright laws are likely to impede the development of AI, and machine learning in particular, by requiring authorization every time when copyrighted content is used in machine learning processes.

12 South African Civil Society Groups Demonstrate for COPyright Reform on UN International Human Rights Day

On December 10, International Human Rights Day, twelve South African civil society groups called on the government to modernize its copyright law. The groups led a march from the Department of Trade and Industry to the Union Buildings and delivered a memorandum demanding the passage of copyright reform to protect vital rights.