Category Limitations and Exceptions

A Taxonomy of Training Data: Disentangling the Mismatched Rights, Remedies, and Rationales for Restricting Machine Learning

[Benjamin Sobel] Abstract: This chapter addresses a crucial problem in artificial intelligence: many applications of machine learning depend on unauthorized uses of copyrighted data. Scholars and lawmakers often articulate this problem as a deficiency in copyright’s exceptions and limitations, reasoning that legal uncertainties surrounding today’s AI stem from the lack of a clear exception or limitation, and that such an exception or limitation could resolve the current predicament. In fact, the current predicament is a product of two systemic features of the copyright regime — the absence of formalities and the low threshold of copyright-able originality — combined with a technological environment that turns routine activities into acts of authorship. Equilibrating the economy for human expression in the AI age requires a solution that focuses not only on exceptions to existing copyrights, but also on the aforementioned doctrinal features that determine the ownership and scope of copyright entitlements at their inception.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action

[Sean Flynn, Christophe Geiger, João Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault and Michael W. Carroll.] Abstract: Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, including by providing guidance on the diverse mechanisms that countries may use to authorize TDM research and serving as a forum for the adoption of rules permitting cross-border TDM projects.

Implementing the Marrakesh Treaty in Latin America: A Look at the Experiences of Four CC Community Members

[Brigitte Vézina and Scann] Four years ago today, the Marrakesh Treaty entered into force. The Treaty is truly special in the international copyright law universe: it has a clear humanitarian and social development dimension and it’s the first international treaty that focuses on the beneficiaries of limitations and exceptions, rather than on the rights of creators or holders of related rights. Adopted at the World Intellectual Property Organization (WIPO) in 2013, the Marrakesh Treaty’s main goal is to create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired, and otherwise print disabled (VIPs). The Marrakesh Treaty is a huge step forward for VIPs around the world, as it facilitates access to works in adapted versions. However, making sure the treaty works on the ground in each country or institution is not necessarily plain sailing.

Commission consultation on Article 17 guidance: User rights must be protected at upload

[Paul Keller] At the end of July the Commission published a long awaited “targeted consultation addressed to the participants to the stakeholder dialogue on Article 17 of the CDSM Directive“. With this consultation the Commission makes good on its (pre-covid) promise to “share initial views on the content of the Article 17 guidance” with the participants of the stakeholder dialogue. Nestled in-between 18 questions, the consultation document provides a detailed outline of what the Commission’s guidance could look like once it is finalised. While we have been rather sceptical after the end of the six meetings of the stakeholder dialogue meetings, we are pleased to see that the initial views shared by the Commission express a genuine attempt to find a balance between the protection of user rights and the interests of creators and other rightholders, which reflects the complex balance of the provisions introduced by Article 17 after a long legislative fight.

Influence of Copyright Exceptions and Limitations on Access to Information in Kenya, Ghana and Uganda Libraries

[Magdaline Wanjiru Mungai, Selikem Sebuava Dorvlo, Asaph Nuwagirya, and Marlene Holmner] Abstract: Copyright exceptions promote access to information by users without breaching copyright. This research paper reviews copyright exceptions in Kenya, Ghana and Uganda and how they influence access to information in libraries. Objectives were to find out the implications of copyright exceptions in Kenya, Ghana and Uganda; advantages and disadvantages of copyright exceptions for libraries; and recommend best practices of copyright exceptions.

The Right to Process Data for Machine Learning Purposes in the EU

[Mauritz Kop] Abstract: Europe is now at a crucial juncture in deciding how to deploy data driven technologies in ways that encourage democracy, prosperity and the well-being of European citizens. Normative preferences about how related technology laws ought to be designed should define sustainable exponential innovation policy. These preferences are dynamic and contextual. The upcoming European Data Act provides a major window of opportunity to change the story. In this respect, it is key that the European Commission takes firm action, removes overbearing policy and regulatory obstacles, strenuously harmonizes relevant legislation and provides concrete incentives and mechanisms for access, sharing and re-use of data. The article argues that to ensure an efficiently functioning European data-driven economy, a new and as yet unused term must be introduced to the field of AI & law: the right to process data for machine learning purposes.

An Open Letter to the Government of South Africa on the Need to Protect Human Rights in Copyright

[Cory Doctorow] Five years ago, South Africa embarked upon a long-overdue overhaul of its copyright system, and, as part of that process, the country incorporated some of the best elements of both U.S. and European copyright. From the U.S.A., South Africa imported the flexible idea of fair use -- a set of tests for when it's okay to use others' copyrighted work without permission. From the E.U., South Africa imported the idea of specific, enumerated exemptions for libraries, galleries, archives, museums, and researchers. Both systems are important for preserving core human rights, including free expression, privacy, education, and access to knowledge; as well as important cultural and economic priorities such as the ability to build U.S.- and European-style industries that rely on flexibilities in copyright.

Uneducating Copyright – Member States Can Choose Between ‘Full Legal Certainty’ and Patchworked Licensing Schemes for Digital and Cross-Border Teaching Activities

Author: Bernd Justin Jütte Abstract: The Directive on Copyright in the Digital Single Market supplements the existing exception for teaching of the Information Society Directive. The new exception focuses on digital and cross-border teaching, but fails to provide a legal…

SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL – 5 YEARS ON

[Denise Nicholson] ... On 16 June 2020, the President elected to refer the Bill back to Parliament on the grounds of “constitutional concerns”. What is very disappointing and surprising is that the President ignored a Senior Counsel’s Opinion on the Bill, sent to his office, as well as hundreds of submissions, letters, messages, and public presentations in favour of these exceptions throughout the legislative process. Instead, and perhaps under pressure, he sent the Bill back based purely on one submission to Parliament made by a Senior Counsel on behalf of his client, the Copyright Coalition of South Africa. He failed to give his own presidential reasons or opinion as to why issues raised were likely to be "unconstitutional”.

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

ON A KNIFE EDGE? SOUTH AFRICA’S NEW COPYRIGHT LAW

[EIFL] The Copyright Amendment Bill [B13B - 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities. The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union.

COVID and Copyright – The Right to Research

[Teresa Hackett] In Part II of this two-part blog, EIFL Copyright and Libraries Programme Manager Teresa Hackett examines how the COVID-19 pandemic has highlighted the importance of the right to research through two key issues, text and data mining and digital preservation by cultural heritage institutions, and how WIPO’s proven formula could address the issues. In Part 1 of the blog, we looked at the immediate challenges the COVID-19 pandemic posed for the copyright and licensing framework as education moved online.