Category Limitations and Exceptions

EU Copyright 20 Years After the InfoSoc Directive – Flexibility Needed More Than Ever

[Martin Senftleben] EU copyright legislation has cultivated the constraining function of the three-step test known from Article 9(2) of the Berne Convention, Article 13 TRIPS and Article 10 of the WIPO Copyright Treaty. Instead of transposing into EU law the dualistic concept of these international provisions – the enabling function that creates room for the adoption of copyright limitations at the national level as well as the constraining function that sets limits to domestic copyright limitations – Article 5(5) of the 2001 Information Society Directive and Article 7(2) of the 2019 Digital Single Market Directive reduce the three-step test to the constraining function that further restricts copyright limitations and exceptions (L&Es) which are circumscribed precisely anyway.

Copyright in the Time of COVID-19: An Australian Perspective

[Amanda Bellenger and Helen Balfour] Abstract: COVID-19 has raised many challenges in terms of applying Australian copyright legislation and related policies to higher education context. This paper describes the experience of Copyright Officers at Curtin University and Murdoch University from the initial stages of border-control measures affecting delivery of learning materials to students in China, to the wider disruption of the pandemic with many countries implementing lockdown measures, to the current environment where remote delivery is the “new normal.”

EIFL COMMENTS ON NAMIBIAN COPYRIGHT BILL

[Electronic Information for Libraries] Following a National Stakeholder Conference to discuss the new draft Copyright and Related Rights Bill under development in Namibia, EIFL submitted written comments on the Bill to the Business and Intellectual Property Authority (BIPA), the body that administers IP (Intellectual Property) rights in Namibia. The existing Copyright Act (1994) has no explicit provisions for libraries or persons with disabilities. The review is an opportunity to address this issue and to update the law so that library users and society at large can benefit from digital developments that are transforming library and information services around the world.

Singapore’s Copyright Act 2021: New Exception for Computational Uses and Updates to Fair Use and Educational Exceptions

[Mike Palmedo] Singapore's new Copyright Act came into force on November 21. The law was amended to keep up with changes in ICT technology that affect the creation and consumption of copyrighted works. The Intellectual Property Office of Singapore has posted a good overview, and three more detailed descriptions... This post highlights three changes to the limitations and exceptions that may be of interest to InfoJustice's readers.

A review of the empirical evidence on copyright exceptions

[Bartolomeo Meletti] Abstract: Exceptions are an essential part of the copyright system. They aim to encourage innovation, serve the public interest or respond to market failures. While extensive theoretical and doctrinal research has examined the history, nature, justification, and judicial interpretation of exceptions, empirical evidence in this area of copyright law is limited. This article aims to synthesise the empirical studies on exceptions currently catalogued on the [CREATe] Copyright Evidence Portal.

Kluwer Copyright Blog: Research Exceptions in Comparative Copyright Law

[Sean Flynn] Promoting research and access to its products has always been a core purpose of copyright law, often expressed in limitations and exceptions for research uses. Recent legal scholarship has examined the need for copyright exceptions for text and data mining (TDM) methodologies, and the doctrines recently enacted to achieve this purpose. Empirical scholarship has highlighted the positive impact on scholarship of copyright exceptions for TDM and of more “open” exceptions for research uses. Until now, however, there has not been a collection and categorization of the world’s copyright laws according to the degree to which they provide exceptions for research. The Program on Information Justice and Intellectual Property’s recent report, Research Exceptions in Comparative Copyright Law, fills this gap.

Research Exceptions in Comparative Copyright Law

[Sean Flynn, Michael Palmedo, and Andrés Izquierdo] Abstract: Recent scholarship has highlighted the positive impact on scholarship of copyright exceptions for text and data mining and of more “open” exceptions for research uses. Until now, however, there has not been a collection and categorization of the world’s copyright laws according to the degree to which they provide exceptions for research. In this report, we release the results of the first such study. We show that every copyright law in the world has at least one exception to promote research uses of copyrighted works, but that such exceptions vary widely between countries.

The Natural Right To Parody: Assessing The (Potential) Parody/Satire Dichotomies In American And Canadian Copyright Laws

[Amy Lai] This paper argues that the right to expressing oneself through parodies should constitute part of the core freedom of expression of a normative copyright regime. By drawing upon natural law legal theories, the paper proposes a legal definition of parody that would help to bring the copyright jurisprudence of a jurisdiction more in line with its free speech tradition. It argues that a broad parody definition, one that encompasses a great variety of expressive works but would not compete with the original and its derivatives in the market, is preferable to a narrow one. The paper then explains why the parody defence in American law and the parody exception in the Canadian copyright statute should follow the proposed parody definition, which would properly balance the rights of copyright owners with those
of users.

Nigeria quietly, but surely, embracing balance, openness and flexibility in her copyright regime?

[Desmond Oriakhogba] Sometime in 2012, Nigeria began the process of reforming her over three-decade old copyright law. The extant Copyright Act was enacted in 1988, with some amendments in the early and late 90s. The reform process led to the production of a Draft Copyright Bill (DCB), which was open for comments sometime in 2015 by the Nigeria Copyright Commission (NCC), to repeal the extant Act and re-enact a new Act in Nigeria.

Joint Submission by 14 Scholars to the Government of Canada, re: Copyright, Artificial Intelligence, and the Internet of Things

This submission concerns the interaction between copyright and AI. The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief... In what follows, we explain: The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, consistent with a robust principle of technological neutrality; The importance of ensuring that text and data mining (TDM) activity can be undertaken in Canada without the threat of potential copyright liability. We therefore propose both an opening up of Canada’s fair dealing doctrine to better accommodate TDM activities, and the enactment of a specific statutory provision to confirm that uses of copyright works and other subject matter for TDM (whether commercial or non-commercial) do not infringe copyright; The importance of resisting calls to extend copyright protection to AI-generated outputs. We therefore propose maintaining and confirming the existing principled requirements of human authorship and original expression as preconditions of copyright protection, and we caution against any move to establish new neighbouring or sui generis rights in respect of AI outputs. Works generated by AI should remain in the public domain.

Submission to Nigerian Copyright Office: Consultation on Copyright Amendment Bill

[Sean Flynn and Dick Kawooya] We are grateful for the opportunity to participate in Nigeria’s consultation on its copyright bill. Below, we present some of our research findings from PIJIP’s Project on the Right to Research in International Copyright relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). TDM is a critical element of numerous machine learning and “artificial intelligence” intelligence applications. Our research supports the adoption of the proposed open fair dealing exception for “research.” Our research also supports consideration of an additional specific exception for uses of works in TDM to supplement the proposed general fair dealing exception.

BLIND S.A. AND SECTION 27 CELEBRATE COURT ORDER DECLARING South Africa’s COPYRIGHT ACT UNCONSTITUTIONAL, AND ADVANCE TO CONSTITUTIONAL COURT FOR CONFIRMATION

BlindSA and SECTION27 welcome an order of the High Court of South Africa (Gauteng, Pretoria Division) declaring that the Copyright Act of 1978 is invalid for violating the rights of people who are blind or visually impaired. The case BlindSA v Minister of Trade, Industry and Competition (and others) was heard on the unopposed roll before Judge Mbongwe yesterday 21 September 2021, who made our draft order an order of the court. This is a massive victory for people who are blind or visually impaired, as well as learners with disabilities, who will now be able to access works under copyright in accessible formats more easily!