Category Multilateral Fora

South African Constitutional Court Reads Disability Exceptions Into Copyright

[Sean Flynn] In a huge court victory that may assist human rights and IP advocacy, the SA Constitutional Court released a quite remarkable judgment today that “reads in” the copyright amendment bill’s disability provisions into the current law because of the long delay in passing the bill. The Court finds that the lack of disability exceptions in current law violates the equality right of people with disabilities. It also finds a violation of free expression rights that uses reasoning with broader import.

WIPO Decides to Hold Two Diplomatic Conferences no later than 2024

[Wend Wendland] On July 21, 2022, the General Assembly of the World Intellectual Property Organization (WIPO) decided that, by 2024, two diplomatic conferences should take place, one on a proposed new Design Law Treaty, and the other on genetic resources and associated traditional knowledge (TK). Diplomatic conferences are held to negotiate and adopt or revise multilateral treaties and conventions. This decision was as unexpected as it is momentous.

Why the Education Community Should Be Paying Attention to the WTO E-commerce Work Programme

[Michael Geist] ...As further discussed in an Education International policy brief "E-commerce, Education and Copyright", the merger of e-commerce and education opens the door to new, for-profit online educational service providers that may have a disruptive impact on a sector that has traditionally operated primarily on a non-commercial, public interest basis... Unfortunately, the implications for education of these e-commerce and copyright rules are frequently an afterthought as trade negotiations are primarily driven by intellectual property (IP) interests, including the cultural and publishing sectors. There is a need for greater understanding of the implications of e-commerce and IP rules within trade agreements, the retention of policy flexibility and privacy safeguards, the scope for exceptions for education and research, and the opportunity for educational stakeholders, including teachers, students, and institutions, to participate in trade policy development at the national and international levels.

TRIPS Waiver and its (Jabby) Journey: Side by Side Comparison of the (Waiver?) Drafts from 2020 – 2022

[Lokesh Vyas] This is a short descriptive post highlighting the vitriolic waiving of TRIPS Waiver - which began with a proposal (by India & South Africa) waiving all the Intellectual Properties (IP) limitedly but ended up with a (pre-decided?) decision giving some leeway on compulsory licensing of patents (that’s it!). In sum, the journey is Intellectual Property Waiver to Compulsory Licensing Leeway.

Conceptualizing a ‘Right to Research’ and Its Implications for Copyright Law: An International and European Perspective

[Christophe Geiger and Bernd Justin Jütte] Copyright, at international, European and national levels, does not provide a legal framework that prioritizes enabling and incentivizing research using protected works and information to the extent necessary and desirable in a digital, data-driven society in order to build a sustainable ecosystem for innovation and creativity. While small progress has been made, for example with the recent introduction of specific exceptions for research purposes and for text and data mining in certain national legislations as well as in the European Union law, a horizontal approach towards a more research-friendly copyright ecosystem has so far failed to evolve. By revisiting international and European human and fundamental rights instruments as well as the aims and objectives of the European Union, it is possible to distill research as a constitutional and ethical imperative. Conceptualizing a fundamental ‘Right to Research’ and integrating it into a constitutional dialogue provides a convincing argument to rethink copyright towards a research-oriented normative system.

The COVID-19 TRIPS Waiver and the WTO Ministerial Decision

[Peter Yu] Abstract: .. This chapter traces the TRIPS waiver debate from the submission of the original proposal by India and South Africa in October 2020 to the final adoption of the Ministerial Decision on the TRIPS Agreement in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier TRIPS waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat the COVID-19 pandemic.

User Rights in WIPO Broadcast Treaty Must Be Strengthened

[Electronic Information for Libraries] At WIPO’s Standing Committee on Copyright and Related Rights (SCCR/42) that took place in May 2022, the Committee agreed that the Chair would revise the Draft Text for the WIPO Broadcasting Organizations Treaty (document SCCR/42/3) based on comments, suggestions and questions from delegations. EIFL’s comments focus on Limitations and Exceptions (Article 10). To ensure fair access to copyright-protected content for social, educational and public interest reasons, EIFL calls for the significant strengthening of Article 10. Currently, there is no obligation to provide exceptions of any kind for social, educational or informational uses because Article 10 is optional, not mandatory. It doesn’t provide for exceptions that are mandatory in other treaties, such as the right of quotation and news of the day in the Berne Convention, and the making of accessible format copies in the Marrakesh Treaty.

IPR-Related Statistics in WTO Trade Policy Reviews

[Peter Lunenborg] The WTO Secretariat Trade Policy Review (TPR) report is an important tool for a WTO Member which synthesizes objective trade-related information in a single document and enables the monitoring of developments in trade. Relevant statistics are therefore an important element of a TPR report. Currently the practice of using statistical information on intellectual property rights (IPRs) across TPRs is not uniform. This Policy Brief surveys the use of IPR-related statistics in WTO TPRs with a view to exploring possible harmonization and inclusion of common information elements in future TPRs.

WTO Ministerial Decision: ‘TRIPped’ the Waiver

[Shirin Syed] The 12th Ministerial Conference (MC12) concluded on Friday, June 17, 2022, with a “Ministerial Decision on the TRIPS Agreement”, to facilitate exportation of Covid-19 vaccines under the compulsory licence to enhance availability and accessibility for poor countries... The TRIPS Decision no longer remains an IP waiver as proposed originally by India and South Africa and 65 co-sponsors. It lacks the comprehensive measures as in the original proposal to address the concern of production and supply of Covid-19 vaccines to meet global demand, especially from lower-income countries who are deprived of their fair share of vaccines in the current pandemic.

Doha Twenty Years On – Has The Promise Been Betrayed?

[Yousuf Vawda and Bonginkosi Shozi] The Doha Declaration’s twentieth anniversary in November 2021 has taken place in the midst of the COVID-19 pandemic. The experience of the past two years has demonstrated that the very factors that necessitated the Declaration—the problems of inequitable access to medicines and other health technologies for the world’s poor—continue to plague us.

Manufacturing for Export: A TRIPS-Consistent Pro-Competitive Exception

[Carlos M. Correa and Juan I. Correa] The paper discusses the flexibilization of the sui generis system of supplementary protection certificates (SPCs) under European law recently introduced to allow for the manufacturing, stockpiling and export of covered products. Against this background, it examines the viability under the Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement) of an exception allowing for the manufacture and export of patent-protected products. It concludes that such an exception would promote competition and enhance access to medicines (including biologicals) for the general public while being consistent with Article 30 of the TRIPS Agreement if read in accordance with the principles of interpretation of customary international law.