Law Commons^™

Elaborating A Human Rights Friendly Copyright Framework For Generative Ai, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This paper analyses the copyright issues related to so-called “generative AI” systems and reviews the arguments currently advanced to change the copyright regime for AI-generated works from a human rights perspective. It argues that because of the applicable human rights framework for copyright but also the anthropocentric approach of human rights the protection of creators and human creativity must be considered the point of reference when assessing future reforms with regard to copyright and generative AI systems. Consequently, the copyrightability of AI-generated outputs should be considered with utmost care and only when AI is used as a technical tool for …

Building A Text And Data Mining Limitation: The Brazilian Case, Luca Schirru, Allan Rocha De Souza, Claudia Chamas

Joint PIJIP/TLS Research Paper Series

In recent years, there has been a growing body of legal regulation of

TDM. Since 2018, Japan, the European Union, Singapore and others have

promoted changes to their copyright law and included specific limitations and

exceptions for TDM. These changes have been slow in the Global South and

the developing world, even though they are urgently needed there. This report

aims to present the Brazilian copyright legal framework and the policy

documents related to Intellectual Property, Artificial Intelligence and

innovation influencing political and public debate. This set of policies and

legislative texts provides the grounds for the discussion on the …

Briefing Note: 45th Meeting Of The Wipo Standing Committee On Copyright And Related Rights, Sean Flynn

Joint PIJIP/TLS Research Paper Series

This analysis provides a historical and legal overview of the principle agenda items to be discussed at the 45th meeting of the Standing Committee on Copyright and Related Rights.

Measuring Change In Copyright Exceptions For Text And Data Mining, Michael Palmedo, Momina Imran, Miguel Alvarenga, Luca Schirru, Duc Le

Joint PIJIP/TLS Research Paper Series

Copyright exceptions for researchers are under debate at the World Intellectual Property Organization and within domestic governments, yet empirical research in this area is rare. In this early working paper, we aim to add to this nascent body of research. We expand PIJIP’s previous review and classification of copyright exceptions in WIPO Members’ laws by tracing changes in the laws over time. We find that most countries have copyright exceptions allowing some unauthorized uses for research purposes. However, most countries’ exceptions restrict some mix of the users, uses, or types of works that are allowed. High-income countries tend to be …

Compliance Of National Tdm Rules With International Copyright Law: An Overrated Nonissue?, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

Seeking to devise an adequate regulatory framework for text and data mining (TDM), countries around the globe have adopted different approaches. While considerable room for TDM can follow from the application of fair use provisions (US) and broad statutory exemptions (Japan), countries in the EU rely on a more restrictive regulation that is based on specific copyright exceptions. Surveying this spectrum of existing approaches, lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure …

Korea’S 2011 Copyright Act Amendments And Innovation By Online Service Providers, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

In 2011, Korea amended its Copyright Act to comply with the U.S.-Korea Free Trade Agreement’s intellectual property chapter, which included an obligation to enact a safe harbor for secondary copyright infringement in the online environment. Safe harbors protect internet firms from legal liability when their users post infringing content online, on the condition that the firms maintain a system to efficiently remove infringing content when notified of the infringement by rightholders.

This paper tests whether the newly established safe harbors had an impact on innovation by Korean internet firms. I hypothesize that the amendments alleviated litigation risks faced by internet …

Transitional Justice, Truth, And Copyright: The Case Of Colombia, Marcela Palacio Puerta

Joint PIJIP/TLS Research Paper Series

The impact of copyright on various aspects of human life is becoming increasingly evident. This paper explores, for the first time in the literature, the relationship between copyright and the search for peace, with a focus on the transitional justice process in Colombia. Through a documentary research methodology, the study highlights the challenges posed by copyright laws that lack certainty in the application of exceptions and limitations to the digital world. Such challenges can difficulty a process that is inherently complex and holds great significance. Moreover, these laws also affect access to information, which is crucial in a context where …

Government Role In Realising A ‘Right’ To Research In Africa, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

Development agendas and plans such as World Intellectual Property Organisation (WIPO) Development Agenda, African Union Agenda 2063, South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021 – 2025, etc. indicate the need for and benefits of research for development. Research as an activity is needed for countries to sharpen their innovative edge and contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions implementing a right to research in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of …

Limitations And Exceptions In International Copyright And Related Rights Treaties, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Copyright limitations and exceptions have been an integral part of international copyright and related rights treaties since the original text of the Berne Convention in 1886, which protected the ability to adopt exceptions for uses for “educational” and “scientific” uses. Since that instrument, there has been great -- if uneven -- development of norms on limitations and exceptions. Currently, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights is considering limitations and exceptions in the draft text for a treaty on broadcast organizations as well as a proposal from the African Group for a work programme on …

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

Joint PIJIP/TLS Research Paper Series

The ease of travel in the globalized, modern world is a double-edged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

Conceptualizing A "Right To Research" And Its Implications For Copyright Law: An International And European Perspective, Christophe Geiger, Bernd Justin Jutte

American University International Law Review

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 …

Reconceptualizing Open Access To Theses And Dissertations, Orit Fischman Afori, Dalit Ken-Dror Feldman

Joint PIJIP/TLS Research Paper Series

Theses and dissertations (TD) are academic research projects that are conducted by graduate students to acquire a high academic degree, such as a PhD. The perception of the written TD has evolved over the years, following changes concerning the purpose of advanced academic studies. Today, these academic fruits should meet a high standard of academic innovation, which is understood broadly as encompassing not only knowledge concerning basic science but also the knowledge that generates social and economic value for society.

The modern perception of TD has generated a call for their greater accessibility, as part of the Open Science movement. …

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

American University International Law Review

The ease of travel in the globalized, modern world is a doubleedged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya

Joint PIJIP/TLS Research Paper Series

This report is based on desk research conducted from June 2021 to May 2022 by way of a survey of publicly available information on Reproduction Rights Organisations (RROs) in all 55 African Union (AU) member states. It is the first of a two-part study. The second part of the study will be conducted as empirical research where data will be obtained from relevant stakeholders in the collective management systems of African countries to address key issues flagged in this report as requiring further evidence.

This report examines the current status of RROs in Africa to help inform policy and legislative …

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of …

Research Exceptions In Comparative Copyright, Sean Flynn, Luca Schirru, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM. Notably, …

A Novel Dataset Measuring Change In Copyright Exceptions, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

Copyrights grant creators long periods of market exclusivity during which they or their agents have the exclusive right to reproduce and distribute their works. However, copyright exceptions limit their scope and strength. The laws on both copyright protection and copyright exceptions vary substantially from one country to the next. This working paper introduces a novel, survey-based dataset that describes changes to 24 countries’ laws on copyright exceptions over time. To explore the data, I construct two indices from subsets of the dataset; one that focus on exceptions related to ICT technologies and another that focuses on educational uses. The indices …

Research Exceptions In Comparative Copyright Law, Sean Flynn, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

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. We conclude that the world’s exceptions for …

Non-Patent Intellectual Property Barriers To Covid-19 Vaccines, Treatment And Containment, Sean Flynn, Erica Nkrumah, Luca Schirru

Joint PIJIP/TLS Research Paper Series

As the World Trade Organization considers a proposal to waive or otherwise address intellectual property barriers to the global response to the COVID-19 pandemic, most of the attention given by scholars and policy makers has been focused on patents. The original proposals by South Africa and India, as well as the groundbreaking support of the United States, however, explicitly applied to all forms of intellectual property. This paper documents many instances where non-patent forms of intellectual property create barriers to the global scale up of access to vaccines, treatments, and the ability to contain the virus through social distancing. Addressing …

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys J. Craig, Michael Geist, João Quintais

Testimony and Submissions

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …

Submission To South African Parliament's Portfolio Committee On Trade And Industry - Re: Copyright Amendment Bill [B13b - 2017], Global Expert Network On Copyright User Rights

Testimony and Submissions

This submission is on behalf of the Global Expert Network on Copyright User Rights. The Network is an association of over 100 copyright academics from over 30 countries who conduct research and offer technical assistance to governments and stakeholders on the reform of copyright limitations and exceptions to promote the public interest.

Professor Sean Flynn, Counsel of Record, is a former Law Clerk for the late Chief Justice Arthur Chaskalson, is currently a Senior Research Fellow at the University of Cape Town IP Unit, and has been conducting research and leading academic projects in South Africa for over two decades. …

Statements To The Wipo Standing Committee On Committee On Copyright And Related Rights, Electronic Information For Libraries

Testimony and Submissions

As an NGO accredited with permanent observer status at WIPO, EIFL has the opportunity to make interventions at sessions of WIPO committees and meetings

EIFL advocates at the World Intellectual Property Organization (WIPO) for an international copyright framework that benefits libraries in developing and transition economy countries. We participate in sessions of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) that usually meets in Geneva twice a year. Due to the COVID-19 pandemic, just one SCCR took place in 2021, in hybrid mode (online for observers and limited physical participation for member state delegates).

We work with Member States …

Eifl And Library Group Comments On Updated Draft Wipo Cmo Toolkit (2021), Electronic Information For Libraries

Testimony and Submissions

EIFL and partner organizations in the library, archives and museum communities responded to a public consultation to provide additional comments on the updated draft WIPO Good Practice Toolkit for Collective Management Organizations (CMOs), released on 27 May 2021. Publication of the updated draft Toolkit follows an earlier consultation that took place in April 2021.

The updated version of the Toolkit contains an expanded section on supervision and monitoring of CMOs (Section 13). We noted three concerns in the updated Section 13, in particular. In our comments, we propose a number of amendments to address the concerns in Section 13, along …

Reforming The Right To Remuneration In The South African Copyright Amendment Bill, Malebakeng Agnes Forere

Joint PIJIP/TLS Research Paper Series

One of the core goals of South Africa’s Copyright Amendment Bill is to provide a right to fair remuneration for all authors and performers. This objective was motivated by the experiences of numerous famous South African creators who, despite their success in the creative industry, died as paupers. The problem that the Bill seeks to address is that the distributors of copyrighted work are dominated by multinational monopolies that are able to exact enormous concessions in their contracts with South African creators. Among the tools to address this problem in the Bill is a new right to a “fair royalty” …

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

Joint PIJIP/TLS Research Paper Series

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners’ native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law.

Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state …

The Missing Goal-Scorers In The Artificial Intelligence Team: Of Big Data, The Fundamental Right To Research And The Failed Text And Data Mining Limitations In The Csdm Directive, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This article argues that recent strategies of the European Union in the field of Artificial Intelligence (AI) resemble a football team missing a goal-scorer to win any of the competitions with other jurisdictions having more flexible limitations to copyright, in particular with those allowing robust text and data mining (TDM) activities. It analyses the TDM limitations newly introduced in EU copyright law by the Directive on Copyright in the Digital Single Market to show that these provisions not only fail to take duly into account the right to research grounded in the fundamental right to information, but also will not …

Platform Liability Under Article 17 Of The Copyright In The Digital Single Market Directive, Automated Filtering And Fundamental Rights: An Impossible Match, Christophe Geiger, Bernd Justin Jütte

Joint PIJIP/TLS Research Paper Series

The Directive on Copyright in the Digital Single Market (CDSM Directive) introduced a change of paradigm with regard to the liability of some platforms in the European Union. Under the safe harbour rules of the Directive on electronic commerce (E-Commerce Directive), intermediaries in the EU were shielded from liability for acts of their users committed through their services, provided they had no knowledge of it. Although platform operators could be required to help enforce copyright infringements online by taking down infringing content, the E-commerce Directive also drew a very clear line that intermediaries could not be obliged to monitor all …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

"Fair Use" Through Fundamental Rights In Europe: When Freedom Of Artistic Expression Allows Creative Appropriations And Opens Up Statutory Copyright Limitations, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, …

The Domestic Effect Of South Africa's Treaty Obligations: The Right To Education And The Copyright Amendment Bill, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

On 16 June 2020, the President of South Africa returned the Copyright Amendment Bill [B-13 of 2017] to Parliament, expressing reservations regarding its constitutionality and compliance with international law. In this paper, I describe the constitutional implications of compliance with international law and the binding international obligations incumbent upon South Africa in respect of copyright and international human rights law. In doing so, I argue that the Bill of Rights acts as a magnet, compelling all organs of state to give greater normative weight to those international obligations that map onto the Bill of Rights as compared to those …