Law Commons^™

Wipo Good Practice Toolkit For Collective Management Organisations 2021: Suggestions For Possible Amendment, Desmond Oriakhogba

Joint PIJIP/TLS Research Paper Series

Drawing examples from national and international legal instruments, and based on existing studies, this comment makes suggestions for possible amendment of the World Intellectual Property Organization’s Good Practice Toolkit for Collective Management Organisations 2021 (CMO Toolkit). The suggestions are for inclusion of good practices in the CMO Toolkit that can inform the regulation of CMOs to prevent them from constituting obstacles to open access non-commercial licensing and L&Es-enabled access for education and research. The suggestion also covers good practices that will prevent CMOs from impeding the smooth and effective development of artificial intelligence systems. Recommendations include protecting rightholders' ability to …

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.

The Right To Research As Guarantor For Sustainability, Innovation And Justice In Eu Copyright Law, Christophe Geiger, Bernd Justin Jütte

Joint PIJIP/TLS Research Paper Series

Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of …

Copyright And Covid, Sean Flynn

Joint PIJIP/TLS Research Paper Series

During the COVID-19 pandemic it became widely recognized that speedier access to patent rights should be enabled to speed global scale-up of vaccine production. This understanding was expressed in a proposal by India and South Africa that the World Trade Organization suspend multilateral intellectual property rules on COVID vaccines, treatment and containment. The original waiver proposal proposed a suspension of WTO rules on all forms of intellectual property needed for a broad range of COVID-19 response measures, including “vaccination,” “treatment,” and “containment.” The final “TRIPS Waiver,” however, was ultimately limited to a minor provision of TRIPS permitting greater use of …

Unacceptable Means: The Inspection Panel Actions On World Bank Forcible Resettlement, Lori Udall

Perspectives

This essay reviews the World Bank’s Inspection Panel’s work on cases involving involuntary resettlement. Since its Inception, the Panel has received 89 requests involving resettlement (over half of all cases) and has investigated 32. It traces Panel cases, lessons learned, and advisory reports on resettlement and livelihood restoration. Despite the growing evidence through the years of resettlement failures, the World Bank continues to violate its own safeguard policies and repeat the same omissions and mistakes in projects. The essay concludes with recommendations for empowering the Inspection Panel and for the Bank to move towards bottom-up community development that better addresses …

The River Of Accountability Mechanisms: Then And Now, Suresh Nanwani

Perspectives

In 1993, the river of international accountability mechanisms (IAMs) commenced from its source – the World Bank Inspection Panel (The Panel). In its journey the river was fed by the tributaries of similar accountability mechanisms from other development institutions, including four regional development banks – the Inter-American Development Bank in 1994, the Asian Development Bank in 1995, the European Bank for Reconstruction and Development in 2003, and the African Development Bank in 2006. It also welcomed other entities – bilateral institutions like Japan Bank for International Cooperation (2003) and Proparco (2018), United Nations Development Program (2014) and other organizations like …

Thirty Years Of Accountability In International Development: Insights From The General Counsel Of The World Bank Group, Christopher H. Stephens

Perspectives

The creation of the World Bank’s Inspection Panel in 1993 was a groundbreaking moment in international development. The first accountability mechanism of its kind, it established a precedent for accountability in development that has been followed by multiple development banks and international financial institutions over the last decades. Today, the credibility of international financial institutions rests significantly on the mechanisms that they put in place to check their own behavior and the avenues they offer for affected communities and individuals to raise questions of harm related to the projects financed by these institutions. This essay is a reflection on the …

Fairness And Fair Use In Generative Ai, Matthew Sag

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Copyright, Data Mining And Developing Models For South African Natural Language Processing, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

This paper sets out the issues of copyright ownership and risk of copyright infringement liability raised by data science research use of data held by public bodies (in particular, public service broadcasters) in South Africa. Considering both the fair dealing exception in South Africa’s Copyright Act of 1978 and the proposed fair use provision in its Copyright Amendment Bill B13F-2017, the paper discusses these issues elaborating on the reasons why data science researchers in public research institutions should not require a copyright licence or be considered to be infringing copyright when they use copyright-protected materials held by public bodies for …

The Conclusions Of Sccr 44, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Last week, the World Intellectual Property Organization’s Standing Committee on Copyright and related Rights (SCCR) held its 44th meeting where substantial progress was made in protecting public interest issues within the two major standing items of the agenda -- on the Broadcast Treaty and on Limitations and Exceptions. This document summarizes the decisions made at the meeting as recorded in the Chair’s Summary.

The Constitutional Court Of Colombia Imposes Limits On The Use Of Internet Jammers During Social Protests, Carolina Botero, Lina Paola Velásquez

Joint PIJIP/TLS Research Paper Series

The Constitutional Court of Colombia has issued an important ruling regarding the use of the Internet as the main tool to guarantee the fundamental rights to freedom of speech and access to information during social protests. This ruling marks an important precedent in the matter because it imposed new obligations on the State and the government to guarantee the "maximum level of information". Likewise, the Court ordered the regulation of the use of signal jammers during social protests. This article will analyze the ruling and its effects in Colombia.

Excerpts Of Sccr 44 Delegate Statements, Sean Flynn, Andres Izquierdo

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) held its 44th meeting November 6-8, 2023. This post includes excerpts from the public statements made by country or regional delegations during the meeting.

Copyright And Generative Ai: Insights From The Project On The Right To Research, Sean M. Fiil-Flynn

Joint PIJIP/TLS Research Paper Series

With the widespread launch of “generative AI” technology capable of creating music, art and text that could potentially substitute for the work of human creators, policy makers around the world are highly focused on how and whether copyright law should change in response. This paper summarizes results from studies that have been commissioned as part of the Project on the Right to Research in International Copyright coordinated by American University’s Program on Information Justice and Intellectual Property. That project focuses on uses of copyrighted works in text and data mining technology by scientific researchers. The same text and data mining …

Developing A Human Right To Research In International Law, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

The covid-19 pandemic has highlighted issues concerning equitable access to and participation in research. But research has always been indispensable to human development. To what extent does international law guarantee access to research as well as the practice of researching? Drawing on the social anthropology definition of research as the pursuit of that which is not yet known, this paper locates a novel human right to research within the core international human rights covenants. The paper sets out the scope and content of the right and the nature and content of State obligations flowing from it. It concludes by outlining …

Mpp Covid-19 Antiviral Medicines Licenses – Licensed Territories, Supply Options For Excluded Territories, And Supply Barriers Arising From Trade-Secret Transfer, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

This is a paper that analyzes Medicine Patent Pool licenses for three COVID-19 antivirals, including licensed territories, patent landscapes, supply options, regulatory status, and supply barriers arising from licensee acceptance of trade-secret information from the originator licensor. It concludes that at present there is no existing WHO prequalified licensee that can supply nirmatrelvir + ritonavir outside the Pfizer licensed territory, whereas there are potential molnupiravir licensees that can supply outside licensed territories where there is no blocking patent exists or a compulsory license has been issued in the country of import or use. The paper concludes with an assessment that …

Comments On The September 6, 2023 Draft Of A Wipo Broadcasting Treaty, The Definitions, Scope Of Application, National Treatment And Formalities, James P. Love

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization (WIPO) is evaluating a proposal for a new treaty that provides rights to broadcasting organizations. The negotiations began in 1997 and are currently taking place in the Standing Committee on Copyright and Related Rights (SCCR). On September 6, 2023, the WIPO Secretariat published a revised draft text prepared by the SCCR Chair, SCCR Vice-Chairs and facilitators. This article looks at certain elements of the draft concerning the definitions, scope of application, national treatment and formalities. Objections to the text focus on several draft definitions and the scope of application on the grounds that (1) very …

Simplifying The Wipo Broadcasting Treaty: Proposed Amendments To The Third Revised Draft, Bernt Hugenholtz

Joint PIJIP/TLS Research Paper Series

In preparation of the 44^th meeting of the SCCR a Third Revised Draft Text for the WIPO Broadcasting Organizations Treaty was prepared by the SCCR Acting Chair. The current (third) draft contains mostly minor modifications as compared to the previous draft. The previous (second) revised draft was critically examined by the author of this document. The present document builds on the Comments by proposing amendments that transform the main points of criticism and suggestions for improvement into possible treaty language. Whereas – following the 2007 General Assembly decision – there is consensus within the SCCR that the Broadcasting Treaty …

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Joint PIJIP/TLS Research Paper Series

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …

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 …

Second Revised Draft Text For The Wipo Broadcasting Organizations Treaty, Annotated, Sean Flynn, Miguel Alvarenga

Joint PIJIP/TLS Research Paper Series

The agenda of the 43rd meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights includes a Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty. This PIJIP Working Paper displays the changes between the first and second revised drafts and adds short commentary on some of the major drafting issues. The comments include repeated references to the working paper Prof. P. Bernt Hugenholtz, Groundhog Day in Geneva: The WIPO Broadcasting Treaty is on the Agenda Once Again. American University International Law Review Symposium on the Right to Research in International Copyright Law, v.2 March …

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 …

The Trouble With The Wipo Broadcasting Treaty, James Love

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization (WIPO) is a specialized UN body that provides forums to discuss intellectual property policies and practices, provides technical assistance to its member states and engages in norm setting. Since 1997, WIPO has engaged in a series of activities to evaluate proposals advocated by some companies that are engaged in broadcasting. There is yet another effort to bring this proposal to a diplomatic conference. This article (i) provides background on the negotiations including the evolving rationales for broadcast right; (ii) describes the differences between the thin temporary signal protection model and the far more problematic vision …

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 …

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Articles in Law Reviews & Other Academic Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

Reflections On The Role Of The Panel, Charles Di Leva

Perspectives

Over the past thirty years, the World Bank and the Inspection Panel have had a supportive relationship regarding the principle of accountability, particularly as applied to the field of development finance operations and the role and responsibility of the Bank as a multilateral public sector financial institution. This relationship has been apparent in at least three key aspects: i) following the Bank’s lead, many development institutions around the globe have taken steps to improve their own accountability and developed independent accountability mechanisms (IAMs) modeled on the Inspection Panel; ii) the Bank and other development institutions have been supporting the development …