OFT.co.uk, here.
Tuesday, August 27, 2013
Monday, August 26, 2013
Do fixed patent terms distort innovation? Evidence from cancer clinical trials
E. Budish, B. Roin, H. Williams, here.
My Take on the WIPO Marrakesh Treaty/10
(Available episodes so far here).
Against the background of the existing treaties and
conventions, it would be difficult to read in the first
paragraph of the agreed statement a general permission (“carte blanche”) given
to member states to justify basically any exception and limitation that becomes
relevant because of the digital environment, despite the boundaries set by existing
obligations, and in particular by the three-step test. On the other hand, this part of the agreed statement carries more weight than a
mere rhetoric argument readily embraced by some in the heat of discussions and negotiations
involving exceptions and limitations. More appropriately, the agreement indicates,
it seems, that the overall application of the WCT three-step, also in line with
the Treaty’s Preamble stressing the need to maintain a balance in copyright law,
should not hamper the protection of the interest of the general public in the
digital environment. In this respect, the Marrakesh Treaty’s prominent reference in the Preamble to
the flexibility of the test would seem to echo the WCT contracting parties’ concern
as expressed in the agreed statement.
The alleged origin of the first sentence of the first paragraph of the agreed statement sheds some light on exceptions and
limitations to be “considered acceptable under the Berne Convention.” As
mentioned above, the US proposal targeted in particular the domestic fair use
doctrine, seeking reassurance about its unfettered expansion into the digital
environment. While a broad exemption similar to the US fair use provision is capable
of application in a way that covers uses made possible by new technologies, exemptions drafted following the
stricter European continental style are much more likely to struggle with
technological – digital – advances, and therefore need to be replaced much
more frequently. It is not immediately clear, however, which exceptions and
limitations are likely to be "new" in the meaning of the agreed statement. In fact, to the extent that the
more recent exemptions have been grandfathered by already existing ones, they should
not be regarded as genuinely new, such as when exemptions and limitations for the
benefit of the print disabled are amended in order to allow for digital uses of
accessible materials. Similarly, an exemption covering analytical techniques used
in scientific research, a type of “data mining,” expands into the digital
domain research activities already carried out in the analogue world. At any
rate, the first paragraph of the agreed statement indicates that the member
States do not regard the WCT three-step test as an obstacle to the protection
of the interest of the general public in the digital environment both by way of exceptions and
limitations “which have been considered acceptable under the Berne Convention” and new ones.
(To be continued).
Sunday, August 25, 2013
Friday, August 23, 2013
My Take on the WIPO Marrakesh Treaty/9
(Available episodes so far here).
If the country is a TRIPS member, Article 9(1) requires compliance with Articles 1-21 (other than Article 6bis on moral rights) of Berne, i.e. also with the three-step test and the minor reservation doctrine therein, regardless of whether the country concerned is a member of the Berne convention. Additionally, according the interpretation taken by the WTO Panel, Article 13 of TRIPS, a slightly modified version on the Berne three-step test, applies to all the exclusive rights protected under articles 1 to 21 of Berne, and not only to the TRIPS-specific rental right. However, Article 2(2) of TRIPS and Article 20 of Berne do not allow, it seems, for a broader application of Article 13 of TRIPS than what the Berne Convention would permit. With regard to exceptions for the benefit of the print disabled, it follows that both the Berne and the TRIPS three-step tests apply to the right of reproduction, while the TRIPS test applies to the other Berne rights which might be of relevance here, such as the right of public performance and the adaptation right.
A third layer of obligations follows from membership to the WCT. Similarly to Article 9(1) of TRIPS, article 1(4) of the WCT incorporates articles 1-21 and the Appendix to the Berne Convention. By virtue of this incorporation, the Berne three-step test applies to the reproduction right. In the agreed statement to Article 1(4) of the WCT, it is specified that the Berne reproduction right and its permitted exceptions thereof “fully apply in the digital environment, in particular to the use of works in digital form.” Basically, the agreed statement would seem to indicate that, in applying Article 9 of the Berne Convention in its domestic law, a party to the WCT should recognise digital uses both as part of the reproduction right and of their possible exclusions. The resolution, however, was adopted by a majority vote (fifty-one in favour, five against and thirty abstained), and this may raise serious doubts about its status as a binding agreement under Article 31(2)(a) of the Vienna Convention, stating that an agreement should be “between all the parties in connection with the conclusion of the treaty.”
Similarly to TRIPS, the three-step test occupies also an autonomous, prominent space within the WCT. First, Article 10 applies the test to exceptions relative to rights first granted under the WCT itself, and not already (clearly) provided under the Berne Convention, namely the rights of distribution (Article 6), rental (Article 7) and communication to the public (Article 8). Unlike Article 13 of TRIPS, here the language adopted is identical to the Berne three-step test. Second, Article 10(2) states that the three-step test also applies to all rights protected under Berne. The exact scope of this provision is not very clear, though. The main question here is whether the WCT introduces the parties’ obligation, when applying the Berne Convention, to subject the already permissible exceptions to the three-step test. It would follow that, for instance, the implied exceptions to the public performance right under the minor reservation doctrine should additionally be subject the WCT three-step test. However, the second paragraph of the agreed statement to article 10, adopted by consensus, would seem to firmly exclude this possibility, as it states that it is understood that Article 10(2) “neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”
Some commentators consider less clear the interpretation of the first paragraph of the agreed statement. It embraces two different situations, notably limitations and exceptions already existing in national legislations “which have been considered acceptable under the Berne Convention” and new, different exemptions that become relevant because of the digital environment. With regard to exceptions already existing and considered Berne-acceptable, it is agreed that the WCT three-step test permits contracting parties to carry them forward and to “appropriately extend” them into the digital environment. The rather enigmatic language of this part of the agreed statement was first suggested by the US representative, apparently seeking reassurance on behalf of “librarians, educators, and on-line service providers in the United States” that the US doctrine of fair use would “apply on the Internet and elsewhere.” The second sentence of the first paragraph refers to new exceptions and limitations “appropriate in the digital environment,” i.e. beyond existing ones “stretched” to digital uses, which have already been covered by the first paragraph of the agreed statement.
Some commentators consider less clear the interpretation of the first paragraph of the agreed statement. It embraces two different situations, notably limitations and exceptions already existing in national legislations “which have been considered acceptable under the Berne Convention” and new, different exemptions that become relevant because of the digital environment. With regard to exceptions already existing and considered Berne-acceptable, it is agreed that the WCT three-step test permits contracting parties to carry them forward and to “appropriately extend” them into the digital environment. The rather enigmatic language of this part of the agreed statement was first suggested by the US representative, apparently seeking reassurance on behalf of “librarians, educators, and on-line service providers in the United States” that the US doctrine of fair use would “apply on the Internet and elsewhere.” The second sentence of the first paragraph refers to new exceptions and limitations “appropriate in the digital environment,” i.e. beyond existing ones “stretched” to digital uses, which have already been covered by the first paragraph of the agreed statement.
(To be continued, hopefully soon. ACW).
Patents and Cumulative Innovation: Causal Evidence from the Courts
A. Galasso, M. Schankerman, here.
Thursday, August 22, 2013
Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality
US Government Accountability Office, here.
My Take on the WIPO Marrakesh Treaty/8
(Available episodes so far here).
The Preamble to the Treaty emphatically mentions the importance and the flexibility of the test. The Articles make several references to the three-step test, both explicitly and implicitly, in particular where the need to adhere to existing treaty obligations is reaffirmed. The individual contracting party’s international obligations, as well as available flexibilities thereof, determine the scope of applicability of limitations and exceptions permitted in that specific country. The new exception for the benefit of the visually impaired had to find its way into a historically overgrown space, covered by minimum exclusive rights, few specific and many more vague exceptions, and versions of the three-step test with sometimes diverging scopes of application.
The categories of rights likely to be involved in the complex analysis necessary to ensure compliance with other conventions and treaties in the field of copyright are indicated by the Marrakesh Treaty itself. Article 4(1)(a) states that “Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT).” The mandatory (“shall”) maxima to copyright protection for the benefit of print disabled persons explicitly applies to three of the most significant rights which have progressively gained recognition in the course of the evolution of international copyright law. With regard to other relevant rights, the Treaty is less explicit. As to a possible species of the adaptation right (as far as it is not already covered by the reproduction right), the same Article 4(1)(a) states that “The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format” (emphasis added). Article 4(1)(b) adds that “Contracting Parties may also provide a limitation or exception to the right of public performance to facilitate access to works for beneficiary persons” (emphasis added)
In a WIPO Study dedicated generally to “Limitations and exceptions of Copyright and related rights in the digital environment,” prepared by Sam Ricketson, and presented to the SCCR in 2003, the author compiled a very useful, detailed list of questions that countries should ask themselves in matters of treaty compliance.
If the country is a member of the Berne Convention, the question should be asked whether the limitation or exception for the print disabled is covered by one of the existing Berne provisions. Of relevance in this respect is in particular Art. 9(2), that applies to the reproduction right, and, impliedly, to the distribution of copies so made. Apart from the general exception to the reproduction right, there are a number of “implied” exceptions to other rights specifically provided in the Convention, such as the right of public performance, meaning that the activities in question are not in conflict with Berne obligations based on the so called minor reservation doctrine. Moreover, the Appendix to the Paris Act allows developing countries, under rather complex conditions, to issue compulsory licences, among others, for translating published foreign works into languages of general use in their territories, and publishing them in printed or other analogous form, for teaching, scholarship or research purposes.
Wednesday, August 21, 2013
My Take on the WIPO Marrakesh Treaty/7
(Available episodes so far here)
If the international copyright acquis does not prevent parties to the Berne Union, the WCT or TRIPS from entering into special agreements mandating three-step test compliant copyright limitations, it should also be noted that the international copyright framework does very little to promote in any significant way counter-weighting initiatives to the dominant minimum rights approach.
(To be continued)
If the international copyright acquis does not prevent parties to the Berne Union, the WCT or TRIPS from entering into special agreements mandating three-step test compliant copyright limitations, it should also be noted that the international copyright framework does very little to promote in any significant way counter-weighting initiatives to the dominant minimum rights approach.
Quite on the contrary, the protection gap between the rights granted to authors and the interests of the general public has not stopped widening, especially since copyright and other intellectual property rights have gained increasing importance and bargaining weight at the numerous tables where international trade issues are negotiated. Admittedly, non-economic interests such as providing improved access to works for the benefit of the vulnerable societal group of print disabled persons are not likely to attract much consideration in the various international fora dominated by trade and economic interests.
As mentioned above, the direct beneficiaries of the previously adopted multilateral copyright conventions were foreign authors and right holders who qualified for protection under the rules of the applicable binding agreements, mirroring the combined national treatment plus minimum rights-approach. After more than one hundred years of international norm setting in the field of copyright, the time was certainly ripe to start regulating also the previously neglected space of limitations and exceptions. With the adoption of the WIPO Marrakesh Treaty, five years since the first appearance of the topic of protection maxima ("ceilings") on the agenda of the SCCR, the competing and still quite controversial user-focused approach in copyright law is now solidly anchored on the international level.
At the origin of the Marrakesh Treaty is the consensus of the international community regarding the importance of the public interest at stake, i.e “facilitating access to and use of works by persons with visual impairments or with other print disabilities.” The consensus reached captures one of the possible ways of balancing that specific public interest with the countervailing objective of copyright protection. Within the limits of the balancing concretely achieved, it reflects a globally shared value system.
As mentioned above, the direct beneficiaries of the previously adopted multilateral copyright conventions were foreign authors and right holders who qualified for protection under the rules of the applicable binding agreements, mirroring the combined national treatment plus minimum rights-approach. After more than one hundred years of international norm setting in the field of copyright, the time was certainly ripe to start regulating also the previously neglected space of limitations and exceptions. With the adoption of the WIPO Marrakesh Treaty, five years since the first appearance of the topic of protection maxima ("ceilings") on the agenda of the SCCR, the competing and still quite controversial user-focused approach in copyright law is now solidly anchored on the international level.
At the origin of the Marrakesh Treaty is the consensus of the international community regarding the importance of the public interest at stake, i.e “facilitating access to and use of works by persons with visual impairments or with other print disabilities.” The consensus reached captures one of the possible ways of balancing that specific public interest with the countervailing objective of copyright protection. Within the limits of the balancing concretely achieved, it reflects a globally shared value system.
(To be continued)
Tuesday, August 20, 2013
My take on the WIPO Marrakesh Treaty/6
(Available episodes so far here).
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Furthermore, Art. 20 of the Berne Convention implies that contracting parties are prevented from entering agreements not affecting the minimum rights as such, but violating the principle of national treatment. The non-discrimination rule means that exceptions and limitations foreseen by a special agreement should equally apply to local and foreign works. In fact, if they applied only to foreign works, these works would be less protected than domestic works. Thus, if a country, in compliance with the newer agreement, introduced mandatory exceptions for foreign works without providing for substantially equivalent exceptions applying to domestic works, it would act “contrary to this Convention” within the meaning of Art. 20.
(To be continued)
Monday, August 19, 2013
Friday, August 16, 2013
Thursday, August 15, 2013
Wednesday, August 14, 2013
My Take on the WIPO Marrakesh Treaty/5
(Previous episodes here).
From its early beginnings, WBU’s 2000 policy action on the international norm-setting stage had two pragmatic objectives. First, WBU was firmly of the opinion that the copyright regime of exceptions and limitations for the visually impaired of the world needed improvement, because access to published works was notoriously inadequate, and previous experience had shown that this important objective could not be left to the goodwill of national legislators alone. Second, the international copyright framework needed to be framed in such as a way as to allow for the import and export of works in accessible formats, thus creating a “global lending library” benefiting in particular those visually impaired persons living in economically weak countries.
From its early beginnings, WBU’s 2000 policy action on the international norm-setting stage had two pragmatic objectives. First, WBU was firmly of the opinion that the copyright regime of exceptions and limitations for the visually impaired of the world needed improvement, because access to published works was notoriously inadequate, and previous experience had shown that this important objective could not be left to the goodwill of national legislators alone. Second, the international copyright framework needed to be framed in such as a way as to allow for the import and export of works in accessible formats, thus creating a “global lending library” benefiting in particular those visually impaired persons living in economically weak countries.
According to a number of delegations and experts, however, the fulfillment of the WBU’s clearly formulated policy objectives would have run counter to existing, established principles of international copyright protection.
At the origin of the countries’ early willingness to engage in international copyright norm-setting activities, arguably, lies the strong interest in assuring the protection abroad of their domestic authors. In fact, absent obligations at the international level, domestic authors, normally, are not protected in foreign countries. With regard to the protection of domestic print disabled persons, however, national legislation would regularly suffice, hence no clear need for international norm-setting in favour of this specific category of users. Additionally, print disabled persons travelling to developed countries would benefit from exceptions and limitations already available in those countries’ national legislations. A further argument derived from international copyright principles is that copyright obligations stemming out of treaties and conventions are traditionally limited to the protection of foreign works. Part of the solution to the “book famine” envisaged by the WBU, however, would have required international obligations directly protecting domestic users. Finally, no “one size fits all” exceptions and limitations would have been suitable, as proven in particular by the very existence of the “controlling,” yet flexible three-step test.
(To be continued, hopefully next week).
At the origin of the countries’ early willingness to engage in international copyright norm-setting activities, arguably, lies the strong interest in assuring the protection abroad of their domestic authors. In fact, absent obligations at the international level, domestic authors, normally, are not protected in foreign countries. With regard to the protection of domestic print disabled persons, however, national legislation would regularly suffice, hence no clear need for international norm-setting in favour of this specific category of users. Additionally, print disabled persons travelling to developed countries would benefit from exceptions and limitations already available in those countries’ national legislations. A further argument derived from international copyright principles is that copyright obligations stemming out of treaties and conventions are traditionally limited to the protection of foreign works. Part of the solution to the “book famine” envisaged by the WBU, however, would have required international obligations directly protecting domestic users. Finally, no “one size fits all” exceptions and limitations would have been suitable, as proven in particular by the very existence of the “controlling,” yet flexible three-step test.
(To be continued, hopefully next week).
Tuesday, August 13, 2013
My Take on the WIPO Marrakesh Treaty/4
(Available episodes so far here).
Discussions at the international level revived in 2000, when the WBU General Assembly in Melbourne adopted a resolution on copyright and access to information in alternate format. In particular, the General Assembly decided to call on the WIPO to “co-operate in the formulation of detailed national and international legislation which will afford full and equitable access by blind and partially sighted people to all copyright-protected material.” By the time the WBU, together with the International Federation of Library Associations (IFLA, Section of Libraries of the Blind), renewed contacts with WIPO in 2000, the organization’s ambitious policy agenda for the benefit of the visually impaired was largely set. In the following years, WBU intensified its presence at the WIPO Standing Committee for Copyright and Related Rights (SCCR), which in the meanwhile had started working on the topic of exceptions and limitations. At the Twelfth Session of the SCCR (SCCR 12), Chile proposed the inclusion on the agenda of an item regarding “certain limitations and exceptions,” and two years later, at SCCR 15, Judith Sullivan presented the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. Formally, the topic of exceptions and limitations was first included on the Committee’s agenda of its Sixteenth Session.
At SCCR 18 (May, 2009), Brazil, Ecuador and Paraguay, later joined by Mexico, presented a Proposal Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). SCCR 20 saw the introduction and preliminary discussion of three more proposals, and at SCCR 22 (June, 2011) a large consensus eventually emerged among delegates on merging three of the negotiating texts together into a “Proposal on an International Instrument on Limitations and Exceptions for Persons with Print Disabilities”. The revised draft text of “an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities,” the basic proposal for the substantive provisions of the treaty further negotiated in Marrakesh, was finally adopted at the April 2013 special session of the SCCR.
Discussions at the international level revived in 2000, when the WBU General Assembly in Melbourne adopted a resolution on copyright and access to information in alternate format. In particular, the General Assembly decided to call on the WIPO to “co-operate in the formulation of detailed national and international legislation which will afford full and equitable access by blind and partially sighted people to all copyright-protected material.” By the time the WBU, together with the International Federation of Library Associations (IFLA, Section of Libraries of the Blind), renewed contacts with WIPO in 2000, the organization’s ambitious policy agenda for the benefit of the visually impaired was largely set. In the following years, WBU intensified its presence at the WIPO Standing Committee for Copyright and Related Rights (SCCR), which in the meanwhile had started working on the topic of exceptions and limitations. At the Twelfth Session of the SCCR (SCCR 12), Chile proposed the inclusion on the agenda of an item regarding “certain limitations and exceptions,” and two years later, at SCCR 15, Judith Sullivan presented the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. Formally, the topic of exceptions and limitations was first included on the Committee’s agenda of its Sixteenth Session.
At SCCR 18 (May, 2009), Brazil, Ecuador and Paraguay, later joined by Mexico, presented a Proposal Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). SCCR 20 saw the introduction and preliminary discussion of three more proposals, and at SCCR 22 (June, 2011) a large consensus eventually emerged among delegates on merging three of the negotiating texts together into a “Proposal on an International Instrument on Limitations and Exceptions for Persons with Print Disabilities”. The revised draft text of “an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities,” the basic proposal for the substantive provisions of the treaty further negotiated in Marrakesh, was finally adopted at the April 2013 special session of the SCCR.
The Impact of the Acquisition and Use of Patents on the Smartphone Industry
Study prepared for WIPO, Center on Law and Information Policy (Fordham Law School), here.
Monday, August 12, 2013
My Take on the WIPO Marrakesh Treaty/3
(Available episodes so far here).
In earlier times, a few national legislators already recognized the necessity of specific public policy intervention for the benefit of the print disabled. In 1964, the Sweden/BIRPI Study Group formed in preparation for the Stockholm Conference of Revision of the Berne Convention identified “reproduction in special characters for the use of the blind” and “sound recordings of literary forks for the use of the blind” amongst the exceptions provided for in some national legislations. At the international level, Brazil was the first country to raise the matter of the copyright status of visually impaired persons at the 1977 joint UNESCO/WIPO sessions, thereby proposing to set up a working group whose task would have been “to study suitable ways and means of facilitating the free flow of books and publications designed for the visually impaired.” The Committees decided to appoint the World Council for the Welfare of the Blind (WCWB - which later, together with the International Federation of the Blind, was to form the World Blind Union) to carry out a preliminary study for the Secretariats, supplemented by a brief overview of the solutions which had already emerged in national legislations. In 1979, the WCWB Study (the1979 Study) was submitted to the two Committees, and circulated to Member States for comments. At the 1981 WIPO/UNESCO joint sessions, the delegations of Brazil and of the United States of America proposed to set up a working group, in which representatives of the WCWB and of the International Publishers Association were invited to take part in an advisory capacity.The Secretariats of UNESCO and WIPO commissioned a study to Wanda Noel, a Canadian independent expert, on the application of the Berne Convention “to material for the visually and auditory handicapped” (the1981 Study).
Noel’s analysis contained draft model provisions assisting in the formulation of national legislation for visually impaired persons, which in 1982 were largely endorsed by the Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright, chaired by Mihály Ficsor. In particular, the working group adopted two alternative model provisions, the main difference being that Alternative A was an outright exception, permitting the reproduction “without the consent of the author and without payment of remuneration,” whereas Alternative B consisted in a compulsory licence, requiring the payment of remuneration for use. At the following WIPO/UNESCO joint meetings, the Chairman of the working group expressed concerns as regards the model provisions, stating that the “this preferential treatment is a minimum and a more reserved attitude of representatives of authors would endanger the positive image of copyright and the public support for solving the fundamental problems of copyright protection.” Some countries, in particular Australia, Austria, Israel, the Netherlands and Norway, however, were strongly in favour of Alternative B, providing for a compulsory licence. Austria and Norway in particular stressed the importance of maintenance of the “symbolic nature of remuneration.” Striking a more restrictive tone, Finland, the Netherlands, the United Kingdom and the United States of America held that “exceptions to copyright were not necessary, as negotiations on a voluntary basis between the handicapped and the representatives of authors generally produced satisfactory solutions.” In conclusion, the Committees recommended further work in this field, and the question was kept on the Committees’ respective agendas. In the following, the Secretariats drew up a preparatory document (the 1985 Study) focusing on a number of points highlighted by the Committees, with the assistance of the same expert who had drafted the 1981 analysis. The more recent study expanded on previous discussions, by drawing a line between the “production of special media materials,” addressed by means of an exception or a compulsory license in domestic copyright law, and the cross-border distribution of those materials, “prohibited because of importation provisions contained in the copyright laws of most countries.” Two solutions were suggested to the “dual problem of production and distribution:” either the removal of those provisions obstructing international exhaustion, or the formulation of an “entirely new international instrument which would permit production of special media materials and services in member states, and the distribution of those materials and services amongst member states without restrictions.” The 1985 Study concluded by recommending the formulation of the new international instrument, as “it would solve both production and distribution problems by providing a legal mechanism for sharing materials and services for the handicapped around the world.” At the 1985 WIPO and UNESCO joint Committees’ meetings, Brazil, Guinea and Portugal manifested considerable interested in an international instrument.
(Next episode: The discussions' revival at the international level in the new millenium)
Saturday, August 10, 2013
Friday, August 09, 2013
Copyright and Compulsory Licenses - Compulsory Collectives Command Caution
M. Sag (Presentation), here (pptx - not pdf - file, thanks @carlopiana).
On the question of copyright infringement by hyperlink (in email)
Pearson Education, Inc. et Al., Plaintiffs, V. Lazar Ishayev and Yelena Leykina, No. 11 Civ. 5052 (PAE), here.
My Take on the WIPO Marrakesh Treaty/2
(Post n.1 here).
Paradoxically, perhaps, the question of an adequate protection of the rights to read of people with print disabilities became particularly pressing with the advent of the digital society.
Paradoxically, perhaps, the question of an adequate protection of the rights to read of people with print disabilities became particularly pressing with the advent of the digital society.
For the general reading population, the pervasive deployment of information and communication technologies makes available many innovative and exciting ways in which copyright material can be enjoyed. The same technology has also pushed doors of opportunity open to provide new solutions to meet the needs of print disabled people. For instance, a visually impaired person can now take a traditional printed text and convert it to an accessible format by using main stream and increasingly affordable technology like Optical Character Recognition (OCR) software, scanning devices, screen readers or an electronic (refreshable) Braille display. Moreover, e-books hold the promise of providing greatly increased accessibility for print disabled persons compared to the analogue media. As it already happened in the past, new general purpose technology, i.e. innovations not conceived having the needs of specific categories of users in mind, can greatly benefit also the print disabled. Thus, Thomas Edison correctly anticipated in 1878 that the then newly conceived phonograph player would have led, eventually, to the availability of “[p]honographic books, which will speak to blind people without effort on their part.”
Even with our propitious technological advances, however, print disabled people still encounter significant difficulties in accessing written resources. Electronic texts, for instance, are often inaccessible because of the non-availability of specific text-to-speech or text-to-braille capabilities, or because of the need to buy dedicated, and often relatively expensive, equipment. Moreover, deliberate hardware limitations such as those found in popular e-readers hamper accessibility. Most importantly, whilst written materials today are commonly created as digital works, the formats employed by the publishing industry are seldom genuinely accessible, delaying or even blocking “off the shelf access” for the print disabled.
[This blog's "Feuilleton de l'été 2013" continues - possibly next week]
Minority Report? The EC’s public consultation on minority shareholdings
Kluwercompetitionlawblog.com, here.
Thursday, August 08, 2013
My take on the WIPO Marrakesh Treaty/1
Hundreds of millions of people worldwide encounter severe
distress in trying to access the written word in their education and private
life. Only by employing appropriate technologies, such as for instance the
method first developed by Louis Braille in 1829, written works can to be made accessible to people who suffer from print
disabilities. The creation of accessible versions of copyrighted works and
their distribution to the beneficiary persons, however, normally require the
consent of the respective rightholders.
Whilst international treaties and
conventions in the area of intellectual property generally permit
exceptions and limitations to the rights of the IP holder to be provided, their
nature and scope have been largely left to national legislators to determine. By
1982, only seven member States of the World Intellectual Property Organisation (WIPO)
enacted provisions in that respect, and twenty-five years later exceptions
and limitations for the benefit of print disabled person were present only in 57
member States - out of the then 184-strong overall membership.
According to a study commissioned by the Royal National
Institute of the Blind and covering books published in the United Kingdom in
the period 2004-2010, just some 7 per
cent of them were accessible to blind people and others living with a print
disability,
0.25 per cent of which in traditional
formats like hard copy braille and human voice audio, and 6.80 as accessible
e-books. Unsurprisingly, the situation is considered to
be much worse in developing and least-developed countries, where the majority
of persons with visual impairments or with other print disabilities live.
In 2006, the text of the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD) was adopted and entered into force
two years later. The text of Convention strongly reaffirms the right to read for people
with disability. The
WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who
are Blind, Visually Impaired, or otherwise Print Disabled, concluded on June
27, 2013, aims at addressing
the self-evident paucity of available works in accessible format copies (“book famine”).
The newly adopted Treaty sets an elaborate international legal framework in the
form of, first, an obligation for contracting parties to adopt in their respective
national legislations exceptions and limitations that permit the reproduction,
distribution and making available of published works in accessible formats.
Second, the Treaty provides for the cross-border exchange of accessible format
works created based on limitations and exceptions.
The Marrakesh Treaty takes a resolute step towards a
more satisfactory balance between the print disabled persons’ legitimate need
to access copyrighted works and the necessary protection of the rights of the
copyright holders. The Treaty is also a première
on the international stage, being the first multilateral, binding legal
instrument primarily devoted to the establishment of exceptions and limitations
in copyright law. In fact, much of the considerable efforts put into the development
of the international copyright framework so far focused almost exclusively on
defining and protecting the rights needed to promote the important aim of
encouraging and rewarding creativity. Restriction or limitations upon authors justified
by the broader “public interest” were almost exclusively left
to national legislators, albeit within the boundaries set by the relevant
treaties and conventions.
The so-called three-step
test, arguably the most significant among those boundaries, took central
stage throughout the nearly five years of arduous Treaty negotiations. The
final text adopted in Marrakesh contains one direct reference to the test in
the Preamble, two in Agreed statements, Article 5.4 deals with the so called "Berne gap", and Article 11 sets the obligation, for
the Contracting Parties adopting the measures necessary to ensure the
application of the Marrakesh Treaty, to comply
with the three-step test as
formulated in the different international mandatory legal instruments under which
they are bound. While the language of the three-step
test has not changed since its original formulation in the1967 Stockholm Revision of the Berne Convention, its
interpretation remains highly controversial. In this respect, the adopted Treaty is also particularly relevant since it
sheds some light on questions that timely, subsequent revisions of the Berne
Convention should have already helped clarify.
(to be continued, hopefully soon; ACW).
For further material see the label visually impaired and copyright (actually a misnomer, in light of the final Treaty)
All future episodes here.
For further material see the label visually impaired and copyright (actually a misnomer, in light of the final Treaty)
All future episodes here.
Wednesday, August 07, 2013
Copyright and the Digital Economy
Submission by the Australian Digital Alliance and Australian Libraries Copyright Committee in response to the Australian Law Reform Commission’s Discussion Paper, here.
Tuesday, August 06, 2013
Monday, August 05, 2013
Sunday, August 04, 2013
Saturday, August 03, 2013
Thursday, August 01, 2013
Wednesday, July 31, 2013
Tuesday, July 30, 2013
Standard Essential Patent Disputes and Antitrust Law
US Senate Judiciary Committee - Subcommittee on Antitrust, Competition Policy and Consumer Rights. Written testimonies here.
Monday, July 29, 2013
Friday, July 26, 2013
Thursday, July 25, 2013
Wednesday, July 24, 2013
Cloud Computing: An Overview of the Technology and the Issues facing American Innovators
Hearing, Subcommittee on Intellectual Property, Competition, and the Internet, here.
Tuesday, July 23, 2013
Monday, July 22, 2013
Introduction effects of the Australian plain packaging policy on adult smokers: a cross-sectional study
M. Wakefield, L. Hayes, S. Durkin, R. Borland, here.
Protecting Shared and Widely Distributed Traditional Knowledge: Issues, challenges and options
International Centre for Trade and Sustainable Development, here.
Saturday, July 06, 2013
Sunday, June 30, 2013
Competition in the Context of Financial Crisis
American Bar Association Section of Antitrust Law 60th Spring Meeting, the Antitrust source,here.
Wednesday, June 26, 2013
Tuesday, June 25, 2013
AG Jääskinen on search engines and lack of responsibility for personal data appearing on web pages they process
Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, here.
Monday, June 24, 2013
Saturday, June 22, 2013
Friday, June 21, 2013
Thursday, June 20, 2013
Rechtsstreit um exklusiven Zugriff von Juris auf Urteile des BVerfG geht weiter
Institut für Urheber- und Medienrecht, hier.
Wednesday, June 19, 2013
Friday, June 14, 2013
Thursday, June 13, 2013
Wednesday, June 12, 2013
Measuring Patent Quality: Indicators of Technological and Economic Value
OECD Science, Technology and Industry Working Papers, 2013/03, here.
Monday, June 10, 2013
Diritto d'autore e biblioteche in chiave evolutiva
S. Vezzoso (autrice del blog), presentazione qui.
Friday, June 07, 2013
Draft legislation on copyright exceptions in the UK
Ipo.gov.uk, here.
Drafts for the other exceptions will be released as soon as they are ready.
Drafts for the other exceptions will be released as soon as they are ready.
Télévision payante: trois offres de référence de Groupe Canal Plus approuvées
Autorité de la concurrence, ici.
Defending an Open, Global, Secure, and Resilient Internet
Council of Foreign Relations, here (pdf file).
Thursday, June 06, 2013
CJEU on action for damages and access to the file
Case C‑536/11, Bundeswettbewerbsbehörde v Donau Chemie AG et al., here.
Patent Assertion Entities and Antitrust: Operating Company Patent Transfers
M. Popofsky and M. Laufert, here.
Wednesday, June 05, 2013
Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust
M. Jockers, M. Sag, J. Schultz, here.
Towards Empirical Analysis Of Open Government Data Initiatives
B. Ubaldi, OECD Working Papers on Public Governance, here.
Kommunale Monopole sind gute Monopole, die keinerlei Aufsicht bedürfen
J. Haucap (Edgeworthblogs.wordpress.com), hier.
Pfizer's slams India's patent regime, says Indian standards are vague and malleable
Economictimes.indiatimes.com, here.
Tuesday, June 04, 2013
Protecting innovators from frivolous litigation and ensuring the highest-quality patents
White House Task Force On High-Tech Patent Issues, here.
Monday, June 03, 2013
Friday, May 31, 2013
Smart Disclosure and Consumer Decision Making: Report of the Task Force on Smart Disclosure
US National Science and Technology Council, here.
Thursday, May 30, 2013
Friday, May 24, 2013
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Centre for a Digital Society , Video here . These are my very rough talking points on pay or okay in full length (more than I actually had...
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LG Frankfurt am Main, 2-06 O 172/09 (verkündet am 13.05.2009). Lesenswertes aus der Begründung (meine Hervorhebungen): "Vorstellbare ...
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TechCrunch, here .
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Stratechery, here .
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Here (thanks to Netzpolitik).
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G. Kallfass, presentation here .
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Public Knowledge, here .
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SEO by the Sea http://bit.ly/niVXM5.
