Wednesday, August 14, 2013

TTIP Update II

G. Moody, here

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.

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).

State of the Union Russia–EU: Prospects for Partnership in the Changing World

S. Lavrov, here

Europe’s policy options for a dynamic and trustworthy development of the Internet of Things

RAND Europe, here. Presentation here

Full Attorney Fees ($9m) Awarded for Pattern of Vexatious Litigation Strategy, Affirmed on Appeal

Patentlyo.com, here

Justice Department Files Antitrust Lawsuit Challenging Proposed Merger Between US Airways and American Airlines

Justice.gov, here

The Implications of Improved Attribution and Measurability for Antitrust and Privacy in Online Advertising Markets

C. Tucker, here

Another Look at Privacy

A. Grunes, here

Privacy, Antitrust, and Power

F. Pasquale, here

Tuesday, August 13, 2013

White House “Copyright Czar” Steps Down

Variety.com, here.

(Interesting Acting Head: the well-known Howard Shelanski, here).

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.


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

The Dangerous Adventurism of the United States Trade Representative – Lifting the Ban against Apple Products Unnecessarily Opens a Can of Worms in Patent Law

R. Epstein, here

Subscription-based service for e-books in the Dutch language zone?

Futureofcopyright.com, here.

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)

Apple’s Legal Wins Show No Clear Victor in Patent War

Bloomberg.com, here

Friday, August 09, 2013

Copyright and Compulsory Licenses - Compulsory Collectives Command Caution

M. Sag (Presentation), here (pptx - not pdf - file, thanks @carlopiana). 

Social Media and Copyright Law in Conflict (UGC)

Project-disco.org, here

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

A Century of International Potash Intrigue

Bloomberg.com, 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.

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]

Francis Gurry on the occasion of the International Day of the World’s Indigenous Peoples

Here.

Leistungsschutzrecht: Wie geht's jetzt weiter?

Telemedicus, hier

Minority Report? The EC’s public consultation on minority shareholdings

Kluwercompetitionlawblog.com, here

Google told German newspapers to opt in, and they did

Columbia Journalism Review, 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.

Public libraries and 'big six' publishers fight over e-books

Latimes.com, here

Understanding Behavioral Antitrust

A. Tor, here

The Value of User-Generated Content

Turner Hopkins (for Ofcom), here

Amazon, Kobo and Sony petition FCC to exempt e-readers from accessibility laws

Gigaom.com, here

Publishers in E-Book Antitrust Case File Objection to DOJ's Proposed Punishment for Apple

Here

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

EU Kills Net Neutrality, Threatens Online Openness

G. Moody, here

Legal aspects of free and open source software - compilation of briefing notes

European Parliament, here

Statutory Audit Services: Provisional Remedy Package

UK Competition Commission, here

Protecting Shared and Widely Distributed Traditional Knowledge: Issues, challenges and options

International Centre for Trade and Sustainable Development, here

Adventures in the Netherlands - Spotify, Piracy and the new Dutch experience

Spotify, here

Issues for Two-Sided Platforms in Canadian Competition Law

G. Bishop, here

e-books: Vertical participation in hub and spoke agreements

Competition Bulletin, here

Becker on reforming the patent system

Becker-Posner blog, here.

BGH: UsedSoft

Pressemitteilung hier.