Friday, November 25, 2016

Intellectual Property and Access to Science and Culture: Convergence or Conflict?

The Centre for International Intellectual Property Studies (CEIPI) has launched the publication of Intellectual Property and Access to Science and Culture: Convergence or Conflict?, exploring the relationship between intellectual property (IP) rights and the right to science and culture.

The landscape of copyright in scientific work has changed dramatically in recent years, partly as a result of the emergence of a strong critique of the privatization of scientific knowledge and publications. The issue of access to science has been raised at the UN by UN Special Rapporteur Farida Shaheed, who in 2014 noted that privatizing scientific knowledge could work against the human right "to enjoy the arts and to share in scientific advancement and its benefits" (UDHR Art. 27). She noted that, from a human rights perspective:
Copyright laws should place no limitations upon the right to science and culture, unless the State can demonstrate that the limitation pursues a legitimate aim, is compatible with the nature of this right and is strictly necessary for the promotion of general welfare in a democratic society. (20)
As Shaheed notes in her introduction to Intellectual Property and Access to Science and Culture, "[a]dopting a human rights perspective on intellectual property issues is both crucial and urgent." The authors of Intellectual Property and Access to Science and Culture discuss the history, origins, and impact of Shaheed's groundbreaking reports, concluding (Christophe Geiger) that a human rights framework requires re-conceiving of copyright as a cultural right that includes a right of access.

Chapter 3 of my book, International Copyright and Access to Knowledge gives further background on copyright and science. Titled "Access to scientific knowledge," it recounts the history of international copyright in scientific works. I note that when the international copyright system was founded, scientific journal articles were placed, by default, in the public domain. This is due in large part to the efforts of Haitian diplomat, doctor, and writer Louis-Joseph Janvier, in fighting for broad and liberal access to scientific works worldwide. My chapter recounts historical debates over the question of whether copyright should apply to scientific works, and traces the transformation of the international copyright system and the narrowing of principles of access to scientific works.

Thursday, November 10, 2016

What does a Trump presidency mean for media and communications?

Have American media helped elect a president that will contribute to the decline of press freedom?  Yes, they have.  Trump's presidency also may mean the end of net neutrality, the rise of internet tracking, and the rise of alt-right-wing media.

Trump has derided mainstream media and journalists as dishonest and corrupt.  As Justin Peters comments, "He represents a group of people who see a strong independent press not as a necessary check on accumulated power in America but as a bothersome impediment to the accumulation of that power. And he will almost certainly use the office of the presidency to bring the press to heel."  His opposition  to journalists goes beyond derision and antagonism to threaten its very freedom; Trump is known for suing journalists and he has threatened to "open up" libel laws to make it easier for public figures to sue the press:
One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.
Journalists and media outlets have only begun to ask what approach and tone they will take in their coverage of Trump.  Will their approach be conventional and traditionally adversarial, or oppositional?  But the threat of libel lawsuits and the decline of advertising dollars could restrict their scope of action.

Trump has opposed potential mega-media mergers while favouring alt-right media and social media.  He has expressed opposition to mergers between AT&T and Time Warner, and Comcast and NBC Universal.  His opposition to free trade could impact foreign (and especially Chinese) investment in Hollywood and US content producers (Lieberman).  Meanwhile, alternative media like the Breitbart Report, which supported Trump, are now set to expand internationally, seeking to "monetize the anger and anti-immigrant sentiment unleashed by Donald Trump’s successful presidential campaign"  (Flitter).

Trump's presidency will affect the leadership and composition of the FCC.   It will mean a change of leadership, as the chair traditionally leaves office when a new President is elected.  Democratic Commissioner Jessica Rosenworcel may have to step down at the end of the year if her re-nomination is not confirmed by the Republican majority Senate.  The balance of power in the FCC will shift Republican  (Silbey).  Broadcast attorney David Oxenford has speculated that this well  mean “a lessening of the regulatory burden on broadcasters" (McLane).

Trump has opposed net neutrality, siding with ISPs over Amazon, Netflix, and other services (Glaser).  This could make it easier for ISPs to charge internet companies like Netflix for faster speeds.  Trump's presidency could also lead to the overturning of recently-passed regulations that require ISPs to obtain explicit consent from their subscribers before selling their data to marketers (Glaser).

As on many policy issues, Trump has said little that indicates his stance on intellectual property, other than complaining about Chinese theft of American intellectual property (Standeford).

American media have contributed to the rise of a president who could change the entire landscape of media, press freedom, and the communications industry.

More reading


FCC Regulation

Net Neutrality

Monday, November 7, 2016

Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:
  • playing an Internet video from a web site based in one country in the classroom of another;
  • uses of works in distance education, where students may be based in a different country from the instructor;
  • downloading works from a web site in another country for educational purposes;
  • making available or sending articles, texts, or digital course packs from one country to another.
Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:
Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).
The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

Saturday, November 5, 2016

Does IP have a role in sustainable development? Of course it does!

Does intellectual property have a role in sustainable development?  Of course it does!  But the World Intellectual Property Organization, a UN agency, seems uncertain as to whether it has a role to play in implementing the UN's Sustainable Development Goals (SDGs).

As I note in a draft book chapter, WIPO's preliminary analysis of the ways in which its work supported SDGs viewed most of WIPO’s work as contributing to SDG 9, the building of infrastructure and industrialization, as well as goal 8, that of economic growth.

Surprisingly few of WIPO’s activities were viewed by WIPO as contributing to the SDGs of education, hunger, protecting biodiversity, combating climate change, or ensuring human health.

"Developed" countries argue "that only a few goals apply to the work of WIPO, and others argue that there should be no ‘cherrypicking’ as all the goals in one way or another do apply to WIPO’s work as a UN agency."  The view of the "developed" countries, here, is completely ridiculous; it is clear that intellectual property plays an important role in relation to many SDGs, including those related to food and agriculture, health, innovation, climate change, biodiversity, and technology transfer.

The world intellectual property system, at present, also sometimes works contrary to achievement of the SDGs, by locking up agricultural innovation, inflating drug prices, stalling innovation, rewarding the invention and sale of dirty technologies, locking up biodiversity, and preventing technology transfer. There is no shortage of proposals for reform that would help to address these problems.  (See the work of Peter Drahos, Matthew Rimmer, and Ahmed Abdel-Latif, among  many others.)  Industry players note the important role of intellectual property  in potentially stalling climate-friendly innovation; this is why Tesla has adopted open patent policies to encourage the take-up and spread of electric vehicle technology.

WIPO and its member states should acknowledge the links between intellectual property and both sustainable and unsustainable development.  The UN sustainable development agenda requires WIPO, as a UN agency, and its member states to build and retool world intellectual property institutions for sustainable development.