Sara Bannerman: 2016

Tuesday, December 20, 2016

WIPO’s move to open access laudable among international organizations

My latest post on WIPOMonitor.org notes that the World Intellectual Property Organization (WIPO) is at the forefront of international organizations in adopting an Open Access policy for its publications. I suggest that WIPO, and other international organizations, should go further to ensure that all its documents and historical records are also openly accessible under the Creative Commons licence designed for international organizations. Read the post here.

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.

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.

Monday, October 24, 2016

Delhi High Court issues historic decision for access to knowledge and education

In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi. Read my full post about it here on the Cambridge University Press blog.

Friday, June 3, 2016

WIPO indigenous peoples' representation still lacking

Nelson Kantule, from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States, were interviewed recently by IP-Watch about the current ongoing negotiations about intellectual property and traditional knowledge at the World Intellectual Property Organization (WIPO).

WIPO traditional knowledge negotiations have long failed to include sufficient representation by indigenous peoples, and have been ongoing for many years with few, if any, results. Chapter 9, "The role and inclusion of indigenous peoples in international copyright", of my book International Copyright and Access to Knowledge, recounts this history of failure and places it in the context of indigenous peoples' representation in the United Nations more broadly.

I note that in 2007, the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly. Article 18 of that declaration provides that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

WIPO’s efforts to implement Article 18 have been deemed inadequate by some indigenous peoples, and WIPO has been called on by the United Nations Permanent Forum on Indigenous Issues to improve its implementation of the declaration.

Indigenous peoples' representation at WIPO has been so bad that in February 2012 most indigenous observer delegates to the IGC stood and walked out of IGC negotiations in protest of “the continuing reduction in the quantity and level of their participation.”

In May 2012, the United Nations Permanent Forum on Indigenous Issues chastised WIPO, issuing a number of recommendations to WIPO aimed at addressing some of the problems that had been identified. It called on states “to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee” (p. 9-10).

As of my last check, the Forum's recommendations had not yet been addressed by WIPO, and Kantule and Hardison's account seems to confirm that WIPO's response has been inadequate.

Friday, May 20, 2016

Fair dealing and course packs: Canadian and international challenges

A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada. The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees. This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries? Professor Seng's study should shed some light on this question. He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22). However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions. Numerous states have made proposals for new international norms, some of which relate to the question of course packs. Finland, for example, has made the main proposal on course packs. It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing. They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada. The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.

--
NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works. Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

Thursday, May 12, 2016

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives. International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):

libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*

One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found. Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means. However, copyright regimes often stand in the way, as can differing national regimes. The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:

...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.

SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries." For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort." After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works. Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador). However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:

WIPO webcasts the meeting live
WIPO posts pictures from the meeting on flickr
Follow the #SCCR32 hashtag on twitter
Knowledge Ecology International is blogging the meetings
The International Federation of Library Associations and Institutions (IFLA) is tweeting from the SCCR
IFLA held a side-event "Shelves to Servers: Digital Content in Libraries and Archives"
The Electronic Frontier Foundation hosted a side-event on music and copyright with Imogen Heap

My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

Thursday, March 17, 2016

Sci-Hub and the history of copyright in scientific works

Sci-Hub, the "Napster for academics", is a project based in the notion that scientific knowledge should be made freely available. John Willinsky, in his recent article for TimesHigherEd, quotes from a letter sent by Sci-Hub's founder, Alexandra Elbakyan, in which she explains why she founded the hub:

Elbakyan explains that as a student in Kazakhstan, she found the “payment of $32 [Elsevier points out that it’s as high as $41.95] is just insane when you need to skim or read tens or hundreds of these papers to do research”. She adds: “I could obtain any paper by pirating it so I solved many requests and people always were very grateful for my help.”

Willinsky argues, "This right to know is also behind this new, emerging academic publishing economy. It is aligned with the broader social and intellectual movement of open science."

However, the founder of Sci-Hub is currently being sued by Elsevier for copyright infringement.

Chapter 3 of my new book, International Copyright and Access to Knowledge is called "Access to scientific knowledge." It recounts the history of international copyright in scientific works. In the chapter, 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. It 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.

As Willinsky notes, Elbakyan carries on a tradition of civil disobedience that represents "a 10-fold escalation of the tragic protest of Aaron Swartz, a gifted US computer scientist and entrepreneur who committed suicide two years ago after being charged with theft for downloading 4 million journal articles to his laptop." Her efforts also reflect a sentiment that can be traced right back to the founding of the international copyright system, to before a time when copyright took a wrong turn.

Wednesday, March 16, 2016

Upcoming talk @ Ryerson: International Copyright and Access to Knowledge

Here is the poster for my upcoming talk for students at Ryerson University's School of Creative Industries' CREA T.O. speakers' series about my new book, International Copyright and Access to Knowledge. Thanks to Ryerson student Daphne Chan, who created this terrific poster!

Thursday, March 10, 2016

New Book: International Copyright and Access to Knowledge

My new book, International Copyright and Access to Knowledge, is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University

International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here. Purchases through CUP can make use of 20% discount code Bannerman2015.

Saturday, February 6, 2016

Digital Dividends of Intellectual Property

The World Bank's January Digital Dividends report assesses the extent to which information and communication technologies (ICTs) have contributed, over the past decades, to global development. Its conclusion is that "while digital technologies have been spreading, digital dividends have not" (2). It suggests two reasons for this: first, nearly 60% of the world is still offline, and, second, rising economic, social, and political inequality, all of which can be exacerbated by networks, stand in the way of full sharing in digital dividends.

The World Intellectual Property Organization (WIPO) has sometimes suggested that intellectual property is a "power tool" of economic development. This view has long been challenged by those who note that IP comes with costs as well as benefits. Costs can include higher prices in drugs and copyright materials, as well as reduced policy flexibility to respond to basic needs. These costs, noted in a 2004 proposal by developing countries to WIPO, have now been acknowledged in WIPO's own formal Development Agenda.

The World Bank's report makes mention of intellectual property in several contexts. It mentions:

that innovation and growth depend on IP (p. 221, p. 302)
that international IP regimes require greater harmonization (p. 62-63; p. 297)
that IP needs to be balanced (p. 221) and that “countries can also allow the concept of “fair use” in intellectual property regulations” (p. 303; emphasis added).

The Bank's comments represent an view of IP that lacks nuance and balance, failing to take on board the extensive research done on the relationship between IP and development. First, the World Bank's report, while noting the complexity of the relationship between ICTs and development, fails to take on board this same complexity when it comes to IP. While arguing that innovation depends on IP, it fails to note the ways that IP can impede innovation (more on this below).

Second, Digital Dividends does not take adequately into account the ways that international IP regimes have failed to facilitate development and, at times, have stood in the way of development by impeding access to educational materials and pharmaceuticals. The UK Commission on IP Rights long ago noted that "the interests of developing countries are best served by tailoring their intellectual property regimes to their particular economic and social circumstances" (156). The Commission also argued that "there are strong arguments for greater flexibility in setting an optimum time to strengthen IP protection, taking into account the nation’s level of economic, social and technological development" (161). International IP regimes take numerous options off the table when it comes to tailoring IP regimes; they greatly restrict states' flexibility in this regard. The Commission called on developed countries to "discontinue the practice of using regional/bilateral agreements as a means of creating TRIPS-plus IP regimes in developing countries as a matter of course" (163). This does not match with the World Bank's emphasis on the urgency of further harmonization.

Third, the World Bank's report under-emphasizes the need for fair use and other limitations and exceptions to IP. Here, Digital Dividends utterly fails to take on board extensive research indicating the potential of such measures to contribute to development of various types, including development in the fields of education, health, innovation, technology, and clean technologies.

Jeremy de Beer and I have noted that the relationship between IP and development are a much more complex matter than the "power tool" view suggests. Too much protection can be as bad as not having enough, contributing to gridlock (where IP is held by too many different people such that it impedes efficient market transactions) and high costs to the inputs of innovation (77). (IP protection may also be irrelevant to encouraging innovation, if IP services are not available, as Rutenberg notes.) Models of IP that emphasize access and openness in intellectual property can, de Beer and I argue, facilitate collaboration, universal participation, and adaptation of products to local communities (80). Further, we note that IP can facilitate the concentration of wealth in the hands of multinationals (77). Such inequality is exactly, as the Bank itself notes, what stands in the way of the potential of digital dividends.

Sunday, January 31, 2016

Canada considers copyright registration - again

The Embassy News reports that Canada is considering making the extra twenty years' term extension under the Trans-Pacific Partnership Agreement conditional on copyright registration.

Such a move would have many advantages, and would permit those works that are not registered to fall into the public domain. However, Embassy notes that the Berne Convention, a foundational copyright treaty, prohibits making formalities such as registration a condition of granting copyright. As Embassy notes, the Berne Convention is ambiguous as to whether this prohibition lasts for the full term of copyright, or whether it covers only the initial Berne-mandated term of life plus fifty years, leaving countries free to do what they want after that.

This isn't the first time that Canada has hit up against this dilemma. In 1931 Canada passed a Copyright Act that also required certain types of registration, and the same question arose. At issue, in particular, was the requirement that copyright collectives register lists of the works they claimed to grant licenses in. It was felt that copyright collectives were claiming copyright infringement in works they had no rights in and that, to hold them accountable, lists of their works should be published.

No major challenge to Canada's provisions was ever brought under the Berne Convention.

For more details, see The Struggle for Canadian Copyright, pp. 121-125.

Here are the relevant sections of Canada's 1931 Copyright Act:

While the proposed option could be a move demonstrating much-needed copyright innovation with the public interest in mind, an even better option would be not to implement the TPP.

Wednesday, January 27, 2016

My upcoming talk on February 3rd at McMaster University.