Author name: InfoJustice Eds.

Artificial Intelligence, Blog

Highlights from the USCO Report on the Economic Implications of Artificial Intelligence for Copyright Policy (Part 1: Output Phase)

/

Luca Schirru About the Report In February 2025, the U.S. Copyright Office released the report “Identifying the Economic Implications of Artificial Intelligence for Copyright Policy: Context and Direction for Economic Research”, edited by USCO’s chief economist, Brent Lutes. The report was produced after months of research, interactions among scholars and technical experts, and the outcomes of a roundtable event. By identifying the most pressing economic issues related to copyright and artificial intelligence (AI), the roundtable “aimed to provide a structured and rigorous framework for considering economic evidence so that the broader economic research community can effectively answer specific questions and identify optimal policy choices.” Considering the length of the report and the variety and complexity of the issues it addresses, we will split our analysis into two separate blog posts: one focusing on the output phase and the other on the input phase. Following the structure of the report, we will begin with the output-related topics: “Copyrightability of AI-Generated Works and Demand Displacement” and “Copyright Infringement by AI Output”, as these are most directly connected to copyright. For this reason, we will not summarize the section on “Commercial Exploitation of Name, Image, and Likeness”, and instead recommend that readers refer directly to the report for details on that topic.  Copyrightability of AI-Generated Works and Demand Displacement This chapter, whose principal contributors are Imke Reimers and Joel Waldfogel, proposes the following question: “how the emergence of generative AI technology affects the optimal provision of copyright protection?” When discussing whether AI-generated works should be copyrighted, it connects to whether they cause a net positive value, and that there would also be the need “to be weighed against the value of human-generated works displaced by the technology”. (p.10) The substitution effect is also considered, not only in cases where AI-generated works substitute human-generated ones, but also when AI-generated works are verbatim or near-verbatim reproductions of pre-existing human-generated content. Similarly, some of these near-verbatim reproductions may decrease the value of the related human work when, for example, they provide misinformation. Such a decrease in value may also reduce interest in human-generated works. On the other hand, and from an economic perspective, the report also suggests that “all of its uses would supplant revenue for human creators. Some uses will reduce deadweight loss, replacing it with consumer surplus by allowing for additional consumption that otherwise would not occur”. (p.10) One of the effects that may be seen in the long run relates to the fact that human experimentation leads to more radical stylistic innovation and experimentation, while it is not clear “whether AI-generated output can ever engage in the same sort of experimentation and innovation as humans”. (p.11) While the report acknowledges that there is a possibility that AI may reduce production costs and be a tool to promote creativity, increase productivity, and enhance quality, it warns about the risk of less experimentation, crowding out “more risky and costly experimental creations that sometimes lead to valuable innovation”. (p.11) Displacing human creators may even be harmful to the development of Gen AI, as these models are trained with human-generated works, according to the report. A first conclusion that may be drawn from this section is that further research, including empirical research, needs to be carried out to better understand issues like the value created and displacement caused by GenAI, the decrease in the value of human-generated works, the “degree to which the fixed cost recovery problem exists for AI-generated works” (p.12), and “the demand curve and cost function for creative works”. (p.14)  When it comes to offering copyright protection to these AI-generated outputs, the report suggests that it would incentivize their production and affect human output in both positive and negative ways. However, it also recalls that this may not be optimal, as “copyright inherently limits public access to existing works and thus produces a social cost”. (p.12) The report also notes that production costs may differ between human-generated and AI-generated works, and that “copyright protection only serves its economic objective if the social value of the former outweighs that of the latter. If the fixed production costs of AI-generated works are sufficiently low, the additional incentives of copyright are not necessary for reaching optimal production levels, thus, offering copyright protection would be suboptimal”. (p.12) Copyright Infringement by AI Output As previously mentioned, the report does not delve into legal issues, focusing instead on economic analysis. In the chapter primarily contributed by Joshua Gans, the author offers considerations from an economic perspective on defining the “optimal scope of what output is infringing,” noting that “copyright protection from infringement should balance the incentives to produce and the ability to consume creative works.” The author begins by explaining one of the structural dynamics of copyright, where “the mechanism used for incentivizing the production of new works (exclusive rights pertaining to the usage of a work) also limits consumers’ access to existing works”, and that the “broadest possible scope of protection could also effectively hinder new creative output for fear of liability”. (p.16) It argues that an important step in the analysis is to identify the “optimal level of market power that we wish to confer to rightsholders in the context of competing AI-generated works”, assuming this level to be the same as that used in infringement disputes involving human-generated works. The chapter proposes considering multiple, but not all, factors that may impact the balance mentioned above, and reflects on how this would be different in cases involving AI (pp.16-17) Several factors may affect the market power of the rightsholders, including but not limited to the threshold for infringement (the higher the threshold, the lower the power) and the requirements to demonstrate that the copy was infringing. On the latter, it is also argued that in the cases concerning AI-generated work, “access [to the allegedly infringed work] may be harder to dispute”. (p.17)  According to the study, these factors may be helpful to understand if a rightsholder may or may not exercise its market power, but the potential

Blog

Educational exceptions in Copyright Amendment Bill are mandated by international law and the Constitution

/

By Faranaaz Veriava and Anne Marie Strohwald  The Constitutional Court [in South Africa] will on 21 and 22 May 2025 hear submissions relating to the constitutionality of the Copyright Amendment Bill that has been in the making since as far back as 2015. The National Assembly voted for the Copyright Amendment Bill in 2024 amid some intense opposition. The President, instead of signing the Bill into law, invoked his presidential prerogative in terms of section 79(5) of the Constitution and referred it to the Constitutional Court, raising reservations in respect of the constitutionality of certain aspects of the Bill, including whether the educational exceptions – that exempt activities associated with teaching and research from copyright protection – are consistent with international copyright law.  The Centre for Child Law, a public interest organisation and the Unesco Chair: Education Law in Africa, a rights-based think tank, both based at the University of Pretoria, have been admitted as the fifth amicus curiae in the matter. Interestingly, in a crowded house of eight amici that include publishers, authors, musicians and other creatives, the Centre and the Unesco Chair are the only amici that have been granted leave to make oral submissions in the court. At the core of their submissions is the assertion that while the President considers whether the Bill is compliant with international copyright treaties and whether the exception violates section 25(1), the property right clause, the President is completely silent on South Africa’s obligations in terms international human rights law and its broader constitutional obligations.  Background to the Copyright Amendment Bill referral In 2020, the President referred the Bill back to Parliament for similar reasons. In 2021, the organisation Blind SA, frustrated by the persistent impact of delays in copyright reform that prolonged a book famine wherein blind persons had access to less than 10% of available books, instituted an application to declare the 1976 Copyright Act invalid due to its failure to provide a copyright exception for persons with visual disabilities.  In 2022, the Constitutional Court in Blind SA I declared the impugned provisions, that required the permission of copyright owners – rarely provided – before their works could be reproduced in accessible formats for persons with visual and print disabilities, to be constitutionally invalid. The provision also criminalised accessible formatting without such permission. The court held that requiring the permission of the copyright owners to create accessible formats amounted to a discriminatory barrier that unfairly prevented people with visual and print disabilities from accessing copyrighted materials.  The court order suspended the declaration of invalidity for 24 months and formulated an interim remedy in the form of a reading-in of a temporary provision to the Copyright Act. The suspension period lapsed in September 2024, after being voted on in Parliament, but without being signed by the President. This necessitated that Blind SA return to the court on an urgent basis.  The Constitutional Court in Blind SA II held that the failure to enact the Bill within 24 months created a legal gap, reverting the Copyright Act to the position before Blind SA I, making people with visual and print disabilities vulnerable and having to make the impossible decision to either break the law or not have access to a books. It therefore read into the Act the carefully crafted education exception in the Bill that aims to enable accessible format shifting for persons with visual and print disabilities. This provision is not one of the educational exceptions that are the subject of the President’s current reservations and remains in place if, and until, the Bill is finally signed into law.  Educational exceptions will ease access for poor learners and students Thus, while Blind SA II is a long-awaited victory for blind people for multiple reasons, the educational exceptions are not only included in the Bill to facilitate access to learning materials for persons with print and visual disabilities, as is suggested in the President’s submissions. The educational exceptions are necessary to ensure that all learners and students, including the poorest learners and students, have access to learning materials. This category of learners and students, while including persons with print and visual disabilities, constitutes the majority of learners and students in South Africa. Copyright, therefore, exists as a barrier to access to educational materials for poor learners and students. A wide body of evidence, including from Unesco, makes clear that there is a direct correlation between educational materials and educational outcomes. Research disaggregating data on educational outcomes further highlights that educational outcomes are worse for learners and students from poorer communities lacking access to basic educational resources. For example, copyright laws preventing the making of copies of textbooks for learners and students make access to knowledge unaffordable.  The Centre and the Unesco Chair argue that the educational exceptions are necessary for South Africa to comply with international human rights law to ensure the enjoyment of three reinforcing and mutually interdependent rights: The right to education, the best interests of the child principle and the principle of equality and non-discrimination. Furthermore, section 39(1) of the Constitution mandates that international laws serve as an interpretive guide to its counterparts in the Constitution. Section 233 of the Constitution also requires that, “when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law”.  The right to education is recognised in several international and African regional instruments, including: the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Rights of the Child (CRC); and the African Charter on the Rights and Welfare of the Child (ACRWC) – all of which have been ratified by South Africa, thus creating obligations for South Africa as a party to these instruments. International human rights law elaborations of the right confirm that the educational exceptions are permissible. The availability of education in international human rights law refers not only to the availability of schools, but also includes the availability of resources to facilitate teaching and learning. The accessibility

Blog, IP and Development

Counterfeit Concerns or Development Disconnect? A Look at the UK Proposal at CDIP/34

/

Sean Flynn and Andres Izquierdo A debate broke out at the 34th session of WIPO’s Committee on Development and Intellectual Property (CDIP) about a proposal from the United Kingdom on “Development of Strategies and Tools to Address Cross-Border Trade in Counterfeit Trademark Goods in Developing Countries.” The project aims to support customs enforcement against counterfeit trademark goods. If adopted, this would appear to be the first CDIP project focused explicitly on such border enforcement mechanisms. The project was criticized by many developing countries for not aligning adequately with the spirit and objectives of WIPO’s Development Agenda and was postponed until the next meeting.  The Development Agenda was adopted in 2007(WO/GA/34/16) to reorient WIPO’s IP activities to support sustainable development, emphasizing flexibilities, public domain preservation, and inclusive innovation. The Development Agenda was adopted at the same time multinational industries were pushing for new international norms on customs and border enforcement as part of the so-called “Enforcement Agenda.” See Susan K. Sell, The Global IP Upward Ratchet, Anti-Counterfeiting and Piracy Enforcement Efforts: The State of Play,, PIJIP Research Paper Series. No. 15, 2010), http://digitalcommons.wcl.american.edu/research/15/. Around this time, developing countries often blocked efforts of developed countries to reorient IP policy discussions toward work on enforcement. In this context, only one recommendation on IP Enforcement was included in the final 45 Development Agenda Recommendations, listed under “Other Issues,” and emphasizing “broader societal interests”. To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.  Although other WIPO Committees, primarily through the Advisory Committee on Enforcement (ACE), work on IP enforcement capacity building, the issue has not been adopted into the CDIP’s work. Thus, the UK’s proposal breaks some new ground for the Committee. The UK presented project CDIP/34/4 as a capacity-building initiative to help developing countries prevent the flow of counterfeit goods at their borders. It outlines a three-pillar structure: case studies on smuggling methods, operational guidelines for customs risk assessment, and training sessions tailored to national needs. According to the  UK Statement at the CDIP:  “The primary objective of the proposed project is to strengthen the technical capability of the beneficiary countries to counter the threat of counterfeit goods entering their national borders. Given the large scale of cross-border counterfeit goods trade, this project if adopted will not only help protect the domestic economy and public safety of beneficiary countries but also strengthen IP enforcement to the benefit of trademark owners globally. The project is built on three pillars. First pillar will focus on the examination of the ways in which counterfeit trade markets enter the borders of the beneficiary countries. (…)The second pillar will aim towards enhancing the counterfeit risk assessment framework of each beneficiary country through the production of bespoke operational guidelines. (…)The third and last pillar concerns the provision of the capacity building programme including virtual and on-site training. Strong concerns came from the African Group (led by Algeria), Nigeria, Brazil, Indonesia, Bangladesh, Lesotho, Pakistan, and others. The main arguments raised against the UK proposal focus on three core concerns.  First, the project frames counterfeiting as a problem specific to developing countries, reinforcing stereotypes and ignoring the global, transnational nature of illicit trade. For example: Lesotho: “My Delegation views this formulation as inherently discriminatory and imbalanced. By singling out Developing Countries as the locals of counterfeit trade, the proposal reinforces harmful stereotypes and overlooks the global and complex nature of counterfeiting. This is not merely an issue confined to any one region or development status. It involves supply and demand chains that spend developed and developing nations alike, including transit routes, manufacturing hubs and consumer markets across all levels of economic development. We are concerned that this approach risks stigmatizing Developing Countries, diverting attention from the need for shared responsibility, equitable cooperation and inclusive capacity building mechanisms. Moreover, it does not sufficiently account for the historical and structural trade imbalances that limit Developing Countries’ abilities to enforce Intellectual Property rights effectively.” Nigeria: “The current text concentrates on border interdiction but pays insufficient attention to identifying, analyzing, and dismantling the production and manufacturing hubs where counterfeit goods originate. Without shining a light on those upstream nodes, enforcement at the border will remain a costly game of catch-up. While enforcement capacity is important, the proposal overemphasizes seizure and risk profiling at the expense of public facing awareness, trader training, consumer education and private sector partnerships, all of which are indispensable for reducing demand and using the culture of respect for Intellectual Property. By concentrating resources on investigative and interdiction tools, the proposal risks diverting limited WIPO budget away from development-oriented priorities including MSME support, market formalization and innovation promotion.” Second, the proposal was criticized for adopting an enforcement-heavy approach that prioritizes border interdiction over development-oriented measures such as capacity building for innovation, support for informal economies, and public awareness.  Algeria (on behalf of the African Group): “The African Group is not in a position to accept this proposal in its current form. We call on more developmental goal of this project which is currently centered around enforcement aspects.” Third, it lacks alignment with the WIPO Development Agenda, particularly by failing to incorporate TRIPS flexibilities, safeguards against over-enforcement, and mechanisms to ensure proportionality and development impact. Indonesia: “First, we are concerned that this project advances a predominantly investment-oriented approach which may not fully align with the core principle and objective of the WIPO Development Agenda. In particular, we note the absence of sufficient safeguards for informal economy and the lack of adequate consideration for flexibilities provided under the Trade Agreement, both of which are crucial for developing countries, including Indonesia. Second,

Blog

Limitations and Exceptions in the U.S. Special 301 Report 2025

/

Sean Flynn, Lokesh Vyas and Luca Schirru The first Special 301 Report under the Trump Administration was released last month: 2025 Special 301 Report (final).pdf. The report always gives insight into the administration’s trade priorities1. How the Trump Administration will approach intellectual property matters is a bit of a mystery with its trade policy positions in the campaign taking conflicting approaches to the issue.2 The first Trump Administration Special 301 Report suggests that copyright policy is returning to its norm at USTR, with complaints about overbroad copyright exceptions, including for the circumvention of technological protection measures, raised against many of the countries on its warning lists. Countries Named and Blamed Twenty-six countries are named on in the report, with no country being listed as a Priority Foreign Country — which is the level at which direct threats of trade retaliation are raised. But the Report keeps the threat alive, stating: “Over the coming weeks, USTR will review those developments against the benchmarks established in the Special 301 action plans for those countries”.3 If countries fail to address U.S. concerns, the USTR may take actions, including enforcement measures under Section 301 of the Trade Act or dispute settlement procedures under the WTO or other trade agreements. Eight countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Mexico, Russia, and Venezuela. Eighteen countries are on the Watch List: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Ecuador, Egypt, Guatemala, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Türkiye, and Vietnam.  Of the countries listed in the report, two countries on the Priority Watch List (India and Indonesia) and four countries on the Watch List (Canada, Ecuador, Thailand, and Vietnam) are subject to complaints about “overly broad exceptions”:  Priority Watch List India: The Report alleges that Section 31d of the Copyright Act, 1957, which governs statutory licensing for the broadcasting of literary and musical works, as well as sound recordings, could be interpreted to allow statutory licensing for interactive online streaming, which, according to the report, “would have severe implications for right holders who make their content available online.” The report also rebukes “overly broad exceptions for certain uses” that raise “concerns about the strength of copyright protection in India”. However, the report does not name those exceptions. Finally, it complains that India has not made sufficient amendments to its Copyright Act to to protect technological protection measures and rights management information to comply with the WIPO Internet Treaties (i.e., WCT and WPPT).4  Indonesia: The report complains of “overbroad exceptions to provisions that prohibit the circumvention of technological protection measures” and urges Indonesia to consider amendments to its copyright law.5 Watch List Canada: The Report states that stakeholders reported issues with a “broad interpretation of the fair dealing exception for the purpose of education, which was added to the copyright law in 2012, as well as the relevant case law on the subject, has significantly damaged the market for educational authors and publishers”.6 Ecuador: The Report raises “concerns raised by the U.S. Government and various stakeholders on issues related to overly broad or vaguely defined copyright exceptions and limitations”.7 Thailand: The report urges Thailand to consider reviewing its copyright law to address several issues, including what is called “overly broad exceptions to provisions that prohibit the circumvention of technological protection measures”.8 Vietnam: Concerns were raised about “overly broad exceptions to copyright” and the implementation of the WIPO Internet Treaties, “including protections against circumvention of technological protection measures and certain acts affecting rights management information”.9

Education

The Importance of Copyright Exceptions for Teachers and Learners

/

by Dr. Mugwena Maluleke, President of Education International (EI) and General Secretary of the South African Democratic Teachers’ Union (SADTU) On 21 May 2025, the Constitutional Court in South Africa will consider the constitutionality of the Copyright Amendment Bill passed by parliament in 2019 and again in 2024. The new Bill introduces exceptions and limitations to copyright to allow educators to copy, share and adapt excerpts of copyrighted learning materials in the classroom. In this contribution to the debate, Mugwena Maluleke highlights the education crisis facing millions of learners, especially in Africa and the Global South, and the importance of copyright reforms that increase access to learning materials. This article was first presented as a keynote input to the Conference on “Copyright and the Public Interest in Africa and the Global South on 6th Feb 2025 in Cape Town. You can watch the video recording of this presentation here. Dear colleagues, It is an honour to join you today in Cape Town as we reaffirm our shared mission of ensuring equitable access to knowledge and protection of traditional knowledge for Africa. Without reiterating much of what Dr. Schönwetter has eloquently stated in his welcoming address, I extend my gratitude to all those involved in hosting this conference and to all of you attending. Thank you for your commitment to copyright law reform. Reflecting on my childhood in rural Limpopo, we were compelled to learn in English and later in Afrikaans, which led us to stand against the apartheid government in 1976. We were never given the opportunity to learn in our own language. This experience underscores the profound impact that learning materials have on a child’s potential in school. In the quest for knowledge equity, every child deserves the right to learn in their own language. Today, I stand before you not only as the President of Education International but also as the General Secretary of the South African Democratic Teachers Union, representing more than 70% of educators and education workers in South Africa. Charles Darwin, the father of evolution, once said, “It is not the most intellectual of the species that survives; it is not the strongest that survives; but the species that survives is the one that is able best to adapt and adjust to the changing environment in which it finds itself.” The Global Status of Teachers Report, launched on the International Day of Education, January 24 this year, revealed a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching. Debrah Ruh, a global inclusivity strategist, noted that “accessibility allows us to tap into everyone’s potential.” UNESCO’s Framework for Action recognizes knowledge as part of the right to education for a reason: it is crucial for teachers to have access to teaching and learning materials specifically designed for educational purposes. Fair copyright legislation is essential to enable teachers to adapt and use materials, enrich them, make them context-specific, decolonize our knowledge production and consumption in education, and address an increasingly diverse student body.  DECOLONISATION OF KNOWLEDGE and DECRIMINALISATION OF TEACHERS Having mentioned decolonisation of knowledge production and consumption in education, I must add that this implores us to embark on a journey of decolonisation, peeling back the layers of oppression that have been ingrained in our consciousness. This is not merely an act of dismantling the physical symbols of colonialism, but a profound transformation of our mental landscapes. As we lift the veils of ignorance and prejudice, we must replace them with the light of wisdom and understanding. Decolonisation is a reawakening, a reclamation of our heritage and identity.  May I also add that education is the bridge that connects our past struggles to our future triumphs. The right to education is a fundamental human right. Our teachers should not be criminalised for striving to provide quality education to our children. Unfortunately, copyright laws for education are often overly restrictive, creating barriers for teachers and the right to education. Global EI research shows that teachers in many Latin American and African countries are particularly disadvantaged by copyright legislation, forcing them to work in legal grey zones or stop using important teaching materials. The use of digital materials and adaptations for children with disabilities poses a particular challenge for the teaching profession.  Among 37 countries studied in a recent report by wireless connectivity specialist Airgain, South Africa ranks as one of the worst countries for digital readiness. THE GLOBAL EDUCATION CRISIS Recent studies highlight the urgent need for improved access to education. The 2025 Global Estimates Update by Education Cannot Wait reveals that 234 million school-aged children in crises worldwide require urgent support to access quality education, an increase of 35 million over the past three years. Refugees, internally displaced children, girls, and children with disabilities are among the most affected. The report emphasizes that these growing needs are rapidly outpacing education aid funding and calls for urgent additional financing to address this global silent emergency. Access to appropriate learning materials is a key strategy for achieving the first means of implementation (4a) under SDG4. The supporting Framework for Action Education 2030 highlights access to learning materials as one of the core strategic approaches for implementing the goal: “Education institutions and programs should be adequately and equitably resourced, with safe, environment-friendly, and easily accessible facilities; sufficient numbers of quality teachers and educators using learner-centered, active, and collaborative pedagogical approaches; and books, other learning materials, open educational resources, and technology that are non-discriminatory, learning conducive, learner-friendly, context-specific, cost-effective, and available to all learners – children, youth, and adults.” At the heart of Education International’s Go Public, Fund Education campaign is the principle of putting people before profit. The message is clear: we want creators and authors of material to be compensated fairly, but we do not want intermediaries in the copyright business, such as publishers and streaming executives, to create profit margins that deter access to learning materials

Blog, Latin America / GRULAC

Legislative Initiatives on Copyright in Brazil in 2024

/

Allan Rocha de Souza; Luca Schirru; Leon Queiroz Ramos  In Brazil, 2024 has been quite eventful regarding copyright, with the debate seemingly returning to center stage. The Senate’s approval of Bill 2338/23 (AI Bill) and Bill 2331/22 (audiovisual quotas on video-on-demand services), along with the enactment of Law 14.852/24 (Videogames Act), are the three major developments. However, no progress was made on Bill 2630/20 in the Senate (the so-called “Fake News Bill”) or Bill 2730/19 (copyright reform Bill) in the House of Representatives. Unsurprisingly, the most attention-grabbing development, which sparked numerous discussions and seminars, was the approval of the AI Bill by the Senate on December 10, 2024. This was mainly due to the uncertainties and tensions surrounding Artificial Intelligence (AI) systems and the sensitive nature of the bill’s provisions on copyright. The Senate also approved Bill 2331/22, which introduces a fee for the commercial exploitation of audiovisual works in the digital environment—an initiative that is likely to impact user-generated content. Additionally, the Videogame Act (Law 14.852/24) was enacted, establishing a regulatory framework for video games in Brazil, including their normative classification as “interactive audiovisual works developed as computer programs.” AI and copyright The AI Bill (PL 2338/23), which establishes the regulatory framework for AI systems in Brazil, was approved by the Senate on December 10, 2024, and will now be reviewed by the House of Representatives. It is worth noting that the initial regulatory proposal was approved in the form of Bill 21-A/20 by the House of Representatives on September 29, 2021, but was later superseded by the Senate Bill.  In its structure, logic, and overall approach, it mirrors the European AI Act, representing a clear example of the “Brussels Effect.” However, such mirroring may be excessive and should not overlook national particularities and specific challenges. The relationship between copyright and AI is complex and only gained national prominence in April 2024, when a dedicated chapter was incorporated into the Bill. As with any subject of this level of complexity and uncertainty (and all matters related to AI regulation fall into this category), there are always aspects that could and should be improved. These aspects were highlighted in the study “Artificial Intelligence and Copyright: Contributions to the Regulatory Debate in Brazil“ . Research in general—and text and data mining (TDM) in particular—received insufficient attention that is not able to ensure that research can continue without serious risks and costs, which could hinder this critical activity for the country. These regulatory oversteps include: (i) limiting research to institutional settings, (ii) prohibiting public-private research collaborations, and, most importantly, (iii) requiring that training data be “lawfully accessed,” a condition with significant implications. Without cutting-edge research, the country risks stagnation. Moreover, these provisions will impact all data-intensive research activities, across all sectors, regardless of whether they involve AI system development. The remuneration and licensing obligations established for training AI systems with copyrighted works, while reasonable in cases of commercial uses with substitutive effects, impose high entry costs on domestic companies. As a result, the primary beneficiaries will be large technology players and database holders (mainly major foreign corporations) that own sufficiently large collections of copyrighted works to serve as training datasets for AI systems. Consequently, this framework will undoubtedly hinder national innovation and the development of AI systems that would reflect Brazilian characteristics — all of that without effectively ensuring compensation for authors and artists, which was supposed to be its main justification! As approved by the Senate, these constraints on research and national innovation will impact virtually all economic, industrial, and public interest activities that rely on or require large volumes of information and data—whether for fundamental research or the development of AI systems tailored to national demands. This will also affect corporate customization and internal systems development, as copyright protection extends to text, sounds, and images. Consequently, any AI system that processes these types of content will be affected. Videogames Act Published on May 3, 2024, Law 14.582/2024 (officially ‘Legal Framework for the Video Game Industry’) establishes the Videogame Act, which regulates the “manufacturing, importation, commercialization, development, and commercial use of video games” in Brazil (Article 2). It does so by establishing guidelines and principles for their use (Article 6), as well as proposing measures for fostering investment and development in the sector (Article 4). Additionally, the law explicitly excludes games involving betting with prizes, random outcomes, commercial promotions, or lottery-based modalities (Article 5, sole paragraph). The legislation introduces concrete incentives for national video game production by recognizing the sector as part of the cultural industry (Article 12), making it eligible for tax benefits and public funding, similar to other cultural goods. Furthermore, classifying investments in video game development as “investments in research, development, innovation, and culture” (Article 11, sole paragraph) will likely increase the availability of resources and foster growth in the sector. An interesting aspect of the law is the facilitation of video games for educational and training purposes (Article 10), particularly through the development of public policies within the framework of the National Digital Education Policy and the creation of a repository for games developed with public funds. Equally relevant for research and development is the possibility of state support for research, development, and improvement of educational video games, including the creation of a dedicated platform for educational games (Article 13, §1, IV). However, all of these policies are optional rather than mandatory, as they arguably should be. One of the law’s key contributions is its definition of “video game,” which directly references copyright legislation. It classifies video games as “an interactive audiovisual work developed as a computer program” (Article 5.1) and links their protection to the Software Law (Law 9.609/98), which has distinct provisions compared to the general Copyright Law (Law 9.610/98). Although it does not directly address copyright, the law provides definitions for multiple roles that different professionals can assume in the creation and production of video games. These include potential authors, such as visual artists (Article 7, §3, I), audio designers for games (Article

Blog, Broadcast Treaty

The (Long) Road to the Broadcast Treaty: A Brief History

/

Lokesh Vyas; Luca Schirru; Sean Flynn  Members of the research team from the Program of Information Justice and Intellectual Property (PIJIP)’ Geneva Center published a “Documentary History of the Broadcast Treaty in the SCCR” (2025). Joint PIJIP/TLS Research Paper Series. 145. https://digitalcommons.wcl.american.edu/research/145/ The document traces the discussions and statements made by Member States across all SCCR and General Assembly meetings from the launch of the Standing Committee on Copyright and Related Rights in 1998 to the 45th meeting of the committee in 2024. The history can be used to analyze the evolution in the statements, positions, and proposals of countries over this long history. This note describes the pre-history of the Broadcasting Treaty before the creation of the SCCR. Berne Convention Broadcasting entered the international copyright scene in the 1928 Rome Revision of the Berne Convention, with the introduction of Article 11bis to the Berne Convention: “Article 11bis: (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio-diffusion.(2) The national legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which have put them in force. Such conditions shall not in any case prejudice the moral right (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority.”[2] The exclusive right in 11bis is limited to communications “to the public” by the particular means of “radio-diffusion.” It thus did not cover issues such as rebroadcasts by other means (e.g. cable, internet, etc.) or one-to-one transmissions. Article 11bis(2) gives governments flexibility in how to regulate the right. The importance of public interest regulation was emphasized by the Sub-Committee on Broadcasting which discussed the issue at the conference.[3]  In 1948, Article 11bis(1) was expanded to cover additional technologies, and Article 11bis(3) was introduced, creating an exception for “ephemeral recordings made by a broadcasting body by means of its own facilities and used for its own emissions”.[4] The provision also permitted legislation to authorize the preservation of such recordings in official archives if they held exceptional documentary value.  The 1967 Stockholm Revision brought further modifications: Article 11bis(1) was revised to include the terms “broadcasting” and “rebroadcasting”. Article 11bis(2) remained unchanged; the wording of Article 11bis(3) was slightly modified, though without any substantial legal effect. Rome Convention The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 1961) convened jointly by two UN agencies: ILO and UNESCO, as well as BIRPI (WIPO’s predecessor), included a related right of broadcasting organizations. As James Love has described:  “Broadcasting organizations made a discrete case for inclusion in the treaty as a beneficiary, even when making no creative contribution. Backed by sheer lobbying power, broadcasters claimed that, unlike theater owners, record or bookstores, they were tasked with making works available to the public without direct compensation from listeners, often with additional public service obligations, and were entitled to rights, even when none existed for the works broadcast.”[5] The treaty defined “broadcasting” as “the transmission by wireless means for public reception”[6] and “rebroadcasting” as “the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation”.[7] The treaty was thus limited to the protection of live broadcasts by traditional wireless means. The Rome Convention included a list of permissible limitations and exceptions.[8] Brussels Convention As Delia Lipszyc noted with the rise of orbiting or geostationary satellites in international telecommunications since 1965, broadcasting organizations expressed the need for adequate protection against the ‘piracy of signals’ when their television programmes were transmitted by space satellites.[9] The Rome Convention left ambiguity on this issue as it only covered “wireless” transmissions, raising doubts about whether it applied to broadcasts relayed through satellites.  International discussions on the legal challenges of “intercontinental broadcasts of television programmes by satellite” began in 1968 and 1969. Following these meetings, UNESCO and BIRPI jointly convened a Committee of Governmental Experts to examine copyright and related rights issues affecting performers, phonogram producers, and broadcasters due to satellite transmissions. The committee met three times—in Lausanne (1971), Paris (1972), and Nairobi (1973)—laying the groundwork for the 1974 Diplomatic Conference in Brussels.[10] In the 1974 Brussels Diplomatic Conference Report, Lipszyc notes that the General Rapporteur highlighted the issue’s urgency, as recognized by the three Committees of Governmental Experts. They explored several possible solutions, including: 1.) the revision of the International Telecommunication Convention or of the annexed Radio Regulations; the revision of the Rome Convention (1961); 2.) the adoption of a new multilateral Convention; or 3.) some other formula, such as the confirmation of the existing international agreements or 4.) the adoption of a straightforward resolution condemning the piracy of signals. Quoting from Lipszyc:  “As the preparatory work progressed, a consensus emerged in favour of the third solution; even though some countries considered that the Rome Convention granted broadcasters protection against unauthorized rebroadcasting of their signals transmitted by satellites, it was still clear that, because of the few accessions to that Convention, it did not immediately lend itself to a solution of this problem at world level. … At the meetings of the three Committees of Experts, discussions focused mainly on a number of drafts of a new multilateral convention designed to prevent the rebroadcasting of signals transmitted via satellites by distributors for whom they were not intended; but it proved particularly difficult to arrive at a general consensus on the content and terms of this Convention”. The above-referred Report highlighted that the main difficulty arose at the meeting of the First Committee of Governmental Experts (Lausanne, 1971) and took up a great deal of the proceedings of all three preparatory meetings. The problem was to know whether, if exclusive rights were granted to the originating broadcasting organizations in the sphere of private law and within a new international

Blog, Design Law Treaty

Developing Countries' Accomplishments in the WIPO Design Law Treaty

/

Sean Flynn and Luca Schirru Last year, two new intellectual property treaties were adopted by the World Intellectual Property Organization — one on the disclosure of uses of genetic resources in patent applications and a second on applications for design law protection. Although the design law treaty was promoted by wealthy countries of the global north, the final outcome shows the impact of developing countries who advocated for deleting or softening provisions that regulated substantive design law while protecting the ability to require information related to Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK), or biological and genetic resources (GR).  Opening the closed list for application criteria  The main intent of the Design Law Treaty was described as harmonizing procedures and formalities for applying for design law protection. There is very little substantive international law on design protection, and the treaty was not billed as creating such minimum requirements. However, by proposing to restrict the elements that may be requested in a design law application, the basic proposal for the treaty in effect restricted what elements could be considered in granting protection.  The basic proposal for the treaty followed the Trademark Law Treaty in proposing a closed list of elements that could be required in an application. The closed nature of the list was made clear in subsection 2 of what was ultimately included as Article 4 of the treaty, which states:  “[Prohibition of Other Requirements] No indication or element, other than those referred to in paragraph (1) and in Article 10, may be required in respect of the application.” The problem with a closed list of application criteria is that it limits the substantive criteria that governments can rely upon in granting design law protection. As Bagley (2018, 995-996) argued: “by delineating a closed list of application requirements that countries can impose on applicants, the DLT in effect moves beyond formalities to placing substantive limits on countries in relation to design registration”. In the early stages of consideration of the Treaty, developing countries focused on the lack of language in the closed list allowing countries to require disclosure of traditional cultural expressions, traditional knowledge, or genetic resources used in the design seeking protection. The basic proposal for the DLT included two alternatives on these issues:  “ALTERNATIVE A [(ix) a disclosure of the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design;]” “ALTERNATIVE B [(ix) an indication of any prior application or registration, or of other information , of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design;]” During the negotiation, Knowledge Ecology International raised other issues that the United States and other laws require disclosure of in design law applications that were not included in the closed list. These included, for example, requirements to disclose uses of public funding and artificial intelligence in the creation of the design.  There was considerable opposition from the “Group B” wealthy countries of the global north to the language in Alternative A including reference to “biological/genetic resources” in the permitted elements of an application. Delegations argued that such resources were not relevant to design law.  In the end, the compromise text excluded direct mention of genetic resources but adopted open language that permits countries to require any application element deemed “relevant” to the registration of the design:   Article 4 … (2) [Indication of Information] A Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design. (3) [Prohibition of Other Requirements] No indication or element, other than those referred to in paragraphs (1) and (2) and in Article 12, may be required in respect of the application. The final outcome thus permits countries to allow disclosures of genetic resource information as well as information about uses of public funding, artificial intelligence, and other elements that a country deems relevant to the registration.  Eliminating Term of Protection The basic proposal for the DLT included two options for requiring a term of protection. Term of protection is indisputably substantive, and many countries opposed its inclusion in the treaty on this basis. But two other treaties — the Hague Agreement and the WTO’s TRIPS agreement — have minimum terms of protection of 5 years and 10 years respectively.  A proposal by the USA would have harmonized members to a minimum 15-year term, which is the present US law. [Article 9Bis Term of protection A Contracting Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the filing date, or (b) the date of grant or registration.], proposed by USA.[Article 9Bis Term of protection Contracting Parties shall have the option to comply with Article 17 of the Hague Convention or Article 26 of the TRIPS Agreement.], proposed by Nigeria. There was united opposition to any term of protection in the agreement by the Africa Group, GRULAC, and APG. As a result, fairly early on in the negotiation, Article 9bis was dropped from the negotiating text and no term of protection was included in the final treaty. Making the Grace Period Optional The basic proposal included language on grace periods during which a design could be disclosed without affecting its registerability. There are no regulations of grace periods in the Patent Law Treaty, Trademark Law Treaty, or the Hague Agreement.  Concerns were raised that this provision may disproportionately favor larger firms in weather countries that “can afford to disclose their designs publicly without immediately filing for protection, potentially stalling local competitors who lack the financial or legal capacity to navigate complex intellectual property landscapes”.  The final text established a grace period of 12 months but made this provision subject to a reservation. Thus, countries may join the agreement without binding

Blog

G20 Final Declaration

/

[et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”4.16″ global_colors_info=”{}” theme_builder_area=”post_content”][et_pb_row admin_label=”row” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}” theme_builder_area=”post_content”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||” theme_builder_area=”post_content”][et_pb_text admin_label=”Text” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” custom_margin=”-92px|||||” global_colors_info=”{}” theme_builder_area=”post_content”] Allan Rocha de Souza [1] and Luca Schirru [2] On November 18 and 19, the G20 highest representatives met in Rio de Janeiro, Brazil, when they issued the 2024 conclusive document of the Brazilian Presidency, the Leaders of the G20 Declaration. It was preceded by different sector declarations, of which the Salvador da Bahia Declaration of the G20 Ministers of Culture is especially relevant and has been commented upon here.   There was a call for action on three main priorities: “(i) social inclusion and the fight against hunger and poverty; (ii) sustainable development, energy transitions and climate action; and (iii) the reform of global governance institutions.” (p. 03 – item 13). There are plenty of references to the Sustainable Development Goals (SGDs) of the 2030 Agenda, and the recognition that the actions to reach them are lagging behind. (p.01 – item 03).   “Development” in general was linked to a variety of settings: Agendas, Goals, Frameworks, Cooperation, Trade, Banks, Funds, Policies, Programs and so on. Nonetheless, sustainability and climate are the main focus. And a broad concept of development and high goals guide the concluding remark, when the Leaders affirmed that “(We) remain resolute in our commitment to fighting hunger, poverty, and inequality, promoting sustainable development in its economic, social, and environmental dimensions, and reforming global governance.” (p. 22 – item 85)  There were serious concerns around the uses and social, economic and political effects of artificial intelligence (AI) systems. So much so it earned a chapter of its own. The impacts on labor and workers, gender gap, people in vulnerable situations and the digital divide were central preoccupations, but their worries were also extended to intellectual property, data protection, and privacy:   “As AI and other technologies continue to evolve, it is also necessary to bridge digital divides, including halving the gender digital divide by 2030, prioritize the inclusion of people in vulnerable situations in the labor market, as well as ensure fairness, respect for intellectual property, data protection, privacy, and security.” (p. 20 – item 78).  While the Salvador da Bahia Declaration of the G20 Ministers of Culture was intense on copyright and AI, the Leaders’ Declaration has been less assertive in its goals, broadly calling for “a strengthened and effective global engagement on the discussion of copyright and related rights in the digital environment and the impacts of AI on copyright right holders.” (p. 08, item 28)   Cultural workers were also acknowledged as the G20 Leaders, as they reaffirmed the “commitment to support policies that promote the contribution of those working in the culture, arts and heritage sectors and call on countries to strengthen cooperation and dialogue addressing social and economic rights and artistic freedom, both online and offline.” (p. 08, item 28)   Interestingly, IP and labor rights were conjugated to highlight concerns of fair pay and working conditions of cultural workers, as policies that promote their status should be deployed “in accordance with intellectual property rights frameworks and international labor standards, for the enhancement of fair pay and decent working conditions.” (p. 08, item 28).  While the G20 Leaders’ Declaration approach to IP and cultural rights was less assertive than the Salvador da Bahia Declaration, it underscores the importance of fair policies for cultural workers. With a stronger focus on sustainability and inclusion, it approaches development from multiple angles, tries to foster international cooperation, while reaffirming the commitment to achieving the SDGs. Looking ahead, South Africa holds the G20 Presidency in 2025. [1] Copyright Professor at the Graduation Program on Public Policy, Strategies and Development (PPED/UFRJ) and the Civil Law and Humanities Department of the Federal University of Rio de Janeiro (DDHL/ITR/UFRRJ), Brazil. He also teaches Copyright of the IP Specialization Course at Pontifícia Universidade Católica (PUC-RJ). Scientific Director of the Brazilian Copyright Institute (IBDautoral), a copyright consultant at Fundação Oswaldo Cruz (FIOCRUZ), and a lawyer. Contact: allan@rochadesouza.com – ORCID: 0000-0002-6549-0085. [2] Executive Director and Researcher at the Brazilian Copyright Institute. Postdoctoral researcher at INCC. Copyright Professor at the Specialization Program on Intellectual Property Law at PUC-RJ. Lawyer. Contact: luca.schirru@ibdautoral.org.br – ORCID: 0000-0002-4706-3776.        [/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]

Blog, Latin America / GRULAC

Perspectives from the ABPI (Brazilian Intellectual Property Association) Forum on AI and IP

/

By: Luca Schirru [1] and Allan Rocha de Souza [2] On December 11, 2024, the Brazilian Association of Intellectual Property (ABPI) organized and hosted the Forum “Decoding Copyright in the Age of Artificial Intelligence” in São Paulo. The event was on December 11th, just one day after the Brazilian Senate approved the AI Bill (Bill No. 2338/23). The bill will now be returned to the House of Representatives for further discussion and, if approved, will be submitted for presidential sanction. The forum brought together a diverse group of stakeholders: IP rightsholders, technology companies, researchers, and legal practitioners to explore some of the most pressing issues at the intersection of copyright and artificial intelligence (AI). Discussions were particularly focused on the complex challenges posed by generative AI in the realm of copyright. The adequacy – or not – of the AI Bill in addressing issues such as remuneration, opt-out mechanisms, transparency, and text and data mining was a central topic of discussion, featuring insights from national and international speakers. The panels covered issues regarding AI inputs, outputs, and the balance between copyright protection and the need for innovation and development. The Brazilian Copyright Institute was represented by Allan Rocha and Luca Schirru.    Bertin Martens offered an economic perspective and reasons why opt-out mechanisms and restrictions on AI training may be economically inefficient, also referring to the provision in the Brazilian AI Bill. Luca Schirru addressed the challenges related to training AI systems and text and data mining. He highlighted how the current text of the Bill fails to adequately promote research due to several shortcomings, such as (i) the lawful access requirement and (ii) the fact that the copyright exception is restricted to institutions and (iii) excludes university-companies partnerships.  Caroline Tauk addressed key copyright challenges related to AI-generated outputs, such as authorship, ownership, originality, and potential copyright infringement claims. Professor Pamela Samuelson provided an overview of the legal challenges and their competing arguments presented in U.S. court cases. Samuelson’s insights spanned both input-related issues, such as data used for training AI systems, and output-related concerns, highlighting the complexity of navigating copyright in the context of AI.   The approval of the AI Bill faced criticism since the final version of the text was made available less than a week before the vote, as noted by Andriei Gutierrez, who considered it to be “irresponsible that the bill passed in the Senate. The text was approved last Thursday by a minimum number of senators, and the rest had until Tuesday to approve it.” (see here and here) Finally, Allan Rocha de Souza presented a critical perspective on the AI Bill and explained why, as it is, it does not strike a good balance between the promotion of research, authors’ remuneration, or an innovation environment, and suggested that it could be greatly improved with minor changes.    The legislative year will resume in March 2025 and given the broad criticism towards the approved AI Bill from various stakeholders, further discussions and revisions to the copyright provisions are expected in the House of Representatives.  [1] Executive Director and Researcher at the Brazilian Copyright Institute. Postdoctoral researcher at INCC. Copyright Professor at the Specialization Program on Intellectual Property Law at PUC-RJ. Lawyer. Contact: luca.schirru@ibdautoral.org.br – ORCID: 0000-0002-4706-3776.   [2] Copyright Professor at the Graduation Program on Public Policy, Strategies and Development (PPED/UFRJ) and the Civil Law and Humanities Department of the Federal University of Rio de Janeiro (DDHL/ITR/UFRRJ), and in the IP Specialization Course at Pontifícia Universidade Católica (PUC-RJ), Brazil. Scientific Director of the Brazilian Copyright Institute (IBDautoral). Copyright consultant at Fundação Oswaldo Cruz (FIOCRUZ). Lawyer. Contact: allan@rochadesouza.com – ORCID: 0000-0002-6549-0085. 

Scroll to Top