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The Great Flip: Is Opt Out a Prohibited Formality under the Berne Convention? Part I

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Lokesh Vyas and Yogesh Badwal This post was originally published on Spicy IP. Bonjour, Lately, we’ve been cogitating on this curious concept called the “opt-out”, which has been cropping up with increasing frequency in generative AI litigation, including in India. The EU and the UK are taking the idea seriously and considering giving it statutory teeth. On the surface, it is sold as a middle path, a small price to pay for “balance” in the system. However, at least prima facie, it seems like a legal absurdity that fractures its modern foundational logic, where authors receive default copyright without any conditions. The opt-out model, the argument goes, reintroduces formality through the back door, a de facto formality of sorts. This shifts the burden onto authors and rights holders to actively monitor or manage their works to avoid unintended inclusion in the AI training. There have been questions about whether such an opt-out scheme is compatible with the Berne Convention, which prohibits the same under Article 5(2), e.g., here, here, and here.  Given the complex nature of this issue and the fact that many such discussions happen behind paywalls, making them inaccessible to the public, we thought it would be beneficial to share our ideas on this topic and invite further reflection. This two-part post mainly focuses on the legality of opting out without addressing its implementability and applicability, which raises several questions (e.g., as discussed recently in Martin Sentfleben’s post). In short, we probe whether opt-outs violate the Berne Convention—the first international copyright law treaty binding on all members of the TRIPS and WCT.  We answer it through two questions and discuss each one separately. First, is opt-out a prohibited formality for the “enjoyment and exercise” of authors’ rights under Article 5(2) of the Berne Convention? Two, can it be permitted as an exception under the three-step test under Article 9(2)? We answer the first question in the negative and the second in the positive. Additionally, we also examine whether Berne already has a provision that can allow this without looking at the details.  This post addresses the first question. What Makes Opts Outs So Amusing – The Flip? Many generative AI models are trained on vast datasets, which can also include copyrighted works scraped from the internet without the explicit consent of content creators, raising legal, ethical, and normative concerns. To address this, some AI developers have created and claimed “opt-out mechanisms,” allowing copyright holders or creators to ask that their works not be used in training (e.g., OpenAI’s Policy FAQs).  Herein lies the catch: it requires authors and copyright holders to explicitly say “No” to training by adding a robots.txt tag to their website with specific directives that disallow web crawlers from accessing their content. (E.g., see this OpenFuture’s guide here) Thus, instead of creators being protected by default, they are supposed to opt out to prevent exploitation. One could say that this flips the logic of copyright on its head–from a presumption of protection to a presumption of permission. But that’s not so simple.  Notably, opting out is not a novel argument. In fact, it can be dated back at least to the 1960s in the Nordic countries’ model of “Extended Collective Licensing” (ECL), which mandates collective licensing while preserving the author’s right to opt out. Other notable academic literature on opt-out can be found here, here, here, and here, dating back over two decades. Swaraj also covered this issue a decade ago. In particular, we must acknowledge the scholarship of Jane Ginsburg, Martin Sentfleben, and Stef van Gompel, who have significantly influenced our thinking on the topic. Two Key Questions: Opt out as a Formality and opt out under a permitted Exception Formality Argument first.  Here, the argument goes that the opt-out is a prohibited formality under Article 5(2) and should not be allowed. However, we doubt it. Let’s parse the provision first. Which states: “(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.” (Authors’ emphasis) For context, the provision pertains to “Rights Guaranteed outside the Country of Origin” for both national and foreign authors. And the question of no-formality pertains particularly to foreign authors. In other words, by removing formality requirements in the country where protection is claimed, the provision enabled authors to automatically receive protection without needing to satisfy foreign formalities. This matters because while countries can impose conditions on their own nationals, it’s generally assumed that they will not treat their own authors worse than foreign ones. The post follows this presumption: if a country cannot burden foreign authors, it’s unlikely to impose stricter terms on its own people. Although the removal of formalities had been discussed in the international copyright law context as early as the 1858 Brussels Conference, an important event in the development of international copyright law, it was not implemented until 1908. This change addressed practical difficulties, including identifying the “country of origin” when a work was published in multiple countries, and the challenges courts faced in enforcing rights without formalities. (See International Bureau’s Monthly Magazine, January 1910) Tellingly, while a country can make formalities for its people, it cannot do so for foreign authors. It’s generally assumed that a country would not obligate its authors more than it does to foreign authors. Textual Tensions of Article 5(2) While the phrase “any formality” in the first line of the provision might suggest that all kinds of formalities—including de facto ones like opt-out mechanisms—are prohibited, that is arguably not the case. We say this because the provision is divided into two parts, and the prohibition on formalities applies only to the first part, which is germane to enjoying and exercising rights. The second part of the provision, beginning with “Consequently”, gives leeway to the states wherein they can make formalities regarding the ‘extent of protection’ and

Blog

US Proposes Limiting IGC Meetings and Mandate

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Sean Flynn The United States delegation, in its opening statement to the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, expressed its desire to limit the activities and mandate of the Committee. The US statement, made at the 51st meeting of the Committee, recalled that the last two meetings failed to produce a common text of an agreement on traditional knowledge (TK) and traditional cultural expressions (TCEs) for the next meeting to work on. At the 49th meeting, the Like Minded Countries Group of developing countries supporting the IGC’s work blocked further use of a complex facilitator’s text produced at that meeting that contained a large number of newly competing provisions on most of the draft’s topics. At the 50th meeting, first the US and then Nigeria blocked further consideration of a consolidated text that combined draft documents on TCEs and on TK and contained several proposed changes that would threaten the desire by some for a binding and rights based approach. The US statement cited this lack of “tangible progress on textual negotiations” as evidence of “significant divergence among Member States on the purpose of the IGC and its desired outcomes” which “warrants taking a step back and reflecting on where we are going with these negotiations.”  The IGC is not a standing committee, which means that the General Assembly must reapprove a mandate for the Committee to continue work. That mandate, for the coming General Assembly meeting in July, will be negotiated at the 51st IGC. In this context, the US opined that “the next mandate should schedule fewer sessions,” and suggested that the Committee move from the current three meetings per year to just one.  The US statement is reprinted below in full. Other countries and groups supported renewing the mandate and holding three meetings per year. The US statement indicates that the negotiation over the mandate may be hard fought. UNITED STATES OF AMERICA: Thank you, Chair. As we discussed potential renewal of the mandate, we should keep in mind the last two IGC meetings, IGC 49 and 50, ended with no tangible progress on textual negotiations. As we mentioned this morning, this came at great expense of time and money for the WIPO Secretariat, Member States and accredited observers. This lack of progress reflects the significant divergence among Member States on the purpose of the IGC and its desired outcomes. For example, we have not even been able to agree on the basic issue of whether the TK and TCE text should reflect the views of all Member States. In our view, this lack of tangible progress warrants taking a step back and reflecting on where we are going with these negotiations. The lack of tangible progress also warrants moving the IGC in a more productive and less contentious direction. This mandate renewal discussion provides an opportunity to reset IGC dynamics which is needed if the IGC is to operate in an effective manner. To that end, the next mandate should schedule fewer sessions. It should also require the use of real world scenarios including case studies during Committee sessions to rejuvenate and refocus our discussions and to encourage participants to have a constructive exchange of views. And the next mandate should also reaffirm that all Member State proposals will be reflected in working text and along those lines should reference the reality that currently exists, namely that Member States have widely divergent positions. I will briefly elaborate on the number of meetings in the biennium. The United States calls on the IGC to recommend to the General Assembly that the mandate reduce the number of sessions in the next biennium. In our view, this will lead to better meeting preparation and attendance which will hopefully result in more productive engagement and forward progress for the Committee. Fewer meetings will also help to temper expectations given the wide divergence in views among Member States in terms of priorities, working methodologies and acceptable outcomes. Most WIPO bodies hold their meetings once a year. It’s time to bring the IGC in line with that standard. Consequently, the next biennial mandate should schedule no more than two IGC sessions for the biennium, one session per year. Next, the mandate should continue to reflect the preservation of separate texts and work streams for TK and TCEs. The mandate should also retain language on taking an evidence-based approach, having a Member State driven process, providing examples of national experiences and adopting a work program based on open and inclusive working methods. We would like Member States to agree that proposals related to IGC work streams, including those directed to biodiversity issues, should be raised in the IGC and not in WIPO’s technical bodies such as technical Committees and working groups. Over the last year, several technical bodies at WIPO have faced proposals that are duplicative of IGC discussions. This has created unnecessary confusion in those bodies and distracted them from their properly mandated work. In our view, these proposals belong only in the IGC. Participants would be confused and express opposition if patent proposals were raised in the SCCR or updates to the international patent classification were proposed in the Madrid Working Group. Proposing GR, TK and TCE-oriented changes in other bodies or WIPO contexts is no different and ignores the jurisdictional integrity of WIPO bodies. The United States believes ensuring discussions are not taking place in duplicative manners across WIPO bodies is a critical consideration in any mandate outcome moving forward. Neither the TK nor TCE subject matter is ready for a Diplomatic Conference. Instead, the current texts reflect widely divergent positions. The IGC needs to continue the discussion and negotiation process. With or without brackets, the wide range of alternatives in the working text is a compelling reminder of just how far apart Member States are on every critical aspect of these discussions. Consequently, at this time, the United States cannot support a recommendation to the WIPO General Assembly that

Blog

EIFL publishes new provision on Secondary Publication Rights

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Luca Schirru and Sean Flynn EIFL Draft Law on Copyright On May 27, 2025, EIFL launched an updated version of its Draft Law on Copyright, featuring a new provision on Secondary Publication Rights (SPRs) (more information about the process can be found here). The new provision reads as follows:  This provision is part of the EIFL Draft Law on Copyright, a “practical guide to assist librarians, policy-makers and legislators when copyright laws are being updated.” The guide aims to support libraries and is continually updated considering recent policy and legislative developments and the impact of new technologies.  Secondary Publication Rights According to Angelopoulos (2022, p.4), a Secondary Publication Right is a “right for the author of a scientific publication to make it available online for free following a given embargo period”. Countries such as Austria, Belgium, Bulgaria, France, Germany, Italy, the Netherlands, and, more recently, Slovenia, already have provisions addressing SPRs in their legal frameworks.  In Belgium, for example, even in cases where the author has assigned their rights to a publisher, if the research was publicly funded, the author can make the manuscript publicly available in open access after 12 months for the humanities and social sciences, and 6 months for other sciences (Belgium Code of Economic Law, Art. XI. 196 2 §). Secondary Publication Rights are also present in South Africa’s Copyright Amendment Bill, through the insertion of section 12D in Act 98 of 1978, as follows: SPRs are also closely linked to open access policy goals, as demonstrated by the Commission Recommendation 2018/790 on access to and preservation of scientific information. This Recommendation states that Member States should implement policies and action plans related to open access and that, as a result, “whatever the channel of publication[…], open access to publications resulting from publicly funded research be granted as soon as possible, preferably at the time of publication, and in any case no later than six months after the date of publication (no later than 12 months for social sciences and humanities).” Footnotes:

Artificial Intelligence, Blog

Fair Use and Generative AI: Reading Between the Lines of the USCO Report

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Luca Schirru and Sean Flynn At the beginning of May, the report “Copyright and Artificial Intelligence. Part 3: Generative AI Training” was released, sparking a wide range of debates due to its content and the political issues surrounding its release. In this short contribution, we aim to briefly introduce the report and touch on some of the key content and political issues currently being discussed. SCOPE AND STRUCTURE OF THE REPORT The first thing that stands out about the report appears right on its first page: “pre-publication version”: a label reported as unusual and potentially unprecedented. The 113-page document addresses one of the most controversial issues at the intersection of copyright and Generative AI: the use of protected content to train Generative AI systems.  While most sources focus on fair use, the report also includes sections on “technical background,” “infringement,” and “licensing for AI training”, all of which are a “must read,” especially for those just joining the discussion and feeling overwhelmed by the hundreds of thousands of articles, blogs, books, and other resources available on the topic. The report attempts to summarize some of the main issues in both the legal and technical fields. The approach taken by the USCO is sometimes described as “favorable to copyright owners” or as “a mixed bag”, receiving both praise and criticism on multiple fronts, as we will illustrate below. POLITICAL CONTEXT AND CONTROVERSIES The timing of the report While it may be early to determine the precise reasons behind the (unusual) release of a pre-publication version, several explanations have been speculated, though none have been confirmed. The report states that its early release was made “in response to congressional inquiries and expressions of interest from stakeholders.” However, questions have been raised that may relate to concerns about potential restrictions under Trump Administration, which is arguably aligned with positions favorable to big technology companies, as well as fear that the report could be buried in the event of the dismissal of the Register of Copyright, or the potential influence on ongoing legal cases. Regarding the latter, there have been concerns about the timing of the report and how it could interfere with the outcomes, especially the fair use analysis, of ongoing lawsuits. As noted, “it could put a thumb on the scale for how the courts will resolve these cases,” without giving the parties an opportunity to address any potential gaps in the report, which could have a significant impact on other GenAI cases. Leadership changes and copyright policy While the timing of the notice of dismissal of Shira Perlmutter (Register of Copyrights at the time the report was drafted) and the release of the report could give rise to the inference that the report was the sole reason for her dismissal, other events may have influenced the decision as well. The day before the release of the (pre-publication version of the) report, the Librarian of Congress, Carla Hayden, who had appointed Shira Perlmutter, was dismissed. Therefore, concerns about additional leadership changes may also have played a role in the decision to release the pre-publication version. An extra layer of complexity arises when one considers that Perlmutter’s position was one appointed and overseen by the legislative branch. The argument that the report may have contributed to the dismissal has often been linked to an alleged alignment between the Trump Administration’s position and that of big tech companies. This connection can be inferred from Rep. Joe Morelle’s statement, reported by POLITICO, claiming it is “no coincidence [Trump] acted less than a day after [Perlmutter] refused to rubber-stamp Elon Musk’s efforts to mine troves of copyrighted works to train AI models.” Finally, as reported by Authors Alliance, on April 30, “American Accountability Foundation urges President Trump to fire ‘deep state’ librarians, targeting Carla Hayden and Shira Perlmutter,” based on the claim that Hayden was supporting Biden policies, particularly in the areas of intellectual property and transgender rights. FAIR USE AT THE HEART OF THE DEBATE While the report addresses multiple issues, both legal and technical, the most debated (and anticipated) topics are those related to whether the use of protected content to train Generative AI systems qualifies as fair use. The fair use chapter is the longest in the report, comprising nearly half of its content. It includes a factor-by-factor analysis applied to different scenarios, with the USCO identifying the first and fourth factors as taking on particular prominence in the analysis. In the section titled “weighing the factors,” the Office states the following: “As generative AI involves a spectrum of uses and impacts, it is not possible to prejudge litigation outcomes. The Office expects that some uses of copyrighted works for generative AI training will qualify as fair use, and some will not. On one end of the spectrum, uses for purposes of noncommercial research or analysis that do not enable portions of the works to be reproduced in the outputs are likely to be fair. On the other end, the copying of expressive works from pirate sources in order to generate unrestricted content that competes in the marketplace, when licensing is reasonably available, is unlikely to qualify as fair use. Many uses, however, will fall somewhere in between.” (p.74) While there has been some agreement with certain parts of the report, such as the acknowledgment that litigation outcomes cannot be prejudged, and the view that “research and academic uses should be favored under the fair use analysis”, one of the most criticized aspects is the interpretation of the fourth factor in the fair use analysis, in which the Report concludes that original works created by AI that are not substantially similar to works used in the training may nonetheless result in “market dilution” that should weigh against a fair use analysis. According to USCO’s report: “While we acknowledge this is uncharted territory, in the Office’s view, the fourth factor should not be read so narrowly. The statute on its face encompasses any “effect” upon the potential market.373 The speed and scale at

Africa: Copyright & Public Interest, Blog

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part II)

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— Sanya Samtani[1] In Part I of this blogpost, I briefly set out the procedural history of the copyright reform process that led to the Presidential Referral of the Bill to the Constitutional Court. I also briefly explained the scope of Referral proceedings and the parties involved. In this Part, I discuss the issues raised during the hearing and what to expect going forward. Issues raised during the hearing In line with the Court’s past jurisprudence, the proceedings centred around the constitutionality of the two sets of provisions referred by the President on the basis that he referred them – the fair and equitable remuneration provisions and the new exceptions and limitations. I discuss the arguments raised regarding each set in turn. I focus here on the oral submissions – the full written submissions on record are available here. Fair and equitable remuneration (proposed sections 6A, 7A, 8A) On the fair and equitable remuneration provisions, the President remained concerned that these provisions apply retrospectively which, in his view, would constitute arbitrary deprivation of property. The President explained that although Parliament deleted the specific subsections that explicitly provided for the retrospective application of the provisions, he believed that the provisions were still applicable retrospectively. Retrospectivity, he argued, would constitute a substantial interference in the copyright owner’s enjoyment of their property (and the profits derived from it) as it would open up the possibility for windfall gains for authors notwithstanding whether their original historical assignment of copyright was unfair. Moreover, the President argued that the indiscriminate application of these provisions to all past and future assignments constituted an arbitrary deprivation of property. To prevent retrospective application, the President argued that it was necessary for the language of the provisions to explicitly state that they would apply prospectively. Underlying this argument, the President confirmed that in his view, copyright constituted a constitutionally protectable set of property interests. When questioned, the President conceded that should these provisions be read exclusively prospectively they would not be unconstitutional. The President’s initial position was supported by the Freedom Front Plus. It was also supported by the Democratic Alliance who argued that the only reasonable interpretation of these provisions was that they applied retrospectively to past and future profits derived from the exploitation of the work under copyright. On a prospective interpretation, the DA argued, the language that allows the existence of an agreement to the contrary in proposed section 6A(2) would render the provision a nullity. The DA also supported the proposition that these provisions ran the risk of arbitrarily depriving copyright owners of their property on the basis that there was a substantial interference with the right by significantly reducing its value, imposing uncertainty costs upon the entire industry and interfering with the contractual autonomy of the parties. Further, the DA argued that the lack of similar language in sections 7A and 8A was irrational – and although the President adopted this argument in his oral submissions, irrationality was not expressly part of the 2020 or 2024 Referral letter, raising the question whether the Court can consider it. NAB/SANEF/CFE aligned themselves with the arguments made by the President that these provisions had retrospective effect and ran the risk of arbitrarily changing the rights negotiated and acquired by broadcasters in the current regime, asserting that the broadcasting industry may face dire consequences as a result. Parliament, however, explained in their oral submissions that they had a clear legislative intent to ensure that the impugned provisions had prospective effect. This intent was demonstrated by the deletion of the relevant subsection from all three provisions, as acknowledged by the President, in addressing the reservations set out in his 2020 Referral letter. Recreate Action aligned with Parliament’s position on the deletion of the explicit retrospectivity provisions, and argued that there is a presumption against retrospectivity in the law. Where a provision can be read prospectively, it must be read in that manner. Recreate Action responded to the DA’s argument that a prospective reading of section 6A renders it a nullity by explaining that the non-obstante clause in that section would ensure its continued application. In any event, Recreate Action argued that even if the impugned provisions applied retrospectively, that did not in and of itself render them unconstitutional. To the extent that they were a deprivation of property, Recreate Action argued that even if copyright was incorporeal constitutional property, it required a lower threshold of justification for such deprivation, and that the deprivation only encompassed a single incident of ownership – the royalty right. Finally, Recreate Action responded to the claim of indiscriminate application as arbitrariness by explaining that the standards of ‘fairness’ and ‘equity’ in the text of these provisions act as levers to calibrate the application of these provisions to address unequal bargaining power and prevent any windfall gains.   In addition to testing these arguments, the Court raised concerns about the specificity of the President’s reservations with regard to these provisions. In particular, the Court was concerned as to whether Parliament had a meaningful opportunity to address the whole of these provisions – in other words, whether the President’s 2020 Referral letter flagged the whole of these provisions as triggering his reservations, or just the relevant subsection that explicitly provided for their retrospective application. If the Court were to find that the whole provisions were not referred to Parliament – to enable Parliament’s consideration of them prior to the Referral to the Court – this may bar the consideration of the merits. New exceptions including education and library exceptions (proposed sections 12A-D, 19B, C) I now turn to the second set of provisions that the President was concerned about – the new exceptions and limitations. The President argued that the exceptions and limitations sought to be introduced go too far and would conflict with the normal exploitation of the work and cause unreasonable prejudice to the rights holder. The President was also concerned that the fair use provision suffered from vagueness and introduced a level of

Africa: Copyright & Public Interest, Blog

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part I)

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— Sanya Samtani[1] On 21 and 22 May 2025, the South African Constitutional Court heard the matter of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The hearing in these ‘Referral proceedings’ was significant as it was only the second time in South Africa’s history that the President triggered an exceptional constitutional mechanism to refer a Bill to the Constitutional Court for a decision on the constitutionality of certain aspects instead of signing it into law. The Court’s decision in this case will determine the fate of a long drawn-out legislative reform process aiming to transform and modernise South Africa’s apartheid-era copyright law and bring it into the constitutional era. The Court adjourned to deliberate on the matter and the judgment will be handed down in a few months. In this blog post, I briefly outline the arguments advanced by the parties and amici curiae and highlight the issues for determination by the Court. While the Performers’ Protection Amendment Bill is also at issue, I focus on the Copyright Amendment Bill [B13F-2017] (‘the Bill’) as the aspects of the Performers’ Protection Amendment Bill that are at issue are those that incorporate the Copyright Amendment Bill. The hearing focused almost exclusively on the Copyright Amendment Bill. This blog post is in two parts: Part I deals with the procedural history that led to the Presidential Referral of the Bill and sets out an overview of the referral proceedings, and Part II deals with the issues raised during the hearing and sets out the next steps. The long and winding road to the Constitutional Court For those coming to this issue afresh, South Africa has been in the process of reforming its copyright law for over a decade, if not longer. The current Copyright Act 98 of 1978 is old-order legislation, enacted prior to democracy. While the South African Constitution allows for apartheid era legislation to be saved if it can be interpreted to be consistent with the Constitution, the Copyright Act freezes pre-constitutional economic and social relationships in the creative industry and knowledge production processes. While some parts of it may be read compatibly with the Constitution, other parts of it are in need of urgent reform. As the South African Parliament has recognised in the memorandum on the objects of the Bill, the existing arrangements have had adverse impacts upon artists due to the “power imbalance, vulnerabilities and abuse taking place in the music industry”, people with disabilities, educators and researchers. In addition to addressing this, the Bill seeks to make South African copyright law consonant with “the ever evolving digital space” as the current Act is “outdated and has not been effective in a number of areas”. In doing so, the Bill clarifies in some detail the powers and functions of the Copyright Tribunal and, for the first time, regulates collective management organisations. The procedural history leading up to the Constitutional Court hearing is central to understanding why the enactment of the Bill as a whole is subject to the Court’s determination of two narrow and specific issues. I address this briefly. Parliament passed the Copyright Amendment Bill [B13B-2017] in March 2019. The President, instead of signing the Bill, triggered a constitutional mechanism to refer the Bill back to Parliament citing procedural and substantive constitutional reservations in June 2020 (‘2020 Referral letter’). At that stage, concerned about pervasive and persistent copyright discrimination being further exacerbated by the delay, Blind SA – a disability rights organisation by and for people with visual and print disabilities – launched litigation against the state for interim relief pending the conclusion of the legislative reform process. Consequently, in 2022, the Constitutional Court in Blind SA v Minister of Trade, Industry and Competition (‘Blind SA I’) held that the Copyright Act 1978 was unconstitutional to the extent that it unfairly discriminated against people with visual and print disabilities and read-in a court-crafted remedy to rectify this discrimination with a deadline of two years from the date of judgment for Parliament to enact legislation. The remedy drew heavily from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’), on the basis that this treaty was in the process of being domesticated through copyright reform, though South Africa had not yet acceded to it.  In the meanwhile, over a period of approximately four years, Parliament considered and addressed the President’s constitutional reservations and additionally gave draft legislative effect to the Court’s judgment in Blind SA I passing the Copyright Amendment Bill [B13F-2017] in February 2024. The deadline set by the Constitutional Court in Blind SA I lapsed in September 2024, along with the court-crafted remedy, and although Parliament passed the Bill, the President did not take action in response to Parliament’s amended version.  Blind SA then urgently sought from the Constitutional Court a re-reading in of the same remedy or any other remedy that would be just and equitable following the lapsing of the remedy. Days later, the President opted for an exceptional constitutional mechanism by which he referred the Bill to the Constitutional Court (‘2024 Referral letter’) citing that two of his 2020 constitutional reservations had not been ‘fully accommodated’ by Parliament (‘the Referral proceedings’ discussed below). The Court passed an interim order in December 2024 reading in once again the remedy in Blind SA I until the final determination of the matter – which took place on 7 May 2025. In Blind SA v President of the Republic of South Africa (‘Blind SA II’), rather than further extending the Blind SA I remedy, the Court took note of the significantly advanced legislative process and the fact that the President did not have any reservations concerning the provisions regarding people with disabilities and, instead, read-in those provisions and the relevant definitions from the Bill into law, until such time as amended copyright law came into force.

Blog, Traditional Knowledge

Asking the TK Question as a Reality Check: Echoes from the Cradle Principles

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Traditional Knowledge (TK) has become a key consideration in discussions on intellectual property. In May 2024 the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted, requiring patent applicants to disclose the source or origin of the genetic resources and/or the associated traditional knowledge in patent applications. A provision allowing countries to request disclosure of TK in Designs was also included in the Design Law Treaty. But is the prevailing approach to TK sensitive to the real needs of people in Africa and the Global South? In this theoretical intervention Professor Oguamanam challenges the TK paradigm and urges that we ask a deeper question about the function TK plays in the hierachy of knowledge governance. Oguamanam urges that we build on the Cradle Principles to protect the fundamental human rights of knowledge producers and users through equitable dispersal of benefits and to “combat unidirectional informational resource extraction and misappropriation that aggravates inequities and injustice.” The following talk was first presented at the Conference on Copyright and the Public Interest: Africa and the Global South in Cape Town. The video of the presentation below can be watched here. Asking the TK Question as a Reality Check: Echoes from the Cradle Principles* by Chidi Oguamanam** TK is inherently and all round borderless. TK’s defiance of epistemic borders is its reality before the current melding of all kinds of boundaries – disciplinary, conceptual and a lot more. The idea of TK is itself a colonial conceit. The qualification of other peoples’ knowledge as cynically traditional presupposes the existence of an authentic or a default knowledge system. The renewed escalation of interest and consciousness around TK globally and on our continent has never been more exciting as it is equally troubling.  TK is Africa’s significant factor endowment, a strong even if less celebrated, less articulated, and less harnessed continent’s competitive edge.  Its subsistence and survival in the digital age is now a stuff for our collective challenge. I propose that while there has been a remarkable shift around TK on the teleological realm, we run the risk of undercutting TK’s optimal and enduring potential for our continent. We need to first invest in theorizing TK and in tackling the conceptual morass that saddles it. For the privilege of this intervention, I intend to sow some provocative seeds around TK. First, do we ignore the epistemic conceit and the erroneous assumptions over the taxonomy of “traditional knowledge?” May be yes, because of the inherent risk of chasing a red herring.  Second, do we engage the biggest elephant in the room, which is the scope of TK? The last question unravels a very important opportunity. It requires a full consciousness at all times of TK’s defiance of conventional borders. There has been consistent attempt to trifurcate TK into TK, properly so called, Traditional Cultural Expressions and Genetic Resources. This trifurcation project is a signifier of colonial influences on our epistemic autonomy. In Africa, and some non-Western civilizations our knowledge systems which, for emphasis, includes our languages, are the windows to our worldview. That worldview is fundamentally holistic, serving as a glue to our identity and much more.   The trifurcation approach is deeply problematic. It has the danger to condition our thinking and our approach to TK in ways that serve the pragmatic purpose of fitting TK within established disciplinary boundaries and knowledge governance frameworks. Trifurcation is not only an exercise that happens at WIPO or the CBD or other places where TK is on trial before Western establishments. TK has been subjugated to the characteristic inclination of western knowledge systems (the western science) to dissect ideas into their minimalist compartments and to erect artificial and often highly politicized disciplinary boundaries. And in the paradigm of pitting the west with the rest, TK is often profiled within these molecular epistemic models. The consequence of this tendency is the disembodiment of TK from its custodians and its ultimate disempowerment as a knowledge system on its own merit and integrity. Here are a few examples, when TK is framed around Genetic Resources, we are forced to pigeonhole and defend it in the court and laboratory of the life sciences. This explains why we focus on TK in agriculture, in seeds; in health, in medicines, in pharmacology; ecology, botany, forestry, horticulture and environmental sciences, etc.  To further perpetuate the conceit in each of these fields or disciplines, TK is further devalued with the “ethno-prefix”, as a knowledge system that has little prospects for scaling. We know the opposite is true. Similarly, when TK is framed in the expressive repertoire, we locate it within the established canons of the humanities, the liberal arts and aspects of the social sciences. In this compartment we focus on TK in entertainment, music, storytelling, poetry, (folk songs, folklore); arts and crafts, cuisine, gastronomy, and other miscellaneous renditions that fit within western canons and disciplinary borders. From the prism of the TWAIL, we see a highly dedicated international legal, political and institutional order (with its municipal minions) invested in deepening the balkanization project in contrast to TK’s holistic essence. These powerful institutions have carved out TK in bite sizes reflecting their politically positioned structures with nuanced jurisdictional contestation over aspects and parts of TK in the guise of latter-day TK protectionism. In these institutions, the interests of TK holders are often subjugated to the institutions’ primary loyalty in the defence of their political and economic mandates.   In trying to understand the fraught conceptual challenge around TK and its strategic weakening, the biggest evidence is the superimposition of alien knowledge governance framework over TK. The superstructure of knowledge governance is western intellectual property. It was designed without regard to TK and its producers. The international order has never given any serious attention to an alternative knowledge governance model outside the western intellectual property system. TK and its holders are summoned to the court of intellectual property to plead their validity. Objection to this approach is symbolized by the marginal appeals

Artificial Intelligence, Blog

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

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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

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Can One Country Block Everything in WIPO?

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Sean Flynn One of the questions swirling around Geneva these days is whether one country can block all progress alone. In WIPO last week, the U.S. laid down a couple gauntlets that may reappear at the Program and Budget Meetings next week. The US delegation asserted that, despite WIPO being a member of the United Nations, “[t]he United States does not support any proposal … intended to advance the implementation of the SDGs.” It also took aim at so-called “DEI” projects, asserting that “the policy of the United States to use clear and accurate language that recognizes women are biologically female and men are biologically male,” and that “[t]he United States does not and will not support the implementation of any program that promotes any form of diversity, equity or inclusion, precepts or initiatives.” So, if other countries do not bend to this will and extract such expenditures from WIPO’s budget, can the US alone block progress? The quick answer is no.   Most Geneva-based institutions strive to make decisions based on consensus, which can account for the glacial pace of some policy agendas. In the World Trade Organization, the U.S. alone has ground the organization to a halt by refusing to concede to the appointment of Appellate Board members. The WTO operates based on a very strict norm of consensus. In general, WIPO strives to operate based on consensus and one or a few members can often block progress. But the rules of operation for WIPO actually allow for votes  and majority rule. There is a very recent precedent of using voting to approve the diplomatic conferences on the two most recent treaties adopted by the organization – the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the “GRATK Treaty”), concluded at the WIPO Headquarters in Geneva, Switzerland in May 2024, and the Design Law Treaty (DLT) adopted in Riyadh, Saudi Arabia on November 22, 2024. Chapter VI of WIPO’s Rules of Procedure provide for voting on “[p]roposals and amendments submitted by a delegation … if they are supported by at least one other delegation.” (Rule 25). In such voting, “one half of the States members shall constitute a quorum,” and [u]nless expressly provided otherwise in the applicable treaties or in the present General Rules of Procedure, all decisions shall be made by a simple majority.” These rules were used to sideline US opposition to moving toward diplomatic conferences on the GRATK Treaty and the DLT in the 55th Session of the WIPO General Assemblies (GAs) in July 2022. In that meeting, the US called for several votes to overcome Russia’s opposition to funding IP technical assistance in Ukraine. As Margo Bagley described in a recent article published by the Geneva Graduate Institute, these calls opened the door for voting strategies by others: But where some saw opposition, others saw an opportunity. If WIPO members were open to voting on one issue, how about another? What about a Diplomatic Conference (DipCon), or two? Diplomats from demandeur countries in the IGC conferred with diplomats from high-income countries who wanted adoption of the draft Design Law Treaty, which had been languishing for years in a different WIPO committee and proposed a horse trade: agreement to two DipCons to result in two new treaties. If each group agreed to support the combined proposal (and lobbied like-minded states to do so as well) and the matter came to a vote, there should be enough votes to pass the measure – strategic opportunism at its best. In the end, the minority of countries opposed to the diplomatic conferences, including the United States, abstained rather than vote against the proposals. But the threat of a vote and willingness to call for one enabled the majority of countries in favor of the treaties to move them forward over the protestations of a minorty. Majority rule prevailed. A similar linkage between two normative agenda items – the Broadcast Treaty and an instrument on Limitations and Exceptions – is being pursued in the SCCR. Cf https://infojustice.org/archives/44840 (WIPO IGC Director Wend Wendland noting: describing the “overt linkage between two seemingly unrelated normative agenda items, inspired by ‘package deals’ and ‘single undertakings’ agreed on in other organizations such as the WTO” as ”a novelty in WIPO”). The EU and allied countries are pushing for a diplomatic conference on the Broadcast Treaty. The African Group and allied countries took the position in the last SCCR that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.” https://infojustice.org/archives/46253 At the last SCCR, the US maintained its support for discussing an instrument on “objectives and principles” for limitations and exceptions, and thus it is not formally opposed to progress on an L&E instrument. But even if it changed its position to block consensus, there is a procedural avenue – through voting – to overcome the opposition. Voting is generally only called for in the General Assembly and the Broadcast Treaty and L&E instrument will not be moving at the next meeting. But if the US blocks the budget based on its opposition to sustainable development and DEI considerations, we may see more rounds of voting at the next GA this July.

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

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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

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