Blog

Your blog category

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,

Africa: Copyright & Public Interest, Blog

SA CONCOURT OPENS DOOR TO ACCESS TO INFORMATION FOR PEOPLE WITH DISABILITIES IN COPYRIGHT CASE

/

In its landmark ruling on 7 May 2025, the Constitutional Court has opened the doors to access to information and accessible formats for people with disabilities.  It has also paved the way for South Africa to ratify the 2013 Marrakesh Treaty. For decades, Blind SA has been lobbying against the ‘book famine’ and lack of provisions for blind and visually impaired persons in the current copyright law.  This discrimination has gravely affected their social and economic development, education, work and leisure opportunities and other aspects of their lives, including lack of equal access to reading material that sighted persons have taken for granted.  The law has in fact made copying and reuse of copyright work in accessible formats illegal, without permission from rightsholders, essentially criminalising people for needing to access information.  Historical Context: 1999 – 2019 As early as 1999, the library and educational sectors raised concerns at a multi-stakeholder workshop convened by the Department of Trade and Industry (DTI) about the discriminatory nature of the current copyright law against people with disabilities.   DTI proposed amendments to the Act in 2000. More restrictive provisions were proposed for education, libraries and archives, and minimal provisions were included for people with visual impairments.  A task team mandated by the South African University Vice-Chancellors’ Association of South Africa (SAUVCA) and the Committee of Technikons (CTP), predecessors of University South Africa (USAf), challenged the proposed amendments to the Act in Parliament.  These proposals were subsequently withdrawn and not included in the Amended Copyright Act of 2002, which then only addressed needle time for musicians.  The task team had already succeeded in stopping more restrictive draft Regulations being passed in 1998. From 2002 until 2009 there was a legislative impasse with regard to copyright reform. Due to many problems in the music industry, the Department of Trade and Industry decided to commence a process of reform in 2009.  It commissioned various research studies and established a Copyright Review Commission to investigate ongoing problems in the music industry.  The DTI convened workshops for stakeholder groups and input was given on various aspects of the copyright law. To ensure a holistic approach to the 1978 Act, the DTI was provided with important documents and resources relating to education, libraries and other information services, and persons with disabilities, and other relevant issues sourced from WIPO, WTO, UNESCO, Creative Commons, the International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (EIFL)’s Model Copyright Law, and from regional copyright project findings and local organisations. Appropriate clauses and provisions were also submitted to the DTI relating to countries with progressive copyright laws where developed countries were enjoying benefits that South Africa, a developing country, still did not have in its copyright law. In July 2015 the DTI published a draft Copyright Amendment Bill for public comment and it was also discussed at a multistakeholder workshop convened by the DTI in Gauteng.  After receipt of many submissions and necessary edits and amendments, the Bill was forwarded to Parliament in 2017.   The Bill included Section 19D with appropriate provisions for people with disabilities, including those who are blind, deaf, dyslexic or suffer from other disabilities that prevent them from accessing information. In 2013, South Africa strongly supported the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Treaty came into effect in 2016, but South Africa did not ratify it, stating that its national copyright law would need to be amended first to include appropriate provisions for people with disabilities.  Some years later, it confirmed that once the Copyright Amendment Bill has been signed, it will move to ratify the Treaty.  Parliamentary Approval; Presidential Rejection The first Parliamentary process took over two years but the Bill was finally passed by both Houses of Parliament  in 2019.  It was then referred to the President for assent, but he did not act on the Bill for a period of 15 months.  The President was being lobbied strongly by rightsholders, collecting societies and multinationals, and was receiving unprecedented pressure from the US Trade Representative’s Office (USTR) and the EU  Commission, to stop the Bill. This led him to decide not to sign the Bill and to refer it  back for Parliamentary review on 16 June 2020.  He requested a review of certain clauses, including fair use, exceptions for education and academic activities, libraries, archives, museum and galleries, and temporary copies, questioning their constitutionality.  Notably, these reservations did not include Section19D. This also led to the Portfolio Committee on Trade and Industry agreeing to send the Bill for retagging from a Section 75 Bill (National) to a Section 76 Bill (Provincial), which resulted in a drawn-out process through all nine Provincial Legislatures.  Blind South Africa Litigation According to previous commentary, “Recognising that the referral would result in an inordinate delay, Blind SA approached the Gauteng High Court in 2021, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty”.[1] On 7 December 2021, the Gauteng High Court ruled that the current Act is unconstitutional as it relates to people with blind and visual impairments . On 21 September 2022, the  Constitutional Court confirmed this ruling and made a landmark decision, marking the first time in its 27-year history that it addressed a copyright law case. The Court recognised that the absence of provisions for accessible formats in copyright law constitutes disability discrimination.  This ruling set a global precedent, affirming that copyright law, like any other law, must be interpreted in a way that aligns with constitutional principles, including the rights of people with disabilities.  As an interim solution, the Court read-in a temporary provision (Section 13A) into the current Act, allowing for the creation

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

Africa: Copyright & Public Interest, Blog

South African apex court recognises the “constitutional imperatives of equality and dignity for persons with disabilities” in landmark copyright judgment 

/

On 7 May 2025, the Constitutional Court of South Africa handed down judgment in Blind SA v President of the Republic of South Africa and Others [2025] ZACC 9 (‘Blind SA II’). The judgment read-in an immediately operational accessible format shifting provision for people with all disabilities across the spectrum as well as expressly providing for the cross-border exchange of accessible materials without the requirement of authorisation. In doing so, it gave effect to South Africa’s constitutional and international obligations to ensure that people with disabilities do not experience unfair discrimination (and other rights violations) – in this case, by the operation of copyright legislation. It also transformed South African law to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’) and, by addressing this provision to people with all disabilities, it went beyond Marrakesh’s “floor”, to fulfil its obligations under the South African Constitution and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).  Blind SA II is the latest major instalment in a long-standing – and ongoing – saga of South Africa’s copyright reform process that began over a decade ago. South Africa’s Copyright Act 98 of 1978 does not contain provisions that explicitly permit accessible format shifting. People with disabilities have thus had to expose themselves to criminal and civil sanction to access educational and cultural materials that are unavailable in accessible formats. On this basis, and due to the protracted reform process, Blind SA, represented by SECTION27, approached the High Court in 2021, arguing that the lack of such provisions in the Copyright Act constituted unfair discrimination against people with disabilities, and violated several rights in the Constitution’s Bill of Rights including the rights to equality, dignity, education, culture and freedom of expression. The High Court held that the Act was thus unconstitutional. The Constitutional Court confirmed the unconstitutionality of the Act to this extent in Blind SA v Minister of Trade and Industry and Others [2022] ZACC 33 (‘Blind SA I’). Writing elsewhere, I have conceptualised this as copyright discrimination. To remedy the constitutional defect, the Constitutional Court read-in a court-crafted provision (s 13A) that explicitly permitted accessible format shifting – but limited its scope of application to literary and artistic works and to people with visual and print disabilities only. Mindful of the ongoing legislative process, the Court suspended the declaration of invalidity and limited the reading-in remedy to a period of two years – after which it envisioned that the reform process would be concluded. However, on 21 September 2024, the remedy ordered by the Court in Blind SA I lapsed, creating – in the Court’s own words in Blind SA II – an “immediate rights vacuum affecting the constitutional rights of visually and print-impaired persons” [para 55]. Although Parliament had acted within the time frame set by the Court’s order by passing the Copyright Amendment Bill in February 2024, the President did not make a decision on whether to sign the Bill into law within the prescribed time frame. Following the lapsing of the remedy, Blind SA urgently approached the Constitutional Court seeking relief amongst other things on the basis that the scheme of copyright – and its criminal and civil consequences for infringement – required a clear statement of permitted acts that were exempted from infringement. Following the lapsing of the remedy, the legal position was unclear, creating uncertainty in the face of confirmed constitutional rights violations. Blind SA thus sought a re-reading in of the same remedy (s 13A) until the process concluded, or any other remedy that the Court considered just and equitable.  Days after Blind SA’s application was filed, on 10 October 2024, the President triggered a rare constitutional mechanism, declining to sign the Bill into law and instead referring it to the Constitutional Court citing that two of his constitutional reservations, previously raised in 2020, when he referred a previous version of the Bill to Parliament, had not been fully accommodated by Parliament. Notably, his reservations did not concern the accessible format shifting and cross border exchange provisions (proposed s 19D of the Bill) [para 53]. In the words of the Court, “the provision maintains its constitutional integrity and remains separate from the concerns raised in the President’s referral”[para 57]. However, due to the fact that these provisions were part of the Bill being impugned by the President, they also remain in abeyance. The Court is now due to hear the matter concerning the President’s referral on 21 and 22 May 2025 (‘the Referral proceedings’) that will determine the eventual fate of the Copyright Amendment Bill.  Meanwhile, the Constitutional Court held a hearing in November 2024 where it considered Blind SA’s application for urgent relief – in light of the President’s referral. As none of the parties disputed urgency, the hearing centred around what a just and equitable remedy would look like, given the circumstances. Subsequently, in an interim order dated 18 December 2024, to remain in force until the Court’s final judgment in the case, the Court read-in once again its remedy from Blind SA I (s 13A), effectively ensuring that people with visual and print disabilities could continue to engage in accessible format shifting without it being considered an infringement of copyright. The lacuna in the law was temporarily filled.  This brings us to 7 May 2025. The Court handed down its judgment in Blind SA II summarising that back in 2022, “the constitutional defect that necessitated this Court’s intervention did not lie in any specific provision of the Copyright Act that needed to be struck down, but rather in the absence of necessary provisions to protect the rights of persons with visual and print disabilities”[para 47], and given the change in circumstances in 2025, when considering an appropriate just and equitable remedy “[t]he potential violation of fundamental rights emerges as the decisive consideration, particularly given the absence of certainty regarding the Bill’s eventual assent”[para

Blog, Trade Agreements & IP

The Unclear Status of Copyright Exceptions and Limitations in the UK-India Free Trade Agreement 

/

Jonathan Band On May 6, 2025, the United Kingdom (UK) and India announced that they had reached agreement on a bilateral free trade deal that includes a chapter on intellectual property.However, no agreement text was released. Rather, the UK Department for Business & Trade issued a summary of the agreement’s terms, and the summary acknowledged that “work is continuing to finalise the legal text and resolve the last issues.” In other words, at this point there is just an agreement to agree, rather than a real agreement. According to the summary, the IP chapter “will support our economies through effective and balanced protection and enforcement of IP rights.” The chapter will cover copyright and related rights, designs, trademarks, geographical indications, patents, and trade secrets, as well as the enforcement of IP rights. The summary provides little detail concerning copyright and related rights. It simply states that India will also commit to engaging on aspects of copyright and related rights, addressing the interests of UK creators, rights holders, and consumers. This includes around public performance rights and artist’s resale rights, which acknowledge the importance of royalty rights. India will also conduct an internal review of their copyright terms of protection.    Further, the summary notes that the chapter “will not commit the UK to domestic legislative change, nor will it undermine the UK’s own IP system or our international positions on IP.” Significantly, the summary is silent on copyright exceptions and limitations. In 2022, a draft of the UK’s proposed text for the IP chapter was leaked. The language concerning copyright exceptions and limitations was limited to the Berne Three Step Test and other treaties: Article H.7: Limitations and Exceptions   1. Each Party may introduce limitations or exceptions in its domestic law to the rights provided for in this Section [H]. but shall confine such limitations or exceptions to certain special cases that do not conflict with a normal exploitation of covered subject matter, and do not unreasonably prejudice the legitimate interests of the right holder.   2. This Article is without prejudice to the limitations and exceptions to any rights permitted by international agreements such as the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT. or the WPPT.   ​The summary asserts that the agreement would support the economies of the UK and India through “balanced protection” of IP rights, but nothing in the summary, or the UK’s 2022 draft text, reflects balanced protection with respect to copyright. The Three Step Test, by itself, is too ambiguous to provide meaningful balance. Hopefully India insisted upon language that clarified that both parties had the flexibility to adopt more open-ended fair dealing or fair use provisions, like those recently adopted by former British colonies such as Singapore, Malaysia, and Nigeria. For example, the agreement could include language similar to Article 11.18 of the Regional Cooperation for Economic Partnership (RCEP), signed in 2020. That language provides that  3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled. 4. For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 1. India initially participated in the RCEP negotiations, but withdrew in 2019 over issues unrelated to intellectual property.

Blog

Why Limitations and Exceptions Still Deserve a Bigger Role at WIPO CDIP

/

By Andres Izquierdo As WIPO’s Committee on Development and Intellectual Property (CDIP) prepares to meet for its 34th session this May, an important question is back on the table: Are we doing enough to support access to knowledge, culture, and education through copyright limitations and exceptions? These legal flexibilities—designed to enable libraries, educators, researchers, and others to use copyrighted content under certain conditions—are vital tools for development. But despite being central to WIPO’s 2007 Development Agenda, they still play a limited role in the organization’s work. WIPO’s latest reporting shows a continued emphasis on supporting IP protection and enforcement. In the Director General’s report to the CDIP, most activities are framed around helping countries strengthen their IP systems. There is a brief mention of the Standing Committee on Copyright and Related Rights (SCCR) and its ongoing discussions on the Broadcasting Treaty and exceptions for libraries and education. But these references don’t tell us much about the real developmental impacts of those discussions—or the need to ensure that any new treaties respect countries’ ability to design exceptions and flexibilities that serve the public interest. There are some positive signs. One project approved at CDIP/30 supports the use of Text and Data Mining (TDM) by African research institutions. This is the first CDIP project specifically focused on copyright limitations, and it’s a promising example of how IP flexibilities can directly benefit research and innovation. But it’s also the only one of its kind. Meanwhile, WIPO’s Flexibilities Database—which could be a key resource—still focuses almost entirely on patent law and hasn’t been updated to include copyright-related flexibilities or real-world examples of how countries are using them. So what can be done? One idea is for Member States to propose new CDIP projects that explore how copyright limitations and exceptions can support public goals—like providing access to education materials, enabling preservation in cultural heritage institutions, or facilitating scientific collaboration. Another is to ensure that norm-setting activities, such as negotiations on the Broadcasting Treaty, are carefully monitored by CDIP to assess their development impacts. These steps wouldn’t require major changes, just a commitment to make sure the tools already embedded in international IP law are better understood and more widely used. As WIPO’s work continues to evolve alongside emerging challenges like artificial intelligence, access to digital content, and global inequality, the importance of copyright flexibilities is only growing. CDIP was created to help balance the global IP system, and that balance depends on more than protection—it depends on access too. By giving limitations and exceptions the space they deserve, Member States can help WIPO truly deliver on its promise of development for all.

Blog

A Step Forward: World Intellectual Property Organization’s Copyright Committee Inches Forward on Broadcast and Limitations

/

The Forty-Sixth Session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) concluded with modest but meaningful progress on key agenda items, including on the Broadcasting Treaty, the limitations and exceptions (L&Es) agenda and the agenda item on copyright remuneration in the digital environment. The SCCR was Chaired by Vanessa Cohen, Copyright Director of Costa Rica. Broadcasting Treaty: Refined Focus, Continued Dialogue The Committee continued its examination of the Draft WIPO Broadcasting Organizations Treaty, which has been on the SCCR’s agenda since its first meeting in 1998. After the first failure to create a basic text for the negotiation in 2006, the 2007 General Assembly mandated that the SCCR achieve “agreement on objectives, specific scope and object of protection” before a recommendation to complete the treaty in a diplomatic conference. (WO/GA/34/16). The GA has further instructed that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006).  The Chair’s statements for SCCR 44 and 45 aptly summarized the current consensus on the committee on the bounds of a text that could be advanced to the Diplomatic Conference: “With respect to objectives, there is common understanding … that the treaty should be narrowly focused on signal piracy, should not extend to any post-fixation activities and that it should provide member states with flexibility to implement obligations through adequate and effective legal means” and “that the object of protection (subject-matter) of the treaty is related to programme-carrying signals linked to linear transmission”. But the bounds of these concepts have been pressed by Chair’s Drafts of a treaty that continue to use exclusive rights as a baseline, including rights to fixation and to make available stored programs on the Internet. This SCCR featured more vigorous debate over the draft than at the last few SCCR meetings, with a larger number of countries offering specific comments on provisions including on national treatment and reciprocity, exceptions and limitations, the protection of signals used in making available stored programs, and the functioning of the mechanism for alternatives to exclusive rights.  Some member states, including the European Union, the Central European and Baltic States Group (CEBS) and the Group of Latin American and Caribbean Countries (GRULAC) supported moving the current text to a diplomatic conference. But the two days of deliberations showed significant concern about many of the draft text’s provisions. After the deliberations showed a lack of consensus on the document, Brazil proposed that the Broadcast Treaty be removed from the formal agenda of the SCCR and be worked on by groups of countries outside of the SCCR. Ultimately the Chair’s Summary concluded that the facilitators would create a new draft text and the item would remain on the agenda without any endorsement of a timeline toward a diplomatic conference. Opposition to the current Chair’s Text appeared to be growing. The Africa Group noted that “some members are concerned about the potential overreach of those protections, fearing that they could restrict access to broadcast or create unintended barriers to the flow of information.” The Asia Pacific Group similarly reported the views of some of its members “determination as to whether and how Intellectual Property rights should apply with respect to broadcasting is also a development to the issue that requires a delicate balance.” The Africa Group stated an additional position 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.”  Among the “Group B” coalition of wealthy countries, the United States continued to raise serious substantive objections, stating the view that “significant work remains to be done” on the Chair’s Draft, which “continues to exceed the GA mandate for a signal based approach to protect broadcasters in the traditional sense.” The US stated that it supports “a narrow text that is focused solely on the live signal,” including through deletion of the Chair’s Draft’s rights to fixation (Art 7) and making available stored programs (art 8).  Ultimately, while the level of engagement on the Broadcast Treaty was elevated, it does not appear the current text, especially its extensions to Internet-based transmissions and post-fixation rights to stored content, have sufficient consensus to move to a diplomatic conference. Limitations and Exceptions: A Foundation for Bridging Divergence The key issue for the limitations and exceptions agenda is reaching an agreement to begin text-based work on the 2012 GA mandate to work toward an “appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)” on uses by libraries, archives, museums, educational and research institutions, and persons with other disabilities (WO/GA/41/14). In SCCR 43, the Committee adopted a Work Program SCCR/43/8 REV to draft “objectives, principles, and options” for potential instruments. As noted above, the African Group will not support moving the Broadcast Treaty to a Diplomatic Conference without an instrument on L&E prepared to also be endorsed for finalization.  The Chair announced at the start of the L&E agenda that she had a meeting of “volunteer” member states the week before the SCCR to consult on ways forward. She further proposed that she could use the Chair’s position to “help put together a list of objectives and principles that could be seen as ground, a common basis” and that “could be seen as the cornerstone for a soft law instrument” that “could be an important tool used by WIPO and adopted by the General Assembly, it could provide Member States with significant guidelines and guiding principles.” She further proposed “the possibility of appointing facilitators to try and identify that common base.” All countries implicitly endorsed moving to text based work on principles and objectives for limitations and exceptions. The debate in the Committee was about where to start. Group B and CEBS endorsed starting to discuss the US proposed document – SCCR/44/5. The African Group and many developing countries opposed beginning with

Blog

The South Centre Publishes Resources from the "30 Years of TRIPS" Side Event at the WTO on Expectations and Concerns of Developing Countries

/

[et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”4.16″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}” custom_padding=”22px|||||” custom_margin=”-66px|auto||auto||”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text admin_label=”Text” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”] On March 19th, 2025, an informal group of countries known as “Intellectual Property (IP) for Development” -Bangladesh, Brazil, Colombia, India and Pakistan- hosted an informal side event, on the margins of the regular TRIPS Council session. The South Centre published the following commentary, program, presentations, and photos from this side event at this link, which are also shared below:   Delegates and experts were invited to an initial discussion to reflect on the history of the TRIPS negotiations, 30 years after their conclusion. The formal Council for TRIPS session will hear a brief summary of the event and its key takeaways and reflections. The event took place in Room SI at the WTO and online, with participation of over 150 persons. The presentations, program, photos. [and videos] are available below:  W718 Side Event draft document Presentation: History of the TRIPS Agreement by Carlos Correa TRIPS Side Event Speech by Jayashree Watal Presentation: Restoring and Adding to the TRIPS Balance by Joshua Sarnoff Presentation: TRIPS restrictions on exports or imports when there is non-voluntary use of a patented invention by James Love Presentation: Non-disclosed information and trade secrets by Ellen ‘t Hoen Presentation: TRIPS and Copyright by Sean Flynn Presentation on Articles 7 and 8 of TRIPS as well as Article 66 of TRIPS by Sangeeta Shashikant Event Photos Google Drive with Video Recordings Programme 1:00 PM – 2:00 PM | Welcome & Light Snacks 2:00 PM – 2:05 PM | Opening Remarks & Introduction –Ambassador Tareq Md. Ariful Islam, Bangladesh 2:05 PM – 2:35 PM | A History of the TRIPS Negotiations –Dr. Carlos Correa, South Centre 2:35 PM – 3:15 PM | Experiences of National NegotiatorsAmbassador Guilherme Patriota, BrazilMs. Jayashree Watal, India 3:15 PM – 4:25 PM | Panel: Key Issues & Provisions in TRIPS NegotiationsModerator: Dr. Viviana Munoz Tellez, South Centre Prof. Joshua Sarnoff (DePaul College of Law)Mr. James Love (Knowledge Ecology International – KEI)Dr. Ellen ’t Hoen (Medicines Law & Policy)Mr. Sean Flynn (American University)Ms. Sangeeta Shashikant (Third World Network – TWN) 4:25 PM – 4:30 PM | Closing & Summary – Amb. Ninad Deshpande, DPR India 4:30 PM – onwards | Farewell & Light Snack [/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]

Blog

Statement of User Rights Network on Design Protection for Graphical User Interfaces

/

[et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”4.16″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text admin_label=”Text” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}” custom_margin=”-89px|||||”] Professor Sean Flynn delivered the following statement at the World Intellectual Property Organization Standing Committee on Trademarks on the proposal by the United States and others for a Joint Recommendation on Graphical User Interfaces.  The Global Expert Network on Copyright User Rights is an association of IP professors around the world which includes many who also specialize in design law. We support the proposal by the African Group for a study on GUIs before moving further on the proposal for a joint recommendation.  In particular, I draw attention to the work of Professor Sarah Fackrell‬ Burstein, who has studied the use of design law protection on GUIs in the USA. She pointed out in correspondence with me that in the USA “Copyright protection is generally available for this subject matter,” but companies use design protection for GUIs “so they can subvert the low standards of copyright.” In her work Uncreative Designs, 73 Duke L.J. 1437 (2024), she describes how in the USA GUIs are sometimes granted protection that would not meet the copyright standard by the Supreme Court in Feist v. Rural Telephone, which held that information alone without a minimum of original creativity cannot be protected by copyright. One can see many interesting examples of such GUIs at her BlueSky hash tag #SubFeistDesigns https://bsky.app/hashtag/SubFeistDesigns  The US experience suggests that the terms in the joint recommendation may be very important and guidance may be needed for countries that do not want to promote extending protection to GUIs that is beyond that normally available under trademarks and copyrights in most countries already. It may be especially useful to study the potential impacts on large generic markets, such as those for cell phones, where expanding IP promotions for GUIs may negatively affect emerging industries.  We would be happy to work with the African Group and others interested in engaging the scholarship in this area.  [/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]

Scroll to Top