Copyright Corner Q&A Series: Sean Flynn, Director of the American University Program on Information Justice and Intellectual Property

For our latest Copyright Corner Q&A series installment, Re:Create spoke with Sean Flynn, Director of the American University Program on Information Justice and Intellectual Property. Flynn helps explain the meaning of  “information justice,” the restrictions that continue to constrain research and education – even in today’s digital age – and how global IP laws impact access to the Covid vaccine. Flynn also helps readers better understand how the ability to make and use research materials is core to the freedom of expression and how copyright law can become an unjustifiable restriction without adequate exceptions.

Re:Create’s Copyright Corner Q&A series features conversations with leading policymakers, academics and thought leaders to break down complex copyright issues and examine how copyright interacts with American jobs, creativity and innovation. Read below for the full discussion.

Q1: Explain the term “information justice” and why access to research is so core to your mission?

A: We use the term “information justice” to remind the world that the principles of substantive and procedural justice codified in constitutional rights and human rights law must guide all laws, including the regulation of information through intellectual property and other regulations. The ability to make and use research materials is core to actualization of rights to freedom of expression, which include the rights to receive and impart information to others. Without adequate exceptions for research activities, copyright law can become an unjustifiable restriction on the rights of researchers and the public.

Q2: In the modern digital age, what are some of the restrictions that continue to limit research and education?

A: The biggest issue today is the failure of copyright exceptions to include digital uses. We have a detailed international treaty framework that requires countries to update copyright and other exclusive rights to digital uses — such as to any “communication” of any work using a wired or wireless means — but we do not require countries to update their exceptions for digital uses. Our study shows the predictable consequences — many countries still relegate exceptions for research, education, and other uses to “the classroom” or “on the premises” of a library.

COVID related shutdowns of schools and research institutions displayed the inadequacy of our global copyright systems. At its height, 90% of all countries had shut down at least some schools because of COVID. But only about 20% of countries allow educational uses outside of a classroom.

Q3: What are some of the changes that could be made to copyright policy to ensure equity in the production of and access to research?

A: The most important change for all countries to make is to update existing education and research exceptions to make them future-proof. Exceptions must apply to all uses — not just a “reproduction” — of all works, by all users, including through online tools and across borders. The U.S. fair use exception has this flexibility — but most copyright laws do not. Policymakers can also help by putting in place specific exceptions for computational research — where researchers examine massive amounts of information with the assistance of computers. Computational research (also called text and data mining) helped discover the spread of COVID and to rapidly identify vaccine candidates. But in most of the world it is not clearly permitted by copyright law.

Q4: Access to the Covid vaccine has shone a bright light on the impact of IP rules to access medicine. Tell us about your work to secure copyright waivers to support the global scale up of access to vaccines and medical treatment. 

A: PIJIP helped organize a group of researchers to make the case that any waiver of IP for COVID should include copyright needed for computational research, for algorithms, for software, for repair manuals, and to other information sources necessary to find, track and treat COVID. Our efforts were not successful. The current draft of the waiver applies only to patents. Countries have the flexibility in the international system to adopt copyright exceptions they need for these purposes — but they have to do it themselves.

Q5: This year’s World Intellectual Property Day focused on youth empowerment.  You argued that limitations of and exceptions to intellectual property are just as important to youth innovation as exclusive rights. Tell us more about how balanced IP can support youth research and empowerment. 

A: What do you need as a young person to contribute to the innovation economy? Knowledge is the first answer. The first answer is not exclusive rights or incentives to innovate based on a future market response. Access to knowledge is what you need first. But in most countries the youth are priced out of information markets our IP laws create. We need vibrant, open and free access to information for all youth everywhere if we want all of them to have a chance to be a creator and innovator of the future.

Q6: What challenges do newer technologies, like artificial intelligence, pose to the effective development of international intellectual property law?

A: Artificial intelligence, or machine learning, holds great promise to revolutionize how we find, categorize and learn from information. But to teach machines to learn you have to have material for them to learn from. If your materials only come from a select number of countries with more open copyright laws that permit computational research (green in our maps), then machines will be learning from a biased corpus of information. That is bad for research and bad for the decisions made (including by computers) based on that bad research.

Confining the world’s machine learning production to a sliver of the world (green in our maps) also creates harmful inequities. We don’t want just the former colonizers of the world to be producing and using information through artificial intelligence. We need the whole world to be able to interact with the digital age as producers and agents, not consumers and subjects. Justice mandates that all be given an equal chance to succeed in the information economy.