Marrakesh Treaty for the Blind, Visually Impaired and Print Disabled to Enter Into Force

Today, June 30, 2016, the Marrakesh Treaty to Facilitate Access for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled Reached its 20th ratification and will enter into force on September 30, 2016.

Yesterday, WIPO received the ratification documents from Ecuador and Guatemala and today Canada deposited its instrument of accession to the Marrakesh Treaty.  With these three ratifications, the treaty now has twenty ratifications and countries from nearly every region have ratified including: ArgentinaAustraliaBrazil, ChileEl Salvador, India, Israel, Mali, MexicoMongolia, North Korea, Paraguay,PeruSingapore, South Korea, the United Arab Emirates and Uruguay.  The twentieth ratification of the Marrakesh Treaty occurred just over three years from when WIPO concluded the diplomatic conference and adopted the treaty.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

WIPO’s press release on this historic moment is available here.

 

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Supreme Court of the United States Upholds University of Texas’ Affirmative Action Policy

On Thursday, June 23, 2016, the Supreme Court of the United States in a 4-3 vote upheld the affirmative action admissions policy in Fisher v. University of Texas at Austin (Fisher II), finding that the race-conscious admissions program in use at the time of Fisher’s application is lawful under the Equal Protection Clause.  Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer and Sotomayor.  Justices Thomas, Alito and Roberts dissented with Justice Kagan recusing herself.

This case was previously heard by the Supreme Court which resulted in a 2013 opinion which in a 7-1 vote, remanded the case to the Fifth Circuit.  In Fisher I, the Supreme Court directed the Fifth Circuit to reconsider the case under the higher threshold of strict scrutiny in determining whether UT’s admission policy comports with the Equal Protection Clause of the Fourteenth Amendment.  On remand, the Fifth Circuit once again upheld UT’s admission policy in which UT accepts the top 10% of graduates from Texas high schools and uses a holistic review for the remaining open spots.  The holistic approach includes many factors, with race being one of the factors.  The admissions process did not have quotas or specific goals in terms of the number of students meeting specific characteristics.  The Association of Research Libraries joined with 37 other higher education organizations in an amicus brief supporting the University of Texas.  Oral arguments were held in December.

In the opinion, Justice Kennedy first lays out three “controlling principles” from Fisher I in determining the constitutionality of a public university’s affirmative-action program: 1) the program must be evaluated under the higher bar of strict scrutiny; 2) universities cannot impose a fixed quota, but deference is given to a university’s “reasoned, principled explanation” to pursue diversity; and 3) the university bears the burden of proving that a “nonracial approach” would not promote its interests in promoting diversity (i.e., the university is not given deference on this point).

Although Justices Kennedy and Breyer seemed interested in the possibility of remanding the case back to the trial court during oral arguments, the opinion points out that there would be limited data available and “a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources.”  While remand was not appropriate in this case, the majority opinion cautions the University of Texas to “remain mindful that diversity takes many forms” and that “Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”

The court turns to the university’s goals in trying to improve diversity, noting that the “goals cannot be elusory or amorphous–they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”  Here, the University of Texas

identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the “‘promot[ion of] cross-racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’”  Later in the proposal, the University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.”  All of these objectives, as a general matter, mirror the “compelling interest” this Court has approved in its prior cases.

The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these goals . . . following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.”  (internal citations omitted)

The Court also rejects Fisher’s argument that the top 10% plan was sufficient to promote diversity.  Indeed, the Court notes that “the record itself contains significant evidence, both statistical and anecdotal” that race-neutral admissions policies were insufficient.  Key pieces of evidence including the demographic data the University submitted showing the stagnation of minority student enrollment from 1996-2002; anecdotal evidence of minority students feeling lonely and isolated; and quantitative evidence of the lack of enrollment of at least one minority student in classes with five or more students.

The majority also rejects Fisher’s proposal to eliminate the holistic approach and increase the percentage of students admitted based on class rank alone.  The Court points out the deficiencies of using a single metric to admit students:

Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.

These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it . . . At its center, the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition of the diversity it seeks.

None of Fisher’s proposed solutions or other solutions discussed during litigation were shown to be “available” and “workable” means of achieving UT’s educational goals and therefore, the Court finds, the university has met its burden of demonstrating its admissions plan was narrowly tailored.

The majority opinion concludes that while it is upholding UT’s policy, the university must continue to revisit its admissions policy and reflect on it:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.”  The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

Ultimately, today’s decision is a win for universities (particularly given that at least one of the dissenting justices indicated that he would have overturned the Supreme Court’s 2003 decision in Grutter, which allows race to be considered as one factor but that does not amount to a quota).  However, the majority opinion takes care to caution that admissions policies using race as a factor must continue to be revisited in light of new evidence and changes in circumstance.

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DC Circuit Court Upholds FCC’s Open Internet Order Governing Net Neutrality

On Tuesday, June 14, 2016, the Court of Appeals for the DC Circuit released its long-awaited opinion in U.S. Telecom Association v. FCC, upholding the FCC’s 2015 Open Internet Order by a 2-1 vote.  On petition for review, the petitioners challenged the FCC’s reclassification of broadband service as a Title II common carriers, reclassification of mobile broadband service, the ban on paid prioritization and the General Conduct Rule, and also argued that the net neutrality rules violate the First Amendment.  The DC Circuit found against each of these challenges and denied the petitions for review.

The FCC’s 2015 Open Internet Order set forth rules governing net neutrality, ensuring that Internet providers cannot create “fast lanes” and “slow lanes” by reclassifying broadband under Title II of the Communications Act while also relying on the FCC’s authority under Section 706 of the Telecommunications Act. In its accompanying report, the FCC noted the importance of net neutrality, including for specific communities:

Open Internet rules benefit investors, innovators, and end users by providing more certainty to each regarding broadband providers’ behavior, and helping to ensure the market is conducive to optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and working in rural areas can take advantage of the substantial benefits that the open Internet has to offer. In minority communities where many individuals’ only Internet connection may be through a mobile device, robust open Internet rules help make sure these communities are not negatively impacted by harmful broadband provider conduct. Such rules additionally provide essential safeguards to ensure that the Internet flourishes as a platform for education and research.

The DC Circuit opinion begins with history of the FCC’s Order, including the DC Circuit’s 2014 Verizon opinion in which it vacated the FCC’s 2010 Open Internet Order anti-discrimination and anti-blocking rules as impermissible because they subjected broadband providers to common carrier treatment.  Prior to the FCC’s Open Internet Order reclassifying broadband providers, the Internet was classified as an information service, exempt from common carriage rules.  However, the court notes that in Verizon, “we upheld the Commission’s conclusion that section 706 provides it authority to promulgate open internet rules” and “the Commission’s ‘finding that Internet openness fosters . . . edge provider innovation . . . was . . . reasonable and grounded in substantial evidence’ and that the Commission had ‘more than adequately supported and explained its conclusion that edge-provider innovation leads to the expansion and improvement of broadband infrastructure.”  In its 2014 opinion, the DC cCircuit recognized that absent rules governing net neutrality “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.”

The DC Circuit also lays out its role in reviewing the FCC’s decision, noting that it “is a limited one . . . to ensure that an agency has acted ‘within the limits of [Congress’s] delegation’ of authority and that its action is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”  The court’s role is not to make policy judgments.

Turning to the facts of the present case, the Court first upholds the FCC’s reclassification under Title II pointing out the evidence that “consumers use broadband principally to access third-party content, not email and other add-on applications.”  The Internet is marketed to consumers as a conduit for transmission of data as a standalone service rather than for particular add-on services.  The DC Circuit then quickly rejects the petitioners’ procedural arguments that the FCC did not provide adequate notice that it was considering reclassification (among other issues), pointing directly to the FCC’s Notice of Proposed Rulemaking (NPRM) calling for comment on this issue.

With respect to the substantive arguments regarding Title II reclassification, the DC Circuit points out that consumer perception of the service is key:

when interpreting this provision in Brand X, the Supreme Court held that classification of broadband turns on consumer perception . . . Nothing in Brand X suggests that an examination of market power or competition in the market is a prerequisite to classifying broadband . . . citing the Commission’s economic findings as additional support for its approach is a far cry from requiring the Commission to find  market power.

Additionally, the DC Circuit notes that the FCC’s judgment that any impact its Open Internet Order will have on broadband investment are outweighed by the positive effects of the “virtuous circle,” is given “particularly deferential review, as long as they are reasonable” because it is a predictive judgment under the FCC’s field of discretion and expertise.

Similarly, the DC Circuit upholds the FCC’s decision to reclassify mobile broadband, pointing out the FCC’s finding of the ubiquity and widespread use of mobile broadband.  In addition,

 

Avoiding that statutory contradiction not only assures consistent regulatory treatment of mobile broadband across Titles II and III, but it also assures consistent regulatory treatment of mobile broadband and fixed broadband, in furtherance of the Commission’s objective that “[b]roadband users should be able to expect that they will be entitled to the same Internet openness protections no matter what technology they use to access the Internet.” 2015 Open Internet Order, 30 FCC Rcd. at 5638 ¶ 92. When consumers use a mobile device (such as a tablet or smartphone) to access the internet, they may establish a connection either through mobile broadband or through a Wi-Fi connection at home, in the office, or at an airport or coffee shop. Such Wi-Fi connections originate from a landline broadband connection, which is now a telecommunications service regulated as a common carrier under Title II. If a consumer loses her Wi-Fi connection for some reason while accessing the internet—including, for instance, if she walks out the front door of her house, and thus out of Wi-Fi range—her device could switch automatically from a Wi-Fi connection to a mobile broadband connection. If mobile broadband were classified as a private mobile service, her ongoing session would no longer be subject to common carrier treatment. In that sense, her mobile device could be subject to entirely different regulatory rules depending on how it happens to be connected to the internet at any particular moment—which could change from one minute to the next, potentially even without her awareness.

After upholding the FCC’s decision to reclassify broadband Internet service, the DC Circuit turned to challenges against the ban on paid-prioritization and the FCC’s General Conduct Rule.

With respect to the ban on paid-prioritization, the Court points out (and the challenger conceded) that the FCC “grounded the rules in ‘multiple complementary sources of legal authority’–not only Titles II and III, but also section 706 of the Telecommunications Act of 1996.”  The DC Circuit again points to its 2014 Verizon decision in which it upheld the FCC’s broad authority to implement rules under Section 706.  The Court states “as we held in Verizon and reaffirm today, the Commission’s section 706 authority extends to rules ‘governing broadband providers’ treatment of internet traffic’–including the anti-paid-prioritization rule–in reliance on the virtuous cycle theory.”  The Court also finds that the ban on paid-prioritization “is geared to promoting the effective deployment of new telecommunications technologies such as broadband [and] . . . is entirely consistent with the Act’s objectives.”

Turning to the General Conduct Rule, the DC Circuit notes that

The Commission adopted the General Conduct Rule based on a determination that the three bright-line rules— barring blocking, throttling, and paid prioritization—were, on their own, insufficient “to protect the open nature of the Internet.” Id. at 5659–60 ¶¶ 135–36. Because “there may exist other current or future practices that cause the type of harms [the] rules are intended to address,” the Commission thought it “necessary” to establish a more general, no-unreasonable interference/disadvantage standard. Id. The standard is designed to be flexible so as to address unforeseen practices and prevent circumvention of the bright-line rules. The Commission will evaluate conduct under the General Conduct Rule on a case-by-case basis, taking into account a “non-exhaustive” list of seven factors.

The court finds that the rule is not impermissibly vague because it did not seek to retroactively enforce a new policy and the FCC provides a mechanism for advisory opinions.  The due process concerns are satisfied provided that the regulations “are sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, would have fair warning.”  The FCC not only set forth seven factors to guide determination of what constitutes unreasonable interference with, or disadvantaging of, end-user or edge provider access, but also a description of how each factor would be interpreted and applied.

The Court also points out that overly specific rules could be harmful:

Given that “we can never expect mathematical certainty from our language,” those sorts of descriptions suffice to provide fair warning as to the type of conduct prohibited by the General Conduct Rule. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). To be sure, as a multifactor standard applied on a case-by-case basis, a certain degree of uncertainty inheres in the structure of the General Conduct Rule. But a regulation is not impermissibly vague because it is “marked by flexibility and reasonable breadth, rather than meticulous specificity.” Id. (internal quotation marks omitted). Fair notice in these circumstances demands “no more than a reasonable degree of certainty.” Throckmorton v. National Transportation Safety Board, 963 F.2d 441, 444 (D.C. Cir. 1992) (internal quotation marks omitted). We are mindful, moreover, that “by requiring regulations to be too specific courts would be opening up large loopholes allowing conduct which should be regulated to escape regulation.” Freeman, 108 F.3d at 362 (alterations and internal quotation marks omitted). That concern is particularly acute here, because of the speed with which broadband technology continues to evolve. The dynamic market conditions and rapid pace of technological development give rise to pronounced concerns about ready circumvention of particularized regulatory restrictions. The flexible approach adopted by the General Conduct Rule aims to address that concern in a field in which “specific regulations cannot begin to cover all of the infinite variety of conditions.” Id. (alteration and internal quotation marks omitted).

Finally, the Court rejects the arguments that the Open Internet Order violates a broadband provider’s First Amendment rights because “Common carriers have long been subject to nondiscrimination and equal access obligations akin to those imposed by the rules without raising any First Amendment question.  The obligations affect a common carrier’s neutral transmission of others’ speech, not a carrier’s communication of its own message.”  Furthermore:

The absence of any First Amendment concern in the context of common carriers rests on the understanding that such entities, insofar as they are subject to equal access mandates, merely facilitate the transmission of the speech of others rather than engage in speech in their own right.

. . .

Of course, insofar as a broadband provider might offer its own content—such as a news or weather site—separate from its internet access service, the provider would receive the same protection under the First Amendment as other producers of internet content. But the challenged rules apply only to the provision of internet access as common carriage, as to which equal access and nondiscrimination mandates present no First Amendment problem.

ARL, together with three other library associations, filed an amicus brief in September 2015 supporting the FCC’s net neutrality rules, pointing out the importance for libraries and higher education:

As broadband subscribers, providers of Internet access points to patrons, and providers of digital content and services, libraries rely on the open character of the Internet to achieve their missions of providing equitable access to information, enhancing education and promoting life-long learning, supporting democracy and informed citizenry, and protecting intellectual freedom.

Today’s decision is an important win for libraries and higher education, particularly with respect to the upholding of the ban on paid prioritization and the General Conduct rule. Without bright-line rules banning paid prioritization, libraries and other institutions serving the public interest may not be able to pay extra fees for enhanced transmission of their content. Prioritization risks that network operators would give priority to entertainment or other commercial content over education, civic engagement, access to information or other services. Additionally, the General Conduct Rule is a necessary tool to ensure that the Internet remains open and neutral.  The General Conduct Rule protects against future harms, including those made possible by technological innovations and advances.

 

 

 

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ICYMI: District Court Denies Oracle’s Move to Overturn Fair Use Ruling in Favor of Google

On May 26, 2016, a jury ruled in favor of Google’s use of Java’s API in its Android system, finding that the inclusion of the code was fair use.  Oracle filed a motion for judgment as a matter of law, arguing that no reasonable jury could have found against Oracle.  Last week, the district court judge denied Oracle’s motion.

Jonathan Band has a really great analysis of the district court’s twenty page order applying fair use to the case on the DisCo Project blog: “Sanity Prevails Again, Part II: The District Court Leaves the Oracle v. Google Fair Use Verdict In Place.”

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Google Wins Another Fair Use Case

On May 26, 2016, a jury returned a verdict in favor of Google in its battle against Oracle.  Oracle brought suit claiming that Google infringed  by using Java application programming interface (API) in Android’s mobile operating system.  Google argued that its use of the code in the Android system, which relies partly on Java (an open source code that was acquired by Oracle in 2010), was fair use.

After three days of deliberation, the ten jurors unanimously returned a verdict in favor of Google, answering “yes” to the question of whether the use of Java API’s was fair use.

The jury’s decision is a welcome one and another win for fair use, particularly as developers continue to rely on open source languages to build new technologies.  This case demonstrates yet again why fair use has been called the “safety valve” of copyright, supporting the evolution and development of new technology.

For further reading:

Ars Technica: Google Beats Oracle–Android makes “fair use” of Java APIs

EFF: EFF Applauds Jury Verdict In Favor of Fair Use in Oracle v. Google

DisCo Project: Sanity Wins Again: The Jury Verdict on Oracle v. Google 

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Civil Agencies, Law Enforcement Officials Threaten Meaningful ECPA Reform

On May 24, 2016, ARL joined a coalition of civil society organizations, companies and trade associations in a letter to Senate Judiciary Committee Chairman Grassley and Ranking Member Leahy supporting the Email Privacy Act (H.R. 699) as passed unanimously by the House of Representatives on April 26, 2016.  While the House-passed bill did not make all necessary reforms to the Electronic Communications Privacy Act (ECPA), it represents a big step forward by imposing a warrant-for-content rule.  Importantly, the H.R. 699 did not include a civil agency carveout, ensuring that civil agencies do not have warrantless access to online communications such as e-mails or documents stored in the cloud.

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communication.  Essentially, ECPA reform seeks to ensure that the 4th Amendment applies equally to the digital age as it does to the analog world, requiring a warrant for the content of documents and communications.

Civil agencies, primarily the Securities and Exchange Commission (SEC), have repeatedly sought an exemption from the ECPA reforms and continue to do so as the Senate Judiciary Committee considers a vote.  These agencies would like to compel third-party providers to disclose the content of personal communications without a warrant, increasing their power beyond the existing tools they have at their disposal such as subpoenas.   Such an exemption threatens the reasonable expectation of privacy.

In addition to civil agencies seeking carveouts, law enforcement officials would like to broaden the emergency exceptions language in the ECPA reform bill despite the fact that current law already permits service providers to release information where there is an emergency involving the danger of death or serious physical injury.  Expansion of existing law in this area could be subject to abuse by government and law enforcement agencies who may try to overreach to access data.

ECPA is in serious need of reform and the Email Privacy Act passed last month by the House of Representatives–without modification or amendment–represents the appropriate vehicle to move reform forward.

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California Assembly Aiming to Copyright All State & Local Government Works

*Guest post by Caile Morris, ARL Law & Policy Fellow*

On March 15, 2016, the California Assembly amended a Bill, AB-2880, dealing with state intellectual property. Introduced by Assemblyman Mark Stone in late February, the main goal of AB-2880 is to grant local and state governments the authority to create, hold, and exert intellectual property rights. The federal government is prohibited by the Copyright Act from claiming copyrights in any of the materials it creates. As TechDirt explains, the states are free to create their own approach on their copyright policies, and may decide what, if anything, a state can claim copyright in. This bill’s effect is incredibly detrimental, and if it is passed into law, it will deny California citizens the right to free and easy access to state laws and other government works.

Prior to AB-2880, California had one of the best state copyright law policies, and if AB-2880 is passed then it will drop to being one of the worst. EFF explains that previously, California forewent almost all copyright authority over works created by public entities, ensuring that the citizen tax dollars used to create the works ultimately benefits the citizens paying the taxes. California currently only has five special cases where it asserts copyright over public works. However, as EFF points out, if AB-2880 passes through the rest of the California Legislature then California state and local government agencies will “own, license, and if [they] deem appropriate, formally register intellectual property [they create] or otherwise [acquire].”

The California Committee on Judiciary, which Assemblyman Stone chairs, responded to the criticism of AB-2880 by explaining in a policy analysis that the bill would not interfere with information requests through the California Public Records Act, and thus provides the requisite amount of transparency and access. However, this ignores the fact that the works created by the local and state governments should be available to the public easily and automatically, rather than through the arduous process of filing an information request. The policy analysis itself noted that, “state ownership of intellectual property might restrict the dissemination of information.” The California State Auditor also mentioned public policy considerations when recommending how to form a state-wide intellectual property policy: “the State can ensure that the public benefits from state-owned intellectual property . . . by placing it into the public domain free of cost.” She specifically cautioned against the use of copyright protection for government works because of:

[T]he need to balance the State’s interest in protecting government publications through the use of a copyright with the public’s right of access to government records . . . . [C]opywriting government publications can be controversial; given that taxpayers already paid once to support the creation of the work, one can argue that they should not have to pay royalties to use or reproduce the written work.

While some state officials and legislators note the public policy implications of passing AB-2880, many in the Assembly seem to believe that the bill’s effect on dissemination of information is negligible compared to the benefits of government ownership of government-created intellectual property.

The intentions under which AB-2880 was created are well meaning. In early March 2016, an ugly legal battle began between Yosemite National Park and Delaware North, the concessions vendor within the Park that trademarked many of the common names of landmarks and corresponding logos. However, the knee-jerk reaction to the actions of Delaware North by Chairman Stone and the rest of the California Assembly is a disservice to the purpose of intellectual property to “promote the progress of science and useful arts,” as well as to the constituents who rely on the Legislature to provide tax-funded works and laws to the public by default.

Furthermore, as the Library Copyright Alliance (LCA) wrote in a 2014 hearing before the House Committee on the Judiciary on State Laws and Building Codes Under Copyright,

[C]itizens must have free access to the laws that bind them. This fundamental policy is more compelling now than ever before. Government at all levels continually increases its regulation of the activities of citizens both at work and at home. Moreover, the Internet and other forms of technology, by integrating activities conducted at home with the outside world, are increasing the likelihood that private actions will be subject to legal rules governing the public sphere. Because their activities are more likely to be subject to regulations, citizens have a greater need to have easy access to the law so that they can better understand their expanding legal obligations.

As EFF explains, this kind of intellectual property ownership by California would have a chilling effect on free speech, restrict open government, and lodge a massive hit to the public domain. Both EFF and Creative Commons have called California residents to action by contacting their state representatives and demanding that the works created by the state and local government, paid for by tax dollars, remain in the public domain for all Californians to use.

A basic government function is to provide citizens with free access to the laws. If this function is not carried out at the state level, or requires a fee or license to view or reproduce these laws, it sets a dangerous precedent. Citizens who are increasingly regulated in their everyday lives have a substantially greater need for simple, cost-free access to state and local laws.

To withhold laws and other government works from citizens discourages informed participation in any form of governance, from the town hall meeting to petitioning state legislators for changes in the state laws. In addition, copyrighted government works could result in frequent law-breaking by citizens engaging in what they believe to be innocent activities, simply because those citizens cannot access the laws. Assemblyman Stone may have had good intentions when proposing AB-2880, but what he does not grasp is that this bill has far-reaching, detrimental effects and indeed is counterintuitive to the ideals of American democracy.

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Chile Becomes 17th Country to Ratify Marrakesh Treaty

Chile recently became the seventeenth country to ratify the Marrakesh Treaty to Faciltiate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Countries from nearly every region have ratified the treaty including: Argentina, AustraliaBrazilEl Salvador, India, Israel, Mali, MexicoMongolia, North Korea, Paraguay, PeruSingapore, South Korea, the United Arab Emirates and Uruguay.  The Marrakesh Treaty requires twenty ratifications before it enters into force and only three more countries are needed.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

With Chile’s ratification, eight countries in Latin America have now joined and will be able to share their accessible formats across borders.  Argentina has a relatively large collection of accessible formats available through TifloLibros which will benefit those in other Spanish speaking countries.  Should the United States ratify the Marrakesh Treaty, these ratifications in Latin American countries will be of great benefit to those who are print disabled in the United States that speak Spanish.  According to a 2015 study based on US census data, the United States has more Spanish speakers than Spain; only Mexico has a larger Spanish speaking population.

Of course, ratification would not only benefit those in the United States (such as those requiring accessible formats in Spanish), but also individuals with print disabilities in other countries who could import books from the relatively large collections of accessible formats in the United States.

While the Obama Administration sent the Marrakesh Treaty to the U.S. Senate in February of this year, it has not yet been scheduled for a hearing or vote.  Earlier this year, Canada tabled Bill C-11 to prepare for implementation and accession to the Marrakesh Treaty though it also has not yet come up for a vote.

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Australian Productivity Commission Recommends Fair Use, Shorter Copyright Terms

On April 29, 2016, the Australian Productivity Commission issued a nearly 600 page draft report on Intellectual Property Arrangements recommending a number of positive changes to provide better balance to the intellectual property system, including recommendations on fair use, shorter copyright terms, and specifying that copyright licensing does not override limitations and exceptions for libraries and archives.

In the overview, while the Commission acknowledges the importance of incentivizing creation, the report also notes that

the use of an idea by one party does not reduce its capacity for use by another, and and that ideas provide economic and social value as other parties draw on existing knowledge to create their own.  Since new ideas are a major source of economic growth, any defects in IP arrangements intended to encourage their creation and diffusion can be very costly

[ . . .]

Indeed, overly strong restrictions on diffusion can be so detrimental to innovation that it can undo the benefits of the IP system in the first place . . .

The Commission begins a section entitled “Copy(not)right” by pointing out that “Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users.”  Much of the framework emphasizes balance and also recognizes the need for adaptability.

The Commission’s report also points out the importance of erring on the side of weaker IP protections because:

Recent experience would also tend to suggest that it is easier to extend IP rights than narrow them, especially where international agreements are concerned.  Given the asymmetric nature of how policy can be changed, the Commission considers it is appropriate “to err on the side of caution” where there is imperfect information, and deliberately set weaker parameters in the way that rights are assigned, used or enforced.  Extending rights should only occur after careful consideration of how such a change might affect future innovations, whether IP rights are the best way to drive the desired outcome, and how it might affect the greater number of consumers relative to producers of IP.

Ultimately, “the current Copyright Act is weighted too heavily in favor of copyright owners, to the detriment of the long-term interests of users.”

Fair Use

The Commission examines fair use and fair dealing exceptions and explains that Australia’s fair dealing exception provides a closed list of uses.  The US fair use approach, by contrast, relies on factors to determine whether the exception applies.  Thus, “In Australia, legislative change is required to expand the categories of use deemed to be fair.  In contrast, US courts have latitude to determine if, on the facts, a new use of copyright material is fair.  This allows the exception to be flexible and adaptive over time.”

The draft report includes a illustrative list of uses considered to be fair use in the US which would require a license in Australia, as it is not permitted by the current fair dealing provision.  These uses include: an internet search engine’s publication of thumbnail images in search results; an author’s quotation of unpublished letters in a biography; an artist’s collage using images from a photography book; a searchable database of TV clips; the use of scenes from a film for a biographical film about the lead actor; text and data mining, among others.

The Commission rejects the argument that fair use is too uncertain and therefore should not be adopted:

In the Commission’s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself.  Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant it.  To say otherwise would be to argue that all laws should be prescriptive — a doctrine that is inconsistent with many laws across all social and economic arenas, and completely inimical to the common law.  In addition, even under a fair use regime it is possible to specify a non-exhaustive list of illustrative purposes which provides strong guidance to parties.

Additionally, the Commission points out that there are similarities between the US’ fair use factors and the factors within Australia’s current fair dealing exception for research or study and that fair use may not be as uncertain as suggested.  The report points out that, while not binding, Australia could also look to US court opinions for guidance on fair use.

In 2014, the Australia Law Reform Commission recommended inclusion of a fair use provision with illustrative examples including those found in the US fair use statutes as well as parody or satire; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; and access for people with disabilities.  The Productivity Commission states that “the ALRC’s recommendation on fair use represents the minimum level of change the Australian Government should pursue” and recommends expansion of a fair use provision to apply to orphan works and out-of-commerce works (meaning that these would be included in the non-exhaustive illustrative list of purposes).

Explaining the problem of orphan works, the Commission states that it “is not aware of any country that has fully resolved the issue of orphan and unavailable works” then examines the three approaches others are considering including: requiring a statutory license, creating an exception for the use of orphan works (such as the EU directive) and limitations on damages and remedies (proposed by the US Copyright Office).  The draft report concludes:

in the case of orphan and out-of-commerce works, creators are not actively exploiting their creation in order to generate an economic return.  Proposals to create licensing schemes, whereby consumers can pay to access such works, is one approach to unlocking their value, but likely represents a windfall gain to producers.  The Commission considers it unlikely that a creator, prior to investing the time and effort in a new work, does so on the basis that their work will have an initial commercial life, a period ‘out of the market’, and a subsequent revival perhaps decades down the track.  While this does occur for many works, it is largely by happenstance rather than design.

The Commission recommends that, “At its heart, Australia’s exception for fair use should allow all uses of copyright material that do not materially reduce a rights holder’s commercial exploitation of their work at the time of use.”

Copyright Term

The Commission’s report points out that a copyright term of life of the author plus 70 years is excessive.  While it acknowledges that Australia is bound to its long copyright terms as a result of trade agreements, it recommends international negotiations to lower the term.  The Commission notes:

An effective and efficient copyright system sets term at a level that encourages creation without unduly constraining access to creative works.  Since it is not possible to define terms specific to each given work, an “optimal” term is a period that, on average, creates reasonable incentives for creation while avoiding the consumer losses associated with exclusivity.  The situation is conceptually similar to that apply to patents.  Australia’s copyright term provides protection for the author’s life plus 70 years . . . Providing financial incentives so far into the future has little influence on today’s decision to produce.  For example, the addition of twenty years of protection many years in the future, such as occurred when Australia increased term from life plus 50 years to life plus 70 years . . . only increases revenue by 0.33per cent.  Such a small increase in revenue “offers at most a very small additional incentive for an economically minded author of a new work.” (citations omitted)

The Commission also reports that “evidence suggests the vast majority of works do not make commercial returns beyond their first couple of years on the market” and that the average commercial life of music is 2-5 years, for literary works 1.4-5 years, for visual artistic works 2 years, and for film 3.3-6 years.

In addition to the financial costs of copyright term extension in which consumers pay higher prices for a longer period of time, the report also acknowledges other costs such as orphan works.

Ultimately, the Commission finds that “While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.”  The Commission acknowledges, however, that “Australia has no unilateral capacity to alter copyright terms, but can negotiate internationally to lower the copyright term” and “the Commission considers that there are strong grounds ofr Australia to work with other countries to attempt, over the long term, to achieve a system that gives greater recognition to consumer interests.”

Relationship Between Contracts and Limitations and Exceptions

The Commission examines the Australian Law Reform Commission’s 2014 recommendation that would prevent copyright licenses from relying on limitations and exceptions and concludes:

exceptions play an important role in balancing the interests of copyright producers and users.  Given the evidence presented by the Australian Libraries Copyright Committee, the Council of Australian University Libraries and National and State Libraries Australasia, the problems appear to mainly relate to libraries and archives, rather than other users.  Given this, the Commission considers that copyright license in the digital world should maintain the copyright exceptions for libraries and archives.

Because “It is less clear license conditions for digital content are undermining consumers’ ability to use Australia’s current copyright exceptions,” the Commission requests more information on this issue beyond the impact on libraries and archives.

Parallel Importation

The Commission also recommends repeal of Australia’s parallel importation restrictions on books and that the reform take effect no later than the end of 2017.

Trade Agreements

The draft report points out some of the harms of increasing intellectual property rights in trade agreements.  For example, with respect to copyright term extension implemented as a result of the Australia-US Free Trade Agreement, the estimated cost to Australia was $88 million per year.  The report points out that “A similar obligation to New Zealand as a result of the Trans-Pacific Partnership was estimated to cost $55 million per year.”

Another key point from the report was that “Multilateral and bilateral trade agreements are the primary determinant of Australia’s IP arrangements.  These agreements substantially constrain domestic IP policy flexibility.”

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ARL Celebrates House Passage of Email Privacy Act; Urges Senate to Pass Quickly

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) applauds today’s 419-0 vote in the US House of Representatives passing the Email Privacy Act (H.R. 699), a bill that updates the Electronic Communications Privacy Act (ECPA). Passed in 1986, ECPA has not kept pace with evolving technologies and has led to an absurdity that affords greater protection to hard-copy documents than digital communications.

House passage of the Email Privacy Act today signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

“Reform of ECPA is long overdue and today’s vote in the US House of Representatives demonstrates overwhelming support for bringing privacy laws in line with the digital age,” said ARL president Larry Alford. “The Email Privacy Act will restore a reasonable expectation of privacy in online communications, requiring the government to obtain a warrant for content, and is a key step forward in updating a 30-year-old law governing digital privacy. ARL applauds today’s vote and urges the Senate to quickly move forward to pass this bill.”

The Senate version of the bill, the Electronic Communications Privacy Act Amendments Act of 2015 (S. 356), has enjoyed broad, bipartisan support. The Association of Research Libraries strongly encourages the Senate to pass this legislation soon.

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