Tag Archives: balance

USPTO Hosts Unbalanced Global Intellectual Property Academy Copyright Seminar

Several weeks ago, the United States Patent and Trademark Office (USPTO) hosted a copyright seminar at its Global Intellectual Property Academy for two dozen intellectual property officials primarily from countries in Latin America, Asia, and Africa. While the first several days involved an “overview” of copyright and mostly time with United States government officials, September 22 was labeled “Industry Day.” The speaker list revealed a very heavy focus on rightholders, in several cases the panels did not have any voices advocating for the importance of consumers and the role of limitations and exceptions in copyright law.

Although I appreciated the opportunity to have participated on a panel on issues related to publishing, I was disappointed to learn that USPTO planned such a highly unbalanced lineup of speakers, overall. By hosting a day almost exclusively comprised of copyright maximalists, USPTO provides its audience, intellectual property officials in other countries, only one side of the story.

Balance is critical in a functional copyright system to ensure that user rights are protected. In addition to the numerous specific limitations and exceptionsin copyright law, the United States has a strong “safety valve” in its copyright system: fair use. This flexible doctrine accommodates new technologies and circumstances. It ensures that Congress does not need to pass new legislation each time a new limitation or exception is needed. Fair use, of course, is not limited to consumers of copyrighted goods and is essential to rightholders as well. Rightholders have successfully relied on the right of fair use in litigation, even though they often complain about consumers who rely on this doctrine. The U.S. Government also relies on fair use; the Patent and Trademark Office itself relies on it in the patent examination process and for photocopying materials. Despite the importance of fair use and other limitations and exceptions, the panels appeared to be heavily skewed only toward discussing the rights of rightholders. Absent from these panels were voices like documentary filmmakers, remix artists, consumer groups and others who would provide different perspectives from the traditional content industry and give the audience a more balanced view of the United States copyright system.

On my own panel, the other speakers included Allan Adler of the Association of American Publishers (AAP), Ryan Fox of the Authors Guild, and Michael Healy of the Copyright Clearance Center (CCC).  All of these groups strongly advocate for greater rights of rightholders and have been involved in recent cases opposing fair use (such as Authors Guild v. HathiTrust or the Georgia State E-Reserves Case), as parties to the case, as amici, or by funding the litigation (or some combination).

These USPTO seminars would benefit from a more diverse groups of speakers who can provide meaningful balance.

Below is the full list of topics and speakers from “Industry Day”

Overview of Key Issues facing the Music Industry

Part 1: Efficient and fair licensing, collection and distribution of royalties

Tim Dadson, Assistant General Counsel, SoundExchange

Erich Carey, Vice President & Senior Counsel, Litigation at National Music Publishers’ Association (NMPA)

Part 2: Sound recording licensing

Steve Marks, Chief, Digital Business & General Counsel, RIAA

Greg Barnes, General Counsel and Director of Governmental Affairs, Digital Media Association (DiMA)

Overview of Key Issues facing the Audiovisual (Film) Industry

Kevin Rosenbaum, Of Counsel, Mitchell Silberberg & Knupp LLP; Counsel to the International Intellectual Property Alliance (IIPA)

Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company

Paula Karol Pinha, Director of Public Policy, Latin America -Netflix (invited)

Overview of Key Issues facing the Software Industries

Ben Golant, Entertainment Software Association (ESA)

Christian Troncoso, Director of Policy, Business Software Association (BSA) | The Software Alliance

Chris Mohr, Vice President for Intellectual Property and General Counsel, Software and Information Industry Association (SIIA)

Overview of Key Issues facing Photographers and Visual Artists

Joshua J. Kaufman, Chair, Art, Copyright & Licensing Practices, Venable LLP

Tom Kennedy, Executive Director, American Society of Media Photographers (ASMP)

Overview of Key Issues facing the Publishing Industry

Michael Healey, Executive Director, International Relations, Copyright Clearance Center (CCC)

Allan Adler, General Counsel and Vice President for Government Affairs, Association of American Publishers (AAP)

Ryan Fox, Editorial Director, Author’s Guild

Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries

ARL Joins New Re:Create Coalition to Promote Balanced Copyright

*Cross-posted from ARL News*

Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

Re:Create promotes and defends the important balance of copyright. ARL’s member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

Fair use is responsive to the quickly evolving technology and has been called the “safety valve” of US copyright law. Fair use also accommodates the First Amendment right to freedom of expression, ensuring that copyright does not prevent freedom of speech. As ARL has shown in an infographic (PDF), fair use is a right, vitally important, for everyone and everywhere. This important doctrine is vital to the economy, innovation, new creativity, learning and education.

Deborah Jakubs, president of ARL said, “The mission of Re:Create squarely comports with the Constitutional rationale for copyright: ‘to promote the progress of science and useful arts.’ ARL is proud to be a member of this coalition, which will work to ensure that copyright law supports this rationale and ensure that the copyright system provides an appropriate balance.”

The Re:Create Coalition launched with the following members: American Library Association, Association of Research Libraries, Center for Democracy & Technology, Computer & Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and R Street Institute.

For more information, visit http://www.recreatecoalition.com/.

Library Copyright Alliance Expresses Concerns Over “Fast Track” Trade Promotion Authority

On February 5, 2015, ARL, together with ALA and ACRL, sent a letter to Senators Hatch (R-UT) and Wyden (D-VT) expressing concerns over “fast track” trade promotion authority.  Under “fast track,” Congress grants the President authority to sign trade agreements and Congress is only able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend this agreement.  Such a process limits Congress’ ability to meaningfully weigh in on the agreement.

Using the Trans-Pacific Partnership Agreement (TPP) as an example, the letter highlights the inequities surrounding access to information about the substance of the agreements.  While the negotiations are conducted in secrecy and the general public is not permitted to see text, cleared advisors are permitted to view proposals and make substantive comments through “trade advisory committees.”  Members of the intellectual property trade advisory committee represent large corporate interests; current members include, for example, representatives from the Recording Industry Association of America (RIAA) and the Copyright Clearance Center (CCC).  Past representatives include Time Warner, the Association of American Publishers (AAP) and the Motion Picture Association of America (MPAA).  While these corporate interests are well represented, the general public has had to rely on leaks in order to view text.  The letter points out, “Policy should not be made in secret, with the general public kept in the dark about what effects the agreement will have.”

The letter also notes concerns that the comprehensive intellectual property chapter included in the TPP could contain provision requiring changes to current law, or locking-in undesirable provisions of U.S. law which would make it difficult to amend the law without violating the agreement.  One such harmful provision is the U.S. copyright term of life plus seventy years, which was recently reported as the term of protection TPP negotiators have agreed to.  This lengthy term has been problematic, contributing to the orphan works problem and hampering the public domain.

The letter concludes:

Given the impacts that agreements like the TPP and TTIP will have, Congress should ensure that it does not delegate its authority to the Executive Branch. Congress must be an active participant in reviewing these agreements before accepting their content and should not grant fast track authority, at least with respect to intellectual property provisions in these agreements. Alternatively, if legislation on fast track does include language on intellectual property, this language must protect the careful balance that exists in US law. Libraries, and the vast public we serve, depend on a balanced copyright system, including important limitations and exceptions such as fair use and the first sale doctrine. Any language granting fast track authority implicating intellectual property must recognize the importance of limitations and exceptions.