Tag Archives: copyright

LCA Urges Senate to Reject Bill to Make Register of Copyrights a Presidential Appointee

On April 26, 2017, the U.S. House of Representatives voted to pass H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, a bill to make the Register of Copyrights a presidential appointee rather than an appointee of the Librarian of Congress.  The House disappointingly voted in favor of the bill by a 378-48 margin. The bill also included two amendments including one that specifies that nothing in the bill will impact mandatory deposit.

The Library Copyright Alliance issued the following statement:

The Library Copyright Alliance is disappointed that the House today passed H.R. 1695, the Register of Copyrights Selection and Accountability Act. We continue to believe that the bill will delay critically needed modernization of the Copyright Office and make the Register of Copyrights less accountable to Congress and the public, contrary to the stated intent of the bill made plain in its title. We look forward to working with the Senate on this legislation.

 

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

A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.

 

Moving from SSRN to SocArXiv

In May, Elsevier acquired SSRN, an open access repository heavily used in fields of law, economics and other social sciences. A number of great articles raising serious concerns about this acquisition were written following Elsevier and SSRN’s announcement, including posts by Brandon Butler and Ellen Ramsey, Kevin Smith, Paul Gowder, the Authors Alliance, and TechDirt, among others.

More recently, reports surfaced that SSRN started removing articles from its database even when the author to the posted article retained copyright and had explicit permission to post to SSRN. Articles posted under a CC license or originally posted in green open access journals were similarly removed, even where the article contained an explicit footnote asserting that the authors retained copyright. After a huge backlash, SSRN started restoring the papers upon the request of authors claiming a mistake in enforcing their copyright policies. SSRN also indicated that faculty posting final papers would need to add a statement in a footnote asserting copyright and open access permissions or submit their publication agreements to SSRN in order to have their papers posted.

Authors Alliance—as well as numerous academics—responded by asking whether it is time for authors to remove their papers from SSRN and find alternatives. Authors Alliance pointed out:

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

Alternatives obviously include an academic’s institutional repository or personal website, but authors might also consider the new, non-profit open access archive for social science research, SocArXiv. The recent announcement of this new archive comes at an opportune time given Elsevier’s May acquisition of SSRN and the ensuing changes to SSRN policies regarding posting of papers. SocArXiv, in partnership with the Center for Open Science, explained:

The initiative responds to growing recognition of the need for faster, open sharing of research on a truly open access platform for the social sciences. Papers on SocArXiv will be permanently available and free to the public.

Social scientists want their work to be broadly accessible, but it is mostly locked up from the public and even other researchers—even when the public has paid for it. SocArXiv wants to help change that. In recent years, academic networking sites have offered to make preprints available and help researchers connect with each other, but the dominant networks are run by for-profit companies whose primary interest is in growing their business, not in providing broad access to knowledge. SocArXiv puts access front and center, and its mission is to serve researchers and readers, not to make money.

Immediately after news broke that SSRN was removing papers, I checked my own author page to see if my dozen or so journal articles and briefs were still posted.  They are and I will use my author page one final time: to download my papers (they’re easier for me to find this way since I placed all of them on SSRN and won’t have to look through different files on my computer to collect them all) before moving them to try out SocArXiv. I hope other others consider moving their works to SocArXiv, as well.

For further reading, see Richard Poynder, “SocArXiv debuts, as SSRN acquisition comes under scrutiny.”

Assessing the DMCA’s Notice-and-Takedown Regime

*Guest post by Jonathan Band, policybandwidth*

There is an escalating war of words between supporters and detractors of the notice-and-takedown regime of the Digital Millennium Copyright Act (DMCA). The content providers argue that the notice-and-takedown system is broken and advocate for its replacement with a notice-and-staydown system. The Internet industry responds that notice-and-takedown is essential to the vibrancy of the Internet, and that the regime demanded by the content providers would require costly and ineffective filtering and monitoring.

This debate about whether the legislative compromise reflected by the notice-and–takedown system still works misses the larger context in which Congress created the notice-and-takedown system and in which the system must be evaluated. Congress enacted the notice-and-takedown system in 1998 as one title of the much broader DMCA. This broader statute, in a separate title, established prohibitions on the circumvention of technological protection measures. These two titles were adopted together to create a balanced approach to copyright enforcement in the Internet environment. Thus, the effectiveness–and fairness–of the notice-and-takedown system should not be considered in isolation, but in relation to the effectiveness and fairness of the anti-circumvention provisions.

The Latest Round of the Debate

For years the content providers have complained about various provisions of the DMCA’s safe harbors for Internet service providers, but their primary target has been the notice-and-takedown system codified at 17 U.S.C. § 512(c) and (d). The latest round of attack started with a full-page ad on June 20, 2016, in the Washington D.C. newspapers The Hill, Politico, and Roll Call placed by music industry organizations such as the Recording Industry Association of America and well-known recording artists including Taylor Swift and Paul McCartney. The ad asserted that the DMCA “is broken and no longer works for creators.” It claimed that the DMCA “was written and passed in an era that is technologically out-of-date compared to the era in which we live.” The ad did not specify precisely why “the DMCA simply doesn’t work,” but observed that “it’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application.” Based on earlier statements by the RIAA and other music industry associations, this presumably was an allusion to the burden of copyright owners sending notices to a platform every time a user uploads infringing content—a burden that would be alleviated by a notice-and-staydown regime. The ad further stated that “the tech companies who benefit from the DMCA were not the intended protectorate when it was signed into law nearly two decades ago.

The ad provoked a quick response from the tech sector. Matt Schruers with the Computer & Communications Industry Association noted that RIAA was asking Congress “to upend one of the legal cornerstones of the Internet.” Schruers observed that the DMCA’s safe harbors “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.” Schruers stated tens of thousands of Internet platforms relied on the safe harbors to provide millions of creators a cost-free means of reaching a worldwide audience without the interference of traditional gatekeepers such as record labels, movie studios, or book publishers.

Michael Beckerman with the Internet Association similarly asserted that “If you love the Internet, you should thank the DMCA.” He explained that Internet companies should not be responsible for “policing every single piece of online content” because they “don’t have access to constantly changing licensing information, nor are they the appropriate party to make legal judgments about whether content qualifies as fair use….” He added that many Internet companies voluntarily employ “DMCA-plus” programs to provide greater flexibility to copyright owners to address infringing activity.

Neil Fried with the Motion Picture Association of America replied by arguing that “Congress did not intend the DMCA to create a relentless game of Whac-A-Mole.” Fried further complained that “content creators must still endlessly notify technology companies of the presence of unauthorized content, even when it is the same parties posting the same material.” However, unlike the RIAA and the other music industry associations, Fried did not call on Congress to amend Section 512. Instead, it urged the Internet companies to “engage voluntarily and collaboratively with the creative community on solutions that work for everyone….” Fried asked for “better help from technology companies to steer traffic away from websites dedicated to theft….” Fried provided “automatically removing duplicative copies of the same unauthorized content” as an example of how effective notice and staydown could be achieved.

What’s Missing From This Discussion?

The Internet Association’s Michael Beckerman stated that “the bargain” at the heart of the DMCA “is a simple: rightsholders have a mechanism to address infringement without engaging in a lengthy and expensive battle, and internet platforms that respond quickly to remove infringing content are held harmless for the actions of their users.” MPAA’s Fried referred to this bargain as the DMCA’s “grand design.” And CCIA’s Matt Schruers described it as “a compromise between copyright holders and online services.”

Judge Leval, in his recent decision in Capitol Records v. Vimeo, agreed with this characterization of Section 512 as a compromise:

what Congress intended in passing § 512(c) was to strike a compromise under which, in return for the obligation to take down infringing works promptly on receipt of notice of infringement from the owner, Internet service providers would be relieved of liability for user-posted infringements of which they were unaware, as well as of the obligation to scour matter posted on their services to ensure against copyright infringement. The purpose of the compromise was to make economically feasible the provision of valuable Internet services while expanding protections of the interests of copyright owners through the new notice-and-takedown provision.

But the compromise embodied by Section 512 is part of a larger compromise embodied by titles I and II of the DMCA. Title II created Section 512. Title I implemented the World Intellectual Property Organization’s Copyright Treaty and Performances and Phonograms Treaty by creating prohibitions on the circumvention of technological protection measures and the removal of copyright management information. These provisions now constitute Chapter 12 of title 17, including the controversial Section 1201.

Title I and title II originally were introduced as separate bills (the WIPO Copyright and Performances and Phonograms Treaties Implementation Act and the Online Copyright Infringement Liability Limitation Act, respectively). The WIPO implementation bill was supported by the content industry and opposed by sectors of the technology industry. The safe harbor bill was supported by the online service providers and opposed by the content industry. In the face of this opposition, both bills stalled. Senator Orrin Hatch, then Chairman of the Senate Judiciary Committee, in a bold legislative move, merged the two bills into one. He calculated that the content industry would be willing to accept the safe harbors in exchange for WIPO implementation. This calculation proved correct.

The content providers believe that Section 1201 has benefitted them enormously. In response to a notice of inquiry recently issued by the Copyright Office concerning Section 1201, the Association of American Publishers, the Motion Picture Association of America, and the Recording Industry Association of America filed joint comments stating that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” BSA|The Software Alliance, the Copyright Alliance, the Software and Information Industry Association, the Entertainment Software Association, and Microsoft similarly asserted that Section 1201 has facilitated the secure online distribution of content.

In other words, the content providers applaud title I of the DMCA (Section 1201) as much as they complain about title II of the DMCA (Section 512). This is not surprising. Although Congress attempted to achieve a degree of balance within each title—although each title contains internal compromises–at the end of the day, the grand bargain of the DMCA was the marriage of the WIPO implementation and the safe harbor bills. According to the content providers, title I has “enabled an enormous variety of flexible, legitimate digital business modes to emerge and thrive.” And according to the Internet industry, title II has “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.”

Given the tradeoffs that Congress made in assembling the DMCA, policymakers should not assess the impact of any title in isolation. In particular, any adverse impact content providers claim they suffer on account of the safe harbors in Section 512 must be weighed against the benefit they receive from Section 1201 (which has had an adverse impact on other stakeholders).

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.

To Kill A Mass Market Paperback and Access to Knowledge

Just weeks after Harper Lee’s death on February 19, 2016, a notice was issued that the mass-market version of the classic novel To Kill A Mockingbird would no longer be authorized for publication.  The mass-market version, used by countless students over the years, was priced at a much more affordable $8.99 than the trade paperback versions’ list price of between $14.99 and $16.99.  Students and schools who want to purchase new copies of the book will be forced to pay the much higher costs of the trade paperback.

This news is just the latest example of the problem of our current, excessively long copyright term.  Although the reason behind this decision has not been made clear, allowing the heirs of an author to control the legacy of a work and restrict access long after the author’s death can lead to unfortunate consequences.

The purpose of copyright is grounded in the U.S. Constitution: “To promote the Progress of Science and useful Arts.”  The benefit of the public good, through the promotion of access to knowledge, is a key measure of the progress of science.  Yet with copyright term extending far beyond the life of the author — life plus seventy years in the United States (notably, a term that extends far beyond international standards) — access to knowledge can be curtailed and restricted even after the author is long gone.  Dissenting in Eldred v. Ashcroft, Justice Breyer noted that the Copyright Term Extension Act which lengthened copyright term in the United States to its current term, the “primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors.  And most importantly, its practical effect is not to promote, but to inhibit, the progress of ‘Science’–by which word the Framers meant learning or knowledge.”

How does the current copyright system incentivize current authors to promote the progress of science or to produce more works?  Breyer questions in his dissent in Eldred:

How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i.e., a few pennies?  Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas pere’s Three Musketeers earned more royalties?

Indeed, it is unlikely that Lee wrote To Kill a Mockingbird with copyright term in mind.  In fact, when Lee published her novel in 1960, copyright term was significantly shorter: 28 years with the option to renew for an additional 28 years.  It wasn’t until 16 years later when the 1976 Copyright Act was implemented that the copyright term in the United States was measured against the life of the author, and 1998 when the Copyright Term Extension Act extended the term from life plus 50 to life plus 70 years.

Instead of the copyright on To Kill a Mockingbird expiring this year, as it would have under the copyright law at the time of Lee’s writing and publication of the novel, the rights to the novel will continue for the next 70 years.  Apparently, the first move by Lee’s successors-in-interest is to inhibit access to knowledge by prohibiting the publication of affordable copies of the novel.

 

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.

Happy Fair Use/Fair Dealing Week!

Today, we’re kicking off Fair Use/Fair Dealing Week 2016!

While we believe every week is fair use and fair dealing week, February 22-26 is a time to celebrate the important doctrines that provide essential balance in copyright law.  ARL has a number of resources that will be released this week, so stay tuned!  Last year, a number of great resources were created and shared including an infographic, podcasts, a comic book, blog posts and more.  A summary of some of the highlights from Fair Use/Fair Dealing Week 2015 is available here.

Check out all the resources and events (which will updated as the week progresses) herel.  Don’t forget to follow ARLpolicy and FairUseWeek on Twitter.

USPTO White Paper on Remixes, First Sale, and Statutory Damages

*Guest post by Jonathan Band, policybandwidth*

Today the Department of Commerce Internet Policy Task Force today released its White Paper on Remixes, First Sale, and Statutory Damages. (This follows on from the Green Paper issued in 2013.) The Task Force has proposed several significant changes to statutory damages. It recommends that the statutory damages provision be amended: 1) to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award; 2) to expand the eligibility for lower innocent infringement awards when the copyright owner uses a copyright notice; and 3) to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. These changes, if adopted, would make the statutory damages framework much less burdensome. The Task Force does not recommend any statutory changes relating to remixes or digital first sale, but it proposes multi-stakeholder negotiations related to these issues. The White Paper contains numerous references to comments submitted by the Library Copyright Alliance (which consists of ARL, ALA, and ACRL) and individual libraries.

The message at the beginning of the White Paper from Commerce Secretary Penny Pritzker states that “a healthy copyright system strikes important balances between rights and exceptions–delineating what is protectable and what is not, determining which types of uses require permission or payment, and establishing appropriate frameworks to effectively protect rights and foster creativity and innovation. These balances must be reviewed regularly to ensure they continue to function well as a foundation for America’s culture and economy.”

Digital First Sale. The Task Force does not recommend statutory amendment to facilitate digital first sale. It says that it was hard to measure the extent of consumer loss resulting from the absence of a digital first sale provision. Further, it feels that the market has responded with business models such as providing access to large quantities of digital works, e.g., Netflix. At the same time, digital first sale could cause harm to the primary market. Accordingly, the Task Force sees no need to amend the Act at this time.

However, the Task Force notes the problems libraries had experienced with the lending of e-books. The Task Force observes that the situation appears to be improving, and that government intervention could interfere with the development of innovative solutions. However, “if over time it becomes apparent that libraries have been unable to appropriately serve their patrons due to overly restrictive terms imposed by publishers, further action may be advisable (such as convening library and publisher stakeholders to develop best practices, or amending the Copyright Act).” Similarly, the Task Force recognizes that publishers might interfere with library preservation. This could be addressed, if necessary, in the context of updating section 108.

Remixes. The White Paper does not recommend any statutory changes to facilitate the creation of remixes. The Task Force recognizes that fair use is the central mechanism for permitting remixes, and believes that fair use performs this job well. It rejects compulsory licensing schemes as unnecessary. At the same time, the Task Force has suggestions for making it easier for remixers to understand what uses are fair and to obtain a license when they wish to do so. While recognizing the role of single sector best practices (e.g., the best practices organized by AU), it expresses a preference for negotiated guidelines for remixing. Although acknowledging the challenge of different stakeholders reaching an agreement on guidelines, it believes they are achievable if the scope of any guideline is narrow enough.

The Task Force also encourages the development of voluntary licensing systems. It acknowledges the concern the Library Copyright Alliance raised that licensing systems might undermine fair use, but disagrees with that assessment in a helpful way. In essence, it argues that the fourth fair use factor receives less weight in cases of transformative uses. Thus, the existence of a licensing system should not weaken a remixer’s fair use argument.

The Task Force recognizes that users would benefit from clarification of the terms of EULAs, and recommends a multi-stakeholder process for better communicating terms to the public (e.g., developing standardized notices or alternatives to a “buy” button).

Statutory Damages. As noted above, the White Paper’s most important contribution is in the area of statutory damages. The Task Force recognizes that the existing framework can be applied inconsistently because courts and juries have insufficient guidance. Moreover, the potential of draconian damages deters development of innovative technologies. At the same time, the Task Force does not seem convinced that there was a copyright troll problem.

The Task Force’s first proposal is to codify model jury instructions concerning statutory damages adopted by several circuits. The instructions include a list of factors to consider when determining the amount of a statutory damages award. These factors would help insure that the damages award is related to the actual harm and that the defendant’s state of mind and financial condition are given appropriate weight. These factors would improve consistency and transparency in the application of statutory damages.

The second proposal is to expand the eligibility for lower innocent infringement awards ($200 as opposed to $750). Currently, under sections 401(d) and 402(d), the innocent infringer defense is not available when the copyright owner places a copyright notice on the work. The Task Force proposes eliminating the preclusive effect of notice on the innocent infringement defense. At the same time, the Task Force rejects the Library Copyright Alliance proposal to expand the remission of damages when a library or archives has a good faith belief that its copying was a fair use. Currently, this provision applies only to the reproduction right, not the other exclusive rights. The Task Force believes that the libraries had not demonstrated need for this amendment. If the problem becomes more evident, the Task Force suggests addressing it in the context of section 108 reform.

The third proposal is to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. This would reduce the threat statutory damages pose to innovative Internet companies.

Finally, the Task Force expresses support for the establishment of a small claims court for copyright infringement. The Task Force evidently believes that such a court could benefit defendants by diverting smaller cases away from a venue where significant statutory damages can be assessed.

Edited: January 28, 5:00pm