Tag Archives: copyright term

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.”

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.

 

Nothing New Under the Sun

It’s Copyright Week, a series of activities and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “Building and Defending a Robust Public Domain: The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.”

*Today’s post is brought to you by guest blogger Caile Morris, ARL Law and Policy Fellow*

In support of today’s theme, Jonathan Band and Caile Morris have created a document, entitled “Nothing New Under the Sun” providing examples of famous creators throughout the history of art who have built their works on existing works. The purpose of the document is to demonstrate the importance of copyright limitations to the creative process.

Proponents of strong copyright protection stress the significance of an author’s contribution to the artistic and economic value of a work. In this vision, creativity starts with an author’s spark of genius and is realized through the artist’s talent and hard work.

To be sure, great works reflect their authors’ genius, talent, and hard work. But authors do not create in a vacuum. The raw material for their creativity is existing works. Artists borrow themes, styles, structures, tropes, and phrases from works that inspire them. And if copyright overprotects existing works—if it restricts authors’ ability to build on the creative output of authors who came before them—it will be more difficult for authors to create.

Unfortunately, copyright owners and policymakers often undervalue the importance of this use of source material. They focus on rights, but not on the critical limitations to those rights that enable creativity to flourish. These limitations include: the idea/expression dichotomy and the related doctrines of merger and scenes a faire; fair use; and copyright term, which results in works entering the public domain. The failure to recognize how essential limitations are to new creative expression results in bad policy, such as the Sonny Bono Copyright Term Extension Act (adding 20 years to the copyright term) or the absence of mandatory exceptions and limitations in free trade agreement.

Hopefully, these examples of great works derived from earlier works will remind copyright owners and policymakers of the importance of copyright limitations and exceptions to the creation of new works.

Analysis of the Final TPP (Leaked) Text on Intellectual Property: Mixed Results

*This post is also available as an issue brief here*

On October 5, 2015, the twelve trade ministers of the TPP negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States) announced that they had come to an agreement on the large regional trade agreement that had been under negotiations for the past five years.

While the agreement has been criticized for a number of reasons, it is important to recognize the areas where the agreement has improved from the initial proposals made by the United States in February 2011. Civil society, technology companies and academics have participated throughout the negotiating process to improve the language of the final text and many of these efforts are reflected in the agreement.

Of course, one of the main points of criticism regarding the TPP was the lack of transparency; without the various leaks of the intellectual property chapter throughout the course of the negotiations, substantive debate, criticism and proposed alternatives may not have been possible. It is worth noting that the agreement was signed by the trade ministers of the twelve negotiating parties in Atlanta, GA without a single official release of any chapter of the TPP. Notably, when international agreements are negotiated in multilateral fora such as at the World Intellectual Property Organization (WIPO), the negotiations are much more transparent and stakeholders have the opportunity to view and substantively comment on the proposals.  Even today, the final text has not been officially released, though Wikileaks has released a leaked copy of the final agreement’s intellectual property chapter.

Improvements in the Text

The final text of the TPP saw improvement in several areas, including the removal of certain provisions.

Removal of the Ban on Parallel Importation

The United States’ initial proposal included a ban on parallel importation, granting authors “the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance or phonogram made without authorization, or made outside the Party’s territory with the authorization of the author, performer, or producer of the phonogram.” This proposal would have prohibited parallel importation, limiting the application of the first sale doctrine to authorized copies made within the Party’s territory. Thus, a legitimate copy made in another country could not be sold in the United States without the author’s consent.

This proposal was controversial at the time it was introduced as other negotiating parties strongly rely on parallel importation of works. Additionally, during this time a high-profile court case, Kirtsaeng v. John Wiley & Sons, involving this very issue was making its way through the court system ultimately ending up before the Supreme Court of the United States. In that case, an individual purchased lawfully made textbooks in Thailand, where they were less expensive, and resold them in the United States.

In March 2013, the Supreme Court ruled that the first sale doctrine applies to lawful copies regardless of their place of manufacture. This ruling clarified that United States law does indeed allow for parallel importation, thus conflicting with the United States’ proposal. Despite this ruling, it took many months and several negotiating rounds for the United States to remove its language banning parallel importation. Ultimately, though, this prohibition was removed and is not in the final text of the agreement.

Removal of Language on Temporary Reproductions

Another area of controversy surrounding the United States’ proposal centered around language granting authors the right to authorize or prohibit reproductions “in any manner or form, permanent or temporary (including temporary storage in electronic form).” Many criticized the inclusion of temporary reproductions, particularly the clarification that it applied to “temporary storage in electronic form” as potentially prohibiting the temporary copies that are constantly made by a computer to read e-mails, store documents, access content, etc. Reference to “temporary reproductions” and “temporary storage in electronic form” is not in the final text, another helpful improvement in the text.

Removal of the Ban on Formalities

The October 2014 leak of the IP chapter, which reflected the state of negotiations as of May 2014, revealed that parties had agreed to new language banning formalities that did not appear in prior leaks. ARL criticized this development noting

This language could be problematic if the United States, or other TPP parties, wanted to re-introduce formalities for copyright protections granted that go beyond minimum international standards. Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States. If adopted, such a proposal would violate the TPP and subject the United States to investor-state dispute settlement, under which a corporation could sue the Unites States government for failure to comply with the TPP.

However, the August 2015 leak, reflecting the state of negotiations as of May 2015, as well as the final leaked text show that the text was ultimately removed. The removal of this language was a welcome improvement, preserving the ability to re-introduce formalities for protections granted under the TPP that go beyond minimum international standards set by the Berne Convention or TRIPS.

Improvements on Technological Protection Measures

The United States’ initial proposal on technological protection measures (TPMs) included detailed language, including a closed-list set of limitations and exceptions to the anti-circumvention rules. In addition to the very limited set of exceptions, the proposal would have allowed countries to use a three-year rulemaking process, modeled after the Digital Millennium Copyright Act (DMCA) 1201 rulemaking process, to create additional limitations and exceptions subject to a “substantial evidence” burden. This proposal would not have permitted new permanent limitations and exceptions to the anti-circumvention rules and was heavily criticized, particularly as certain events, such as the Register’s refusal to renew an exemption in 2012 to allow for the unlocking of cell phones, highlighted the absurdity of the process.

The 2014 leak and the final text of the agreement reveal that parties have removed the closed list of limitations and exceptions as well as the rulemaking process. Instead, the text allows parties to provide for limitations and exceptions and to use legislative, regulatory or administrative processes to create exceptions. This language would permit the creation of new permanent limitations and exceptions.

Furthermore, while the language still provides that a violation of the anti-circumvention rules “is independent of any infringement that might occur under the Party’s law on copyright and related rights,” this text could be mitigated by a helpful footnote that reads “A Party may provide that the obligations described in paragraph (ii) with respect to manufacturing, importation, and distribution apply only where such activities are undertaken for sale or rental, or where such activities prejudice the interests of the right holder of the copyright or related right.”

The fact that the United States’ initial proposal in 2011 made circumvention a “separate and independent cause of action” was controversial and makes little sense. Establishing that circumvention is independent of any copyright infringement negatively impacts legitimate, non-infringing circumvention. However, the footnote that appeared in the final text could mitigate the harm of this provision because circumvention for legitimate purposes would not prejudice the interests of the right holder.

Inclusion and Improvements on Text on Limitations and Exceptions

The United States’ initial proposal included placeholder text for limitations and exceptions on copyright. The United States tabled a proposal on limitations and exceptions in July 2012. While proposal was a welcome one, including language referencing balance for purposes such as “criticism, comment, news reporting teaching, scholarship and research” which had never been in any prior United States free trade agreement, there were also criticisms of the proposal which noted that this new paragraph was “subject to and consistent with” the three-step test. Critics pointed out that some specific limitations and exceptions, such as the quotation right under the Berne Convention, are not subject to the three-step test (that limitations and exceptions are confined to 1) certain special cases, 2) the at do not conflict with the normal exploitation of the work, and 3) do not unreasonably prejudice the legitimate interests of the right holder).

Ultimately, the language regarding limitations and exceptions was improved and clarification was included that the text on the three-step test did not reduce or extend the scope of limitations and exceptions under international agreements including TRIPS, the Berne Convention, and the WIPO Internet Treaties.

The text of the United States’ proposal also improved with respect to the fact that the list of “legitimate purposes” now specifically references “other similar purposes” as well as “access to published works for persons whoa re blind, visually impaired, or otherwise print disabled.” The text also includes a specific footnote recognizing the Marrakesh Treaty and acknowledges that some Parties facilitate the availability of accessible format works beyond the requirements of the Marrakesh Treaty.

Finally, while the language on limitations and exceptions could have been stronger with language mandating that parties achieve a balance or foster a balance, rather than the agreed to language that “Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system,” the inclusion of the language in the final text is still a success. The United States has now recognized in a free trade agreement the importance of balance in the copyright system. Furthermore, the United States has stated that this language provides “an obligation for Parties to continuously seek to achieve balance in copyright systems,” because the language requires Party to “endeavor to achieve” balance. The words “shall endeavor” do create a mandatory obligation for parties to seek this balance.

Inclusion of this language signals that the Office of the United States Trade Representative (USTR) has responded to criticisms that the United States proposals only export rights for rightholders and not our balanced system which includes limitations and exceptions. This language should be included in future trade agreements and USTR should seek to improve upon it in the future by strengthening the language requiring parties to achieve a balance or foster a balance. Despite the fact that the language could have been stronger, its inclusion in the final text still reveals a mandatory obligation for parties and represents a positive development.

Remedies Allow for Judicial Discretion

The final language regarding enforcement also shows areas where the text has improved from the United States’ initial proposal.

For example the final text includes language that replicates text from the Anti-Counterfeiting Trade Agreement (ACTA) requiring parties to take proportionality into account. The text reads, “In implementing the provisions of [the enforcement] Section in its intellectual property system, each Party shall take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies an penalties, as well as the interests of third parties.” This language on proportionality is a welcome inclusion and would ultimately allow domestic laws to provide judicial authorities discretion in ordering remedies.

Additionally, while the United States’ initial proposal in 2011would have required judges to consider certain measures of damages (“in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the suggested retail price or other legitimate measure of value submitted by the right holder”) the final language provides judicial authorities the discretion to consider these measures of damages. The final text provides that “judicial authorities shall have the authority to consider . . .” and this added language “have the authority” changes the text from a mandatory obligation that judges consider these measures of damages to providing them the discretion to do so. This addition is an improvement and consistent with current United States law which permits judicial discretion.

Other provisions on the text on remedies includes similar language, providing that judicial authorities “shall have the authority” to impose certain remedies, but does not actually require that authorities order these remedies. While some have criticized the TPP as prohibiting the Copyright Office’s proposal on orphan works (which is a highly flawed proposal as analyzed here and here), the actual text of the TPP permits considerable discretion and does not actually require authorities to order damages in a particular amount.

General Provisions

As noted in ARL’s analysis of the August 2015 leak, language on general provisions reveal considerable positive developments. The final text includes language provides that the objectives of the agreement are as follows:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

The principles specifically reference the public interest and address the need to prevent abuse of intellectual property by right holders: 

1.  Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio­economics and technological development, provided that such measures are consistent with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

The final text also includes a section on “Understandings in respect of this Chapter” which reads as follows:

Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to:

  • promote innovation and creativity;
  • facilitate the diffusion of information, knowledge, technology, culture and the arts; and
  • foster competition and open and efficient markets;

through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public.

The August 2015 leaked text, reflecting the negotiating text as of May 2015, also included language proposed by Chile and Canada “acknowledging the importance of preserving the public domain.” This text was, however, opposed by the United States and Japan and ultimately not included in the agreement. It is extremely unfortunate that the United States and Japan would oppose inclusion of such text.

However, in the section on “Cooperation” the text from the August 2015 leak remains in the final text recognizing the importance of the public domain:

The Parties recognize the importance of a rich and accessible public domain. 

The Parties also acknowledge the importance of information materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

While it is disappointing that the United States and Japan opposed the inclusion of a reference to the public domain in the general provisions, the fact that the importance of the public domain is recognized on the section regarding cooperation is still welcome language.

Shortcomings/Areas for Improvement in Future Agreements

Flexibility on ISP Liability

The final language of the agreement does provide for some flexibilities with respect to Internet Service Providers (ISP). While the text, contained in Section I, is modeled off the DMCA and provides for safe harbors for ISPs implementing a notice-and-takedown system, an annex specifically preserves Canada’s notice-and-notice system. The annex provides that the notice-and-takedown safe harbors do not apply to a Party that has implemented a notice-and-notice system instead.

Unfortunately, this flexibility will only be permitted for Canada and not for the other negotiating parties. The language under the annex requires the system to be in place “upon date of agreement in principle of this Agreement,” which occurred when the trade ministers announced the agreement on August 5, 2015. Canada was the only country at that time to have a notice-and-notice system in place.

However, another annex to the intellectual property chapter provides that as an alternative to implementing the article on ISP, parties may instead implement Article 17.11.23 of the US-Chile free trade agreement. Chile’s system involves notice-and-takedown, but involves a judicial order before takedowns are required. Countries may therefore choose between implementing the language in the TPP or the language of the US-Chile trade agreement.

Unfortunate Extension of Copyright Term

Copyright Term Extension

One of the biggest areas of criticism that remains in the final agreement is that the parties settled on a copyright term of life plus seventy years, or seventy years for corporate works. The United States’ 2011 proposal would have set copyright term as the life of the author plus seventy years, or ninety-five (or up to one-hundred twenty years if unpublished) years for corporate works. While countries did not accept the United States’ proposals on corporate works, they did agree to the term of life plus seventy years. Some countries with pre-existing free trade agreements with the United States (Australia, Chile, Peru and Singapore) already had obligations to provide for a period of life plus seventy years and Mexico had an even longer term, which it proposed, of life of the author plus one hundred years.

However, it is highly unfortunate that the other countries ultimately agreed to extend copyright term, given the lack of justification for excessively long terms. The Hargreaves report commissioned by the United Kingdom, for example, points out that economic evidence does not support copyright term extensions. Maria Pallante, Register of Copyrights, noted that a Copyright Office study questioned “whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’” Despite the lack of policy justification for these terms and the fact that copyright term extension damages the public domain and increases the orphan works problem, the final text of the agreement reveals that countries must provide for copyright terms that go far beyond the minimum international standards.

After the trade ministers announced an agreement had been reached, New Zealand released a fact sheet on the TPP. This fact sheet estimated that the copyright term extension would cause “significant cost” to New Zealand: “This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term.”

Article QQ.A.10bis, however, does provide that countries that are required to implement copyright term extension do not need to restore protection to subject matter that has fallen into the public domain in its territory as of the date of entry into force of the agreement. The extension will therefore apply only to those works that are still under protection as of the date the agreement enters into force for that country (which will depend on each country’s domestic process for approving the final agreement).

While the United States will not require changes to its domestic laws with respect to copyright term, it is unfortunate that this term is being imposed on other countries when it far exceeds international standards. Brunei, Canada, Japan, Malaysia, New Zealand and Vietnam will all be required to increase the copyright terms in their countries. Furthermore, it would be extremely difficult for the United States to revisit this term and reduce copyright term in the United States, even though evidence justifies and supports shorter terms, as the TPP would need to be re-negotiated with all TPP parties.

Conclusion

While there are still areas where the TPP should be criticized and several areas where the language of the TPP could have been better, the final text reveals significant improvements from the United States’ initial proposals. It is possible that some of these proposals resulted from stakeholder engagement, including criticisms of prior texts and proposals which was only made possible through leaks. These improvements and changes in the text over the course of the five years of negotiations reveal the importance of transparency in negotiations.

The TPP will still need to be approved by the domestic procedures set forth in each of the parties. In the United States, Congress will vote under the “fast track” procedures it set when it granted the President trade promotion authority. Congress will be able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend the agreement. Due to the timing set forth under fast track procedures, a vote in the United States will not occur until 2016. In Canada, a vote will not take place on the TPP until after it concludes its upcoming elections on October 19 and the new Parliament is in place.

Whether or not Congress approves the agreement, the final text of the TPP will likely provide the starting point for future negotiations. USTR has used past agreements, particularly the most recently concluded free trade agreements, as a template for future agreements. The gains made with respect to supporting a balanced copyright system should serve as a basis for additional improvements in the future.

Court Finds Warner Does Not Hold Rights to “Happy Birthday” Song

In the Marya v. Warner/Chappel Music dispute over the copyright status of the song “Happy Birthday,” the District Court for the Central District of California found in its September 22, 2015 opinion that Warner does not hold a valid copyright over the lyrics.

The ruling went through the history of publication of the melody and lyrics to “Happy Birthday,” which uses the same melody and similar lyrics to a children’s song, “Good Morning,” written prior to 1893.  The exact date of the lyrics to “Happy Birthday” were unclear, though references were made to the song since 1901.  While the parties agreed that the melody entered the public domain long ago, they disagree on the status of the copyright of the lyrics to “Happy Birthday.”

The Plaintiffs in the case sought declaratory judgment, arguing the Defendants did not hold the valid copyright on several grounds: the lyrics were written by someone else, the common law copyright in the lyrics were lost due to general publication or abandonment, and that the rights were never transferred to the company Summy Co.  In determining where the burden of proof lies, the district court relied on the Supreme Court’s 2014 decision in Medtronic, Inc. v. Mirowski Family Ventures which placed the burden of proof on the patent holder in the case.  Thus, the district court noted “just as in Medtronic, there is no reason to relieve the alleged owners of the intellectual property of the usual burden of proof just because they are nominally the defendants in this declaratory judgment.”

The Defendants argued that evidence of registration entitled them to a presumption of validity.  The district court rejected this argument because “Even assuming that the lyrics were printed in the deposit copy for E51990, it is unclear whether those lyrics were being registered, and therefore it is unclear with the Copyright Office determined the validity of Summy Co.’s alleged interest in the lyrics in 1935” because the registration covered a piano arrangement purportedly a derivative version of another melody.  The registration did not make clear that the lyrics were being registered.  The court also found that the question of who wrote the lyrics and whether the lyrics had been divested or abandoned were open ones that would require a trial.

The court did, however, find that a lawsuit between the purported authors (the Hill sisters) of the lyrics and Summy Co. in 1942 revealed evidence that the Hill sisters transferred only the melodies to Summy and did not transfer the lyrics.  Both parties in the 1942 litigation described the transfer agreement as transferring the rights to “piano arrangements,” and the district court in the present case therefore found “it is not logical to infer that rights to ‘piano arrangements’ would include rights to any lyrics or words as well.”  Thus, “Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest do not own a valid copyright in the Happy Birthday lyrics.”

Ultimately, the court holds only that Warner does not hold a valid copyright in “Happy Birthday,” not necessarily that the work is in the public domain (a full trial or appeal could find the work to be in the public domain, given that the district court denied motions for summary judgment on the basis that there were other triable issues).  While this ruling is certainly a cause for celebration because the song “Happy Birthday” is free from Warner’s licensing requirements, it also highlights a problem with the extensive copyright terms in the United States.  It can be extremely difficult to determine who holds the copyright — or even if a valid one still exists — given the extremely long copyright terms that last for seventy years beyond the life of the author, or ninety-five years for corporate works.  Copyright terms lasting well beyond the life of the author clearly exacerbates the orphan works problem.

 

Constitution Day: The U.S. Constitution and Copyright Balance

Happy Constitution Day!  September 17th commemorates the signing of the U.S. Constitution in 1787.  Among its many clauses, the Framers of the Constitution provided for an intellectual property clause in Article I, Section 8, Clause 8, which grants Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This clause provides the rationale for our intellectual property system.  While the clause is a grant of power to Congress, so too is it an important limitation.  The Supreme Court of the United States has confirmed that the clause “is both a power and a limitation” and, in the patent case, Graham v. John Deere Co., stated that “Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.”  In copyright cases, the Supreme Court has confirmed that “The immediate effect of our copyright law is to secure a fair return for an author’s creative labor.  But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”  Twentieth Century Music Corp. v. Aiken.

It is important to remember that the Constitution allows Congress to set limited-time monopolies over intellectual property, but ultimately the goal is “To promote the Progress of Science and useful Arts.”

Promoting progress depends on a rich public domain.  The public domain not only allows the public to access books and texts for learning and discovery, but also serves as a storehouse of raw materials from which derivative works are created and new ideas are built.

Unfortunately, copyright term has been extended extensively since the first Copyright Act of 1790 (modeled after the 1710 Statute of Anne) which provided for a 14 year initial term, with the possibility of a 14 year renewal.  Currently, the copyright term is the life of the author plus 70 years or 95 works for corporate works, significantly exceeding the international term of life plus 50 years.  The currently negotiated Trans-Pacific Partnership Agreement (TPP), a large free trade agreement between 12 countries in the Asia and Pacific region, includes proposals to export this term to other countries, but also includes a proposal from Mexico to extend our current term to the life of the author plus 95 years.  Lengthy copyright terms hinder the stated Constitutional rationale for the intellectual property protection by shrinking the public domain and exacerbating the orphan works problem.

In the Eldred v. Ashcroft case, the Supreme Court unfortunately upheld by a 7-2 majority that the Copyright Term Extension Act which set the current copyright term, deferring to the judgment of Congress.  The majority opinion in that case did not, however, address the appropriateness of the copyright term extension.  Justice Breyer, however, in dissent vigorously opposed the extension as a violation of the Constitutional rationale of the intellectual property system:

 

The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual. Its 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.

While the Eldred case had the unfortunate effect of upholding the current term of life plus 70 years, the Supreme Court has interpreted the intellectual property clause to place limits on copyright protections in other areas.  For example, the Court has ruled that copyright does not protect facts, only expression.  See Harper & Row v. Nation Enterprises.  In Feist Publications v. Rural Telephone Service, the Supreme Court held that “Originality is a Constitutional requirement” for copyright protection and that:

As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “to promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (internal citations omitted).

Aside from copyright term and the scope of copyright, copyright limitations and exceptions can help advance the important Constitutional goal of promoting progress.  The Copyright Act has a number of specific limitations and exceptions as well as a flexible doctrine known as fair use, codified under Section 107.  These limitations and exceptions to copyright allow for the reliance on copyrighted works without permission of the rightholder.  Fair use is a critical right of users, allowing copyright law the flexibility to adapt to evolving technologies and promoting the progress of science.

The Supreme Court in Campbell v. Acuff-Rose noted that fair use supports the Constitutional purpose of copyright:

The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.” . . . The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.  Such works thus lie at the hart of the fair use doctrine’s guarantee of breathing space within the confines of copyright . . . (internal citations omitted).

In addition to supporting the intellectual property clause of the U.S. Constitution, fair use also provides an important accommodation to the guarantee of freedom of speech in the First Amendment.  In the Eldred v. Ashcroft case, the Supreme Court confirmed that fair use serves as a “First Amendment safeguard.”

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.  First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection . . . Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.

The Constitution’s intellectual property clause grants Congress the power to permit limited time monopolies on copyright, but also mandates balance in the copyright system.  The ultimate goal of copyright is to promote progress and advance the public good.  Thus, the Supreme Court has interpreted the intellectual property clause to limit copyright in many ways, by distinguishing between facts and expression and requiring some degree of originality for copyright protection.  While copyright and the First Amendment right to freedom of speech could potentially be in tension with each other, the fair use doctrine provides an important safeguard to both accommodate the rights of users and promote the progress of science.  In celebrating Constitution Day, celebrate that the Constitutional rational for the U.S. intellectual property system is inherently grounded in the concept of balance: providing an incentive to authors, but ultimately advancing the general public good.

 

Analysis of August 2015 Leaked TPP Text on Copyright, ISP and General Provisions

The United States is currently negotiating a large, regional free trade agreement with eleven other countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. On August 5, 2015, Knowledge Ecology International published a new leak of the Trans-Pacific Partnership Agreement’s (TPP) negotiating text for the intellectual property chapter. This text, dated May 11, 2015 reflects the state of the negotiations prior to the recent Ministerial meeting in Hawaii (and new agreements may have been made during the recent TPP meeting). This latest leak reveals some substantial changes from last year’s October leak of the text by WikiLeaks (which revealed the state of negotiations as of May 14, 2014).

In general, the more recent text shows some improvement over last year’s text, although serious problems remain.

Copyright

Copyright Term

The copyright term has not yet been agreed to, and it has widely been considered to be a political decision to be determined by the trade ministers. Currently, there is a wide range of proposals available for copyright term, ranging from life plus 50 years, to life plus 70 years, to life plus 100 years when based on the life of an author. For corporate works, there are four proposed terms of 50, 70, 75 or 95 years. These are wide ranging proposals and longer copyright terms exacerbate the orphan works problem and hamper the public domain. The potential for excessively long copyright terms that far exceed international standards is one of the largest remaining flaws in the agreement from the perspective of access to knowledge and information. Countries should resist copyright term extension, particularly given the lack of evidence supporting these extensive copyright terms.

Japan’s proposal, which appeared in the previous leak, similar to the Berne rule of shorter term remains. This rule would essentially allow parties to limit the term of protection provided to authors of another party to the term provided under that party’s legislation. For example, if the final TPP text required a period of copyright protection of life plus fifty years, the United States would not be required to provide its period of life plus seventy years to authors in New Zealand, if New Zealand continued to provide a term of life plus fifty years. The United States does not currently implement the Berne rule of shorter term.

Formalities

In last year’s leaked text, Article QQ.G.X appeared for the first time and was unbracketed, signaling agreement by the TPP negotiating parties. This provision read, “No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.” As noted in last year’s analysis by ARL, the language was potentially problematic for countries wanting to re-introduce formalities for copyright protections granted that go beyond minimum international standards. The Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States, which would have violated the TPP if a period of life plus seventy years was also agreed to.

Although this provision was unbracketed in the 2014 text, it appears from the current leak that this ban on formalities has been removed. The removal of this language is significant as it would not only permit the reintroduction of formalities for the last twenty years of copyright term in the United States, but also allows for formalities in other areas. For example, formalities can be required in order to be eligible for certain remedies for copyright infringement. It could be used to address the orphan works problem by establishing registries in order to receive damages or an injunction for works that are still protected under copyright in the United States, but go beyond the terms required by international law. Footnote 160 in the current leak appears to allow such arrangements, providing that “For greater certainty, in implementing QQ.G.6, nothing prevents a Party from promoting certainty for the legitimate use and exploitation of works, performances and phonograms during their terms of protection, consistent with QQ.G.16 [limitations and exceptions] and that Party’s international obligations.”

Limitations and Exceptions

The language from the previous leak on limitations and exceptions, including a reference to the Marrakesh Treaty, remains in the text and is particularly welcome, given that it has not been included in previous US free trade agreements. The language provides that

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.[164] [165] 

[164] As recognized by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (June 27, 2013). The Parties recognize that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements of the Marrakesh Treaty.

[165] For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.16.3

Footnote 164, which references the Marrakesh Treaty, now includes an additional sentence that recognizes that some parties provide for limitations and exceptions for beneficiaries that go beyond the requirements of the Marrakesh Treaty. Currently, ten parties have ratified the Marrakesh Treaty and an additional ten are required for entry into force. Singapore and Mexico, both negotiating parties to the TPP, have already ratified the Marrakesh Treaty, and Canada has introduced a bill paving the way for implementation of the Treaty. A number of other TPP negotiating parties have signed the treaty, signaling an intention to ratify, including Australia, Chile, Peru, and the United States.

While inclusion of language on limitations and exceptions is a welcome addition to the agreement, this provision should be strengthened by making mandatory the obligation to achieve balance rather than using the term “shall endeavor,” as the Library Copyright Alliance pointed out in an August 2012 letter to the United States Trade Representative.

Technological Protection Measures

Last year’s leak revealed language that permits parties to provide limitations and exceptions to technological protection measures “in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on non-infringing uses.” The leak also revealed that the three-year rulemaking process to create these limitations and exceptions, as earlier proposed by the United States, was removed. The current leak maintains this language, but drops the reference to the three-step test (though the language on limitations and exceptions remains the same) and also eliminates Chile’s proposal that the process for establishing limitations and exceptions requires consideration of “evidence presented by beneficiaries with respect to the necessity of the creation of such exception and limitation.”

Overall, this language is an improvement over the United States’ initial proposal from 2011 regarding technological protection measures, which only allowed for a closed list of specific limitations and exceptions while others could be added through a three-year rulemaking process, because it would allow for new permanent limitations and exceptions to allow for circumvention of TPMs. Such permanent limitations and exceptions could be granted for cell-phone unlocking. However, the language does assume that parties need to provide for limitations and exceptions, even for non-infringing uses.

Article QQ.G.10(c) maintains the unfortunate language that “a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.” Establishing that the circumvention of a technological protection measure is independent of any copyright infringement negatively impacts legitimate, non-infringing circumvention. It is unfortunate that this language not only remains in the text, but is unbracketed, meaning that countries have agreed to this flawed provision.

Internet Service Providers

The text on Internet Service Providers appears in an addendum and contains important caveats that the text is “Without Prejudice” and “Parties are still considering this proposal and reserve their position on the entire section.” Thus, even where language is unbracketed, it does not necessarily reflect agreement.

The current leak reveals that the text contains significant flexibilities that did not previously exist. For example, the United States and Canada have proposed language that would continue to allow Canada’s notice-and-notice system, rather than require the United States notice-and-takedown system. It appears to protect Canada’s system as one that “forward[s] notices of alleged infringement” but requires that the system exist in the Party “upon the date of entry into force of this Agreement.” If this language is agreed to, it could therefore be conceivable that other parties to the TPP could implement systems of notice-and-notice, provided that they do so before entry into force of the TPP. Similarly, footnote 299 appears to allow Japan to maintain its safe harbor framework.

In last year’s leak, Peru had proposed a footnote that now appears in the general text of the section on ISPs. This paragraph now reads, “It is understood that the failure of an Internet service provider to qualify for the limitations in paragraph 1 does not itself result in liability. Moreover, this article is without prejudice to the availability of other limitations and exceptions to copyright, or any other defences under a Party’s legal system.” This language provides a helpful clarification and clearly establishes the language as a safe harbor, not as a direct creation of liability where an ISP does not qualify for the limitations set forth under the agreement.

General Provisions

In addition to improvements in the copyright section, there appears to be agreement on positive language regarding general provisions. Many of the positive proposals regarding general provisions in last year’s leak were bracketed and not yet agreed to.

The objectives now read:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Additionally, principles that had previously been agreed to by six parties now appear unbracketed and specifically reference the public interest and address the need to prevent abuse of intellectual property rights by right holders:

1.  Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio­economics and technological development, provided that such measures are consistent with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

There is also new language, which appears to be mostly agreed to, that promotes the dissemination of knowledge and information. In addition, Chile and Canada have proposed language, which the United States and Japan oppose, emphasizing the importance of the public domain. This article, “Understandings in respect of this Chapter” reads:

Having regard to the underlying public policy objectives of national systems, the Parties recognise the need to:

  • promote innovation and creativity;
  • facilitate the diffusion of information, knowledge, technology, culture and the arts; and
  • foster competition and open and efficient markets;

through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public [CL/CA propose; US/JP oppose; and acknowledging the importance of preserving the public domain.]

It is disappointing that the United States would oppose language acknowledging the importance of preserving the public domain, which provides a storehouse of raw materials from which individuals can draw from to learn and create new ideas or works. The public domain is essential in fostering new creativity and advancing knowledge.

Proportionality in Enforcement

While this analysis does not cover the section on enforcement in detail, there is one significant positive improvement from previous texts. Under the general enforcement provisions, there is new text that appears to be agreed to language that is replicated from the text of the Anti-Counterfeiting Trade Agreement (ACTA) and would require parties to “take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies and penalties, as well as the interests of third parties.” Inclusion of this language is a welcome improvement to the text of the enforcement section.

Conclusion

Overall, the text of the copyright section as well as some other key provisions reflect improvements over the initial intellectual property chapter proposed by the United States in February 2011. The section on technological protection measures no longer limits the limitations and exceptions to a closed list and does not impose a three-year rulemaking process. It would allow for permanent limitations and exceptions to anti-circumvention provisions. Additionally, the text shows greater flexibility with respect to ISPs and appears much less complicated than it initially did. Furthermore, the current text reflects agreement on positive language with respect to limitations and exceptions and a reference to the Marrakesh Treaty has been included. The removal of the formalities language that appeared in last year’s text is also a welcome improvement. General provisions and enforcement language has also seen improvements.

While there have been improvements in the text, there are still concerning elements, the biggest of which is the potential for locking-in current lengthy and excessive copyright terms as well as the possibility of even requiring further extension to life plus 100 years. Additionally, the requirement that circumvention of a technological protection measure be independent from copyright infringement is illogical and prevents circumvention for legitimate, non-infringing purposes.  Finally, the obligation to achieve balance through exceptions and limitations should be made mandatory.

Library Copyright Alliance Responds to Copyright Office Inquiry on Visual Works

The Library Copyright Alliance filed a response to the U.S. Copyright Office’s Notice of Inquiry on Copyright Protection for Certain Visual Works, focusing largely on the importance of fair use and the detrimental effects of the current lengthy copyright term in the United States.

The response opens by pointing out,

In the past, the difficulty of identifying or locating the owners of the copyrights in visual works was a significant challenge for libraries.  Visual works are particularly susceptible to “orphaning” and often there is ambiguity in their copyright ownership.  This orphan work problem had a chilling effect on libraries interested in important preservation and archival uses of visual works.  It also impeded the use of collections of visual works for teaching and classroom use.  Indeed, the orphan work challenge prompted LCA to strongly support enactment of the Shawn Bentley Orphan Works Act in 2008.  However, significant changes int he copyright landscape since then convince us that libraries no longer need legislative reform in order to make appropriate uses of “orphaned” visual works in their collections.

The response then discusses the changed landscape, explaining that fair use is less uncertain today with a number of cases that have clarified the scope of this important doctrine.  Additionally, codes of best practices have guided the use of digitization and making available of special collections and archives, including for orphan works.The fact that injunctions are less likely and mass digitization is more common also promote greater comfort in using orphan works.

The statement then notes that the orphan works problem is largely a result of the current copyright term in the United States that “is already unacceptably long, limiting access to visual works that should be in the public domain.”  While not discussed in this response, it is worth noting that what is being called the last round of negotiations for the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement in the Asia-Pacific region that currently has twelve negotiating parties, copyright term will be an issue for discussion.  Leaked text has revealed efforts by the United States to push for all parties to the TPP to adopt the lengthy term of life of the author plus 70 years, despite opposition to the imposition of copyright term extension.

The Copyright Office has extended its comment deadline to October 1, so there is still time to submit a response to the notice of inquiry.

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.

Copyright Term Extension and the Public Domain

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Building and Defending a Robust Public Domain: The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.”

The current copyright term in the United States goes well beyond the international standard of life of the author plus fifty years and is now set at life of the author plus seventy years, or ninety-five years for corporate works. This term is unacceptably long and does significant damage to the public domain, depriving the public of a storehouse of raw materials from which individuals can draw from to learn and create new ideas or works.

Each year, Duke’s Center for the Study of the Public Domain does a roundup of everything that could have entered the public domain if the term prior to the 1976 act, which was set at twenty-eight years plus another twenty-eight years if renewed. The term has been changed twice since then, once by the 1976 Copyright Act which set the term at life of the author plus fifty years, then again in 1998 to the current term.

The list of works that failed to enter into the public domain as a result of these two changes to the copyright term is always an impressive one. This year’s highlights include works like T.H. White’s The Once in Future King, Chinua Achebe’s Things Fall Apart; or Michael Bond’s, A Bear Called Paddington. These works will go into the public domain in 2054. Notably, because of the Copyright Term Extension Act, the public domain has essentially been frozen; works under copyright at the date of implementation of the act in 1998 retained their copyright. The public domain will not see any new works due to expired copyrights until 2019.

The United States’ copyright term is unacceptably long and does not represent the international standard. Most countries in the world adhere to the Berne Convention standard of life of the author plus fifty years. In fact, where copyright term exceeds this international standard, there have been calls to reduce the term.

Many stakeholders, including the Library Copyright Alliance, called for a reduction of copyright term in submissions for the EU Copyright Consultation. The draft report on the Evaluation of the EU Copyright Directive was recently released and “Calls on the Commission to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention.”  If accepted, harmonization of copyright term would actually result in a reduction of term for many countries to life plus fifty years.

Reduction of copyright term makes good policy sense as long terms restrict access to knowledge and exacerbate the problem of orphan works. Furthermore, the economic evidence does not justify the current copyright term. In fact, the UK-commissioned independent review by Ian Hargreaves found:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. Despite this, there are frequent proposals to increase term . . . The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

Such lengthy copyright terms make little sense, particularly in light of today’s digital environment. Works are often published on the Internet, resulting in increasingly ephemeral content. Such content may have little to no economic value to the copyright owner, yet still remains under copyright protection until seventy years after the author has died. Policymakers should carefully consider the economic evidence and rationale before extending copyright terms and diminishing the public domain.