Tag Archives: copyrightweek

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World

by guest bloggers Patricia Aufderheide, University Professor, American University School of Communication; Brandon Butler, Practitioner-in-Residence at the Glushko Samuelson IP Clinic, American University Washington College of Law; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law

Copyright Week is the perfect occasion to celebrate fair use, certainly the most dynamic and arguably the most important doctrine in copyright law. The last 15 or 20 years have seen a remarkable series of developments that make fair use, now more than ever, the most vital protection of the public interest in the Copyright Act. For Copyright Week, we wanted to highlight a part of the fair use landscape that, perhaps more than any other, puts fair use in the hands of practitioners who need it most: the Fair Use Best Practices movement.

With a little help from a team of researchers at American University, an ever-growing cadre of communities has identified where their work necessarily encounters copyright and the kinds of fair uses that are essential to the communities’ continued flourishing and success. Each code (read them all here) contains a short but powerful description of fair use’s broad history and meaning, followed by a set of principles that describe situations where fair use may apply accompanied by limitations that describe the outer bounds of community consensus. The effects of these documents can be dramatic. Documentary filmmakers came first, and had great success, but they’ve been joined by educators, scholars, poets, online video makers, journalists, and (most importantly for this blog) librarians. As more and more people need fair use to continue getting things done, best practices are an idea whose time has come.

So, without further ado, we give you five reasons fair use best practices are changing the world:

  1. They’re based on solid legal footing. Specifically, path-breaking research by copyright scholar Michael Madison. Madison surveyed over a century of fair use decision making and found that, over and over again, courts determining whether a use was fair inquired into the mission and values of the communities standing before them to vindicate their fair use rights. Uses firmly grounded in the socially beneficial mission of a practice community were much more likely to be blessed as fair.

    Each code starts from that insight, together with the dominant paradigm of “transformative use” that informs court decisions in fair use. The community norms developed on this foundation are then further shored up by a legal review by five independent experts from diverse backgrounds who certify that the Code represents a reasonable application of fair use law to the practice area. Practices consistent with the Documentary Filmmakers Code have been blessed by federal courts, as have practices identified as fair in the #Librarianscode. Indeed, between Georgia State and HathiTrust, the practices described in four of the eight principles in the #librarianscode have been blessed by federal courts.

  2. They clear away the crud. Anyone who engages with copyrighted material for more than a few minutes will encounter a dizzying array of so-called ‘guidelines,’ rules of thumb, ‘negotiated’ agreements, and urban myths and legends that proliferate around copyright. The goal of best practices is to identify the best approaches to recurring fair use scenarios, rather than to measure the lowest common denominator of the status quo and freeze it in amber forever. Therefore, developing best practices is an opportunity for communities to step back and question current practice in light of the latest developments in fair use law and the broadest, deepest understanding of the mission of the community. Librarians, for example, categorically rejected the arbitrary numerical limits in the 1976 Classroom Photocopying Guidelines. On reflection, they were simply impossible to justify in light of the actual needs of librarians and the contours of modern fair use law.

  3. They make the law less alien, and rights less scary. By grounding fair use choices in practices and norms that are native to a community, best practices change attitudes toward fair use. People with a Code go from a kind of grudging, fearful “compliance” with an alien copyright law imposed from above to a unified exercise of core First Amendment rights that emerges from their own values. Teachers, librarians, filmmakers, and poets who used to feel like they were acting alone in the face of an intimidating body of law come to understand that they are actually engaged collectively in legitimate, lawful acts that are normal, indeed essential, for their profession.

  4. They help you get things done. The bottom line for any group with a shared mission and goals is whether they are able to advance mission and achieve goals. Where myth, misinformation, fear, uncertainty, and doubt dominate, any number of important projects and practices can be suppressed, driven underground, or stymied altogether. Films don’t get made, or they don’t get distribution; poems aren’t written or published; works languish in archives inaccessible to remote or print-disabled researchers. Best practices are relentlessly pragmatic and mission-centered; through them, practitioners articulate fair use solutions to real, live problems. When the community takes best practices seriously, real work gets done—work that might otherwise have been inconceivable.

  5. They help you get management on board. Almost everyone has a supervisor, counselor, or other gatekeeper who decides what projects they can pursue, whether their work will see the light of day, and so on. Whether it’s a Dean, a TV producer, or a publishing agent, sooner or later you’ve got to convince someone else that what you’re doing is legit. Understandably, gatekeepers are often expected (forced, even) to play the role of “copyright cop,” saying “no” to any project that looks like it might raise an eyebrow.

    Before best practices, each practitioner would face these folks alone, often as non-lawyers, and try to convince them to take a risk based on, well, who knows what. But with best practices in hand, practitioners can go to their Deans, their publishers, their producers, whomever, and say, “What I’m doing is normal. It’s grounded in the values of my community. And it’s in line with a document that’s been vetted by experts and endorsed by leading organizations in my field.” That’s powerful stuff! No wonder the Documentary Filmmakers code has been so transformative, as has the #Librarianscode, and many many others.

So, there you have it. As Copyright Week winds down and we contemplate the copyright system we have, and the opportunities for change and improvement, we submit that fair use best practices are, by far and away, the most accessible, effective, and powerful tool in the hands of the public.

For more information, check out the full roster of best practices at the Center for Media and Social Impact and check out Pat and Peter’s book, Reclaiming Fair Use.

LCA Hearing Statement for House Judiciary Committee Hearing on Copyright Reform

On January 14, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet held another hearing on the issue of copyright reform, this one focusing on the broadcast right, the making available right, and state laws and building codes under copyright. In advance of the hearing, the Library Copyright Alliance (LCA) submitted a statement addressing all three issues. The full statement can be found here.

Broadcast Right

The World Intellectual Property Organization (WIPO) has considered proposals to create a broadcast treaty that would create a new intellectual property protection for broadcasters. This new right would create a right to control broadcasts and would exist in addition to the copyrights held by the creators of the programming shown, thereby creating an additional layer of rights to contend with for users of broadcasted content. The LCA statement notes that it has seen “no compelling public policy reason for a broadcast treaty” at the WIPO and, likewise, sees no justification for a broadcast right in the United States. In particular, LCA has concerns that a broadcast right could impact libraries by limiting classroom instruction, particularly for distance education; educational and research uses that are currently permitted by the Copyright Act; and public disclosure of news, public affairs programs, and public domain materials, particularly on the Internet.

Making Available Right

LCA also has concerns regarding the creation of a making available right, an exclusive right to authorize or prohibit communication of works or the “making available” of the work through interactive networks, a right that could expand the distribution and public performance rights that currently exist under U.S. law. LCA has particular concerns regarding a making available right and its impact on the three-year statute of limitations found in 17 U.S.C. §507(a). The concerns arise from courts’ interpretation of the distribution right in Hotaling v. Church of Jesus Christ of Latter-Day Saints and Diversey v. Schmidly. In these cases, the courts circumvented the three-year statute of limitations by distorting the meaning of the distribution right and finding that the mere availability of an unauthorized copy to the public qualifies as distribution, even where no patron ever borrowed the copy. The statement warns that, “A making available right has the potential to eviscerate the statute of limitations in copyright cases in the digital age. Accordingly, Congress should proceed in this area with great caution.”

A making available right could impact a wide range of activities and create liability even where an unauthorized copy of a work was never downloaded, used or truly distributed. For example, “an image [could be] included in a PowerPoint presentation that was archived on the website of a library association after the presentation was delivered. The image could be detected more than three years later by a company that crawls the web for an image-licensing firm, such as Getty or Corbis.” However, even if that presentation had never been downloaded in three-years, the creation of a making available right could overcome the three three-year statute of limitations and create liability. The LCA statement notes that “There is no policy justification for imposing strict liability for statutory damages simply because the potential existed during the three year limitation period for a person to have viewed the image, just as there is no policy justification for a library to be liable for infringing the distribution right with respect to a copy that was never borrowed.”

State Laws and Building Codes

LCA continues to oppose copyright protection for state laws in building codes and supports the Fifth Circuit’s 2002 decision in Veeck v. Southern Building Code Congress that “‘the law’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.”

Veeck reflects the strong public policy that the public must have free access to the laws, in order to understand the legal rules to which they are subject. Notably, Veeck’s ruling was limited and applied only to reproduction of enacted model laws, not the model codes themselves, thereby continuing to provide the drafters of such codes the ability to protect their model laws or regulations through copyright.

The LCA statement supports the Fifth Circuit reasoning in _Veeck _that copyright is unnecessary to incentivize the creation of model laws or codes. As the statement notes, “The private sector spends literally billions of dollars each year lobbying legislative bodies. The notion that industry groups would stop drafting model laws that benefit them if they did not receive copyright revenues is, frankly, absurd. Certain groups might have to change their business models, but at the end of the day, the private sector will find a way to fund model law drafting activities because they simply are too important to the affected industries.”

Copyright Week: Transparency and the TPP

Transparency in government is a fundamental aspect of a democratic society. Citizens have the right to be informed and have access to information regarding political affairs and the laws and regulations that will impact them. Without access to information, the public is disadvantaged in its ability to make substantive commentary, challenge and influence public policy, or participate in the political process in a meaningful way.

For the past four years, the United States has been involved in secretive negotiations for a large, regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). Over the course of negotiations, the membership has grown and now includes twelve negotiating parties including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, covering a trading area that comprises forty-percent of the world’s GDP. Eventually, the agreement is intended to cover the entire APEC region.

The intellectual property chapter has been one of the most controversial chapters in the TPP. Over the course of the four-year negotiations, no government has officially released any of the negotiating text. The only reason that the public is aware of the proposals that have been drafted results from leaked text, primarily a March 2011 leak of the United States’ proposal for the chapter and a November 2013 leak of the consolidated intellectual property chapter which reflected each country’s negotiating position. The negotiations themselves take place behind closed doors and observers are not permitted. Although stakeholders are often permitted to make presentations, there is no guarantee that the relevant negotiators will attend such presentations. Further, it can be difficult to give meaningful presentations when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other agreements, transparency is key to the ability to comment on the negotiating text and “will ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

The standards set in the TPP will create new global norms and it is important that those who will be affected by these standards have access to information about the agreement. Substantive and meaningful engagement can take place only with full knowledge and understanding of what provisions are at stake in the agreement. Without transparency, the negotiations lack legitimacy and represent a highly undemocratic process.

Unbalanced Access to Information

It should be noted that while the general public must rely on the possibility of leaks in order to gain substantive information about the agreement, hundreds of “cleared advisors” on the International Trade Advisory Committees (ITAC) have had access to the United States’ negotiating positions and texts throughout the process. ITAC-15, the committee on intellectual property rights, currently has seventeen members, all of whom represent corporate interests.

Not only is the general public kept in the dark, but there have also been reports that USTR has denied access to the text to Congressional staffers.

Members of Congress have criticized the secrecy of the agreement. Senator Sanders (I-VT), for example, in a December 1, 2011 letter to USTR concluded, “I firmly believe that the public has a right to monitor and express informed views on proposals of such magnitude as the TPP. While I recognize that some opportunity has been provided for the public to make presentations to delegates, I urge you to make the negotiating text of the TPP available to the public for review and comment. Without access to the actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed.”

After the November 2013 leak of the consolidated intellectual property chapter, Representative Zoe Lofgren (D-CA) criticized the copyright provisions, noting in a December 5, 2013 press statement that the agreement “is something that is backdooring, through a trade agreement, that which could not be obtained in Congress.” Numerous organizations and individuals have decried such “policy laundering.”

The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek to change current law, many of the provisions could be harmful by locking in standards and preventing reform. The inclusion of a chapter on investment in the TPP, including strong investor-state provisions by the United States, means the agreement has strong enforcement mechanisms. Not only can one TPP member country sue another for violations of the provisions of the agreement, but a corporation may sue the government directly for failure to implement the text of the TPP.

Locking in lengthy copyright terms

The United States tabled the copyright term that currently exists domestically, a period of the life of the author plus an additional seventy years. For corporate works, the period of protection is ninety-five years for published works or one-hundred-and-twenty years for unpublished works. The United States and the four countries with which it has existing bilateral trade agreements have supported this proposal of life plus seventy. By contrast, other countries have proposed the international standard of life plus fifty years.

The effect of including the life plus seventy copyright term in the TPP would be to lock in a lengthy term of protection that shrinks the public domain. In advance of the December 2013 TPP ministerial meeting, 29 organizations—including library and archival associations such as ARL, The American Library Association (ALA), the Australian Library and Information Association (ALIA), and the International Federation of Library Associations (IFLA), and the American Archivists (SAA)—and 71 individuals signed a letter directed to the trade ministers that warned that “The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are ‘owned’ but largely not commercialized, forgotten and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.”

If the final text of the agreement includes a period of protection of life plus seventy years, such a term would be very difficult to change and would require re-negotiation with all TPP members. While Maria Pallante, Register of Copyrights, has suggested that the current term should be re-thought and that formalities should be re-introduced for the last twenty years of protection, the United States will be unable to amend its law to include formalities without violating the TPP.

Preventing reform of technological protection measures (TPMs)

The United States proposal includes highly prescriptive provisions on TPMs. The proposal makes the very act of circumvention of a TPM an independent cause of action, apart from any copyright infringement that may occur. The United States proposal uses a narrow and closed list of limitations and exceptions to anti-circumvention measures. The proposal also includes a three-year rulemaking procedure for additional limitations and exceptions, modeled after Section 1201 of the DMCA. The new limitations and exceptions are valid only for a three-year period and then must be renewed. If included in the final text of the agreement, new permanent limitations and exceptions could not be added without violating the TPP.

Several proposals have been made in Congress to add new permanent exceptions to permit the unlocking of cell phones after outrage over the Librarian of Congress’ refusal to renew such an exception. The Unlocking Technology Act of 2013, introduced by Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO), goes beyond the cell phone issue and would permit all circumvention of TPMs for all non-infringing uses. However, because such legislation would create new permanent exceptions, it would violate the TPP if approved as currently drafted under the United States’ proposal. Thus, new permanent exceptions to allow unlocking of cell phones, or for example, to permit persons who are visually impaired or blind to overcome TPMs designed to limit access to the text-to-speech function on e-readers, would not be permitted.

Conclusion

The agreement is reportedly in its final stages. Although many areas of the intellectual property chapter remain controversial with little agreement, trade ministers met in Singapore in December to try to come to a deal. It is expected that the United States will make concessions regarding market access on sugar, dairy, textiles, and automobiles in exchange for other countries’ concessions to the United States’ demands on intellectual property.

In the next few weeks, another meeting of the TPP trade ministers will take place and is expected to take place in late January or early February. As with the last ministerial meeting, stakeholders will likely not be invited to attend, present, or meet with ministers. After the last ministerial, the ministers released a short statement with little substantive information regarding any agreements or offers that had been made.

The stakes for the TPP are high, creating new global norms and locking in provisions of United States law that may be controversial and in need of repeal or reform. The general public must have access to the negotiating texts in order to understand how the TPP will affect them and to contribute meaningful and substantial commentary regarding the proposals.

Copyright Week

This week, the Electronic Frontier Foundation (EFF) is hosting “Copyright Week” with each day devoted to a different issue. Copyright Week will last six days, ending on Saturday, January 18, the anniversary of the SOPA/PIPA blackouts. The week has many participants, including ARL.

Here is the lineup for Copyright Week:

Day 1: Transparency
Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.

Day 2: 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.

Day 3: Open Access
The results of publicly funded research should be made freely available to the public online, to be fully used by anyone, anywhere, anytime.

Day 4: You Bought It, You Own It
Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.

Day 5: Fair Use Rights
For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.

Day 6: Getting Copyright Right
A free and open Internet is essential infrastructure, fostering speech, activism, new creativity and new business models for artists, authors, musicians and other creators. It must not be sacrificed in the name of copyright enforcement.