Tag Archives: LCA

California Assembly Aiming to Copyright All State & Local Government Works

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

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

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

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

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

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

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

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

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

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

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

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

Fair Use in 2015 and A Look Ahead at 2016

We’re taking part in 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 “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.”

Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments.  Notably, fair use is relied upon by everyone, including both users of copyrighted content as well as rights holders. This critical doctrine provides essential balance

Below are five news highlights on fair use from 2015 as well as my five favorite fair use resources created in 2015 (created for Fair Use/Fair Dealing Week 2015).

Five Fair Use Highlights from 2015:

  1. Second Circuit Affirms Fair Use in Google Books Case.  In October 2015, the Second Circuit released its unanimous opinion, authored by Judge Leval, affirming the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case.  The Second Circuit held that Google’s copying of books and display of snippets in a search index is transformative and a fair use.  This search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.  This digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
  2. Ninth Circuit Rules Fair Use Must Be Considered Before DMCA Takedown Notices Sent.  In September 2015, the Ninth Circuit ruled in Lenz v. Universal Music, also known as the “Dancing Baby” case that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises triable issues as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  In its reasoning, the Ninth Circuit confirmed that fair use is a right: “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
  3. YouTube Announces It Will Defend Some Creators’ Fair Use Claims.  In November 2015, YouTube announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  YouTube pledged to indemnify some of its creators whose fair use videos are subject to takedown notices for up to $1 million in legal costs if the takedown results in a copyright infringement lawsuit. This announcement is significant given that fair use provides essential balance to the copyright system, allowing for transformative uses including parody, commentary, criticism and innovation and videos posted to YouTube often rely on this important doctrine.
  4. Final Text of the Trans-Pacific Partnership (TPP) Agreement Includes Language on Limitations and Exceptions.  In October 2015, the twelve negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam) announced agreement on the TPP, concluding five years of negotiations.  Although the final copyright provisions of the TPP had mixed results and ARL was disappointed by a number of the provisions and the lack of transparency during the negotiations, one of the positive aspects of the agreement was the inclusion and improvements in the final text on limitations and exceptions. The final text included language based off part of the United States’ fair use provision, with an addition for those with print disabilities, requiring “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.”  The text confirms that the exceptions can apply “in the digital environment” as well as to uses with “commercial aspects.”  Inclusion of this language is significant.  While the final language could have been strengthened further, the final text still provides an obligation for parties to seek a balance and can be used as a basis for stronger language in future agreements.  As noted by Jonathan Band in a paper exploring the evolution of the limitations and exceptions over the course of the TPP negotiations, “The incorporation of the non-exclusive list of legitimate purposes from 17 U.S.C. § 107 provides TPP countries a powerful basis for concluding that this balance is best achieved through the adoption of an open-ended flexible exception like fair use.”
  5. Authors Guild and HathiTrust settle last remaining issue (preservation); Second Circuit decision strongly affirming fair use stands.  While the Second Circuit’s decision in the HathiTrust case was released in June 2014, the court did not resolve the issue of preservation, sending that issue back to the district court.  In January 2015, the parties entered a settlement on the sole issue remaining issue, ending the litigation in a victory for HathiTrust and fair use.  The Second Circuit’s decision found that creation of a full-text search database and providing access to the print disabled constituted fair use.  In January 2015, however, the defendant libraries stipulated that they complied with Section 108(c) of the Copyright Act and agreed that for a period of five years, if they do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”  Authors Guild released a statement after the settlement, noting that it would not seek an appeal to the Supreme Court.

Five Great Fair Use Resources from 2015:

  1. Fair Use Fundamentals Infographic.  In celebration of Fair Use Week 2015, ARL created this infographic explaining that fair use is a right, is vitally important, is for everybody and is everywhere.
  2. A Day in the Life of a Legislative Assistant.  Jonathan Band authored this document, giving a sample day in the life of a legislative assistant.  This sample day shows just how often fair use is relied upon on a daily basis.
  3. Video: Fair Use and Technology.  Fred von Lohmann explains how fair use is essential to every day technology and how we encounter it on a daily basis.
  4. Podcast: Fair Use Protects Culture From Copyright, Not the Other Way Around.  TechDirt created a great podcast devoted to the important doctrine of fair use and how it provides an essential balance to the copyright system.
  5. 12 Fair Use Myths and Facts.  For Fair Use Week 2015, ARL also produced a “Myths and Facts” document on fair use, covering twelve myths about what fair use is and how it can be used.

So what’s next for fair use in 2016?

First, a reminder that Fair Use/Fair Dealing Week 2016 is quickly approaching and will take place from February 22-26, 2016.  A number of organizations and institutions are already planning to participate and have great events planned.  ARL will be creating a new infographic, hosting blog posts, and posting new videos on fair use.  For more information on how to participate or to see the great resources from last year’s celebration, visit the Fair Use Week website.

Additionally, the Authors Guild’s Google Books case may not be over as the Authors Guild filed a petition for writ of certiorari to the Supreme Court on December 31, 2015.  However, the Authors Guild’s petition does not appear to be a particular strong one.  Despite the Authors Guild’s claims that there is a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited have actually split on the issue as the facts of the cases differ significantly.  Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision; the Second Circuit carefully analyzes all four factors.

In fact, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision is probably not worthy of Supreme Court review.  She stated that the decision “probably surprised no one” and that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’  Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.” Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.  She also pointed out that the Second Circuit’s opinion was restrained and did not expand the fair use doctrine.  If the Supreme Court declines to hear the Google Books case, the Second Circuit’s decision will stand.

Additionally, as noted yesterday, the Copyright Office has issued a notice of a study the 1201 rulemaking process which creates exemptions on a three-year cycle to allow for circumvention of technological protection measures.  The exemptions requested during each cycle represent non-infringing uses, such as those that would operate under fair use in the analog world (that is, without the digital locks placed on digital copies).  The notice of inquiry includes a number of questions that are highly relevant to fair use.  For example:

1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a).

[. . .]

3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption? If so, how?

[. . .]

8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?

9. Please assess whether there are other permanent exemption categories that Congress should consider establishing—for example, to facilitate access to literary works by print-disabled persons?

 

While these are important questions and it is good to see that the Copyright Office is at least considering the idea of permanent exemptions and a streamlined process, these questions highlight the fundamental flaw of the 1201 rulemaking process.  As noted by the Library Copyright Alliance’s statement for the Judiciary Subcommittee hearing on 1201 in September 2014:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

Fair use should apply equally in the digital world and technological protection measures should not be used to limit the fair use right.  The fact that every three years, proponents of exemptions must use a great deal of time and resources to seek renewal of or a grant of exemptions to anti-circumvention rules to exercise the fair use rights is problematic and inefficient.

 

LCA Applauds Re-Introduction of the Unlocking Technology Act

On March 24, 2015, U.S. Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO) re-introduced the bipartisan Unlocking Technology Act, a bill that would permanently allow consumers to unlock their cell phones and also allow the opening of digital locks for other legitimate uses.  LCA applauds the re-introduction of this legislation which would facilitate legitimate uses of digital media and technology.

This bill improves on the Unlocking Consumer Choice and Wireless Competition Act, passed by Congress in July 2014, which renewed the previously granted exemption to allow consumers to unlock their cell phones after the Copyright Office failed to renew the cell-phone unlocking exception in its 2012 triennial rulemaking process.  The Unlocking Technology Act permanently fixes a central flaw of the Digital Millennium Copyright Act (DMCA) which can be interpreted to allow for liability for opening a digital lock even where there is no copyright infringement.  The bipartisan bill would free non-infringing uses of digital media and technology and allow the creation and distribution of the tools necessary to facilitate such legitimate uses.

Link

LCA Comments on TTIP trade agreement

What Libraries Need In Copyright Reform

Today the Library Copyright Alliance released a statement describing the key features copyright reform proposals should include in order to constitute significant improvement over current law for libraries and their users. In the wake of the recent rejection of the Google Books settlement, interested parties are discussing with renewed vigor the issues of orphan works, mass digitization, and even modernization of Section 108 of the Copyright Act. The LCA statement, which represents the needs of major library stakeholders in these debates, should provide helpful guideposts for these discussions.

Libraries have always advocated for reasonable copyright policy, in courts as well as in Congress, and the LCA welcomes renewed interest in these issues in response to Judge Chin’s decision. At the same time, library activities already benefit from broad, flexible protection under the fair use doctrine and related provisions in current law. Therefore, only a clear improvement over the status quo is worth the substantial investment and risk associated with legislative change. The LCA statement describes the status quo for libraries as well as the policies that would constitute substantial improvement.

The proposal focuses on exempting libraries from the draconian statutory damages currently available under copyright law. Together with a notice-and-takedown mechanism, this reduction in damages would free libraries to make policy decisions based on the true balance of equities between library use and rightsholder harm, rather than acting under the threat of damages awards out of all proportion to the typically negligible harm associated with library uses. While the future of copyright reform efforts is foggy at best, the LCA statement represents a clear articulation of what libraries need for reform to be worthwhile.