Tag Archives: public domain

To Kill A Mockingbird Remains Under Copyright

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.

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It’s Copyright Week once again and today’s theme is Building and Defending the Public Domain: The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright policy should strive to promote, and not diminish, a robust, accessible public domain.

One of my favorite and least favorite things to do each year in January is to check out Duke’s Center for the Study of the Public Domain and see what would have entered into the public domain, were it not for the changes to copyright term in the 1976 Copyright Act and the 1998 Copyright Term Extension Act. I find some morbid curiosity in looking to see what could have entered the public domain while mourning the fact that these great copyrighted works will remain under protection for another forty years. While most of the works covered in the Center for the Study of the Public Domain’s yearly list are well-known and the rightholder would presumably be easy to find, there are many more works that are orphans because of the lengthy term. The current copyright term significantly damages the public domain and raises the costs of access to knowledge.

As always, this year’s list has so many wonderful classics and well-known works, including Harper Lee’s To Kill a Mockingbird, Dr. Seuss’ Green Eggs and Ham and One Fish, Two Fish, Red Fish, Blue fish, and Jean-Paul Sartre’s Critique de la raison dialectique. Aside from these books, there are a number of classic films and music that are going to remain under copyright until 2056 rather than enter into the public domain now. To Kill a Mockingbird is a perfect example of the damage these copyright terms have; last year, I noted the swift action by Lee’s estate, weeks after her death, issuing a notice halting publication of the mass market version (also known as the “school” version) of the book (note that HarperCollins announced it would offer a discounted version to school purchasers — but not student purchasers — after a backlash against the elimination of the cheaper mass market publication).

Aside from these great books (the blog post also highlights films and music that would have entered the public domain), one of the notable points is that many of the scientific advances published in 1960 that is still copyrighted and behind paywalls:

1960 was another significant year for science. Max Perutz and Sir John Kendrew published articles on the structure of hemoglobin and the structure of myoglobin, respectively, and Robert Burns Woodward published an article describing a total synthesis of chlorophyll. (All three later won Nobel Prizes in Chemistry.) Theodore Maiman demonstrated the first working laser, a ruby laser. And the US launched its first successful weather satellite, TIROS-1.

If you follow the links above (and you do not have a subscription or institutional access), you will see that these 1960 articles are still behind paywalls. You can purchase the individual articles from the journal Nature for $32. A distressing number of scientific articles from 1960 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.

It’s remarkable to find scientific research from 1960 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts.

With the fast pace of scientific and technological advances, it seems crazy that scientific research published 56 years ago remains behind paywalls.  The public domain is critical to promoting advances in culture and science, it is the very foundation of the Constitutional goal “to promote the progress of science and the useful arts.” It is a shame to see our current copyright terms restrict the rate at which works enter the public domain.

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.

 

Copyright Status of U.S. Federal Government Works

Works that are prepared by employees of the government pursuant to their official duties are in the public domain due to an express statutory provision prohibiting the U.S. Government from claiming copyright in such works.  ARL has published an issue brief explaining the statutory provision prohibiting copyright protection for works of the U.S. Government, which is available here.

The brief details the statute and also points to a number of U.S. Government agency websites and White House website statements affirming that works by the U.S. Government are not eligible for copyright protection.  The Department of Labor, the Patent and Trademark Office, the Department of Energy, the National Science Foundation, the Department of Agriculture and the Department of Treasury are just some examples of agencies that include express recognition that materials produced by its government employees are not eligible for copyright protection.  The White House website similarly notes in its Copyright Policy, “Pursuant to federal law, government-produced materials appearing on this site are not copyright protected.”

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.

Copyright Week!

Today is the start of 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.

copyright-square-1

Stay tuned the rest of this week for posts on technological protection measures, fair use, transparency in policymaking, and the importance of the public domain!

 

35 Organizations Write to TPP Ministers Opposing Lengthy Copyright Terms

On July 9, 2014, ARL joined thirty-four other organizations in sending a letter to ministers of the Trans-Pacific Partnership (TPP) negotiating parties opposing the copyright term of life plus seventy years proposed by the United States. These organizations, representing libraries, archives, authors, educators, students, digital rights advocacy groups, and technological innovators, note that this extended copyright term threatens the public domain. The letter notes that “the extension of the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies … This transfer of welfare in favor of large corporate copyright owners will come at the cost of those who depend upon access to copyright works that would otherwise be in the public domain—libraries, students, artists, writers, and millions of other people.”

TPP negotiators are currently meeting behind closed doors in Ottawa, Canada, in an effort to finalize negotiations for the large regional trade agreement which now has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.

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.”

Access and the Public Domain (Fordham IP Talk) (by Randy Picker)

Highlights several extremely compelling issues for libraries, and shows why providing truly public access (i.e. free from technical or contractual limitations) to the public domain may be a powerful new mission for libraries in the digital age. Also makes me much more excited about the DPLA.