Tag Archives: tpms

LCA Submits Comments on Section 1201 to the Copyright Office

*This post is written by Caile Morris, ARL Law and Policy Fellow*

The Copyright Office published a notice of inquiry on December 29, 2015, announcing a public study to “assess the operation of section 1201 of title 17, United States Code, including the triennial rulemaking process to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.” ARL, along with the American Library Association and the Association of College and Research Libraries, submitted comments and reply comments through the Library Copyright Alliance (LCA). Both the comments and reply comments expanded on section 1201’s fatal flaw: that the language of the statute has the potential to prohibit circumvention of technological protection measures (TPMs) for lawful purposes.

Comments

On March 3, 2016, LCA filed comments on section 1201 in response to the Copyright Office’s notice of inquiry. The core message is that the failing of 1201 is its potential to prohibit not just unlawful infringing activities, but also circumvention for lawful purposes. The comments explore section 1201 prior to enactment, efforts to amend 1201 following enactment, the circuit split that has resulted from the flawed language, and recommendations for how 1201 might be amended.

LCA points out the difficulties in applying 1201, as evidenced by the current circuit split. Critics have noted that 1201 could chill legitimate purposes, such as research into computer security and prevent lawful copying under the fair use doctrine or library exception codified in the Copyright Act, and generally promote anti-competitive effects. As LCA’s comments point out,

These critics’ worst fears about the anti-competitive effect of the statute seemed to be validated when two dominant companies attempted to use section 1201 to threaten competitors in aftermarkets. The [Federal Circuit’s] Chamberlain case involved universal transmitters for garage door openers, while the [Sixth Circuit’s] Lexmark case involved toner cartridges for printers. Fortunately, the judges in these cases interpreted section 1201 in a manner that prevented its anti-competitive use. The Ninth Circuit’s decision in MDY v. Blizzard, however, has challenged this interpretation.

The LCA comments address the triennial rulemaking to adopt temporary exemptions to section 1201(a)(1)’s prohibition on circumvention as “an exercise in legal theatre” because the rulemaking only applies to the prohibition against circumvention of TPMs, but not to the prohibition of the development and distribution of circumvention tools. This, in effect, makes a legally permitted activity difficult to carry out, as the tools necessary to do so are potentially illegal to acquire. Other burdens of the process include high costs in time and money, lack of representation for the average member of the public, the language of the exemptions becoming increasingly convoluted, and having to petition for previously granted exemptions every three years de novo.

LCA’s comments recommend several possible amendments to section 1201 in order to resolve the flaws. For example, LCA endorses the approach of the Unlocking Technology Act of 2013 which attaches liability to circumvention only if infringement is enabled. In the alternative, additional permanent exceptions should be enacted for educational uses, the print disabled, and embedded software. Additionally, the rulemaking should apply not only to section 1201(a)(1), but also to sections 1201(a)(2) and (b). LCA also recommends that final rulemaking authority be shifted to the Assistant Secretary of Communications and Information of the Department of Commerce, because that office has more expertise in evaluating adverse effects of a circumvention prohibition. Furthermore, an opponent of a previously granted exemption should bear the burden of demonstrating why the exemption should not be renewed or modified, which is under the purview of the Copyright Office to change; nothing in the language of section 1201 dictates that review of the triennial rulemakings should be de novo. Finally, the language of the exemptions should be broader and simpler, promoting easier application of the exemptions by the public.

Reply Comments

On April 1, 2016, LCA submitted reply comments primarily responding to the comments of other participants in the notice of inquiry, while reiterating the importance of amending the central flaw of section 1201.

The reply comments identify a “leap of logic” by many content and rights holders industries comments that TPMs would fail but for the legal prohibitions on their circumvention and the creation and distribution of circumvention tools. In particular, the joint comments of the Association of American Publishers, the Motion Picture Association of American, and the Recording Industry Association of America argues that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” In reply, LCA points out, “if TPMS are so weak that they must be bolstered by legal protections, then why employ TPMs in the first place?” Just because TPMs are important for a business model does not diminish their effectiveness absent legal protection. In addition, there is no real evidence that legal protection of TPMs has contributed to how effective they are. LCA argues that even if there is positive impact from section 1201 as currently written, that the negative impact far outweighs the positive, and revision is justified.

Going forward, the Copyright Office will hold public roundtables to continue its study of section 1201 on May 19 & 20, 2016 in Washington, DC, and May 25 & 26, 2016 in San Francisco, CA. Members of the public are invited to participate, and must submit a request form by April 18, 2016.

New 1201 Rules on Exemptions to Prohibition on Circumvention of Technological Protection Measures Released

On October 27, 2015, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking, setting forth exemptions from the prohibition against circumvention of technological protection measures (TPMs).  Every three years, proponents of exemptions must engage in a long process to seek renewal or expansion of existing exemptions or the granting of new exemptions in order to circumvent TPMs for non-infringing uses.  The new exemptions expand the previously granted exemptions in several areas and also grant new ones.

ARL, as part of the Library Copyright Alliance (LCA) submitted petitions for proposed exemptions requesting renewal of an exemption grating people who are print disabled circumvention of technological protection measures on literary works distributed electronically as well as renewal and expansion of an exemption for motion picture excerpts for educational purposes.  LCA also joined in five filings that provide evidence for the need of various exceptions that have been proposed including for: use of audiovisual works for educational use, for MOOCs, and for informal learning and K-12; e-book accessibility; and 3-D printing.

The new rules renew the exemption for literary works distributed in electronic form for persons who are blind, visually impaired or print disabled.  Notably, there was no opposition to renewing the exemption granted in 2012 and the Association of American Publishers filed comments indicating it did not object to this renewal.  Additionally, the 2015 rules permit circumvention for motion picture excerpts for educational purposes.  In a long and detailed rule, the new exemption permits circumvention of DVDs and Blu-ray discs for the use of short portions of motion pictures by college and university faculty and students in film studies or courses requiring close analysis of film and media excerpts and by the faculty of massive open online courses (MOOCs) in film studies or other courses requiring close analysis of film and media excerpts (among other specific exceptions regarding use of motion picture excerpts).

The new exemptions also permit circumvention to access video games for the purpose of copying and modification to restore access to the game when necessary to allow preservation by a library, archive or museum.

Among other exemptions not directly related to libraries and higher education, but that highlight the absurdity of the process, the Copyright Office and Library of Congress considered exemptions to permit circumvention for the purpose of diagnosis, repair and modification of vehicles and for the purpose of security testing on vehicles or medical devices implanted in patients.  In April 2015, Wired published a piece highlighting the absurdity of using technological protection measures and copyright to prevent individuals from tinkering with items that they own in a piece titled “We Can’t Let John Deere Destroy the Very Idea of Ownership.”  While the Library of Congress ultimately granted (again, highly detailed) exemptions in these categories, but the exemption that allows diagnosis, repair or modification of a vehicle will not go into effect for 12 months.

The National Telecommunications and Information Administration (NTIA) submitted its recommendations to the Copyright Office and noted concerns over the potential misuse of technological protection measures for non-copyright purposes and cautions against giving too much weight to non-copyright concerns implicated by proposed exemptions:

While there have long been proposed exemptions that implicated issues unrelated to copyright law, the sixth triennial rulemaking has stood out for its extensive discussions of matters with no or at best a very tenuous nexus to copyright protection.  Parties have, in this proceeding, raised concerns about medical device safety, vehicle emissions standards, best practices in software vulnerability disclosure, and other issues that are not contemplated in copyright law. In asserting the relevance of such matters to this proceeding, parties often cite the fifth statutory factor in this rulemaking, which allows the Librarian of Congress (and by extension, the Copyright Office) to consider “such other factors as the Librarian considers appropriate.”

NTIA urges the Copyright Office against interpreting the statute in a way that would require it to develop expertise in every area of policy that participants may cite on the record. Although Congress clearly included this factor to enable consideration of issues not otherwise enumerated, the deliberative process should not deviate too far afield from copyright policy concerns.6 As the Register of Copyrights noted in 2010, “the focus in this rulemaking is limited to actual or likely adverse effects on noninfringing uses of copyrighted works. No other agency has delegated authority to temporarily limit the application of the prohibition on circumvention. This prohibition was established to provide legal support for, and foster the availability of, copyrighted works in the digital environment.” Therefore, the Office should not, in its deliberations, heavily weigh unrelated matters such as greenhouse gas emissions or the quality of materials used to build aircraft, and should instead focus primarily on questions relevant to copyright law.8 Congress, applicable regulatory agencies, and their counterparts within state governments are well-equipped to deal with these non-copyright issues in the appropriate settings and under legal authorities focused on those issues.

Additionally, NTIA’s comments continue expressing concerns:

[T]hat security measures that have been deployed for non-copyright reasons—such as security and privacy, or possibly anti-competitive goals—are being described in this rulemaking as technological measures controlling access to copyrighted works under Section 1201.  This is a fundamental misuse of Section 1201, which can lead to reduced respect for the DMCA and copyright law, and can yield either an inappropriate overprotection of copyright (out of concern, for example, to avoid harming security), or a reduction in security (because of a grant of an exemption in this proceeding where indeed no significant copyright interest is at issue).

A related problem would arise if a manufacturer were to use the same technological protection measure to achieve two functions—enhance security and protect a legitimate copyright interest. Again, this could lead to inappropriate outcomes, and manufacturers would in many cases be well advised to separate techniques aimed at copyright protection from those aimed at security and privacy.

These concerns lead to two practical considerations. First, a record showing that a technological measure was not deployed with copyright protection in mind should weigh heavily in favor of a proposed exemption. Such a standard is entirely consistent with the statutory factors to be considered in this rulemaking.

Second, the increasing ubiquity of security measures has led to a widespread assumption that Section 1201 applies in a broader set of circumstances than may, in reality, be true. One of the clearest examples of this phenomenon appeared during the previous triennial rulemaking, when one group of proponents sought an exemption for circumventing access controls protecting public domain works.  The problem has further manifested itself during this proceeding, as highlighted by the confusion over whether circumvention is necessary to make certain repairs to video game consoles, as well as the possibility that the Lexmark decision may have placed some acts of circumvention involving 3D printers outside the scope of Section 1201.  In these circumstances, the Copyright Office has a role to play in clarifying the scope of Section 1201 through these proceedings. Where the prohibition against circumvention clearly does not apply, NTIA recommends the Copyright Office continue its previous practice of noting that a “requested exemption is beyond the scope of this rulemaking proceeding.”  Similarly, in cases where the prohibition may apply, but only in certain instances, NTIA suggests noting the prohibition’s limitations when recommending an exemption to the Librarian. NTIA further encourages the Copyright Office to make clear to manufacturers and content creators that they should remain cognizant of the underlying purposes for which an access control is implemented. Manufacturers should not implement access controls on devices to restrict certain device functions or enforce non-copyright-related business models—which is not the purpose behind Section 1201—and then try to use the DMCA to enforce a business model or limit a user’s post-purchase modification of a device.

While the 2015 exemptions include some improvements with respect to expanded exceptions, the rules have become more verbose and complex over the course of the six rulemaking cycles. The long, detailed exemptions will lead to greater confusion and make the exemptions less useful.  Laura Quilter has this excellent post on the complexity of the new exemptions.

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.

ICYMI: CCIA Releases White Paper, Copyright Reform for a Digital Economy

On August 25, 2015, the Computer and Communications Industry Association (CCIA) released its White Paper, Copyright Reform for a Digital Economy.  The report notes that the House Judiciary Committee began comprehensive copyright review in 2013 and points out that new technology has changed the way creative industries and communication operate.  For example, the growth of the Internet has lowered the cost of distribution and “radically changed the economics of scholarly communications and other educational resources.  This, in turn, has allowed open access business models to flourish in these markets.”  The report points out the importance of balance and “any copyright reform should acknowledge the significance of doctrines ensuring copyright flexibility, particularly limitations and exceptions like the fair use doctrine and first sale.”

Among the highlights, the report points out:

The principle of copyright remains an important tool in the Government’s toolbox to promote scientific, cultural and economic progress, but in current practice, the complex, opaque, and highly concentrated U.S. system is increasingly incapable of facilitating certain socially and economically desirable uses.  Easily navigated only by the most experienced corporate actors, the credibility of the copyright system is being tested as it leaves ‘”consumers and other private citizens…increasingly frustrated.”

With respect to fair use, the report cites studies done on the fair use economy pointing out the significant role industries relying on limitations and exceptions have played in growing the US economy.  The report continues,

[P]rotection exceeding the amount necessary to incentivize innovation represents a deadweight loss to the economy.  Limitations and exceptions help minimize the deadweight loss, and several, such as the fair use doctrine, provide breathing room for new innovations.

The report goes on to point out that fair use is not limited to the technology sector and has been successfully relied upon by “theatre producers, artists, movie studios . . . patent lawyers, rock bands and an NFL football team.”  In other words, as pointed out in the Fair Use Fundamentals infographic created for last year’s Fair Use Week,* fair use is relied upon by everyone.  While the report notes the importance of fair use, it does not recommend reform of the doctrine but instead cautions Congress to consider the

other reforms [that] may affect the fair use doctrine, and potential effects on fair use should be considered in any reform.  For example, increasing statutory damages may deter socially desirable fair uses, and allowing DMCA abuses to continue unchecked may prevent fair use criticism, commentary and political speech.  Because fair use is so integral to the fabric of the Copyright Act, it must be a central consideration in any legislative effort.

In addition to fair use, the report also emphasizes another important limitation in copyright law: the first sale doctrine.

With respect to other areas under consideration for copyright reform, the report points out that safe harbors in the online environment have ensured predictability, but suggests that safe harbors could be strengthened.  It also points out that the DMCA takedown process can be misused.

The report also points out the chilling effect of statutory damages which has led to copyright trolling.  It notes, “regardless of the propriety of the remedy, however, to whatever extent statutory damages deter misbehavior, they also deter investment by creating substantial uncertainty and risk.”  The report cites several suggestions by scholars to reduce statutory damages and also pointing to a proposal

to generally remit statutory damages in cases where defendants can demonstrate a reasonable good faith belief that their activity was a fair use (or perhaps covered by any defense).  Section 504(c)(2) already has exactly this provision, but limits it to nonprofit educational institutions, libraries, archives and public broadcasters.  Because deterrence is inappropriate where a defendant had a reasonable good faith belief that their conduct was non-infringing, this provision could be extended to all good faith actors.  In the rare case where this might leave plaintiffs under-compensated, they could still obtain actual damages and injunctions.

The report also points out that international agreements can constrain reforms.  For example,

extraordinarily long copyright terms are also a result of international agreements, which have extended the copyright term to last for the life of the author, plus an additional 50 years (in the case of the Berne Convention and TRIPS) or the life of the author plus an additional 70 years (in the case of the free trade agreements).  This exacerbated the orphan works problem while diminishing the ability of artists to make productive uses of older works, e.g., new performances of older plays.  The Supreme Court has validated the most recent extension in Eldred v. Ashcroft, notwithstanding economic studies showing that extending the term of protection from 56 years to life plus 50 or 70 years does not measurably incentivize additional creative activity.

It is no exaggeration to say that international copyright treaty obligations have contributed to a legitimacy crisis in the contemporary copyright system.  Survey data suggests there is a declining public respect for copyright.  Terms extending well over a century have been the source of high-profile disputes casting copyright in a poor light, and when combined with the absence of formalities, exceptionally long terms have proven to be a significant problem for researchers, historians and preservationists, among others.

Another problem the report highlights i the relationship between contract and copyright, where license terms may override limitations and exceptions.  The report points to proposals against “contracting out” in the United Kingdom, Ireland, and Australia and concludes that “effective copyright law reform must recognize that Congress’s intentions can be subverted through contract, and that licensing agreements between competitors can give rise to substantial market power.”  Likewise, the report notes that “substantial aspects of copyright reform could be rendered largely irrelevant if rightsholders can control all uses via TPMs.”

The entire report is well worth a read.

*Fair Use Week 2016 will take place from February 22-26, 2016.  For more information please visit www.fairuseweek.org*

 

What’s Missing from the Register’s Proposals

*Guest post by Jonathan Band, policybandwidth*

In her wrap-up testimony yesterday in the House Judiciary Committee’s two-year Copyright Review, Maria Pallante, the Register of Copyrights, identified three categories of policy issues: those that are ready for legislative process, those that warrant near-term study and analysis, and those that warrant further attention. Unfortunately, what many perceive to be the Copyright Act’s greatest flaw, the existing structure of statutory damages, received just a passing reference in the third “warrant attention” category. As numerous witnesses testified during the course of the Copyright Review, the threat of statutory damages of $150,000 per work infringed chills investment in innovative technologies and allows copyright trolls to extort settlements that greatly exceed the actual harm caused.

The Register paid more attention to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures, 17 U.S.C. § 1201, which appears on the first two lists. While the Register’s recognition of Section 1201’s flaws is welcome, the Copyright Office has the power to address some of these deficiencies itself without additional Congressional action.

Register Pallante correctly observes that a wide range of stakeholders support “mak[ing] it easier to renew exemptions that have previously been adopted and are in force at the time of the triennial rulemaking proceeding.” She states that “the Copyright Office agrees that the process of renewing existing exemptions should be adjusted to create a regulatory presumption in favor of renewal.” Accordingly, she feels that “it would be beneficial for Congress to amend Section 1201 to provide that existing exemptions will be presumptively renewed during the ensuing triennial cases where there is no opposition.”

However, the Copyright Office need not wait for Congressional action to make the renewal process easier. The Register asserts that “the Section 1201 statutory framework requires that, to continue an existing exemption, proponents must bear the legal and evidentiary burden of justifying the exemption anew .…” In fact, Section 1201 itself imposes no such burden. It simply states that the Librarian must make a determination in a rulemaking proceeding whether to grant an exemption to users of a certain class of works and that the exemption lasts for three years. The statute says nothing about how the Librarian should handle renewals of existing exemptions.

The notion that a proponent must justify an exemption de novo every three years derives from a single sentence in a single committee report issued during the legislative process that resulted in the DMCA. This sentence states that the Librarian’s “assessment of adverse impacts on particular categories of works is to be determined de novo.” The Copyright Office in its administration of the rulemaking is not bound by this report language. Thus, it could decide to create a rebuttable presumption in favor of renewal.

Moreover, even if the Office chooses to give weight to this language, the language only states that the Librarian must take a fresh look at whether users of a class of works are likely to be adversely affected by Section 1201’s prohibition. It does not say that proponents must create a new legal and evidentiary record in support of renewal of the exemption. Instead, the Copyright Office and the Librarian could just review the record created in the previous rulemaking, as supplemented by interested parties in the current rulemaking. If opponents of renewal do not offer substantial evidence that renewal would harm the market for or value of their works, see § 1201(a)(C)(iv), the Librarian is likely to reach the same conclusion he reached three years earlier. In short, the Copyright Office could significantly lighten the burden of renewal by indicating that it will incorporate the record created in the previous rulemaking.

Additionally, in the category of policy issues that warrant near-term study and analysis, the Register identifies numerous other potential problems with Section 1201. She notes that some of the permanent exceptions may be too narrow in scope, and that the exemptions created under the rulemaking apply only to the act of circumvention, and not the development and distribution of circumvention tools.

Further, she observes that some stakeholders have suggested “a disconnect between the original purpose of Section 1201—protecting access to creative works—and its effect on a wide range of consumer goods that today contain copyrighted software.” (This was the subject of a DisCo post earlier this year.) She adds that “consumers have voiced discomfort that Section 1201 prevents them from engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implication under copyright law.”

It is true that the Copyright Office cannot change the scope of the existing permanent exceptions, nor extend the exemptions to the trafficking in circumvention tools. It is also true that the Copyright Office cannot unilaterally solve the problem of the application of Section 1201 to embedded software essential to the operation of larger devices and machines.

At the same time, the Copyright Office could take a more pragmatic approach toward exemptions for embedded software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for the “jailbreaking” of devices so that they can access alternate lawful content. For circumvention of TPMs on vehicle software, for the purpose of diagnosis and repair, or after-market customization, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the embedded software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201 certainly does not require the identification of such narrow classes.

Obviously these measures will not address all the ills of Section 1201. Legislation along the lines of the Unlocking Technology Act, H.R. 1587, or the Breaking Down Barriers to Innovation Act, S. 990 and H.R. 1883, are necessary to do that. But the Copyright Office could adopt these measures now, without Congressional action.

The Register’s testimony raises too many other issues to be examined here. But one proposal merits attention. In the category of issues that warrant near-term study and analysis, the Register recommends a “formal and comprehensive study” of the safe harbors in Section 512 “to ensure that it is properly calibrated for the internet as we know it today.” Frankly, the Section 512 safe harbors have been studied to death. They have been the subject of numerous Congressional hearings and were a major focus of the Commerce Department Internet Policy Task Force report on Copyright Policy, Creativity, and Innovation in the Digital Economy. As the Register’s testimony acknowledges, the Internet Policy Task Force’s report led to a year-long process to produce best practices for the notice and takedown system. The safe harbors have been examined in law review articles, economic studies, and Congressional Research Service reports. The Register asserts that “it is time to take stock of Section 512.” In fact, Congress, the Copyright Office, the PTO, the copyright owners, the Internet service providers, and public interest groups have been taking stock of Section 512 continuously since its enactment.

A far better use of government resources would be a formal and comprehensive study of statutory damages, “to consider what is working and what is not, along with possible legislative improvements…to…ensure that it properly calibrated for the internet as we know it today.”

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.

Flaws of the 1201 Rulemaking Process

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 “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.”

You bought it, you own it.  This principle applies in the analog world, but in the digital world it is less clear.  In the digital world, technological protection measures (TPM) or “digital locks” may prevent a user from tinkering with a copyrighted work or product he has purchased, even if it is for a completely lawful purpose due to rules in the Copyright Act prohibiting circumvention of these locks.

ARL, as part of the Library Copyright Alliance, is currently involved in the Section 1201 rulemaking process, a procedure where the Copyright Office will determine what classes of works will receive an exemption from the anti-circumvention rules governing TPMs. The process takes place every three years—this is the sixth rulemaking—and individuals or groups can petition to have the previous exemptions renewed or expanded, or can apply for new exemptions.

The rulemaking process is time and resource consuming. Indeed, the 2009 rules were delayed and not announced until July of 2010. The entire process can take a year or more and because the exemptions are renewed de novo without any benefit of a presumption in favor of renewal, it is a burdensome procedure. These exemptions are not made permanent even after multiple renewals, but instead the entire process is repeated again and again.

It is important to note that the exemptions that are requested are for all for non-infringing uses. These are uses that would be permitted, without the time and expense of a rulemaking process, for copyrighted works in analog form which are not accompanied by TPMs. These uses might be for the same purposes as specific limitations and exceptions, such as the making of accessible format works for persons who are print disabled, or for fair use purposes. Despite the fact that these purposes are permitted where TPMs do not exist, in order to achieve these same purposes in the digital world, exemptions must be requested every three years.

This is a fundamental flaw in the language and interpretation of 1201. As LCA’s comments for the record at the House Judiciary Subcommittee hearing on the issue of technological protection measures points out:

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.

LCA’s petitions for the 2015 rulemaking process highlight some absurdities. One of its petitions focuses on making literary works distributed electronically accessible for persons with print disabilities. Although this exemption has been continually renewed since 2003, the exemption must again be petitioned for and new evidence must be submitted. The second LCA petition requests an exemption for motion picture excerpts, including expanding the current exemption for all storage media, including Blu-Ray discs. The 2012 exemption applied only to a specific type of technological protection measure, known as Content Scrambling System, which is used with DVDs; because Blu-Ray discs used a different form of a TPM, this 2012 exemption did not apply.

In addition to the fact that the process is extremely repetitive, resource consuming and unnecessary, the rules have grown increasingly complex and long. In the 2003 rulemaking, the Librarian of Congress exempted four classes of works; these rules were laid out in 200 words. By contrast, the 2012 rules included eight classes of works—though five of these classes all relate to motion pictures, particularly excerpts or screen captures—and these exemptions amounted to nearly 1200 words. Consider, for example, the specific exemption for literary works distributed electronically. The word count more than doubled from its 2003 language to its 2012 language, becoming more complicated and including a cross-reference to Section 121 of the Copyright Act.

2003 exemption:

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

2012 exemption:

(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:

(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

The result of the increasingly complicated and specific language across all the exemptions (in fact, the language for the benefit of the print disabled above is relatively simple in comparison to other 2012 exemptions) is that these exemptions become virtually unusable for many users.

The process should be re-thought to ensure that 1) resources are not unnecessarily wasted through a repetitive, time-consuming process and 2) the beneficiaries of these exemptions can clearly understand the rules and make use of the exemptions.

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.

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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!