Tag Archives: Copyright

Marrakesh Treaty Enters Into Force in the United States

Today, May 8, the World Intellectual Property Organization (WIPO) administered Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled enters into force in the United States.  The United States Senate ratified the Marrakesh Treaty last summer and the United States House of Representatives passed the implementing legislation in September 2018.  Following the United States’ deposit of its instrument of ratification with WIPO on February 8 and the subsequent three month period prescribed in the treaty, the treaty is now in force in the United States.

The Marrakesh Treaty is designed to address the “book famine” problem in which it has been estimated that only between 1 and 7% of all published works are ever created in an accessible format for those that are blind, visually impaired or otherwise print disabled.  The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  The cross-border provision also facilitates importation of works created in other languages.

As an organization dedicated to achieving enduring and barrier-free access to information, ARL celebrates this milestone in the United States.  Libraries, as authorized entities, play a critical role not only in serving their own patrons, but also in facilitating cross-border exchange of accessible format works.  The United States is one of 55 contracting parties and countries from every region of the world are members of the Marrakesh Treaty.  Canada previously joined the Marrakesh Treaty in 2016 and, significantly, was the 20th ratifying or acceding country which triggered the entry into force of the Treaty itself.  A number of other ratifications are also currently underway.

Betty Ballantine and the Manufacturing Clause

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

Fair Use Week properly celebrates a critical limitation on copyright protection that enables free expression and creativity. And at the beginning of this year, we celebrated works entering into the public domain because their copyright term (finally!) expired. The recent death of Betty Ballantine, one of the founders of Bantam Books and Ballantine Books, reminds us of another limitation that stimulated the growth of the U.S. publishing industry: the manufacturing clause. Until the United States joined the Universal Copyright Convention in 1954, the Copyright Act’s manufacturing clause protected English-language literary works only if they were printed in the United States with the copyright owners’ authorization. This allowed U.S. publishers to reprint British works that weren’t printed in the United States without paying royalties to the British authors.

The importance of the manufacturing clause was underscored in the Washington Post’s obituary about Betty Ballantine, who passed away on February 12, 2019. The obituary explained how Betty Ballantine and her husband, Ian Ballantine, helped develop the market for paperback books in the United States. Prior to World War II, paperback books were primarily poorly made pulp novels. After the War, “the Ballantines took advantage of new technology in production and distribution and of a clause in copyright law discovered by Ian that waived fees on books from Britain, where high quality paperbacks were easier to find.” The clause that Ian “discovered” was the manufacturing clause, which actually was well known at the time. They founded Bantam Books, which, among other titles, published British bestsellers that had not yet been printed in the United States. In 1952, they established Ballantine Books based on the same business model. Both Bantam Books and Ballantine Books eventually became part of Penguin Random House.

In other words, large divisions of a major publishing house have their roots in a limitation on copyright protection. Moreover, this limitation encouraged the growth of an important market segment: paperback books. In this instance, the manufacturing clause worked exactly as intended; it promoted the development of U.S. printers and publishers at the expense of foreign rights holders. The manufacturing clause, when adopted in 1891, actually expanded the rights of foreign authors. Prior to the clause’s adoption, foreign authors received no copyright protection in the United States. Under the manufacturing clause, foreign works received copyright protection if they were printed in the United States. This approach provided increased protection for foreign authors without harming the developing U.S. printing industry because the foreign works received protection only if they were printed on U.S. presses. Nonetheless, the manufacturing clause departed from the national treatment approach of the Berne Convention, adopted five years earlier in 1886.

Although the manufacturing clause was an improvement over the previous situation of receiving no protection, foreign authors still objected to it because U.S. publishers often printed their books in the United States before they had the opportunity to authorize U.S. publication. In 1909, Congress exempted foreign language works from the manufacturing clause, but it still applied to books published in English. In 1954, in the context of joining the Universal Copyright Convention (“UCC”), Congress excluded all foreign works—even those in English–from the scope of the manufacturing clause. By then, the United States had become a major exporter of copyrighted works, and U.S. publishers would benefit from receiving protection of their works overseas under the UCC. The printing trade unions opposed the United States joining the UCC and the narrowing of the manufacturing clause. Nonetheless, until 1986, the manufacturing clause still applied to U.S. authors, meaning that U.S. authors received copyright protection only if their books were printed in the United States.

The exemption of English language books from the scope of the manufacturing clause in 1954 disrupted the Ballantines’ business model. But by then, their publishing houses were well established, and they went on to publish many popular books with the authors’ permission. Balzac said that “behind every great fortune there lies a great crime.” It could be said behind every publisher lies a copyright limitation.

Celebrating New Works Entering the Public Domain in the United States

On January 1, 2019, the United States saw a mass number of new published works enter the public domain for the first time in twenty years.  After the enactment of the Copyright Term Extension Act, which extended copyright term for 20 years, a moratorium was placed on most new works entering the public domain.  Although works published in 1923 were originally scheduled to enter the public domain in 1999, the Copyright Term Extension Act gave works published between 1923 and 1977 and expanded term of 95 years.  (Note: determining the term of copyright can be incredibly complex; this chart is helpful in determining the potential public domain status of a work.)

A rich, robust public domain provides critical building blocks for the creation of new works because authors can use and reuse existing material without first seeking permission.  Examples of culturally prominent works that relied on existing works abound, from this list of 50 Disney movies based on the public domain to this paper, “Nothing New Under the Sun” (covering everything from classical music and modern jazz to literature to the stage and movies to visual arts).  While an author’s talent and work certainly contribute to great new works, such creations are not created in a vacuum; these examples of new works building on old works demonstrate the importance of the public domain.

In celebration of Public Domain Day, cultural heritage institutions are digitizing and making available a number of works and collections that are entering the public domain. The Association of Research Libraries (ARL) is gathering information about and publicizing such resources that are available in ARL member institutions. Below are just a few examples:

The Ohio State University Libraries, for example, working with the School of Music, are highlighting musical compositions entering the public domain.  The digital scores have been made available and new recordings will be posted.

The University of Oregon has created a Public Domain Day exhibit highlighting key works entering the public domain from the libraries’ collection in the categories of movies, books and music.

MIT Libraries is celebrating the public domain by digitizing 100 books from its collection, such as J.M. Barrie’s play A Kiss for Cinderella.

The University of Illinois-Urbana Champaign Libraries is featuring 1923 works of Helen Louis Thorndyke.

Significantly, HathiTrust Digital Library has made more than 53,000 works from 1923 available online.

Celebrating the public domain can give new life to old works and lead to new creations. Enjoy the mass numbers of newly available digitized works from 1923!

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Eleventh Circuit Finds Georgia’s Annotated State Laws Not Copyrightable

On Friday, October 19, the Court of Appeals for the Eleventh Circuit found that Georgia’s annotated laws are not protected by copyright, reversing the district court. In Georgia v. Public.Resource.Org, Georgia argued that its annotated state laws are protected by copyright. Public.Resource.org posted these laws online—it has for several other laws and codes in other jurisdictions—and was subsequently sued for copyright infringement. Public.Resource.org argued that because only the annotated versions are considered official versions, they should be free to be read by the public. As a policy matter, this outcome makes sense; one should be able to read, for free, the laws that they must abide by. The Eleventh Circuit agreed with Public.Resource.org.

The Eleventh Circuit did not state that all annotated laws are not copyrightable, but instead noted that in the present case, the annotations were done at the direction of state officials and intertwined with the law itself. The court sums up its conclusion: “the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.”

The district court had ruled that the annotations were subject to copyright, then proceeded to reject the argument that Public.Resource.Org’s use was fair use. However, as the Eleventh Circuit notes, “Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use.”

ARL submitted an amicus brief in this case together with ALA, ACRL, Public Knowledge and other groups and individuals—as well as in a related case, ASTM v. Public.Resource.Org, supporting Public.Resoure.org.

What’s In (and Out) of the IP Chapter of the United States, Mexico, Canada Trade Agreement

Yesterday, Canada announced—just in time for the self-imposed deadline by the negotiating parties of September 30— that it would join the trade agreement with the United States and Mexico. This agreement, a renegotiation of NAFTA, which apparently is also being called the US-Mexico-Canada Agreement or USMCA, includes much more prescriptive provision on intellectual property than what was included in the original NAFTA. The original NAFTA text on intellectual property, written in a different era of trade agreements, does not include language on copyright term or issues covered by the WIPO Internet Treaties (NAFTA was negotiated before the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty).

Presumably any deal that Canada agreed to in the renegotiation was going to be more prescriptive, with greater rights for rightholders, than in the original NAFTA. However, it is also worse, at least in some respects, than what Canada, Mexico and the United States—and nine other countries—had agreed to in the Trans-Pacific Partnership Agreement (TPP) (see analysis of that text here), which the United States withdrew from after Trump became President. (Note: after the United States’ withdrawal from the TPP, the remaining 11 countries in the negotiations—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam—renegotiated and formed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, or CPTPP, which suspended many of the United States’ demands on copyright and other IP provisions).

Here’s a look at what’s in—and out—of the renegotiated IP chapter, as compared to both the original NAFTA text and the TPP text:

Limitations and Exceptions 

Arguably the biggest disappointment in the recently released text is what the IP chapter does not include. The TPP had included language based off a United States proposal from 2012 on limitations and exceptions. The TPP obligated parties to try and achieve balance in their copyright systems. Article 18.66 of the TPP read: 

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.

While the language could have been stronger—for example by mandating that parties achieve a balance, rather than merely “endeavor[in]g” to do so, a provision on balanced copyright was seen as a success, recognizing the importance of limitations and exceptions in copyright. When trade agreements or laws only include provisions regarding the rights of rightholders, the rights of users get ignored. It is disappointing that the United States chose not to propose balancing language, but instead included limiting language with respect to limitations and exceptions (requiring parties to “confine” limitations and exceptions to the three-step test of 1) certain special cases; 2) that do not conflict with the normal exploitation of the work; and 3) do not unreasonably prejudice the legitimate interest of the right holder.). 

Copyright Term

Copyright term is one of the most significant areas with respect to copyright where Canada will be forced to change its law. As noted above, NAFTA did not contain provisions dictating copyright term (and, of course, was negotiated prior to the United States’ own term extension). Canada currently has a copyright term of the life of the author plus fifty years, but with the USMCA text, will need to extend that term to life plus seventy. Perhaps this concession was to be expected since TPP parties also agreed to the term, yet the consequences to the public domain are significant. The United States has seen a moratorium on published works entering the public domain for the last twenty years due to copyright term extension agreed to in 1998. The public domain is critical for the creation of new knowledge and culture and copyright term plays a significant role in closing off the public domain. This term goes well beyond international standards.

Additionally, Canada agreed to further extension of copyright term for corporate works, beyond what had been agreed to in the TPP. While the TPP parties agreed to providing corporate works (works that are not measured on the life of the author) with 70 years of protection, the USMCA text requires 75 years.

Technological Protection Measures

Because NAFTA went into force in 1994, it did not include provisions that have been found in the era after the WIPO Internet Treaties, such as anti-circumvention measures.  The new provisions in USMCA mirror the text on anti-circumvention of several past bilateral trade agreements by the United States. It requires parties to make it an offense to “knowingly, or having reasonable grounds to know” circumvent technological protection measures, or to manufacture or distribute devices primarily designed or are promoted for the purposes of circumvention. This language is highly prescriptive and detailed. It also includes a closed-list set of seven limitations and exceptions to the anti-circumvention measures, plus a provision permitting “additional exceptions or limitations for noninfringing uses of a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those noninfringing uses is demonstrated by substantial evidence in a legislative, regulatory or administrative proceeding in accordance with the Party’s law.” The text also makes circumvention an independent and separate cause of action, apart from any underlying copyright infringement.

On a positive note, the language regarding additional limitations and exceptions is not restricted to a three-year rulemaking cycle, as exists in the United States and several other trade agreements. From the agreed-to text, it appears that parties may provide for permanent limitations and exceptions, if permitted by domestic law.

While similar language regarding making circumvention an independent cause of action existed in the TPP, the TPP provision was potentially mitigated by a helpful footnote reading, “A Party may provide that the obligations described . . .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.” Making circumvention a “separate and independent cause of action” is controversial and makes little sense, negatively impacting legitimate and non-infringing circumvention.

It is also disappointing to see the inclusion once more of a closed-list set of limitations and exceptions, mirroring those found in the United States’ copyright law, which have been criticized domestically as being overly-narrow and, in some cases, useless.

Objectives and Principles

The USMCA includes high-level objectives and principles that recognize at least some level of balance and mirrors language found in the TPP. Article 20.A.2, for example, notes that intellectual property protection and enforcement “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.” Similarly, the principles provide that parties may “adopt measures necessary to protection public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.”

While this acknowledgement of balance is welcome, the lack of specific provisions regarding balance underscores the fact that the agreement strengthens the rights of rightholders, ratcheting up protections, without providing the same for users.

Remedies Allow for Judicial Discretion

Another welcome inclusion is language on proportionality that was also found in the TPP, requiring parties to “take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies and penalties, as well as the interests of third parties.”

ISP Liability

The USMCA language includes prescriptive provisions regarding safe harbors for Internet service providers. Like the TPP, it includes a carve-out to accommodate the Canadian system of notice-and-notice (as opposed to the United States’ notice-and-takedown). As noted on this blog previously, the flexibility to implement notice-and-notice is limited to Canada only because it is restricted to where such a system exists as “the date of agreement in principle” to USMCA.

For additional reading, Michael Geist has a nice summary from a Canadian perspective.

Documentary “Paywall: The Business of Scholarship” Premieres in Washington, DC

*This is a guest blog post by Judy Ruttenberg, ARL program director for strategic initiatives.*
*Updated September 11, 2018, with quotation from Geneva Henry.*

The documentary film Paywall: The Business of Scholarship made its global premiere in Washington, DC, on September 5, 2018, the same week that 11 European countries proclaimed that all their publicly funded research would be open access by 2020. Paywall producer and director Jason Schmitt and director of photography Russell Stone welcomed the DC audience, which comprised many of the scientists, publishers, and open access advocates featured in the 65-minute film. With minimal narration and expertly sequenced interviews, the film weaves together two principal stories: the exorbitant financial cost to access for-profit academic journals and the associated, incalculable human cost when doctors, patients, students, and would-be innovators all over the world hit paywalls that deny them access to the latest research.

Schmitt, an associate professor of media and communication at Clarkson University, told the DC audience that the film was made not for them but for their neighbors, friends, and colleagues who are not immersed in the world of academic publishing. To the uninitiated, the system makes little sense. The labor of writing articles is unpaid, as is much of the editing, peer review, and curation. Taxpayers fund most scientific research, whether done within government agencies, or through universities, and yet the results (until recently) have not been available to them. The top five academic publishers—which dominate the market—earn profit margins up to ten times that of top technology firms. While many of the film’s subjects acknowledged innovation and value within these publishing companies, Elsevier in particular, most were quick to say those contributions are outweighed by the costs to the scientific enterprise of excluding so many people from participating in it.

Some of Paywall’s most compelling interviews address the consequences of exclusion. Brian Nosek, executive director of the Center for Open Science (COS), described a meeting with a cohort of graduate students in Budapest who were all studying implicit cognition. Why so many students, in one sub-field? Because the papers are largely available on the open internet. Schmitt met with medical students and faculty in Africa and India who were unable to access the latest literature, and unable to contribute their own discoveries to it. Paywalls inhibit innovation because they minimize the chance that “the right person will be in the right place at the right time,” with respect to the literature, said Tom Callaway, from the open source software company Red Hat. And the audience laughed along with Sci-Hub creator Alexandra Elbakyan as, in a rare on-camera interview, she explained that Sci-Hub is targeting this exclusion by helping Elsevier fulfill its mission to make “uncommon knowledge common.”

Paywall is a celebration of the open access (OA) movement and its victories to level the playing field through preprint services like arXiv, and through policies mandating public access to government-funded research. The film is also a sober reflection on the OA movement’s progress, as for-profit academic publishers have both stalled and monetized open access while maintaining ever-increasing subscription revenue. The consortium of European national funders, called cOAlition S, announced their initiative this week with a set of principles addressing these exorbitant costs, including a cap on open access publication fees and a prohibition on publishing in hybrid journals (that charge a mix of subscription and open access fees). Peter Suber, director of the Harvard Office for Scholarly Communication, emphasized in Paywall the critical importance of authors retaining copyrights in order for a large-scale open access system to function.

Geneva Henry, dean of Libraries and Academic Innovation at The George Washington University, also attended the premiere and offered this reflection:

Academic library leaders have been raising the concern for years about the unsustainable rate of inflation with online journals, particularly those supporting the sciences. We have shown our faculty and university leadership the solid data that demonstrates this problem, have cut journals each year to fit our budgets and have been met with criticism by the researchers, have provided information about open access and its advantages, and have received polite nods and smiles from everyone. But little has changed and the high-impact (high-cost) journals are still the ones that remain a priority for faculty publications. Paywall has the opportunity to present these audiences with perspectives from a wide variety of scholars and professionals who identify the issues we’ve been trying to communicate for so long. Its format as a film will enable broader distribution and hopefully be that communication vehicle for bringing this issue to the forefront of academic leadership. We’ve known for a long time that something needs to change and this film will hopefully serve as a catalyst for turning the tide on commercial publishing practices that limit the distribution of knowledge in our society. Perhaps librarians will now be viewed as the canaries in the coal mine rather than a bunch of chicken littles.

SPARC Europe, LIBER (the Association of European Research Libraries), and Research Libraries UK (RLUK) have all issued statements in support of cOAlition S. Peter Suber has also blogged about the plan.

Funded by a grant from the Open Society Foundations, Paywall will be screened by more than 175 universities this fall, and is available to stream under a CC BY 4.0 license at www.paywallthemovie.com. SPARC, a global coalition committed to making open the default for research and education, helped organize the DC premiere.

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.

Balanced Copyright in CPTPP and NAFTA

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

The “balanced copyright” provision of the original Trans-Pacific Partnership (“TPP”) Agreement has been included in the successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), negotiated by the remaining TPP parties after the United States pulled out of the TPP. However, it appears that the U.S. government is opposing the provision’s inclusion in the North American Free Trade Agreement (“NAFTA”), currently under renegotiation. This is ironic given that the United States originally proposed inclusion of the provision, based on the U.S. fair use doctrine, in TPP. Thus, the eleven parties to the CPTPP now appear more dedicated to a U.S. legal principle than the United States itself.

TPP

Article 18.66 of the IP chapter of the TPP required each party to “endeavor to achieve an appropriate balance in its copyright and related rights systems.” This balance was to be achieved by means of limitations and exceptions that gave “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise disabled.”

The United States originally proposed this language during the July 2012 round of TPP negotiations in San Diego, CA. (See here for more detailed discussion of the development of Article 18.66.) The provision’s list of legitimate purposes was based on the list of purposes in 17 U.S.C. 107, which codifies the fair use doctrine. The U.S. explained that “[t]hese principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Twelve countries, including the United States, signed the TPP on February 4, 2016. On January 23, 2017, the day after his inauguration, President Trump withdrew from the TPP, which had not yet come into effect.

CPTPP

The remaining eleven TPP parties—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam–agreed on a revised TPP on January 23, 2018. The new agreement, named the CPTPP, is largely the same as the TPP, except that the parties decided to suspend 20 provisions that had been demanded by the United States in the TPP. With respect to copyright, the parties suspended the provisions relating to copyright term, circumvention of technological protection measures, and safe harbors for Internet service providers. Significantly, the parties did not suspend the balanced copyright provision, even though it had originally been proposed by the United States. Thus, the eleven CPTPP countries have obligated themselves the endeavor to achieve an appropriate balance in the copyright systems.

NAFTA

Once President Trump announced that the United States would renegotiate NAFTA, it was assumed that the United States would use the TPP IP chapter as the template for the new NAFTA IP chapter since Mexico, Canada, and the United States had already agreed to that language in TPP and the TPP IP chapter reflected so many of the U.S. demands. Nonetheless, the copyright industries launched a lobbying campaign against incorporation of the “balanced copyright” and ISP safe harbor provisions.

The Copyright Alliance, for example, asserted that while it “believe[s] in a ‘balanced’ copyright system,” the “concept of ‘balance’ is actively being twisted and used as a vehicle for weakening copyright protections….” For this reason, it is “skeptical about including this type of language in a trade agreement.” Similarly, the Recording Industry Association of America (“RIAA”) argued that “efforts to export the American fair use exception are particularly troubling.” Accordingly, RIAA believed that the United States should not support “broad provisions that could diminish, or otherwise generate legal uncertainty with respect to, the three-step test.”

However, there is no evidence that the concept of balance is being twisted or that the export of fair use would lead to uncertainty or the weakening of copyright protection in a troubling manner. The example of Israel is instructive. Israel adopted a fair use provisions similar to 17 U.S.C. 107 in 2007. Since then, Israeli courts have applied fair use stringently. They have imposed a fifth factor not included in the statute: the defendant must provide attribution to the author. Moreover, Israeli courts have found fair use at a lower rate than U.S. courts. Thus, the Israeli courts’ implementation of fair use demonstrates that U.S. copyright owners have nothing to fear from the export of fair use. In any event, TPP article 18.66 does not require adoption of a fair use provision; it simply imposes an obligation to endeavor to achieve balance.

Balance as a Traditional Contour of U.S. Copyright Law

An even more unreasonable objection to a balanced copyright provision in NAFTA appeared in a letter to U.S. Trade Representative Robert Lighthizer, by twenty-five conservative organizations. These groups, which have no knowledge of the copyright system, urged the USTR “to reject calls for NAFTA to include ‘users’ rights,’ which was manifested in the Obama-era concept of copyright ‘balance.’”

Contrary to the letter’s suggestion, copyright balance is not an “Obama-era” concept. Rather, it is a principle the U.S. Supreme Court and courts of appeals articulated repeatedly long before the Obama Administration.

Thus, the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), observed that the Constitution’s intellectual property clause “itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”

In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), the Supreme Court stated that “Congress has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product…[T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other….”

In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005), the Supreme Court recognized that the copyright law maintained a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” The Court noted that “[t]he more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” Id.

The federal courts of appeals likewise have recognized the concept of copyright balance. The Second Circuit stated that “the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other hand, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992).

Similarly, the Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing concerns of providing incentive to authors to create and of fostering competition in such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

The Federal Circuit, referring to the Digital Millennium Copyright Act, a statute criticized in the December 18 letter, noted that in enacting the DMCA, “Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products.” Chamberlain Group v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The court observed that under the plaintiff’s interpretation, which would have “eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.” Id.

It is curious that a group of conservative organizations would disparage users’ rights in favor of what the Supreme Court has described as a government granted monopoly. It is even more curious that these organizations would suggest that exceptions and limitations such as fair use “should be contracting, not expanding, in the digital age.” After all, the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), explained that fair use is one of the “traditional contours of copyright protection that acts as “a built-in First Amendment accommodation[].” Surely these groups support the First Amendment—and that is what the concept of balanced copyright is all about.