Tag Archives: Copyright

Springer, Censorship and the Need for Open Access

OG-CopyrightWeek2

*Updated January 22, 2017 to include a statement by Sarah Thomas, Vice President for the Harvard Library and University Librarian*

It’s Copyright Week! Today’s topic is “Copyright and Censorship: Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act a legal cudgel to silence it.”

When a rightsholder uses his or her rights to prevent others from relying on, accessing, or using information, copyright can act as a tool of censorship. One example of where this happened occurred in November 2017 when Springer Nature agreed to exclude Chinese readers and institutions from accessing certain articles in its journals at the request of the Chinese government. Regardless of whether Springer acted in good faith in order to maintain access in China to the rest of its collection, because authors collectively relinquished control over their copyrights there was no effective remedy. We are familiar with the problem of authors assigning rights to corporate entities, which may be more inclined to aggressively enforce their rights under copyright law or demand high fees in order to access or use the work. In the Springer case, because of copyright, authors could not promote access to their work because the publisher acquiesced to a government’s censorship demands.

According to The Financial Times, Springer blocked an estimated 1,000 articles its journal, International Politics and the Journal of Chinese Political Science, effectively aiding China’s censorship request. This decision by Springer followed a similar August 2017 action by Cambridge University Press to block access to 315 articles at the request of the Chinese government, though Cambridge University Press later reinstated the articles after heavy criticism, citing the desire to “uphold the principle of academic freedom.” Other university presses, such as Oxford University Press, MIT Press and the University of Chicago Press have stated that they will not comply with censorship demands.

Ultimately, censorship directly harms research, scholarship and academic freedom. In the digital age, global collaboration is commonplace and Chinese students and researchers are at a significant disadvantage without access to the full corpus of works that researchers in other countries have. Research institutions should work to support barrier free access to information to combat censorship.

Springer’s decision to censor 1,000 articles illustrates that, as a for-profit institution, its goals may not align with those of academic institutions and highlights the necessity for higher education to regain control over scholarly communication. Working with publishers that agree to censor materials raises questions regarding threats to academic freedom, research and discovery.

Authors should carefully consider whether assigning their copyright to publishers is in their best interests knowing that, in addition to the ability for publishers to impose high costs to read articles, these entities may comply with requests that prevent readers in other countries from having access to these works.

Ultimately, copyright and licensing issues have serious consequences for the research community. Ensuring that the research community can retain control over its scholarly communication outputs will promote barrier free access too all. Publishing in open access outlets, including in preprint services, or retaining copyright can help ensure that selective censorship is more difficult.

Statement of Sarah Thomas, Vice President of Harvard Library and University of Librarian:

I’m astonished that Springer Nature has not used their important leverage as a content provider to protect the rights of their authors to be read and to exercise their professional leadership in promoting access to knowledge. Censorship is the suppression of ideas, and is directly opposed to Springer Nature’s stated policy: “Our publishing and editorial policies have been developed in consultation with the research communities we serve, including authors and librarians, and are rooted in belief that scholarly communication is aided by greater transparency of the processes by which we operate.”

Springer Nature proudly proclaims on their home page: “We advance discovery by publishing robust and insightful research, supporting the development of new areas of knowledge and making ideas and knowledge accessible around the world.” Apparently this statement is a qualified one, subject to governmental influence and balanced by commercial considerations.

Certainly I will work at Harvard to increase awareness of Springer Nature’s complicity in the silencing of scholars who write for their journals. In a world in which basic democratic values are increasing threatened by authoritarian leaders, it is shocking that the Von Holtzbrinck-owned publisher Springer Nature would contribute to their decay. Is this the work of new CEO Daniel Ropers, who comes out of retailing?

I urge Springer Nature to show the commitment to the “advancement of science, learning, and society” that Ropers espoused when joining Springer Nature in autumn 2017 and to look to publishers such as Cambridge University Press as a model.

Will Dicta from Impression Products v. Lexmark Lead to the Ability to Control Your Own Devices?

OG-CopyrightWeek2

Today we’re celebrating Copyright Week! Today’s topic is “Controlling Your Own Devices: As software-enabled devices become ubiquitous, so do onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.”

Due to an ambiguity in the text of the Digital Millennium Copyright Act (DMCA), the anti-circumvention provisions can be read to make the very act of circumvention of a technological protection measure (TPM), or “digital lock,” an infringement of copyright — even if there is no underlying copyright violation. While logic would suggest that there is a violation only if the circumvention is being used to infringe copyright, some courts have held otherwise. As a result, circumventing TPMs can be risky, even if the user is simply trying to engage in a fair use, which would be completely permissible in the analog world.

The Supreme Court has never ruled on this ambiguity, but a case decided at the end of its term last year involving exhaustion of rights in a patent case, included some dicta that seemed to favor the ability of individuals to repair the items they own. In Impression Products v. Lexmark International, the Court found in favor of international exhaustion of rights, finding that a patent holder cannot enforce contractual restrictions on downstream sales in patent infringement cases.

While issues regarding TPMs and anticircumvention were not raised in the case, as a policy matter, the majority opinion detailed the dangers that would occur without exhaustion and used the right to repair as an example:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is a compelling one given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

While the use of embedded software continues to proliferate in our everyday household objects, a common sense approach must be adopted to ensure that we can repair objects we’ve purchased in the same way a consumer would have been free to repair his car, toaster or washing machine in an era before “smart” technology.

Thoughts on the Section 108 Reform Discussion Draft

On Friday, September 15, 2017, the Copyright Office released a discussion document on proposed reform to Section 108 of the Copyright Act, the provision that sets out specific limitations and exceptions for libraries and archives.

In recommending reform, the Copyright Office acknowledges “the fact that many members of the library and archives communities have expressed concern about revising section 108.” However, the Copyright Office is nonetheless convinced that Section 108 should be updated to address the digital age.

The Copyright Office makes several proposals for revision including, among others:

  • Including museums as beneficiaries of the exception as well as adding some additional conditions for eligibility for Section 108
  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction
  • Allowing preservation copies for all works to be put into a dark archive
  • Removing the three-copy limit and replacing it with a “reasonably necessary” standard
  • Allowing for a replacement copy to be made for “fragile” copies and expanding off-premises access for replacement copies
  • Eliminating the exclusion of certain works from the provisions permitting copies to be made at the request of users
  • Providing that there is no federal copyright infringement for preservation reproductions in violation of non-bargained-for contractual language, though actions may still be brought for contractual violations
  • Allowing institutions to contract with third parties to perform the reproduction functions under section 108

The report itself, as well as the recommendations, is clearly the product of a great deal of thought and engagement with stakeholders. The recommendations clearly lay out the reasoning behind the proposals and give concrete examples illustrating how the new provisions would operate.

For the most part, the recommended changes to Section 108 reflect the current state of what libraries are already doing under Section 108, supplemented by the fair use right under Section 107. Libraries are already engaged in digitization activities, including mass digitization, for preservation purposes. Although there is a three-copy limit under current Section 108, libraries already engage in the going beyond this limit when making digital copies for the purpose of creating one end-use copy; this is simply a practical extension of what Section 108 intended to permit and fair use should be thought to naturally extend to such temporary, incidental copies.

While codifying these activities to provide a safe harbor so that libraries do not need to rely on fair use is beneficial, in some ways the report fails to fully extend to many of the projects libraries currently engage in. For example, the preservation copies would be limited to a dark archive; libraries already routinely rely on fair use to digitize special collections and provide access to the public. The Copyright Office also chooses not to propose an exception for web-harvesting, though many libraries currently preserve web pages around particular issues.

Although the report contains many positive recommendations—even if they do not fully reflect the current activities of many libraries and archives—one of the deepest concerns regarding reform of Section 108 is that any gains that could be made to update the provision would not be worth the risk of potentially losing the fair use savings clause. Certainly, there is no dispute that Section 108, original written for the 1976 Copyright Act, could benefit from some updates for the digital age. However, these revisions are not necessary because fair use sufficiently updates Section 108 to cover activities necessary in the digital age. Indeed, the Second Circuit confirmed in Authors Guild v. HathiTrust that Section 107 complements the specific provisions in 108.

To be clear, the Copyright Office’s discussion draft explicitly recommends retention of the savings clause and its confirmation of the importance of fair use is much appreciated.

In recognition of Congress’s intent to maintain both section 108 and fair use as tools for libraries and archives, and the use and acceptance of this principle by eligible institutions, copyright owners, users, and the courts, the Copyright Office feels strongly that the fair use savings clause must remain in section 108 regardless of any other amendments that may be found necessary. Even a revised section 108 cannot address every situation in which public policy would deem it reasonable for a library or archives to reproduce or distribute a copy of a work without first attempting to seek permission. In fact, this Discussion Document explicitly leaves web harvesting and similar collection of Internet content by libraries and archives to fair use, and there are other circumstances not addressed by section 108, such as electronic reserves, where fair use must continue to govern. Thus, it is essential that the fair use savings clause stay in section 108.

While the Copyright Office’s commitment to retaining the fair use savings clause is a welcome inclusion in the report, a lingering concern remains as to whether the fair use savings clause would survive the legislative process. Although the Copyright Office recognizes the wisdom and importance of including a savings clause, it is clear that other stakeholders—particularly the Association of American Publishers (AAP) and the Authors Guild—want to remove the savings clause.

In litigation between the Authors Guild and HathiTrust, the Authors Guild advanced the argument that libraries could not rely on fair use because of the existence of a specific limitation and exception under the Copyright Act. Even though the statute clearly provides a savings clause that reads, “Nothing in this section in any way affects the right of fair use . . .” the Authors Guild nonetheless argued against its application. The Second Circuit dismissed this argument in a footnote, but the Authors Guild’s actions in the case show a clear intention to attack fair use.

Similarly, last year, Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP, was quoted in Communications Daily as advocating for Congress to “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exemptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”

With stakeholders like the AAP and Authors Guild eager to strip Section 108 of its fair use savings clause, supporting Section 108 reform becomes a very risky proposition. While the Copyright Office recommends some reasonable and sensible updates to Section 108 for the digital age, these improvements must be weighed against the risk of losing the fair use savings clause; the proposed changes are clearly not worth trading in the savings clause, but whether it is worth the risk of the legislative process remains a question.

Impression Products v. Lexmark International

On May 30, 2017, the Supreme Court of the United States issued its opinion in Impression Products v. Lexmark International, a case involving patent exhaustion. By an 7-1 margin, the Court found that a patent holder cannot enforce contractual restrictions on downstream sales through a patent infringement case and that international exhaustion applies to patents, just as the Court confirmed international exhaustion to apply to copyright in Kirtsaeng v. Wiley.

Lexmark essentially tried to restrict the refill of its cartridges by third parties by selling cartridges that restricted further use or resale. Lexmark then tried to enforce these restrictions through patent infringement cases against the downstream purchasers/third party resellers. The Court ultimately found that while Lexmark could potentially bring a breach of contract case against the initial purchasers for violating these restrictions, it could not bring a patent infringement suit to assert these claims. Relying on long-standing precedent, the majority opinion (authored by Chief Justice Roberts) notes “even when a patentee sells an item under an express restriction, the patentee does not retain patent rights in that product.”

Additionally, Lexmark asserted that exhaustion did not apply to cartridges sold abroad. The Court “conclude[s] that a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.” The Court notes that the question of the first sale doctrine came up in the context of copyright in Kirtsaeng v. John Wiley & Sons, which ruled that the first sale of a copyrighted product exhausts the rights whether made in the United States or abroad. The majority opinion also points out that while differential pricing may occur, this fact has no bearing on patent exhaustion: “The patentee may not be able to command the same amount for its products abroad as it does in the United States.  But the Patent Act does not guarantee a particular price, much less the price from selling to American consumers.”

One of the more interesting passages in the majority’s opinion is an illustration on the dangers that would occur without exhaustion:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is compelling given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

Ultimately, exhaustion of copyright and patent rights serves a critical purpose in ensuring that purchasers can freely repair, re-sell, and lend legitimately purchased items just as they would for goods that are not encumbered by intellectual property rights.

LCA Urges Senate to Reject Bill to Make Register of Copyrights a Presidential Appointee

On April 26, 2017, the U.S. House of Representatives voted to pass H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, a bill to make the Register of Copyrights a presidential appointee rather than an appointee of the Librarian of Congress.  The House disappointingly voted in favor of the bill by a 378-48 margin. The bill also included two amendments including one that specifies that nothing in the bill will impact mandatory deposit.

The Library Copyright Alliance issued the following statement:

The Library Copyright Alliance is disappointed that the House today passed H.R. 1695, the Register of Copyrights Selection and Accountability Act. We continue to believe that the bill will delay critically needed modernization of the Copyright Office and make the Register of Copyrights less accountable to Congress and the public, contrary to the stated intent of the bill made plain in its title. We look forward to working with the Senate on this legislation.

 

Finding Fair Use in Unexpected Places

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s theme is: 21st Century Creators: Copyright law should account for the interests of all creators, not just those backed by traditional copyright industries. YouTube creators, remixers, fan artists and independent musicians (among others) are all part of the community of creators that encourage cultural progress and innovation.

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

og-copyrightweek

In December 2016, strong endorsements of fair use appeared in somewhat unexpected places.

First, the Joint Strategic Plan (“JSP”) released by the Office of the Intellectual Property Enforcement Coordinator on December 12, 2016, stated that nothing in the JSP

should be interpreted as limiting the scope of exceptions and limitations, such as fair use, under U.S. copyright law. To the contrary, the basic principles that have permitted the Internet to thrive must be safeguarded, and the Strategic Plan expressly recognizes and celebrates advancements in technology. The way people use and access content – which has led to new and innovative uses of media (e.g., remixes and mashups involving music, video and the visual arts), and fair use, for example – will undoubtedly continue to evolve. We must work to foster creativity, understanding the role of exceptions and limitations as not only part of our body of laws, but as an important part of our culture. Indeed, it is the combination of strong copyright rights with a balance between the protection of rights and exceptions and limitations that encourages creativity, promotes innovation, and ensures our freedom of speech and creative expression are respected.

The JSP concludes this discussion by observing that “IP enforcement options must be crafted to allow for effective measures against actors that unlawfully prey on the works of rights holders, while ensuring that enforcement activities do not affect lawful activity.”

Second, the Copyright Office, in its December 15, 2016 report on software enabled consumer products, noted that “courts repeatedly have used the fair use doctrine to permit copying necessary to enable the creation of interoperable software products.” In support of this declaration, the report discussed the decisions in Atari v. Nintendo, Sega v. Accolade, and Sony v. Connectix, where the courts found that fair use excused the copying performed during the course of reverse engineering. The report added that “the case law generally holds that intermediate copying for purposes of reverse engineering and creation of interoperable products is, in most cases, a fair use.”

The report concluded its discussion of fair use by stating that “proper application of these principles should ensure that copyright law preserves the ability to create interoperable products and services.” In support of this statement, the report quoted the Ninth Circuit in Sega v. Accolade stating that “an attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”

Third, in an amicus brief it filed in Georgia State University electronic reserves case on December 9, 2016, the Copyright Alliance stated that it “is a staunch supporter of fair use principles, which allow for copyright to achieve it purpose without undermining the incentive to create. Its members regularly rely on these principles to create new, expressive, transformative works, consistent with the Copyright Act’s inherent purpose.”

Fair use is often referred to as a “user’s right.” But as these statements correctly indicate, fair use is a creator’s right as well. Fair use is essential to the creation of new works in all forms, including books, films, music, and software.

Access to Text Provides Meaningful Transparency

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

og-copyrightweek

Today’s theme is Transparency and Representation: Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Transparency is critical in understanding what laws may be created that will affect the public. For years, the United States has been involved in negotiated trade agreements in secret, without giving the public ample opportunity to make comments and engage in a meaningful way.  ARL has blogged about the concerns around the lack of transparency in trade negotiations many times in the past, noting that this is a primary failing of the negotiations of the Trans-Pacific Partnership Agreement (TPP), Trans-Atlantic Trade and Investment Partnership (TTIP) and other agreements, resulting in a lack of democratic process.  Although USTR has claimed transparency due to the opportunities to provide stakeholder presentations at various negotiations round, the secrecy of the negotiating texts and proposals made it impossible to actually give meaningful engagement.  Unlike the EU, for example, in the TTIP negotiations, USTR has not released draft textual proposals.

In 2016, ARL joined a coalition making critical recommendations for the United States Trade Representative Open Government Plan.

  1. Publish U.S. textual proposals on rules in ongoing international trade negotiations: USTR should immediately make available on its website the textual proposals related to rules that it has already tabled to its negotiating partners in the context of the TTIP, TiSA, and any other bilateral, regional, or multilateral trade negotiation it undertakes.
  2. Publish consolidated texts after each round of ongoing negotiations: USTR should impose as a prerequisite to any new or continuing trade negotiations that all parties agree to publish consolidated draft texts on rules after each negotiating round.
  3. Appoint a “transparency officer” who does not have structural conflicts of interest in promoting transparency at the agency.

These are the critical steps that USTR should take in negotiating trade agreements, whether the government is negotiating new agreements or, as President-elect Trump has promised to do, revisiting old agreements. The textual proposals are key to understanding what is being negotiated. While fact sheets may be useful, they are no substitute for the actual language of the texts which are highly technical and nuanced. As noted in ARL’s analysis of the final TPP text, there were significant improvements in the text from earlier proposals. Some of these improvements may have been made possible through the input of civil society and academics, but these comments were only possible due to access to leaked text.

ICYMI: Maria Pallante Removed as Register of Copyrights

On Friday, October 21, 2016, Librarian of Congress Carla Hayden announced the removal of Maria Pallante as Register of Copyrights.  Hayden appointed Maria Pallante as Senior Advisor for Digital Strategy and Karyn Temple Claggett, currently the Associate Register, as the Acting Register of Copyrights.  Under Pallante’s direction, the Copyright Office made orphan works legislation and reform of Section 108, two areas where the library community has raised serious concerns, strong priorities. Pallante also advocated for the Copyright Office to become an independent agency, rather than being housed in the Library of Congress.

A press release issued today by House Judiciary Chairman Goodlatte (R-Va.) and Ranking Member Conyers (D-Mi.) indicates that Maria Pallante will be leaving the Copyright Office.  This press release also suggests that Congress may take this opportunity to “examine the selection process for the new register.”  Such an examination may be an issue considered as Congress continues to look at bills to modernize the Copyright Office.

Edited to add: On October 25, 2016, Politico confirmed news that Maria Pallante resigned.  Her resignation letter is available here.

Below are some articles covering this recent development:

USPTO Hosts Unbalanced Global Intellectual Property Academy Copyright Seminar

Several weeks ago, the United States Patent and Trademark Office (USPTO) hosted a copyright seminar at its Global Intellectual Property Academy for two dozen intellectual property officials primarily from countries in Latin America, Asia, and Africa. While the first several days involved an “overview” of copyright and mostly time with United States government officials, September 22 was labeled “Industry Day.” The speaker list revealed a very heavy focus on rightholders, in several cases the panels did not have any voices advocating for the importance of consumers and the role of limitations and exceptions in copyright law.

Although I appreciated the opportunity to have participated on a panel on issues related to publishing, I was disappointed to learn that USPTO planned such a highly unbalanced lineup of speakers, overall. By hosting a day almost exclusively comprised of copyright maximalists, USPTO provides its audience, intellectual property officials in other countries, only one side of the story.

Balance is critical in a functional copyright system to ensure that user rights are protected. In addition to the numerous specific limitations and exceptionsin copyright law, the United States has a strong “safety valve” in its copyright system: fair use. This flexible doctrine accommodates new technologies and circumstances. It ensures that Congress does not need to pass new legislation each time a new limitation or exception is needed. Fair use, of course, is not limited to consumers of copyrighted goods and is essential to rightholders as well. Rightholders have successfully relied on the right of fair use in litigation, even though they often complain about consumers who rely on this doctrine. The U.S. Government also relies on fair use; the Patent and Trademark Office itself relies on it in the patent examination process and for photocopying materials. Despite the importance of fair use and other limitations and exceptions, the panels appeared to be heavily skewed only toward discussing the rights of rightholders. Absent from these panels were voices like documentary filmmakers, remix artists, consumer groups and others who would provide different perspectives from the traditional content industry and give the audience a more balanced view of the United States copyright system.

On my own panel, the other speakers included Allan Adler of the Association of American Publishers (AAP), Ryan Fox of the Authors Guild, and Michael Healy of the Copyright Clearance Center (CCC).  All of these groups strongly advocate for greater rights of rightholders and have been involved in recent cases opposing fair use (such as Authors Guild v. HathiTrust or the Georgia State E-Reserves Case), as parties to the case, as amici, or by funding the litigation (or some combination).

These USPTO seminars would benefit from a more diverse groups of speakers who can provide meaningful balance.

Below is the full list of topics and speakers from “Industry Day”

Overview of Key Issues facing the Music Industry

Part 1: Efficient and fair licensing, collection and distribution of royalties

Tim Dadson, Assistant General Counsel, SoundExchange

Erich Carey, Vice President & Senior Counsel, Litigation at National Music Publishers’ Association (NMPA)

Part 2: Sound recording licensing

Steve Marks, Chief, Digital Business & General Counsel, RIAA

Greg Barnes, General Counsel and Director of Governmental Affairs, Digital Media Association (DiMA)

Overview of Key Issues facing the Audiovisual (Film) Industry

Kevin Rosenbaum, Of Counsel, Mitchell Silberberg & Knupp LLP; Counsel to the International Intellectual Property Alliance (IIPA)

Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company

Paula Karol Pinha, Director of Public Policy, Latin America -Netflix (invited)

Overview of Key Issues facing the Software Industries

Ben Golant, Entertainment Software Association (ESA)

Christian Troncoso, Director of Policy, Business Software Association (BSA) | The Software Alliance

Chris Mohr, Vice President for Intellectual Property and General Counsel, Software and Information Industry Association (SIIA)

Overview of Key Issues facing Photographers and Visual Artists

Joshua J. Kaufman, Chair, Art, Copyright & Licensing Practices, Venable LLP

Tom Kennedy, Executive Director, American Society of Media Photographers (ASMP)

Overview of Key Issues facing the Publishing Industry

Michael Healey, Executive Director, International Relations, Copyright Clearance Center (CCC)

Allan Adler, General Counsel and Vice President for Government Affairs, Association of American Publishers (AAP)

Ryan Fox, Editorial Director, Author’s Guild

Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries

ICYMI: Library Copyright Alliance Files Comments Regarding Mandatory Deposit

On August 18, 2016, the Library Copyright Alliance (LCA) filed a response to the Copyright Office’s Notice of Inquiry regarding mandatory deposit of online-only books and sound recordings.  LCA’s comments support expansion of the 2010 interim rule, which applied to mandatory deposit of online-only electronic serials (newspapers, journals, etc.), to books and sound recordings.

The comments point out the critical role mandatory deposit plays in the Library’s mission to collect, preserve and provide access to all types of works, regardless of publication type.  LCA’s comments point out:

Without mandatory deposit, works created in the digital age could be lost forever. We have seen this loss happen in the film industry. Approximately half of all films made before 1950, and most silent films, are unavailable because no effective mechanism existed at the national level to preserve these important pieces of our cultural heritage and history. The Library is actively and commendably trying to ensure that such enormous permanent losses are not replicated in the digital era. Mandatory deposit of online-only works is the necessary and appropriate solution. Although the present Notice of Inquiry presents only the issue of extending the interim rule to online-only books and sound recordings, serious consideration also should be given to applying the rule to other categories of works, such as photographs and films, to ensure that all types of works are adequately preserved and included in our national Library.

The comments also support expanding access to works collected through mandatory deposit and:

limiting simultaneous access to two on-site users at dedicated terminals is too restrictive and not in accord with current practices in the library community. Access is an essential component of the Library’s mission and such a limited policy hampers the spread of knowledge and culture. Extension of the applicability of the interim rule should involve reconsideration of the current, overly conservative limitation of accessing materials to two on-site terminals at the Library.

In total, there were fifteen submissions to the Copyright Office with respect to this notice of inquiry.  Libraries submitting comments include the University of Michigan, University of California Los Angeles, and University of Virginia.