Tag Archives: international copyright

New Advocacy and Policy Update

The latest ARL Advocacy and Public Policy Update (covering the period from October 1 to December 22) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

Copyright continues to be an active area with a number of developments since October. The House Judiciary Committee continues to move forward with its copyright review and is close to completing its schedule of meetings between House Judiciary majority and minority staffers and witnesses who testified at hearings during the course of the review. In early 2016, members of the House Judiciary Committee will determine what issues they may want to work on with respect to possible reform. Additionally, Representatives Marino, Chu and Comstock introduced their bill on Copyright Office modernization, which would move the Copyright Office out of the Library of Congress and establish it as an independent agency within the legislative branch. On October 16, 2015, the Court of Appeals for the Second Circuit released its long awaited opinion in Authors Guild v. Google, strongly affirming fair use. Also in October, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking. Finally, the Library Copyright Alliance (LCA) filed comments responding to the Copyright Office’s Notice of Inquiry regarding a proposed pilot program for mass digitization and extended collective licensing. These comments questioned the wisdom of such a pilot program.

The US Congress passed the omnibus appropriations bill for FY 2016 and avoided a government shutdown. The omnibus exceeded mandatory caps on discretionary funding, resulting in positive results for higher education and libraries.

The Department of Education issued a proposal to amend regulations and require that all Department grantees awarded direct competitive grant funds openly license all copyrightable intellectual property created with these funds. ARL submitted comments supporting the benefits of open licensing and encouraging continued dialog.

ARL joined in comments on the proposed revision to OMB Circular A-130, the Circular that provides the rules of the road for federal information management and information technology.

The DC Circuit heard oral arguments on net neutrality in December. Although threats regarding a rider to undermine the FCC’s ability enforce its net neutrality rules emerged during the omnibus appropriations process, this rider was ultimately not included.

Congress continues to consider reform of the Electronic Communications Privacy Act (ECPA), and there is widespread support in the House for such reform. The Cybersecurity Information Sharing Act of 2015 was altered in ways that raise greater privacy concerns than its original version and was passed in the omnibus appropriations bill.

The US Supreme Court heard oral arguments in Fisher v. University of Texas at Austin (Fisher II), a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

Finally on the international front, more countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled, moving the Treaty closer to entry into force. The negotiations of the TransPacific Partnership Agreement (TPP) have now been finalized and the texts are now public, but the agreement must still be signed and passed by each of the negotiating parties.

Recent Developments on UN Special Rapporteurs: copyright policy; privacy in the digital age

There have been two recent developments regarding UN Special Rapporteurs in the last month relevant to issues of copyright and privacy.  First, UN Special Rapporteur in the filed of cultural rights, Farida Shaheed, presented her report on Copyright policy and the right to science and culture to the Human Rights Council on March 11, 2015.  Then, on March 26, 2015, the Human Rights Council voted to establish a new UN Special Rapporteur on the right to privacy in the digital age.  Below are some highlights from Shaheed’s report.

Copyright policy and the right to science and culture

Shaheed’s report on copyright policy contains many positive aspects, specifically emphasizing the importance of access to knowledge and noting the problems that may arise in promoting such access because of high copyright protections.

In discussing copyright policy, the report draws a line between human authors and corporate rights holders, noting that authors may sell their copyright interests to a corporation.  However, corporate rights holders “economic interests do not enjoy the status of human rights.  From the human rights perspective, copyright policy and industry practices must be judged by how well they serve the interests of human authors, as well as the public’s interest in cultural participation.”  Furthermore, “Corporate rights holders with immense financial resources and professional sophistication are typically better positioned to influence copyright policymaking, and may even claim to speak for authors in copyright debates.  Unfortunately, the material interests of corporate rights holders do not always coincide with those of authors.”

Shaheed points to the importance of a balanced copyright system that takes into account limitations and exceptions:

Designing copyright law to promote the material interests of authors requires nuance.  “Stronger” copyright protection does not necessarily advance the material interests of creators.  Exceptions and limitations often support creators’ material interests b offering opportunities for statutory licensing income or the possibility of relying in part on the work of other artists in a new work or performance.  An  appropriate balance is crucial, recognizing the creators are both supported and constrained by copyright rules . . .

[ . . . ]

Copyright exceptions and limitations — defining specific uses that do not require a licence from the copyright holder — constitute a vital part of the balance that copyright law must strike between the interests of rights-holders in exclusive control and the interests of others in cultural participation.  Copyright exceptions and limitations have rarely been the topic of international norm-setting, hence State practice varies significantly.

The report notes that limitations and exceptions can: empower new creativity, expand educational opportunities, and expand non-commercial culture.

Additionally, the report notes that “A human rights perspective . . . requires that the potential of copyright exceptions and limitations to promote inclusion and access to cultural works, especially for disadvantaged groups, be fully explored,” for example the 2013 WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled.

The report also points out that flexible limitations and exceptions can adapt to new circumstances and changing technologies:

A few countries have a more expansive and flexible exception or limitation, commonly referred to as “fair use.”  Such provisions authorize courts to adapt copyright law to permit additional unlicensed uses that comply with general standards of fairness to creators and copyright holders.  For example, the fair use doctrine in the United States encompasses protection for parody and certain educational uses.  It has also been interpreted to permit a search engine to return thumbnail-sized images as part of its search results and to protect technology manufacturers from liability where consumers record a television show to watch later.  Most States do not have such broad and flexible exceptions and limitations; instead each specific type of allowable use is listed in the statute.  While enumerated provisions may provide greater clarity regarding permitted uses, they may also fail to be sufficiently comprehensive and adaptable to new contexts.

Shaheed’s report also discusses the importance of open licensing, such as the Creative Commons license, and notes that “Open access publishing is emerging as a significant alternative model for disseminating scientific knowledge.”

The report also notes the “democratic deficit in international policymaking on copyright,” pointing to the lack of transparency in, for example, the negotiations of the Trans-Pacific Partnership Agreement (TPP).  These discussions happen “without benefit of public participation and debate.”  While Shaheed points out that WIPO treaty negotiations are more transparent, “Regardless of the forum, concern is often expressed that powerful parties may use international rule-making to restrict domestic policy options, advancing private interests at the expense of public welfare or human rights.”

The report concludes with 28 recommendations including, for example:

  • Ensuring that international intellectual property agreements, including trade agreements, are negotiated in a transparent manner.
  • Encouraging states to create limitations and exceptions, including without remuneration “in particular in contexts of income disparity, non-profit efforts, or undercapitalized artists, where a requirement of compensation might stifle efforts to create new works or reach new audiences”
  • Ensuring that exceptions and limitations are not overridden by contracts or impaired by technological protection measures
  • Supporting a WIPO instrument on exceptions and limitations for libraries and education and/or an international fair use provision
  • Promoting open access scholarship and open educational resources, including through government subsidized support (“States should redirect financial support from proprietary publishing models to open publishing models”) and ensuring that public and private universities as well as public research institutions adopt open access, particularly through adoption of Creative Commons licenses
  • Ratifying the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled
  • Providing alternatives to criminal sanctions and blocking of contents/websites for copyright infringement

UN Special Rapporteur on the right to privacy in the digital age

The newly created UN Special Rapporteur on the right to privacy in the digital age was approved by resolution A/HRC/28/L27 and will have an initial 3-year mandate and will “report on alleged violations, wherever they may occur, of the right to privacy, as set out in article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights, including in connection with the challenges arising from new technologies, and to draw the attention of the Council and the High Commissioner to situations of particular serious concern.”  The Special Rapporteur will be appointed in June, approximately two years after leaks revealed the mass surveillance and bulk collection practices of the NSA.