The US ratification of the Marrakesh Treaty: what has changed?

Juliette Guillemot Bell

The 1709 Blog is delighted to host the following contribution by Juliette Guillemot Bell on the recent US ratification of the Marrakesh Treaty. 

Here’s what Juliette writes:

“On February 8, 2019, the U.S. Marrakesh VIP Treaty ratification document was formally deposited at the World Intellectual Property Organization (WIPO). The ratification of the Marrakesh VIP Treaty by the U.S. brings the number of contracting parties to 50 and, as of May 8, 2019 [date of entry into force in the U.S.], this Treaty will be effectively implemented in 78 countries (including the 28 member countries of the European Union).

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (aka the “Marrakesh VIP Treaty”) was signed on June 27, 2013 under the auspices of WIPO and became effective on September 30, 2016.

This Treaty establishes exceptions to national copyright laws for the reproduction, distribution, and making available of published works in formats accessible to persons who are blind, visually impaired, or have other print disabilities (such as braille, e-text, audio or large print). It also permits the cross-border sharing of these formats.

Before the Marrakesh VIP Treaty was signed, the U.S. already had mechanisms in place to make copyrighted works available to persons with print disabilities in specialized formats.

Indeed, in 1931, the Library of Congress’s National Library Service for the Blind and Physically Handicapped (NLS) began administering a program for the reproduction and distribution of copyrighted works in specialized formats on a royalty-free basis. However, because the success of this program was dependent on copyright holders granting permission to reproduce their works, in 1996, the Chafee amendment to the U.S. Copyright Act was adopted. This amendment established a limitation on the exclusive rights in copyrighted works by allowing certain entities to provide published works in specialized formats to persons with print disabilities (17 U.S. Code § 121).

The Marrakesh Treaty Implementation Act (MTIA), signed into law on October 10, 2018, aligned U.S. copyright law with the requirements of the Marrakesh VIP Treaty by (1) broadening the scope of section 121 of the Copyright Act, and (2) creating a new section – 121A – to address the cross-border aspects of the Treaty.

Section 121 - “Limitations on exclusive rights: Reproduction for blind or other people with disabilities”

Prior to the adoption of the MTIA, section 121 allowed “authorized entities” to reproduce and distribute copies or phonorecords of previously published “nondramatic literary works” in “specialized formats” exclusively for use by “blind or other persons with disabilities.” While the MTIA did not modify the preexisting definition of “authorized entity” [a nonprofit organization or a governmental agency whose primary mission is to provide specialized services (such as education or information access) to blind or other persons with disabilities], it expanded the scope of copyrighted works, formats, and beneficiaries under section 121:

• Previously, section 121 only covered “nondramatic literary works” and thus excluded, among others, dramatic works (e.g. the published script of a play). The MTIA made section 121 applicable to all literary works, as well as musical works fixed in the form of text or notation. The Marrakesh VIP Treaty contracting parties also clarified in an agreed statement that audiobooks fall within the scope of the Treaty;
• Section 121 no longer refers to “specialized formats,” defined by reference to specific technologies (such as braille, audio, or digital text), but to “accessible formats,” which are defined broadly as an “alternative manner or format” giving an “eligible person” access to a copyrighted work “as feasibly and comfortably” as a person without a disability;
• Section 121 no longer refers to “blind or other persons with disabilities” but to “eligible persons,” i.e. individuals who are blind, have a visual impairment or perceptual or reading disability, or have a physical disability that prevents them from reading normally (for example, a physical disability preventing a person from holding and manipulating a book).

It is worth noting, as clarified by the MTIA, that section 121 only provides limitations on exclusive rights for activities taking place in the U.S. and that the cross-border aspects of the Marrakesh VIP Treaty are dealt with under section 121A (see below).

It is also worth noting that the U.S. did not confine the application of section 121 to copyrighted works that cannot be "obtained commercially under reasonable terms for beneficiary persons in that market," as allowed by the Treaty [Canada, on the other hand, has opted to use this possibility], and did not make the limitations on exclusive rights under section 121 subject to remuneration (also allowed by the Treaty).

Section 121A - “Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries”

Section 121A addresses the cross-border aspects of the Marrakesh VIP Treaty by allowing the exportation and importation of copyrighted works in accessible formats between the U.S. and other countries who have signed the Marrakesh VIP Treaty. Authorized entities may export copies of copyrighted works (as defined under section 121) in accessible formats to either (a) another authorized entity in a country that is a party to the Marrakesh VIP Treaty, or (b) an eligible person in such a country, provided that the exporting entities do not know or have reasonable grounds to know that the copies will be used other than by eligible persons. In addition, authorized entities, eligible persons, and agents of eligible persons may import copies of copyrighted works in accessible formats.

Section 121A also provides that authorized entities engaged in such activities must establish and follow their own practices to:

• Ensure they serve “eligible persons” (as defined under section 121);
• Limit the distribution of accessible format copies to eligible persons and authorized entities;
• Discourage the further reproduction and distribution of unauthorized copies;
• Maintain due care in, and records of, their handling of copies of copyrighted works, while respecting the privacy of eligible persons; and
• Make publicly available the titles of works for which they have accessible format copies (and the formats in which they are available), as well as information on their policies, practices, and authorized entity partners.

The ratification of the Marrakesh VIP Treaty by the U.S. marks an important milestone in addressing the 'global book famine,' referring to the fact that over 90% of all published materials cannot be read by persons with print disabilities. According to WIPO Director General Francis Gurry “The U.S. already houses the world’s largest repository of accessible English-language material, representing a major increase in the global resource base for visually impaired people living in countries that have joined the Marrakesh Treaty.""

THE COPYKAT goes back to school

Cartoonist sues Infowars over Political Pepe Poster

The illustrator behind Pepe the Frog, one of the internet’s most popular meme characters, is suing Infowars for copyright infringement.

Matt Furie first illustrated Pepe the Frog, a "blissfully stoned" and "peaceful frog-dude" in 2005. According to the website Know Your Meme, Pepe became associated with the “Feels Good Man” reaction. By 2015 however, the 4chan and Reddit communities perpetuated a connection of Pepe to Donald Trump, with the latter even re-tweeting an image of Pepe as himself.

Several news outlets have explored how fringe groups connected with the American "alt-right" movement have attempted to adopt Pepe, mixing him with various images of hate (see the Daily Beast’s How Pepe the Frog Became a Nazi Trump Supporter and Alt-Right Symbol). Unsurprisingly, Furie has vowed to “aggressively enforce his intellectual property rights” to prevent the unauthorised use of Pepe, as previously discussed by IPKat and the 1709 Blog.  

In this latest complaint, Furie alleges that the American conspiracy theorist website Infowars has misused the Pepe character in merchandise, and in particular, in a "Make America Great Again" poster. In the poster, Pepe appears alongside President Donald Trump, and various other individuals associated with the President and/or with white nationalist views. Infowars claims these are “the heroes of the 2016 anti-establishment revolution,” and notes that “the establishment wants this [poster] taken down.”

Furie's lawsuit notes that damages alone are insufficient compensation for the alleged copyright infringement. He is therefore also seeking a permanent injunction to prohibit Infowars from using Pepe the Frog, or any derivative work based on Pepe.

This is not the first time Infowars has been caught out for copyright infringement. As reported by Buzzfeed in November 2017, InfoWars has copied more than 1,000 articles produced by Russian state-sponsored broadcaster RT without permission.

Chicago landmark featured in controversial political advert without sculptor’s permission

Continuing with the theme of American politics, the artist who created the iconic Cloud Gate in Chicago is “disgusted” that the National Rifle Association (NRA) has featured his sculpture in a recent advertisement.

Nicknamed "the Bean," Cloud Gate is a three-storey high mirrored oblong in central Chicago, created by Indian-born British artist Anish Kapoor. In their video entitled “The Clenched Fist of Truth”, the NRA flashes footage of the sculpture without Kapoor’s consent. In an open letter, Kapoor writes:

Cloud Gate reflects the space around it, the city of Chicago. [...] In the NRA’s vile and dishonest video, Cloud Gate appears as part of a montage of iconic buildings that purport to represent ‘Liberal America’ [...] The NRA in it’s nationalist rhetoric uses Cloud Gate to suggest that these ideas constitute a ‘foreign object’ in our midst. The NRA’s video gives voice to xenophobic anxiety, and a further call to ‘arm’ the population against a fictional enemy. [...] The NRA’s nightmarish, intolerant, divisive vision perverts everything that Cloud Gate – and America – stands for.

Although members of the public are welcome to take and share photographs of Cloud Gate, Kapoor owns the copyright to commercial images of the sculpture, and did not give the NRA permission to use it for their campaign. It is worth noting that the NRA may have chosen to feature a Chicago landmark as a reference to one of Chicago’s most famous former residents, Barack Obama.

However, “much to his shame,” Kapoor has decided to forego legal action against the NRA for its use of Cloud Gate. He explained that after considering his legal options, he was “not prepared for the financial and emotional cost of a protracted fight against the extremely aggressive [and] legalistic” NRA. This story comes at a time of heightened debate surrounding gun control in the United States, after a recent mass shooting in a Florida school left 17 dead.

Fair dealing exemption for Canadian classrooms

Federal Members of the Canadian Parliament have begun a mandated review of the Copyright Act, which is expected to carry on throughout 2018. One issue MPs are examining is the application of “fair dealing” exemption to classroom uses of copyright-protected materials.

In 2012, the Canadian government changed the Copyright Act to include “education” as a stated purpose in the fair dealing exemption. Doing so permits teachers and students to use copyright-protected materials for educational purposes, without having to obtain copyright permission or pay copyright royalties.

The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), has recently released the Education Ministers' Policy Statement on Fair Dealing. As Zach Churchill, Minister of Education and Early Childhood Development for Nova Scotia and Chair of the CMEC Copyright Consortium explained,  "It's important that copyright law balances the necessary protection of artists and writers works with the ability of teachers and students to use short excerpts from copyright-protected materials in their school work."

Fair dealing does not allow teachers to make unlimited use of any copyright-protected work without permission or payment. Rather, the fair dealing exemption only permits the use of “short excerpts” for educational purposes.

However, the Writers’ Union of Canada says poorly defined changes to the Copyright Act prompted many Canadian schools “to adopt radically expanded copying practices, abandoning the established licensing structure that saw writers and publishers compensated for the use of their work.”

The CMEC statement concludes by asserting that the current Copyright Act works to support Canadian students, without harming the publishing industry.

Copyright fees hit the wrong note with Japanese music schools

Fair dealing for educational purposes is also a hot political story in Japan. The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) is Japan’s largest copyright management agency. As reported by the Japan Times last year, JASRAC says that “when teachers play a song on the piano in front of their students without permission, they are committing a copyright violation.”

JASRAC announced that private music schools will be required to pay copyright fees, as the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Japan’s Copyright Law. Kenzo Ohashi, a managing director at JASRAC, explained that music schools must pay copyright fees, because the schools cannot benefit from the exception for performances that are not for profit. JASRAC seeks to collect 2.5 per cent of all annual fees charged by the music schools.

Critics of the move include the Yamaha Music Foundation, which teaches nearly 400,000 students across more than 3,300 schools. Together with about 350 music school operators and other music businesses, they filed a lawsuit in Tokyo District Court against JASRAC, to argue that copyright fees should not be payable when using music for educational purposes.

In December 2017, the group of music-schools and instrument-makers asked the Agency for Cultural Affairs to suspend copyright fee collection until their ongoing lawsuit with JASRAC concludes. However, the collection of fees is supported by the Agency for Cultural Affairs. In a recommendation published on Monday, Ryohei Miyata of the Agency for Cultural Affairs issued a ruling in support of JASRAC collecting such fees. In response to this, JASRAC announced that collection of copyright fees will be started from the music class from April 1.

Calls to reform Australian fair dealing provisions

The Australians are also looking at Copyright law reform and modernisation in respect of fair dealing.

50 years after the passage of the Copyright Act 1968, the Government is now seeking commentary from the public in respect of how Australian copyright law can be modernised and updated. In a consultation paper (PDF) published earlier this month,  the Government highlights three areas of the Copyright Act which may benefit from modernisation: flexible exceptions, contracting out of exceptions, and access to orphan works.

While American “fair use” doctrine is rather flexible by comparison, the key difference between “fair use” and the Australian principle of “fair dealing” is that Australia’s laws set out defined categories of acceptable uses in statute. By way of illustration, Lifehacker explains that in the United States, the fair use doctrine made it permissible to use a VCR to record television at home in 1984. Doing so In Australia however was not legal until parliament created a specific exception in 2006, by which time VCRs were already obsolete.

The current fair dealing regime in Australia allows access to copyright content for criticism or review, parody or satire, reporting news, research or study, giving professional advice, and disability access. The government is now considering adding several new provisions, including those for the purposes of quotation, non-commercial private use, incidental or technical use, data mining and library use, and certain educational uses.

Amongst other questions, the consultation asks the public to what extent they would support the introduction of fair dealing exceptions, and what factors should be considered in determining fairness. Responses to the consultation may lead Australian lawmakers to consider a more adaptable approach to copyright law which is more in line with recent technological advances. The Australian Law Reform Commission has already proposed arguments in favour of adopting fair use.

The Department invites submissions by email, post, or website before 5.00 pm on Monday 4 June 2018.

Bollywood star calls copyright laws “rubbish”

Amitabh Bachchan is generally considered one of the greatest and most influential actors in Indian cinema. In addition to being a world-famous actor, director and producer himself, Bachchan is also the son of a famous Hindu poet and literary scholar, Harivansh Rai Srivastava (known by his pen name of Bachchan) .

Bachchan's work has been used in Movies and music multiple times, including in films "Silsila" and "Agneepath," both starring his son Amitabh. Indian newspaper FirstPost notes that Amitabh also often recites lines from his father's poetry at public functions and on TV shows.

In a recent blog entry, 75 year-old Amitabh voiced strong opposition to the prospect that his father’s works may come into the public domain, writing: “I oppose, disagree, lament, dispute, be in variance of, in vehement loud screams of voice”. The post continues in a rather upset, rambling tone. In particular, he expressed that he did not want his father’s works to be available “for the entire Universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion.”

Under India’s Copyrights Act 1957, original literary works enjoy copyright protection for a 60-year period which begins from the year following the death of the author. Bachchan passed away in 2003.

For Berne convention signatories, copyright must exist until a minimum of 50 years after the author's death (Berne Convention, Article 7). A number of jurisdictions, including the European Union and the United States, have chosen longer terms of 70 years after the author's death. India’s length is 60 years, but many countries have even shorter terms - some even at 25 years.

Nevertheless, Amitabh writes that his father’s writings are Amitabh’s alone, because “that is my inherited right .. it shall prevail .. ” He continues, “My inheritance be mine.. not another’s after the passing of its stipulated time in years .. 60 .. I am genetically my father’s son .. he be willed to me of all that be in asset of his .. his writings be his .. his heir be me .. his writings be mine .. MINE ! I shall not and will not allow its dilution to general public .."

Amitabh calls copyright law “rubbish” and asks, “how can individual property become public property?” It is somewhat disappointing to see that a man famous for his work in the dramatic arts is seemingly unable to appreciate the benefit of works entering the public domain. Maybe he should have skimmed through the 1709 Blog before sharing his own post...

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its suspicious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called it “one of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. The video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

In addition to the plot - in which a bored young woman has a crazy dance party in a fancy hotel - the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Although a lawsuit or formal complaint is unlikely, the controversy is already being heard out in the court of public opinion. Taylor Swift’s representation are yet to respond to the criticism.

Upcoming Events

The Humboldt Institute for Internet and Society in Berlin is hosting a workshop series to discuss the most urgent issues around music and copyright law in the digital society. The next workshop is “Deconstructing Intellectual Property Protection for Music” on 19 April - it’s been confirmed that at least one IPKat will be there! For more information visit the workshop website here.

The University of Cyprus is hosting a conference entitled "Pluralism or universalism in international copyright law" from 31 May through 1 June 2018. For more information visit the conference website here.

This CopyKat by Kelsey Farish

The beginning-of-winter Copykat!

The Electronic Frontier Foundation is not really happy at this moment

The Electronic Frontier Foundation published recently an article about the problem of the CASE Act of 2017. We will summarize it, but you can find the entire article here !

The CASE Act of 2017 has been criticised for many reasons, but the EFF here is quite clear: they don’t want it. For them, the CASE Act will have several unwanted consequences, and the first of them is the fact that the Copyright Office will become a Copyright Court. This is the worst that could happen for them, because “the Copyright Office it not known for its neutrality on copyright issues”. According to the EFF, this will magnify the problem of copyright’s unpredictable civil penalties.

Indeed, the CASE Act of 2017 would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The proceedings will be voluntary, but if a respondent fails to opt-out, the proceedings become binding and the outcome can be enforced in federal court. According to the CASE Act, the board car issue damages award up to $15 000 per work infringed, or €30 000 per proceeding. And of course, if the parties consent, it can issue “agreements to cease infringing activities” … that become binding injunctions.

For the EFF, the opt-in method “would have greater incentive to design proceedings that safeguard the respondent’s interests, and clear standards that everyone can understand. Equally importantly, an opt-in approach would help ensure that both participants affirmatively choose to litigate their dispute in this new court, and help prevent copyright holders from abusing the system to obtain inexpensive default judgments that will be hard to appeal”.

And you, what do you think?

EU Parliament voted for a copyright reform aimed at making more TV shows and films available online across borders

Commercial TV broadcasters, football leagues and film producers scored a win on Tuesday when European Union lawmakers watered down a copyright reform aimed at making more TV shows and films available online across borders.

The EU Parliament

EU Parliament voted to restrict the scope of the copyright proposal to news and current affairs, excluding TV shows and films. It means that broadcasters will be able to show their news content online across the EU, but only after clearing the rights in their home country!

The original proposal was contested by the media industry. According to them, voting this kind of proposal would have lead to “pan-European licensing, diluting the value of exclusive rights and squeezing out smaller broadcasters that would be unable to afford pan-EU rights”. Indeed, films and TV shows are often broadcast when selling exclusive distribution rights on a country-by-country basis.

However, the vote is not final and dissenters still have hope as the EU Parliament will have to find compromise with member states in the coming months. 

Call collect?

A couple of snippets of news from the world of collection societies: First off, The US Copyright Royalty Board is to raises some of the music streaming royalty rates instigating a change based on a cost of living adjustment for the rates paid to copyright holders by online webcasters. The rates increased to $0.0018 for commercial ad-supported non-interactive music streaming services, and $0.0023 per performance for paid services. That's up slightly from $0.0017 and $0.0022, respectively. Additional rate announcements from the CRB are expected in the coming days.  And the collecting societies representing song rights saw the monies they collect worldwide rise by 6.8% to €8 billion last year – a jump in part fuelled by a 52% increase in digital income – according to new figures published by CISAC. Across all its member societies, digital income was up 51.4% at just under €1 billion. CISAC notes that the boost mainly came from premium streaming services. 

Except this? Except that?

The World Intellectual Property Organisation is going to take a long hard look at the issue of limitations and exceptions to copyright, and provide a draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. The plans, being discussed in this week’s committee meeting, include brainstorming sessions, studies, and regional seminars, and conferences to advance understanding and issues related to copyright for those particular actors. The WIPO secretariat has circulated a document [pdf] providing draft action plans for different strands of the discussions for the 2018-2019 biennium.  

Web-blocking in Switzerland and South-Africa?

You may no know what web-blocking is… This is the anti-piracy tactic where rights owners can get injunctions forcing internet service providers to block their customers from accessing piracy websites. For right owners, this is the perfect anti-piracy tool, and they surely hope that this tool would soon be available in more and more countries.

A new Cybercrimes and Cybersecurity Bill is currently on trail in South Africa, and the local entertainment industry asked for web-blocking. The local entertainment industry took the example of some European countries, in which there is already this web-blocking tool, and asked the ISPs to consider adopting this method. Just like in some European countries, such as France with its “Hadopi”, they also asked for the ISPs to send warning letters to suspected online infringers, and maybe even monitor infringement on their networks.

Unfortunately, none of that is going to be included in the Cybercrimes and Cybersecurity Bill. Ministers opposed them that their proposals were not within the remit of the Bill. However, another Bill is coming, based on seeking to amend the country’s copyright law, and these proposals would be better put forward for that legislation.

In Switzerland, we’re focusing on a copyright review. A lot of critics have been going on for some time on the fact that the copyright regime is ill-equipped to deal with infringement. Indeed, in Switzerland, casual downloading and streaming of unlicensed content is covered by the pesky private exception.

Various new anti-piracy measures have been proposed during the current copyright review and an update on which proposals will go forward was published last week. A possible takedown-and-stay-down requirement has been proposed… Is something great coming?

According to Torrentfreak, Swiss lawmakers have already knocked back proposals that web-blocking be introduced there. However, as people will still be able to “pirate” copyrighted material (as long as that content is consumed privately), it does not include videogames and software. And here is something new: any supposed losses will be compensated via a compulsory tax of 13 Swiss francs, levied on media playback devices including phones and tablets.

You may also note that uploading is explicitly ruled out. Rights-holders will be able to capture IP addresses of suspected infringers in order to file a criminal complaint with authorities! That being said, there will be no system of warning notices.

As you see, the news is coming, and it sounds better than before!

This Copykat from Lolita S.