Monday 4 May 2015

Some News from the U.S. Copyright Office

U.S. Copyright Office Publishes Its Online Fair Use Index

The U.S. Copyright Office recently published online its Fair Use Index. It explains on its site that “[t]he goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody). The Index was created “to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair.”

The Index allows visitors to search a database of fair use judicial decisions from federal jurisdictions, district courts, courts of appeal and the U.S. Supreme Court. The Index does not, however, include all judicial opinions on fair use, but will be updated and expanded periodically. When clicking on a particular decision, a new page opens, which is a pdf document about the case, informing the reader about its date, court, key facts, issue, holding, tags and outcome. What is particularly interesting is the ability to search fair use cases for specific categories, such as “parody” or “music.”

This is a welcome initiative, as fair use is always a mixed question of law and facts and there is no way to predict with certainty if a particular use will be deemed fair by the courts. However, one can regret that the Index does not include the full text of the courts’ opinions, but only their citations, which can be used to easily search for them online, including on free sites such as Google Scholar or Justia.

House Judiciary Committee Hearing: The Register’s Perspective on Copyright Review

On April 29, the House Judiciary Committee held a Hearing on The Register’s Perspective on Copyright Review. It heard the Honorable Maria A. Pallante, Register of Copyrights and Director of the United States Copyright Office.

In her 36-page written statement, Ms. Pallante wrote about the role and functioning of the Copyright Office and listed the “policy issues that are ready for legislative process” (Pallante, p. 10). These issues are: music licensing, small claims, felony streaming, section 108 on library exceptions, orphan works, resale royalty, improvements for persons with print disabilities, and section 1201 on regulatory presumption for existing exemptions.

Music Licensing

Indeed, the Copyright Office published last February its Copyright and the Music Marketplace report, which suggested some changes in music licensing such as fully federalizing pre‐1972 sound recordings, which are currently only protected under state law, a situation which, for the Copyright Office, “impedes a fair marketplace.”

Small Claims

The Subcommittee on Courts, Intellectual Property & the Internet held a hearing in July 2014 about copyright remedies, where the issue of small courts was discussed (see transcript here). Ms. Pallante quoted Representative Coble, who said during this hearing that “smaller copyright owners find it not worth their time or money” to litigate (Pallante, p. 12). As early as 2013, the Copyright Office recommended the creation of an administrative tribunal, to serve as an alternative to federal courts in some copyright infringement cases. It would be interesting to see if this tribunal will finally be created.

Felony Streaming

Ms. Pallante also recommended that Congress “bring the criminal penalties for unlawful streaming in line with those for other criminal acts of copyright infringement,” that is, charging people engaging in unlawful internet streaming with a felony, not a misdemeanor as it is the case now (Pallante, p. 13).

Section 108 Library Exceptions

As for Section 108, it “fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries” (Pallante p. 14). The Copyright Office is of the opinion that “Section 108 must be completely overhauled” and is currently preparing a discussion draft (Pallante, p. 15).

Orphan Works

Ms. Pallante also wrote that “[o]rphan works is ripe for a legislative solution” and affirmed that “the Copyright Office favors a legislative framework in which liability is limited or eliminated for a user who conducts a good-faith, diligent search for the copyright owner” (Pallante, p. 16). However, the rights of the authors, copyright owners and their heirs must be preserved as well.

Resale Royalty
The Copyright Office agrees that resale royalties rights (or droit de suite) may benefit certain visual artists, who are now at a disadvantage under current U.S. law, as they cannot take advantage of the value of their work going up. As such, “there are sound policy reasons to address this inequity, but … the administrative and enforcement costs of a resale right might be substantial.” Therefore, the Copyright Office suggests that Congress should “consider a number of possible alternative or complementary options for supporting visuals artist within the broader context of art industry norms, art market practices, and other pertinent data,” but Ms. Pallante did not elaborate further. (Pallante, p. 19).

Improvements for Persons with Print Disabilities

As for the improvements for persons with print disabilities, the Copyright Office “supports swift ratification of the recent Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and is currently working with the Administration to achieve that result.”

Ms. Pallante also listed other “policy issues that warrant near-term study and analysis” (p. 21). They are other issues of Section 1201, such as its anticircumvention provisions, Section 512 on notice and takedown, and safe harbor, mass digitization, and moral rights.

Section 1201 Anticircumvention Provisions

Ms. Pallante noted that the anticircumvention provisions of Section 1201 prevent consumers from “engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implications under copyright law” (Pallante, p.24). That issue has been in the news lately, as the proposed exemption to prohibition on circumvention of copyright protections systems for access control technologies was published on December 12, 2014, and

would allow circumvention of TPMs [ Technological Protection Measures] protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.”

An IP counsel for John Deere, manufacturer of agricultural, construction, and foresting equipment, recently sent comments to the Copyright Office about this proposed exemption, stating that it is overbroad and that it would violate vehicle manufacturers’ copyright in their software, and that the user of the tractor merely has an implied license for the life of the vehicle to operate it. Congress already passed last year the Unlocking Choice and Wireless Competition Act, which allows consumers to unlock their cell phones. Will Congress also unlock tractors? I will keep you up to date on this important issue, of course. Vroom.

DMCA Notice and Takedown

Ms. Pallante also wrote about the DMCA safe harbors. As the courts have sometimes interpreted these provisions “in ways that some believe run counter to the very balance that the DMCA sought to achieve,” the Copyright Office believes it is time for a “formal and comprehensive study” on the issue. Ms. Pallante mentioned the cost of sending DMCA notices, and how difficult it may be for copyright holders to enforce their right under this take down system.

Mass Digitization

The Copyright Office is completing its analysis of copyright issues raised by mass digitization projects, such as Google Books. Ms. Pallante noted that the problem with mass digitization is “a lack of efficiency in the licensing marketplace, as it is both costly and cumbersome to secure the sometimes millions of authorizations, to the point that rights clearance is a burden (Pallante, p. 26). Even though fair use may be of help, “the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution” (Pallante, p. 27). The Copyright Office “as part of its orphan works and mass digitization report, …will recommend a voluntary “pilot program” in the form of extended collective licensing (“ECL”) that would enable full-text access to certain works for research and education purposes under a specific framework set forth by the Copyright Office, with further conditions to be developed through additional stakeholder dialogue and discussion” (Pallante p. 27).

Moral Rights  

The Copyright Office “believes that [the issue of moral rights] is a critical topic for further analysis.” Individual authors face moral right issues, such as attribution and the right to say no to particular uses, and Ms. Pallante noted that some academics questioned the strength of moral rights in the U.S. after the Supreme Court Dastar Corp. v. Twentieth Century Fox FilmCorp. case.
In the Office’s view, any comprehensive review of the functioning of the copyright system must give serious and sustained attention to the individual rights of authors—apart from corporate interests—and the need to ensure that those personal interests are adequately protected. For this reason, the Office believes that further formal study of moral rights in the United States is an appropriate next step in the congressional process” (Pallante p. 28).

It seems that the year ahead may see, if not legislation, at least some interesting discussions about U.S. copyright.  

Image of Copyright Office Hearing Room courtesy of Flickr user Peter Brantley under a CC BY 2.0 license

Image of books courtesy of Flickr user mollyali under a CC BY-NC 2.0 license.

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