Wolves in sheep’s clothing

A couple of recent developments in the copyright arena remind us that all news is “spun” one way or another (including this blog, I suppose).

A story yesterday in the Chronicle of Higher Education reports that the Copyright Alliance is proposing a wiki site that will help broker permissions requests from academics; the idea is to have representatives of the content industry monitor the site for questions from professors in order to expedite the permissions process. Sounds good, since the process of asking permission is terribly cumbersome and the result is often nothing but silence from the rights holder. But wait; lets look at the example used in the story. A professor wants to show the film “Monty Python and the Holy Grail” to a class on British Humor. Why, we should ask, is that professor seeking permission at all? An in-class screening of a film within the curriculum of a non-profit educational institution is clearly permitted under section 110(1) of the Copyright Act; no permission is needed as long as a legally obtained (bought, rented or borrowed) copy is used.

The fact that this example is used raises some troubling concerns. This wiki would not be the first attempt by the content industries to try to inculcate a more narrow view of the copyright exceptions than is actually the law under the guise of helping with permissions. Even worse, this site could add more ammunition to the claim that as it gets easier to ask for, and pay for, permission for a particular use, the scope of the fair use get narrower. It is imperative that academic institutions and faculty members make their own fair use decisions and ask permission when truly necessary, not merely when there is a convenient hand out to take the money.

Last week also saw the introduction in Congress of a bill called the PRO IP (for “prioritizing resources and organization for Intellectual Property”) Act. In spite of the name, there are many who are pro IP who will not be happy with this bill. Its primary purpose is to ratchet up, once again, the penalties for copyright infringement, both criminal and civil. In the realm of civil damages, this bill would allow music companies to get separate damages for the infringement of each track on an album that has been downloaded without authorization; for a twelve track album the potential damages would rise from a maximum of $30,000 to $360,000. This would be a windfall for some in the content industries, but it is hard to see how it would advance the fundamental purpose of copyright law. I am not at all in favor of illegal file-sharing, but the chilling effect this draconian increase in potential liability could have on legal activities seems to outweigh the benefit it could provide. It is already the case that many people are unwilling to exercise their legal rights because of the scare-tactics used by content owners to prop up their failing business models.

The other major purpose of the PRO IP Act is to create two new bureaucracies in the federal government — a “White House Intellectual Property Enforcement Representative” and a new division in the Justice Department dedicated to IP enforcement. The former office seems to be modeled on the US Trade Representative as an adviser to the President and watchdog over US interests abroad. It is not clear whether there has been some felt need for these additional offices outside of the desire by the big entertainment industries to have as many bureaucrats arguing on their side in the copyright conflicts as possible.

There are comments on PRO IP, as well as some links, here at the Electronic Frontier Foundation site.

3 thoughts on “Wolves in sheep’s clothing”

  1. That example was given by the reporter. I would ask you to focus on the proposal rather than the example. This scenario would only address professors seeking permission; if they are practicing fair use they won’t be asking. And this proposal was given in the larger context of the symposium, which was to brainstorm solutions to problems, such as professors stymied by permissions requests.

    With this symposium of balanced panels, including several champions of fair use, we were trying to take our first steps toward building a constructive dialogue with the academic community on issues not just concerning copyright holders but also academics. Those professors asked us after the event to continue our efforts, as they found them constructive.

    I am sorry you weren’t able to attend the half-day symposium in person; you would have had a much better sense of it than you get from a news article. Feel free to contact the Copyright Alliance the next time you write about us so we can answer your questions.

  2. The example is so egregious that it inevitably leads to suspicion; it is a shame that the Copyright Alliance did not take the opportunity to enlighten this badly misinformed reporter about a fundamental point in copyright law, but I trust I will soon see a clarification from Mr. Ross in the Chronicle.

    As for the PRO IP bill, I recommend this post on William Patry’s blog for readers who are interested in how our copyright law got into such a state that this bill seems like a good idea to our congressional representatives:

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