Category Archives: Copyright Issues and Legislation

Copyright Information Notes, Copyright Issues and Legislation, Technologies

Copyright reform suggestions, part 1

I am a little ashamed to admit that, at the American Library Association meeting last month, I learned about a very problematic provision of the U.S. copyright law that I had never heard of before. Representatives of the Association for Recorded Sound Collections and the Music Library Association spoke to several groups during the meetings in Philadelphia about the effects of section 301(c) on our ability to preserve historical sound recordings. ARSC and MLA are looking for support for their efforts to have 301(c) repealed or amended.

When our “new” Copyright Act was adopted in 1976, one of things it did was explicitly preempt state copyright protection. Before the 1976 Act, unpublished works were protected by a wide variety of different state laws (many with perpetual duration), and federal copyright protection usually only took effect when something was published. This created lots of confusing and difficult situations, so Congress took almost all works, published and unpublished, under federal protection, including the limited federal term of protection.

For some odd reason, Congress crafted an exception for sound recordings that were made prior to February 15, 1972. Those recordings, instead of being subject to the normal copyright rules, continue to be protected by state law until 2067. State protection, which was usually created by judges rather than legislators, often allowed perpetual protection for unpublished works, but were not designed to deal with other materials. Leaving these historical sound recordings subject to the patchwork of state laws has meant that, in fact if not by intent, these historical materials are subject to the most restrictive of state laws and for all practical purposes unusable until 2067. For the earliest recordings, which date from the 1890s, this amounts to a copyright term of over 170 years. Since even preservationists are reluctant to make copies under this bizarre and uncertain regime, many recordings are locked up by copyright for longer that the usable life of the medium in which they are recorded; they will be irretrievably lost before they are available in the public domain.

So here is an opportunity to reform our copyright act to mitigate one of its most pernicious effects – the unnecessary loss of our cultural heritage merely to time and decay – without harming anyone’s economic interests. In fact, compilations of some of these old recordings that are available for sale in other countries but technically infringing in the US could finally be sold here as well. The recording industry frequently lobbies Congress for full performance rights in sound recordings, and there was legislation to add such rights introduced into both houses late last year (the “Performance Rights Act”). Whether or not it is a good idea to subject radio stations to all the licensing fees such a law would require, this seems like a good time to demand a quid pro quo in the shape of repealing the foolish overprotection of historical sound recordings.

Copyright Issues and Legislation, Open Access and Institutional Repositories

In search of a problem?

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I have written before about the PRO IP bill introduced in Congress in December of 2007; its primary purpose seems to be to dramatically increase the amount of statutory damages available to a copyright owner whose work is infringed. The specific way this is accomplished — by allowing a separate recovery of statutory damages for each individual work contained in an infringed collection — seems carefully crafted to benefit the Recording Industry Association of America and almost nobody else. So unusual is this provision that the Copyright Office convened a roundtable to discuss it. According to this report on the event from Public Knowledge’s Sherwin Siy, the most interesting part of that roundtable was the fact that very few participants seemed very strongly in favor of the provision. This seems to be the classic solution in search of a problem, at least to everyone but the RIAA, who simply want larger recoveries from all their litigation. Siy’s long post does an excellent job of explaining the provision, its context and the discussion at the roundtable.  This post by Google’s William Patry, another participant in the roundtable, offers his perspective as well.

What I want to focus on is the unintended consequences of this steep increase in statutory damages on the problem of orphan works. For libraries and higher education institutions, the difficulty with using a so-called orphan work (a work whose rights holder either cannot be determined or cannot be found) is that high risk is associated with great uncertainty. One cannot predict if a rights holder might turn up sometime after your digital display or YouTube video becomes available, but you do know that, if that happens, the potential liability is very great. Thus works that are serving no useful purpose at all remain hidden because statutory damages are so high that they discourage schools from taking even a small risk. Raising those damages as dramatically as PRO IP proposes would magnify this chilling effect, and the result would be a pure social loss — works that are not generating any profit at all for the rights holders will still be locked away from potential users, readers and viewers because of fear.

The Orphan Works legislation introduced in the last Congress was intended to address this fear, so it seems like a good time to consider re-introducing that proposal. The orphan works bill would have made statutory damages unavailable if a user had made a reasonably diligent effort to locate the rights holder and was not able to do so. If a rights holder reappeared after an unauthorized use had been made, they would be entitle to the reasonable licensing fee they could have collected if they had been around to ask in the first place, but not the draconian statutory damages designed to discourage piracy, not scholarship. With a proposal to increase those statutory damages now on the table, it seems like a great time to really press for the reintroduction of orphan works legislation as well. Only if orphan works protection is considered in conjunction with PRO IP can this legislation, which hardly seems to be needed at all, be prevented from doing far more harm than whatever good it is supposed to achieve.

Orphan works is important legislation in its own right; far too much of our cultural past is unavailable because libraries and universities do not dare risk the expensive vagaries of copyright law. A bill to make socially productive uses of this material possible without inhibiting profits at all is worth reintroducing on its merits. But it is absolutely vital at this point, as a corrective to the excessive protectionism of PRO IP. Lets hope someone in Congress sees the obvious connection between these two pieces of legislation, and orphan works protection makes a comeback.

Copyright Issues and Legislation, Technologies

But it is just so easy!

The ease with which we can copy and use stuff found on the Internet, particularly photographs and other images, leads to some delicious ironies when some of the major corporate interests that rail against file-sharing are caught infringing other peoples’ copyrights. The Washington Post published an interesting story on Wednesday that looked at some of these cases where snapshots on the Web were misappropriated for commercial use. Often the unauthorized use is dismissed as accidental — it is amazing how many unsupervised interns appear to doing significant work for these companies — but whether they are the result of inattention or conscious laziness, these lapses suggest that some of the major commercial content owners have little concern for copyrights not their own property. Makes all the rhetoric about theft and the moral claims of creators that is thrown around by these big media companies seem rather disingenuous.

The best thing about this article, however, is the discussion of it, with the wonderful title “Good Artists Copy, Great Artists Steal” on the Info/Law blog. I don’t think I have the chance to point to Info/Law before, but it is an excellent place for information and analysis about the “convergence of intellectual property doctrine, communications regulation, First Amendment norms, and new technology.” This post, which also reports on a recent infringement action filed against Jerry Seinfeld and his wife, is an nice example of a careful yet entertaining dissection of the legal principles at stake in each of the two reported stories.

The point, of course, is that the Internet has fostered a culture of easy borrowing and creative remixing that is at odds with much of our current law. There is a great deal in that culture that is valuable, with its emphasis on user creativity and sharing, and its conflict with much of the prevailing rhetoric about intellectual property is becoming too obvious, and too ubiquitous, to ignore.

Copyright Issues and Legislation

Strangling our cultural past

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In a recent post about “The Global Garroting of the Public Domain,” William Patry describe beautifully how we have arrived, in the US, at such a long term of copyright protection, and how international trade negotiations are used to continually ratchet up the pressure for ever-stronger and ever-longer copyright rules. The main point of his post, about how US interests now seriously threaten the publishing industry in Korea, not because of piracy in Korea but merely because some large US content owners are anxious to keep older works in this country out of the public domain, is a sad lesson in unintended (at least by some) consequences. His post, as well as some interesting comments on it by Georgia Harper here at Collectanea, reinforces a point made in this space about “policy laundering” using international trade negotiations.

As if to add strength to Patry’s argument that the real purpose behind copyright term extension has never been stronger incentives for future creation, but rather to keep older works out of the public domain, two recent news articles recount cases on exactly that topic. In one, with an international flavor of its own, Japanese news sources report that the Supreme Court in that country has rejected a claim by US movie studios that the 1953 movie “Shane” should continue to be protected even though its copyright expired, under the Japanese law in place at the time, at the end of 2003. A new law put an extension of the term into place as on January 1, 2004, but the court declined to apply the extension to movies that fell into the public domain at the same moment that the new term of protection took effect.

Content owners were more successful in their arguments that some studio outtakes from songs by Elvis could not be used in a new album. Although the producer of the new album by Cargo Record firmly believes that the material was recorded early enough to be in the public domain, the company has decided not to release the album after a threatening letter from Sony BMG. A Sony spokesman was very frank about not wanting to let others “assume” that these works are in the public domain when they “may” not be. A perfect expression of the “chilling effects” that may be the primary purpose of the Sonny Bono Copyright Term Extension Act.

These cases provided added evidence to Patry’s powerful argument that restricting the public domain, not encouraging creativity in the future, is the real motive force behind not only our last copyright term extension but also the calls that are already being heard for further extensions.

Copyright Issues and Legislation

Leaky faucets and copyright in Canada

Here in North Carolina, a very severe drought finally motivated me to try to stop the drip in our kitchen faucet.  I tried and tried to tighten the faucet enough to stop the leak, but simply could not tighten enough.  Finally I faced the fact that a more comprehensive solution was required, and we replaced the old faucet with a new, leak-free fixture.

In Canada this month, folks trying to fix their copyright law have illustrated the same principle – it is often not enough to just tighten things up when what is needed is comprehensive repair.  For some weeks rumors have flown that the Canadian government, acting through its Industry Minister, intended to introduce a copyright reform bill that would mirror the Digital Millennium Copyright Act here in the US.  Both the US government and media interest groups in this country have been pressuring Canada to “normalize” its copyright law along the highly restrictive lines modeled by US Title 17.

As this article from the Electronic Frontier Foundation indicates, these plans rather backfired.  A surprisingly large grassroots reaction to the proposal developed quite quickly, led by Professor Michael Geist of the University of Ottawa.  Over 20,000 people joined a “Fair Copyright” Facebook site – a powerful testimony to the new awareness and concern over copyright regulation that is beginning to filter down to consumers.  The result is that the Government decided to delay introduction of their bill, which the opposition had dubbed the “Canadian DMCA.”

We can but hope that this attention and advocacy will not abate in the new year, and that Canada will use this momentum to actually fix its law, striking an appropriate balance between the rights of creative artists and the needs of consumers, as well as educators and new creators.  Simply tightening current rules will not work, as both my leaky faucet experience and the “finger in the dike” approach adopted by the RIAA indicate.

In the course of the campaign against the proposed reform law in Canada, Professor Geist and his colleagues created this YouTube video, which offers over two dozen suggestions about what ordinary consumers can do to influence the debates about copyright.  These simply actions, like making sure that digital media retailers will accept returns if consumers discover DRM systems that they do not want to accept, could profoundly influence both legal policy and commercial practice.  But if I could choose one that I wish would become a New Year’s resolution for many academics, it would be number 23 – “Read license terms.”

Copyright in the Classroom, Copyright Issues and Legislation

Wolves in sheep’s clothing

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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.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Property or privilege

The debate over how best to understand the odd notion of intellectual “property” is long-standing. Many find that an analogy between the products of intellect and creativity on the one hand, and property on the other, deeply inappropriate. There is no doubt that such an analogy is often badly abused. When the recording industry insists that music file-sharing be referred to as “theft,” for example, they ignore a fundamental difference between the physical and the intellectual realms. When physical property, a car, for instance, is stolen, the owner is entirely deprived of the enjoyment of that property. When music files are swapped, on the other hand, the owner may suffer a loss of value in her property, but she is not subject to the same total deprivation.

These issues are explored in a new book and an accompanying blog by Chapman Law School professor Tom Bell called “Intellectual Privilege.” Bell’s basic point is to suggest a better way to look at the legal protection of the products of human intellect; one that neither equates them entirely with physical property nor dismisses all such protection as a burden on the ideal of free use:

“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.”

Bell’s project promises to generate some fascinating discussion about the nature and uses of intellectual production, and it models an emerging form of scholarship by making the text available pre-publication for public comment. For even more discussion, see the Lessig Blog, where an announcement of Bell’s book has also generated interesting comment.

I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.

Bell emphasizes that IP is a bundle of privileges granted by the government to enact certain policy goals. But this definition is equally applicable to physical property; property ownership is a government granted right to exclusively enjoy (that is, to exclude others from) a particular object or piece of land. As with IP, the exclusive rights of physical property ownership are subject to numerous restrictions and exceptions (taxes, zoning, etc.) that help serve public policy ends. The real object of the discussion should be to arrive at a careful understanding of both physical property and intellectual privilege and then look at how they relate, where they differ and what policy alternatives might result from the differing views. Tom Bell has offered us a wonderful opportunity to participate in that project.

Copyright in the Classroom, Copyright Issues and Legislation

Worth noting — a public domain search engine

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Appropedia.org, which describes itself as “the site for collaborative solutions in sustainability, poverty reduction and international development,” has made available, in cooperation with Google, a beta version of a “public domain search engine.” The purpose, of course, is to help people find public domain material that they can use freely, without having to worry about copyright restrictions. Since such material can provide source for education, creativity and economic development, this project fits well into the self-defined mission of Appropedia.

It appears that the search engine focuses primarily on U.S. government material, which is in the public domain from the moment it is created. They have a nice explanation here of how they have gotten to the point of beta launch and where they hope to go. While this is a good start, there is a wealth of public domain material beyond the reach of this plan. Like the Google book search, this project is limited by the difficulty and expense of discovering what is and is not in the public domain. Ironically, while this search engine focuses on federal government materials, the Google Book project treats most government material as copyrighted works, since its definition of the public domain is limited to material published before 1923. Both definitions are radically narrow, and they emphasize the need to revise our copyright law to make the many works that are likely in the public domain (many so-called Orphan Works never had their copyright renewed, for example) easier and safer for the public to use.

In the meantime, however, this search engine, along with the more robust ability to search for material licensed under the Creative Commons licenses, offer great tools for helping scholars, teachers and others escape the straitjacket of our overly restrictive copyright law.

Copyright Issues and Legislation

Exhausting consumer use

Two different lawsuits are currently underway that attempt to support the notion that users should be able to do what they want with the particular instantiation of intellectual property that they buy, a principle that is under attack through the use of “licenses” at the point of of a product’s sale.

In patent law the principle is called exhaustion, and it says that the patent is “exhausted” upon the first sale of a product; the consumer is free to use, repair or resell the particular product they bought, although they can not manufacture copies or new inventions that incorporate or imitate the product. Dissatisfied with this rule, many manufactures are trying to place various labels on their products to control uses of the product in the hands of consumers. In “Quanta v. LG Electronics,” a manufacturer’s use of a label claiming the product is “not for resale” is being challenged. The Electronic Frontier Foundation is supporting that challenge, and more information can be found here on their website “Deeplinks” blog.

As the EFF points out, these challenges to unfettered consumer use have had growing success recently. Lexmark has been able to “condition” its sale of printer cartridges with a “single use only” label that could make a consumer who refills the cartridge liable for breach of contract. This, and the “not for resale” label on software CDs at issue in the LG case, turn patent law upside down, and cost consumers money. Numerous “friends of the court” are asking the Supreme Court to revive the doctrine of patent exhaustion.

In copyright, a similar fight is going on to preserve the right of consumers to use the copy of a copyrighted work that they buy as they wish. In this arena the principle is called the First Sale doctrine, but its definition is exactly the same – the distribution and display rights in copyrighted material are exhausted after the first sale of the book, artwork, etc. In “Vernor v. Autodisk, Inc.,” a purchaser is claiming that a software distributor should not be allowed to prevent an eBay sale of the particular copy of the software he bought by using that same “license” provision that forbids resale. The issue is whether a manufacturer can convert a transaction that looks exactly like a sale – the exchange of money for a product that the consumer carries away – into a licensing transaction merely by shrink-wrapping a license agreement into the box. Courts have largely upheld these unilateral licenses, but there has been a split of opinion, as William Patry explains in a blog post here. Public Citizen, representing Mr. Vernor, argues that the first sale doctrine should preempt this provision of the so-called license.

These parallel cases in copyright and patent law show a concerted attempt to control how consumers can use the specific copies of intellectual property they purchase legally. This is not about defending themselves from unauthorized copying, since the law already does that; it is an attempt to choke off a secondary market that has been allowed for centuries. I called this a copyright coup in an earlier post, and I can only hope the courts will not allow it.

Copyright Issues and Legislation, Fair Use

Desperate ploy, or copyright coup?

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In the digital age, it is hard to imagine that personal photocopying still poses much of a worry for copyright owners. Isn’t the real problem, after all, the ability to make perfect copies and to share them instantly with thousands of others? Traditional photocopying poses neither of these dangers, and personal copying is a long settled fair use, isn’t it?

Not, apparently, for Access Copyright, the Canadian copyright licensing agency that, like its US counterpart the Copyright Clearance Center, collects and distributes permission fees for various uses of copyrighted material. Access Copyright has recently filed a lawsuit seeking 10 million dollars – the largest damages award ever sought for copyright infringement in Canada – from the office supply chain Staples. Their claim is that Staples should be liable for infringing copying done by customers on equipment provided by the stores. There is a news report on the suit from the Canadian Press here, a negative assessment from P2Pnet here, and a comment from a Canadian professor of IP and technology law here.

To prove secondary liability on the part of Staples, Access Copyright will have to convince a court that Staples should be held responsible for copying done by its customers. As Professor Geist points out, that may be a difficult hurdle to clear. In Canada, as in the US, liability for those who merely supply the equipment to make copies is rare; the US provides statutory protection for libraries in such cases and the Canadian Supreme Court has established a similar “presumption” in favor of Canadian libraries. Explaining why that presumption should not apply to Staples will be a challenge for this lawsuit.

But the issue that should really worry us, the issue that makes this a radial attempt to change the terms of the copyright bargain rather than merely a desperate ploy to protect a new source of revenue as traditional sources dry up, is that Access Copyright will have to show that the personal copying done by customers is direct infringement of copyright. Only if that is true can Staples be held secondarily liable for providing the means for that infringement. But personal copying has been almost universally believed to be fair use (or, in Canada, “fair dealing”). Students have made single copies of journal articles and book chapters for their own study for as long as photocopies have existed, and consumers have made personal copies of TV shows with their own VCRs with the blessing of the US Supreme Court. So what has changed?

The clue is in the fact that this suit was brought by a licensing agency, not by publishers or authors. What we are seeing here is a new assertion that personal copying was never legal, only tolerated by copyright owners until they could create a mechanism to collect payments. The same digital technologies that have allowed so much infringement also now allow content owners to efficiently offer licenses and collect payments for individual uses that could never have supported a market before. Although it is still more efficient to sue the alleged contributory infringer instead of the consumer who is the direct infringer, this saber rattling by a licensing agency should tell us quite clearly that content owners intend to move toward a pay-per-use model. If such suits are successful, every consumer-made copy logged at a store or even at a library photocopier could be subject to small payments, which would be administered through an online licensing agency.

At a recent conference in Washington, DC, Cary Sherman, the President of the Recording Industry Association of American, refused to acknowledge that personal copying of a music CD for listening on an individual MP3 player was fair use. Instead he said that this likely was infringement, but that the industry had agreed internally not to pursue such cases. The Canadian lawsuit suggests that, if a precedent can be set regarding the much less contested area of personal photocopying, any such forbearance around consumer copying will quickly become a thing of the past.