Copyright Round-Up, Spring & Summer 2020

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We all know it has been a rough spring, and we are focused on larger issues than copyright and licensing. But while we all hunker down and hope for better days, policy and practice issues are not holding still; Congress is still in session, suits are still being brought (or settled), courts are still rendering decisions, and so on. As we cross from spring into summer, perhaps mostly because we can all use a distraction from the larger issues, I thought now a suitable time to do a copyright roundup.

US Copyright Office releases Report on Section 512 (of the DMCA).  The last time Congress passed broadly significant internet-copyright-related legislation was in 1998.  For historical perspective, that is the year Google was founded, and a full year before the launch of Napster.  At the time, I don’t think anyone anticipated the huge volumes of content, much less the business models based on mass infringement, that would come along in the wake of its passage. In the legislative process, often, what you cannot change, you often study.  Perhaps to that end, on May 21st, the USCO released a 250-page report on the status and operations of the Safe Harbor provisions of the 1998 Digital Millennium Copyright Act.  In the words of the Report, and as anyone involved in trying to protect content from infringement could have told you, “[t]he Copyright Office conclude[d] that the operation of the section 512 safe harbor system today is unbalanced.”  The Office continued:

In its examination of the balance established by Congress, the Office outlines five principles that guided its review, identifies its findings, and makes several recommendations for Congress to consider. The Report highlights areas where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors; repeat infringer policies; knowledge requirement standards; specificity within takedown notices; non-standard notice requirements; subpoenas; and injunctions. While the Office is not recommending any wholesale changes to section 512, the Report points out these and other areas where Congress may wish to consider legislation to rebuild the original balance between rightsholders and online service providers.

Relatedly, Congress, and especially Senator Tillis (R-NC), has been in the very initial stages of a review of the DMCA, and with Section 230 of the Communications Decency Act (which protects online service providers from liability) being thrown into high relief via Executive Order, this may be the time that tech companies are finally called to task.  Or not. Magic 8-Ball says, “Ask Again Later.”

Infringing practices of Internet Archive (IA)    As I mentioned, the DMCA has inadvertently led to business models build on infringement, in part by turning copyright into an “opt-out” regime.  One such billionaire Brewster Kahle-led effort is the Internet Archive, which developed goodwill in its generally useful “wayback machine” (which allows users to see many preserved webpages from the early years of the Internet). This year, the Internet Archive launched a so called “National Emergency Library,” in which it decided that it could make and give away unlimited free digital copies of in-copyright books without the consent of the author or other rightsholder.  (For the record, nothing qualifies the IA or the IA’s new creation as a “library” under US law.)  Uproar and moral argument from the Authors Guild seemed to have little effect on the IA’s hubris.  Subsequently, the Association of American Publishers (AAP) coordinated a number of individual publishers (including my former employer, John Wiley & Sons) to file a lawsuit.  That pressure, along with criticism from bloggers and Congress (specifically, the aforementioned Senator Tillis), has led to a recent announcement that the misnamed library is “closing” two weeks early.  The IA has announced a return to its prior, also potentially illegal (and obnoxious, to many authors) but marginally less egregious practice of  “Controlled Digital Lending” (CDL).  For those not familiar with the practice, controlled digital lending involves misappropriating the use of one book at a time, as distinct from distributing many copies simultaneously. To state the obvious, the National Emergency Library practice has no basis in law – as the IA has implicitly conceded by closing up in the face of a lawsuit – and  the IA’s version of CDL should be seen as, at best, only marginally better. While these moves by the IA may have shifted the classic Overton Window for such radically ambitious applications of fair use, courtrooms lack such windows.  Why is it so hard for wealthy tech magnates to recognize that authors have legitimate interests and would be happy to work with them, not against them, if given the chance?

Register of Copyrights.  Following the resignation of Karyn Temple to join the MPAA, and after months of soliciting stakeholder input on the process for selecting the next Register of Copyrights, the Library of Congress formally opened the position to applicants on April 15.  The posting closed on June 15, and now the applicant pool will be narrowed to three candidates with the assistance of first an executive search firm and ultimately a three-person hiring panel from within the government.  The Librarian has said she expects to make the final selection by July.

WIPO.  A coalition of copyright-unfriendly groups recently published an open letter to retiring WIPO Director General Francis Gurry, asking for his support of (what many, including myself, would call) radical openness of resources in the context of the COVID-19 pandemic.  Signatories include many of the usual suspects among the “open everything” cadre.  While I am in favor of openness, including open content, open data, and open code,  open everything can quickly become open nothing unless supported by a sustainable business model.  Subscription, open access and mixed model publishers quickly and voluntarily made curated COVID-19 related content freely available. Thankfully, DG Gurry understands the need for incentives.  His response to the letter affirms a continued (and heightened) need for an incentive framework to encourage and sustain innovation during the pandemic.  In other words, the best path to a vaccine is not though discouraging research.  (Note:  Daren Tang, currently the Director of Singapore’s IPO, has been elected as the next WIPO DG and will take office on 1 October 2020.)

France.  No doubt in response to prior tactics used by Google to avoid publishers’ rights in countries like Spain, the French Competition Bureau, applying the ‘news publishers right’ created under the European Union’s recent Digital Single Market Directive, issued an order in early April requiring Google to negotiate with French press publishers and news providers.  The order demanded that the parties reach an agreement within three months regarding licensing fees for news content appearing in Google search listings in France.  (See, for example, Hugh Stephens, “Holding Google to Account, France Takes a Stand”.)  Given that Google’s market share in France makes it susceptible to pressure from the competition authorities, it remains unclear whether this pressure could be placed on other tech companies. On the other hand, perhaps Google’s market share makes it irrelevant whether others follow suit.

Canada. In the ongoing battles over exceptions and limitations under Canada’s 2012 legislative and judicial copyright revisions – revisions which have already led to the closure of publishing companies and irreparable damage to Canadian culture – we now have an appellate court ruling in the case of Access Copyright v York University.  Depending on how you look at it, the case was a mixed victory.  The court explicitly found that the fair dealing guidelines adopted by York to get out of paying rightsholders for the right to make coursepacks out of portions of many copyrighted works were not valid.  The court also held that copyright tariffs of the types established in Canada for everything from text to music were not mandatory, calling into question years of collective licensing practice.  While the latter part of the decision may be read as a partial victory for York, it is also the case that Canada makes statutory damages available to copyright rightsholders and it may be possible they will be applied to activity like that at York that was held to be infringing, so the risks to universities who follow the same guidelines as York just increased immensely.  As of this posting, the window for either party to seek an appeal to the Canadian Supreme Court has not expired and there is reasonable conjecture that both sides are likely to appeal the parts of the decision unfavorable to them.

Overall, the copyright culture wars continue apace, and should be expected to.  Let’s hope for a breakthrough vaccine and racial justice, so we can get back to a time when we can argue about copyright reasonably, without feeling somehow frivolous.

Roy Kaufman

Author: Roy Kaufman

Roy Kaufman is Managing Director of both Business Development and Government Relations for Copyright Clearance Center. Prior to CCC, Kaufman served as Legal Director, John Wiley and Sons, Inc. He is a member of, among other things, the Bar of the State of New York, the Author’s Guild, and the editorial board of UKSG Insights. Kaufman also advises the US Government on international trade matters through membership in International Trade Advisory Committee (ITAC) 13 – Intellectual Property. He was the founding corporate Secretary of CrossRef, and formerly chaired its legal working group. He has written and lectured extensively on the subjects of copyright, licensing, open access, text/data mining, new media, artists’ rights, and art law. Kaufman is Editor-in-Chief of Art Law Handbook: From Antiquities to the Internet and author of two books on publishing contract law. He is a graduate of Brandeis University and Columbia Law School.

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