Copyright – Copyright Clearance Center http://www.copyright.com Rights Licensing Expert Fri, 20 Apr 2018 20:37:46 +0000 en-US hourly 1 http://www.copyright.com/wp-content/uploads/2016/05/cropped-ccc-favicon-32x32.png Copyright – Copyright Clearance Center http://www.copyright.com 32 32 Tom Brady, Walt Disney and the Unexpected Copyright Cases of Early 2018 http://www.copyright.com/blog/tom-brady-walt-disney-copyright-cases-2018/ http://www.copyright.com/blog/tom-brady-walt-disney-copyright-cases-2018/#respond Mon, 09 Apr 2018 06:10:27 +0000 http://www.copyright.com/?post_type=blog_post&p=16189 Over the past few weeks, The Walt Disney Company and Tom Brady, have each landed in the press over lawsuits involving copyright infringement.

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Superheroes and a Super Bowl hero are no strangers to media coverage. But over the past few weeks, The Walt Disney Company, producers of films including the Star Wars and Marvel franchises, and Tom Brady, five-time Super Bowl champion for the NFL’s New England Patriots, have each landed in the press over lawsuits involving copyright infringement.

The celebrity factor aside, there may not be much of an epic story to tell – yet – for either the Mouse or the GOAT, at least if we focus our attention strictly on questions of copyright.

Pull up a chair, and hold on while I make some popcorn.

Disney’s Distribution Battle with Redbox

In the Disney vs. Redbox case , on February 20th Judge Pregerson denied Disney’s request for a preliminary injunction which would have the effect of stopping Redbox from providing legally-obtained “codes” to consumers – these are certain 8-digit numbers, which are only usable once, that Disney has generated as a component part of DVD packages for their movies. The Judge labeled Disney’s request copyright misuse, and so – at this stage – his decision has the effect of allowing Redbox to continue. In effect, the Judge is implying that Disney’s effort to impede Redbox from doing what any purchaser of a copy of a work of intellectual property can do – such as resell that particular copy to someone else – is so far outside the bounds of an appropriate copyright infringement case, that it should not have been brought before him as one.

While the “wrongful distribution” alleged by Disney in the case may not, strictly speaking, be sufficient for this copyright claim, it does bring up some interesting questions. Specifically, if I, a copyright owner, put rules on the outside of the package of a copy of my work, saying (in effect) “Although you bought this box and its contents in a store, I only authorize you to open it on Tuesdays and only if your name is Tony Stark” – are you bound by that requirement? Why? At what point did you agree to my terms?

Related Reading: Copyright Law in 2017: 12 Big Court Cases to Know About

NFL Intellectual Property and the End of Embedding Tweets?

In the Tom Brady-related decision that came down in February, nine news organizations ran stories using an out-of-game image of Mr. Brady which had been taken in 2016 by a photographer named Justin Goldman. Goldman uploaded this image to Snapchat, which he had every right to do, as he had taken the picture of the celebrities in it while they were walking around a public place. Other people took this image and posted it to Twitter, where it “went viral.” At this point, the news organizations found the image a useful hook for a breaking story about some current events, and so they used it too. Judge Forrest found that this final step – the one taken by the news organizations – amounted to an infringement of the rights of the photographer/copyright owner. Flag on the play?

A number of copyright commentators have expressed their surprise at this result, which seems likely to be appealed.

[Bear in mind that federal court cases, including copyright cases such as this pair, begin at the district-court level. Decisions made at the district-court level do not carry precedential value outside their own districts; however, they are often appealed and these appeals sometimes result in a reversal of the original result. Appeals decisions have precedential value over much larger territories (the US is divided into only 12 courts of appeals; and they usually have persuasive value throughout the country.]

 

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Clash of the Copyrights: Google versus Oracle http://www.copyright.com/blog/clash-copyrights-google-versus-oracle/ http://www.copyright.com/blog/clash-copyrights-google-versus-oracle/#respond Thu, 29 Mar 2018 10:43:22 +0000 http://www.copyright.com/?post_type=blog_post&p=15215 What happens when behemoths battle? Here's a look inside the copyright aspect of the Google vs. Oracle case.

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Editor’s Note: This piece was originally published on Dec. 26, 2017. It has been updated to reflect new proceedings in the case. 

[Update: As reported on CNBC and many places elsewhere: On March 27, the Federal Appeals court in Washington DC reopened the long-running copyright fight between Google and Oracle and sent the case back to its originating court in California.  The U.S. Court of Appeals for the Federal Circuit (Washington DC), which heard the appeal, in effect overturned the jury decision, which is itself a little unusual; a further and ultimate appeal to the US Supreme Court is now more likely than ever.]

The Google versus Oracle story dates back a few years, but the copyright aspect of the case is relatively new, and brings in some larger questions than the run-of-the-mill “you stole my code” case.

As many outlets, including The New York Times  and Business Insider, have reported, back in 2010 Oracle initiated a copyright infringement action against Google, based upon Google’s re-use of several thousand lines of Oracle’s Java programming code. This code is used in accessing Application Programming Interfaces (API’s) whose software function is to bring in and ingest data from a variety of sources, on-the-fly. Google argued fair use, claiming that its copying of Oracle’s lines of code was relatively small and ‘transformative.’

During the current round of the case, the jury made two crucial findings:  first was that these API’s met the criteria of copyrightability – they were determined to be sufficiently original, expressive, and fixed. (The first trial in the case had decided that the APIs were not protected by copyright law, and the first appeals court reversed that decision.) Secondly however, the jury went on to find that Google’s use of Oracle’s copyright-protected APIs was excusable as a fair use, a finding which again pushed the envelope of what fair use is said to be.

On appeal of the jury decision, Google has argued that its use of Oracle’s lines of Java code is a “transformative use,” stemming from the fact that Java had not previously been tweaked for use on mobile devices. Many students of copyright law find that assertion troubling.  As one of Oracle’s lawyers argued, “You cannot take the most recognizable part of a short story, adapt it into a film and then defend that by saying: ‘You were in books, we were in films’.

The other key point Google raised on appeal focused on the 4th fair use factor, “effect on the market.” It argued that since Oracle was unlikely to go into the market for applications on mobile devices, this factor (according to Google) should be weighed in Google’s favor.  In response, Oracle actually has some evidence that it had written Java code for mobile devices – and that Google knew that – but had simply not commercialized the development.

Google generally finds itself arguing in favor of greater openness and of greater latitude in the use of the materials owned or controlled by others. Oracle tends to go with a stricter “license as you go” model, and is a member of the Business Software Alliance.

Google’s use of the “transformative” notion here seems a stretch to me, as does its argument that its use had and will have no meaningful effect on Oracle’s potential market. But those were questions for the jury, and now again for the appeals panel.

The larger implications of this case

Taken more broadly, this is not simply a case between quarreling giants. If Google’s use of Oracle’s APIs were generalized, such that use of this sort became considered presumptively ‘fair’, what becomes of software producers and their profit motive? As Immanuel Kant, and my mom (and actually Oracle too), have asked, “What if everyone did that?” If Google’s reasoning prevails, what will become of the business of software development? Are its incentives to produce in danger of being reduced?

It seems likely, then, that these larger questions are going to need to be sorted out, possibly soon.  As we go on into our digital future, we will constantly be surrounded by software, whether it resides in devices in our pockets, our vehicles, or our refrigerators. This fight, like earlier fights in copyright, is not so much about money as it is about control. In that way, it might almost be seen as a primarily political contest, of which the court actions are merely a single aspect.

Most likely, a decision on the appeal will arrive in the spring of 2018. And then, another round in a higher court? Seems more likely than not.

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Eyes on Fox v. TVEyes: A Closer Reading of the Appellate Decision http://www.copyright.com/blog/fox-v-tveyes-closer-reading-appellate-decision/ http://www.copyright.com/blog/fox-v-tveyes-closer-reading-appellate-decision/#respond Mon, 19 Mar 2018 08:30:05 +0000 http://www.copyright.com/?post_type=blog_post&p=15975 The recent TVEyes decision laid down by the Federal Appeals Court for the 2nd Circuit (NY) provides an opportunity to discuss “transformative use.”

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For us copyright mavens, the recent TVEyes decision laid down by the Federal Appeals Court for the 2nd Circuit (NY) provided some good reading about the limits of “transformative use” as a defense against allegations of copyright infringement.

Spoiler Alert: TVEyes lost. It was found to have been engaged in infringing behavior in the recording and retrieval services it offers.

Court opinions don’t often make for fascinating reading, but this time, Judge Jacobs’ explanation provides a simple and direct means of understanding both the issues in this case and the basis on which the panel reached its decision. Even with Judge Kaplan’s concurring opinion added, the whole document comes in under 32 pages. It’s well worth the time to read it.

Who is TVEyes?

TVEyes is a “media monitoring company that offers a platform enabling users to search, view, distribute, analyze, and archive media content available on television, radio, print, and social media.” It records and collects the broadcasts of more than 1,400 radio and television stations, and provides paid subscribers with two core services: “the Search function” and the “Watch function.”

These are straightforward enough. “Search” enables the user to identify videos containing the words or phrases they are interested in, such as the name of their company, or the head of the regulatory agency they need to listen to, and so on. “Watch” follows along from that logically – having identified the relevant piece of video, the use is then able to watch a clip of that program of up to 10 minutes’ length. This sort of service – media monitoring – can be quite valuable to its clients, who are able to save a lot of time otherwise spent on looking for mentions of their company, its products and the like.

So what’s the problem?

The fact that TVEyes is a for-profit business probably weighed heavily in Fox’s decision to bring the suit. In Fox’s view, TVEyes was making money off of Fox’s programming in an unauthorized manner. Had TVEyes obtained a license, likely in exchange for a substantial fee, they probably could have avoided the charge of infringement. But they went a different route – when challenged, they claimed that theirs was a fair, “transformative” use, and therefore non-infringing. They cited the Google Books case (2009) and with this argument they won at the district court level.

The appeals court reasoned, in effect, that changing TV programs to video clips was not sufficiently transformative to qualify as excusing the infringement under the 1st fair use factor ‘purpose and character of the use’. And further, that whatever weight might be given the first factor was overwhelmed by that of the fourth factor, the actual and potential effect of (Fox’s) market for its TV programming.

In a blog post last year, I touched on the legal concept of transformative use in copyright law. It is a little complicated, and we can’t do it justice here. But the Supreme Court did explicitly apply it in the “Oh, Pretty Woman” case (Campbell v. Acuff Rose), and it also came up in the Google Books and HathiTrust cases, as it has with increasing frequency since.

As applied in those cases, transformative use occurs when a work, or a corpus of works, is repurposed in ways unenvisioned by the creator for its original setting. When justified, this is accepted as a non-infringing use. For example, when Google does a word-count analysis for the term “deconstruct”, across all 20th-century text that they have access to – that sort of analysis is only possible by chewing through the full-text of works themselves. It’s not what an author would have had in mind, and it is not a replacement for the works themselves. Transformative use is perhaps best seen as a corollary, or logical extension, of the 1st factor.

Interestingly enough, the judges in the TVEyes decision make a distinction of the reasoning in the GBS case, and find TVEyes was lacking as to transformative-ness: “This appeal shares features with [this same court’s] decision in Authors Guild v. Google … [We] cautioned that the case “tested the boundaries of fair use” We conclude that defendant TVEyes has exceeded those bounds.”

In the wake of the TVEyes decision (and its explanation of the court’s own Google Books case), transformative use is perhaps best seen as a parameter which can contribute to the analysis required under the first fair use factor – that is, “What really is the purpose of the use and how does it compare to the purpose of the original use?” – rather than being treated as the entirety of the analysis itself, as too many courts had incorrectly done in recent years. As the decision clarifies “At bottom, TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license.” And you can’t do that.

An opposing view

In the view of EFF, this is a terrible, poorly-reasoned decision. Well, they are welcome to that view.
On the contrary, what I like about this court’s opinion is the careful way in which it lays out the limits of a proper application of a defense argument relying on transformative use. Transformative use shouldn’t be used as an “express lane” to excuse any sort of infringing activity that occurs to a company to engage in.

Bottom Line

What the TVEyes decision indicates is that a more thoughtful organization will carefully consider each of the four fair use factors, first separately and then together (because the case law emphasizes that they have different weights in different circumstances), before reaching a conclusion that it is perfectly fine to ingest other people’s stuff and then redistribute it for its own benefit without seeking and obtaining some form of authorization.

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Section 1201 Rulemaking – The Process Is Moving Along http://www.copyright.com/blog/section-1201-rulemaking/ http://www.copyright.com/blog/section-1201-rulemaking/#respond Mon, 12 Mar 2018 07:02:19 +0000 http://www.copyright.com/?post_type=blog_post&p=15906 ‘1201’ exceptions are a topic of considerable discussion every few years. As it turns out, 2018 is one of those years.

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Section 1201 is a curious little section of the US Copyright Act, added by the Digital Millennium Copyright Act (DMCA) of 1998. But the matter covered in that section is of great importance in our digital age and, due to its triennial rulemaking requirement, ‘1201’ exceptions are a topic of considerable discussion every few years. As it turns out, 2018 is one of those years.

For this (seventh) round the Copyright Office is trying out a “new, streamlined procedure for the renewal of exemptions that were granted during the sixth triennial rulemaking.” For this round, the Copyright Office has signaled its intent to streamline by taking into account exemptions which have been previously granted, and providing them a bit of a fast lane.

But let’s provide some context before digging in to these updates. One of the things that Congress realized at the time of passing the DMCA (1998)– and it’s something that Congress realizes all too infrequently – is that it was likely that technology would develop more quickly than laws and rules could be written to manage how the new technology would interact with everyone else’s rights and privileges. So Congress included within the DMCA a provision that became Section 1201 of the Copyright Act, under which the Copyright Office is instructed to update some of the ways in which technology and the law interact, by undertaking a rulemaking process every three years. That means hearing evidence and then granting – or denying –  specific exemptions from the limitations that the Copyright Act imposes on what users might do with works protected by copyright. The Copyright Office is now already in the middle stages of the seventh cycle of Section 1201 rulemakings (its conclusions are due to be published and effective at the end of October 2018).

This time through, twelve exemptions have been requested, with dozens of organizations weighing in. Among the exemptions requested are those that apply to different types of copyrighted works: audiovisual works (towards improving accessibility for specified purposes), computer programs (including unlocking smartphones for ‘jailbreaking’ and repair, as well as video game preservation) and two entirely new ones, one for flight-related software, and one involving an aspect of 3D printing. Some of these (particularly ‘jailbreaking’) have been frequently requested, and sometimes granted, before.

Some of these examples make immediate sense – for example, making licit the jailbreaking of phones has been written up quite a few times and nearly everyone (other than phone companies and manufacturers, of course) favors that in principle. Some video games and other older (consumer-facing) software are at risk of becoming completely inaccessible if the ability to ‘crack’ them open for examination, and running on modern devices, is somehow walled off by law. I myself favor, in general, what is sometimes called “the right to tinker,” which is to say that if I buy myself (for instance) a tractor, and I have alternative software that I wish to run on it in order to repair it, I should be able to do just that – at my own risk. It seems like overreach of copyright to use the all mighty c-in-a-circle to make me stick with what came shipped with the tool. I should be able to take my own chances with my own toy – even if it is a big toy, like a car or a tractor. The wisdom of this approach, however, is subject to debate. As a manufacturer, or a more cautious consumer, might point out, these are complicated machines, and if you don’t know who was writing that code you are installing, you might be opening yourself, and other people, up to problems you are not anticipating.

Of the 12 requested exemptions, two are new (to me at least): Class 11, Avionics, and Class 12, 3D Printing.

The proposed exemption for access to avionics data reads “A proposed exemption for access to aircraft flight, operations, maintenance and security data captured by computer programs or firmware. The digital avionics systems lock out access to collected aircraft flight, operations, maintenance and cyber security data necessary to comply with flight safety, maintenance and cyber security regulations and to maintain the safe and secure operation of an aircraft.” I don’t know enough about the field of avionics, including what are sometimes referred to as “e-Enabled aircraft,” to weigh in on the details, but as long as it doesn’t materially affect airplane safety I can see a valid argument for opening up the data systems and outputs here. Frankly, not to do so might amount to an anti-competitive policy (as well as a possible safety issue), and one that unnecessarily impedes technology innovation. But again, I don’t claim any expertise on these matters; it’s simply interesting, to me, to see the insertion of copyright issues into this mix. Did they anticipate such applications of copyright law at all, back in 1998?

The final request for exemption, in the domain of 3D Printing, reads, A proposed exemption for owners of 3D printers to circumvent technological protection measures on firmware or software in 3D printers to run the printers’ operating systems to allow use of non-manufacturer-approved feedstock.” I’ve long been fascinated with 3D printing. “Feedstock” is a jargon term for the raw materials used by the various 3D printer technologies, the most common of which are Selective laser sintering (SLS), Fused deposition modeling (FDM), and Stereolithography (SLA). Which is to say, plastics, metal powders and resins. The argument here seems like a descendant of the “toner wars” from traditional (2D) printing, whereby anticircumvention rules were used to prevent users from substituting aftermarket toner cartridges for laser printers. Under a 2017 Supreme Court Ruling, this sort of anti-consumer shenanigans are no longer allowed, and I’d expect a case focused on the supplies used in 3D printing to go the same way.

The next round of public hearings before the Copyright Office is coming up in mid-April. I’m looking forward to it; maybe we’ll see you there.

A version of this post originally appeared in IP Watch.

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What Is Real Art? The VARA Debate Continues http://www.copyright.com/blog/what-is-real-art-the-debate-continues/ http://www.copyright.com/blog/what-is-real-art-the-debate-continues/#respond Tue, 13 Feb 2018 08:30:22 +0000 http://www.copyright.com/?post_type=blog_post&p=13481 Aerosol art is the center of a court case that's setting a precedent for what qualifies as “real art” protected under the Visual Artists Rights Act (VARA)

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Note: This piece was originally published on June 23, 2017. It’s been updated to reflect the latest court rulings.

On February 12, Judge Frederic Block ruled that the developer, Jerry Wolkoff, had indeed violated the Visual Artists Rights Act (VARA) and ordered that he pay $6.7 million dollars in damages to the 21 graffiti artists represented in the suit. Mr. Wolkoff may appeal this ruling.

If you ever took the 7 train through Queens before 2014, you probably rode right past 5Pointz. And depending on your artistic leanings, you might have been impressed by the splashes of color and paint, or you might have been upset by the graffiti plastered across a five-story, block-long industrial building. Ah, artistic interpretation!

5Pointz Aerosol Art Center was an outdoor exhibition space in New York City, founded by graffiti veteran Jonathan Cohen. For nearly two decades, it was a graffiti “museum” attracting visitors, artists, musicians, filmmakers, photographers and admirers of all sorts. Brands like Deutsche Bank and Heineken even collaborated with artists for specific advertising campaigns featuring 5Pointz work.

As gentrification swept the city and the housing market demand increased, owner Gerald Wolkoff, who initially gave permission to the artists to paint on his building, whitewashed the graffiti in 2013, upsetting the artists who had curated the mass collection of works. The building was torn down a year later to make way for condominiums.

Should aerosal art be covered under VARA?

While this institution of “aerosol art” no longer exists, it is at the center of a New York court case. The plaintiffs – 23 graffiti artists whose work was displayed at 5Pointz – claim their work deserved special protections under the Visual Artists Rights Act (VARA), and, as such, are seeking damages from Wolkoff and his company, G&M Realty.

Initially, in 2013, the plaintiffs sought a temporary restraining order to prevent the destruction of their murals. After the murals had been painted over, the artists argued they were not given the proper 90-day notice of removal. These motions were ultimately denied. However, when the artists refiled the case in 2015, claiming that VARA was on their side, a judge ruled there was enough evidence to warrant a trial because G&M Realty’s argument discrediting the graffiti as not of “recognizable stature” wasn’t strong enough. The widespread awareness of 5Pointz and the visitors it attracted, coupled with the use of the graffiti in the Heineken and Deutsche Bank advertising campaigns, might have swayed him.

At the center of the current case lie the issues of whether graffiti can be considered visual art of “recognized stature” and whether THIS graffiti is “meritorious” and “recognized” by art experts and the artistic community; if so, then it qualifies for protection under VARA. Depending on whom you ask, the answer varies widely.

The court rulings could have implications moving forward that’d set a precedent for what qualifies as “real art.” Congress debated this precise issue during the passing of VARA but without resolution; if the plaintiffs prove successful in their lawsuit, those who initially opposed VARA will likely again argue that the statute is too far-reaching and broad.

 

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How Artificial Intelligence and Copyright Would Work http://www.copyright.com/blog/how-artificial-intelligence-and-copyright-would-work/ http://www.copyright.com/blog/how-artificial-intelligence-and-copyright-would-work/#respond Mon, 12 Feb 2018 08:03:23 +0000 http://www.copyright.com/?post_type=blog_post&p=15615 Should works done by artificial intelligence be protected by copyright? We're exploring how AI would apply to today's copyright laws.

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Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Applying AI to today’s copyright law

Think about programs like Google’s DeepMind, or the natural language generation program Wordsmith. These apparently copyright-susceptible expressions result from the operation of application code and algorithms. Because the programs themselves involve no specific human interference or guidance, the results might be best construed as the intellectual property of those who “worked the machine,” i.e. the users.

“Robots” themselves have no actual agency, let alone self-awareness. If there is any human interference or guidance, like a person setting parameters for how a program operates, then that person may be entitled to a copyright if the person’s contribution rises to the level of copyright protection.

When it comes to the rights of an AI itself, I think the key issue would be intent.

Logically speaking, you can’t have original expression without intent, and you can’t have intent without self-awareness. Despite popular articles warning about the coming of AI, a working program with awareness of its own existence and operations is still a long way off — at least according the more skeptical cadre of those studying AI.

Even if an output has the form and feel of a copyrightable work — for example a script written by a program called “Benjamin” and filmed as Sunspring — it may still fail to qualify if we require for expression. In other words, under our copyright rules as they currently exist, to qualify as protectable by copyright, a work — an original creation — needs to meet the definition spelled out in Section 102(a) of the Copyright Act (U.S. Code Title 17):

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

Can AI-generated works be reasonably construed as original expression, even though there’s no person behind the work doing the expressing?

Interestingly, the Section goes on, in paragraph (b), to spell out certain works of the mind which are not subject to protection by copyright:

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (Such “ideas” etc. may be considered intellectual property which is protectable in other ways, e.g. they may be patentable.)

Thought experiments

The real problem of self-aware AI generating original content with intent has not arrived (yet). But it may, and it is interesting to think about.

The core question about AI-generated works is: Can AI-generated works be reasonably construed as original expression, even though there’s no person behind the work doing the expressing?

The terms of the statute also include the word “communicated,” implying that something has gone from the mind of one person (the creator) to another (the audience, the reader, etc.). It would be a stretch to bring in the information theory criteria for communication, i.e. “communication” occurs any time photons or electrons are caused to move from here to there.

That’s one problem: There’s no “ghost in the machine” — the AI is functioning, not thinking. Function, not consciousness, produces a result. Arguably, it has no discernable intent to express anything. (We don’t know if an AI could be incented to produce — only that no extant ones can.)

Of course, laws can be changed, and copyright laws should be changed when new circumstances warrant. Would it be better for society — would it help achieve the purposes of copyright — if protections were extended to AI-generated works? As it says in the Constitution, the purposes of copyright may be thought of as a quid pro quo — in order “to promote the progress of science” certain rights are “secured” to authors [and other creators].

In that frame, copyright protection has both a public and a private purpose. The text of the clause seeks to strike a balance. “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” (See also: “The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.”)

Logically speaking, you can’t have original expression without intent, and you can’t have intent without self-awareness.

If achieving a “balance of claims” is the core purpose of copyright, the extension of copyright protection to works generated by AI can be measured against that purpose. On the one hand, this extension would likely increase the number of works available for public enjoyment, edification and other worthy social purposes. There’s been a lot of discussion along these lines already, with Google’s Deep Dream-generated images providing the occasion for much of it.

On the other hand, copyright protection for these new works — even at the stage we are now — might increase the profit of one or more private corporations who controlled them and were thereby able to exploit them commercially, in ads or as part of feature films, games and so forth. This seems like a wash to me; a well-written piece of legislation shouldn’t re-tilt the balance.

Bottom line: In my view, a self-aware, autonomous AI would be the prerequisite for its works to be protectable by copyright. At that time, such a revolution in technology would entail a much greater revolution in society, with the law, including copyright law, changing, as well.

*Note: This post originally appeared on TechCrunch

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Copyright Law in 2017: A Look at What Happened in the News http://www.copyright.com/blog/copyright-law-2017-look-happened-news/ http://www.copyright.com/blog/copyright-law-2017-look-happened-news/#respond Thu, 11 Jan 2018 08:00:53 +0000 http://www.copyright.com/?post_type=blog_post&p=15291 Changes to the Copyright Office, piracy attacks on major media corporations and trade negotiations put copyright on the front page.

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by Keith Kupferschmid Keith is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.

2017 was a tumultuous year – even in the copyright world.

In this three-part series, we’re taking a look at the most significant U.S. copyright moments of 2017 from a few different perspectives: what happened on Capitol Hill, in the courts, and in the headlines.

Changes to the Copyright Office, piracy attacks on major media corporations and trade negotiations put copyright on the front page.

U.S. Copyright Office

Changes to the Copyright Office, piracy attacks on major media corporations and trade negotiations put copyright on the front page.

In 2017, the U.S. Copyright Office continued to publish important copyright policy reports to help shape and modernize U.S. copyright law. The most significant of these were reports on Sections 108 and 1201 of the Copyright Act.

Following a one and a half year public consultation process, the U.S. Copyright Office released its report on Section 1201, concluding that the overall framework of Section 1201 is sound. The Office does not recommend altering the basic framework of Section 1201, but did recommend certain legislative updates, including expanding existing exemptions for security and encryption research and adding new provisions to allow circumvention for other purposes, such as the use of assistive reading technologies and the repair of devices. The report also recommends an amendment to give the Librarian of Congress discretion to authorize third parties to assist the beneficiaries of temporary exemptions granted via the statute’s triennial rulemaking proceeding. In addition, the report identifies changes to the Office’s administration of the rulemaking to streamline the process for renewing previously adopted exemptions.

The Office also issued a Discussion Document to facilitate discussions involving potential statutory updates to Section 108 of the Copyright Act, which provides for certain limitations for libraries and archives for purposes of preservation, replacement, and research. In the Discussion Document, the Copyright Office states its “longstanding belief that Section 108 needs to be updated so that libraries, archives, and museums have a robust, comprehensible, and balanced set of exceptions in order to fulfill their missions. The primary objective of the Discussion Document is to provide a concrete framework for further discussion among stakeholders and Members of Congress.” The document also includes model statutory language that would, among other things, make many changes to the organization and scope of Section 108 as well as the provisions relating to making of preservation, research, and replacement copies.

The most anticipated report by the Copyright Office is still forthcoming. This is the report on Section 512 of the Copyright Act, which relates to the very contentious notice and takedown and safe harbor provisions of the DMCA. For the past two years or so the Copyright Office has been collecting information from stakeholders with the last request for information coming in the first quarter of 2017. Thus, it’s probably safe to assume that we will see this report sometime in 2018.

With legislation to modernize the Copyright Office apparently still far away, the Office chose not to wait and instead to try and do what it could to modernize the Office in areas where legislation was not necessary. Over the course of 2017, the Office issued proposed new or interim rules relating to the group registration of unpublished works, newspapers and secured tests (to name just a few), as well as revising the Compendium to improve the Office’s practices. The Office also took steps to implement a new electronic system to designate and search for agents to receive notifications of claimed infringement under the Digital Millennium Copyright Act.

Piracy Trends

2017 brought three new piracy trends. The newest piracy challenge is something called Kodi. Kodi is an open source media player application that is itself legal. The problem is that these boxes often come “fully loaded” with “impossibly cheap subscriptions to improbably large selections of Movies, TV shows, Live Sports, etc. [that] are not affiliated with the Kodi project.” These “criminal boxes,” as Kodi puts it, are the work of “criminals who profit from piracy.” Several movie studios including Universal, Disney, Twentieth Century Fox, Sony, and Netflix struck back, filing a lawsuit against one of the worst offenders – TickBox TV for “intentional inducement of, and knowing and material contribution to, the widespread infringement of Plaintiffs’ rights,” arguing that “TickBox urges its customers to use [TickBox TV] as a tool for the mass infringement of Plaintiffs’ copyrighted motion pictures and television shows.”

Unfortunately, with each step forward that the music industry takes to reach its fans, there are bad actors one step behind who exploit these new capabilities and harm the industry, individual song writers, composers and performers and — most of all — the music fans. 2017 was no exception, as pirates turned to a new method of illegal copying called stream-ripping. Stream-ripping is a process by which everyday listeners can “rip” a file from a streaming platform and convert it into a downloadable file, and apps that facilitate this process are rapidly growing in popularity. A Music Consumer Insight Report published by the International Federation of the Phonographic Industry found that “stream-ripping is the fastest-growing form of infringement,” surpassing even file-sharing. The study also found that nearly half of millennials age 16 – 24, in countries around the world, engage in stream-ripping from popular platforms like YouTube. The difficulty in combatting this problem is that there are no infringing links or content to pinpoint and eliminate. Instead, stream-ripping targets legitimate copies of music and creates illegal reproductions. One method for dealing with this issue, however, is to target the source. For example, the Recording Industry Association of America (RIAA) sued the website “Youtube-mp3” for copyright infringement based on its stream ripping services.

The last piracy trend I will highlight is hackers ransoming copyrighted content. During the course of the year, hackers threatened to leak hit shows like Netflix’s Orange is the New Black, HBO’s Game of Thrones, ABC’s Steve Harvey’s Funderdome, and others, if the studios did not pay the millions of dollars in ransom that was being demanded by the hackers. When the studios refused to pay the ransom, the hacker leaked the shows. The Department of Justice eventually indicted the man responsible, Behzad Mesri. Mesri is charged with one count of wire fraud, one count of computer hacking, three counts of threatening to impair the confidentiality of information, one count of aggravated identity theft, and one count of interstate transmission of an extortionate communication.

International News

Immediately after taking office, President Trump signed an executive order directing the U.S. Trade Representative to withdraw the United States from the Trans-Pacific Partnership (TPP) and another executive order stating the Administration’s intention to renegotiate the North American Free Trade Agreement (NAFTA). That action was followed in May by a letter from U.S. Trade Representative (USTR) Robert Lighthizer to Congress stating President Trump’s intent to renegotiate the NAFTA, a formal requirement of the 2015 Trade Promotion Authority (TPA) legislation which initiates a 90-day period during which the Administration must consult with Congress before beginning renegotiations. The letter stated the Administration’s intention to “modernize” NAFTA to address digital trade, and to include “new provisions to address intellectual property rights,” among other objectives.

In July, the Office of the USTR released its “Summary of Objectives for the NAFTA Renegotiation.” On intellectual property, the USTR wrote that it wants to “ensure provisions governing intellectual property reflect a standard of protection similar to that found in U.S. law” and also “ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightsholders have the legal and technological means to control the use of their works.” Later on the year, Ambassador Lighthizer released an updated version of the NAFTA negotiating objectives, which include “provisions governing intellectual property rights that reflect a standard of protection similar to that found in U.S. law, including, but not limited to protections related to trademarks, patents, copyright and related rights (including, as appropriate, exceptions and limitations)” and “rules that limit non-IPR civil liability of online platforms for third party content.” Although it was originally hoped that negotiations could be concluded before the end of the year that goal was not met and negotiations will now continue through 2018.

The USTR also “formally initiated an investigation of China under Section 301 of the Trade Act of 1974…to determine whether acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation are unreasonable or discriminatory and burden or restrict U.S. commerce.” Presumably we will know about the results of this investigation in 2018.

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Copyright Law in 2017: 12 Big Court Cases to Know About http://www.copyright.com/blog/copyright-law-2017-12-big-court-cases-know/ http://www.copyright.com/blog/copyright-law-2017-12-big-court-cases-know/#respond Wed, 10 Jan 2018 08:00:25 +0000 http://www.copyright.com/?post_type=blog_post&p=15286 Top court cases in 2017 involved Fox, Universal, Elsevier, Penguin Random House, Disney, SiriusXM and more major media brands.

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by Keith Kupferschmid Keith is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.

2017 was a tumultuous year – even in the copyright world.

In this three-part series, we’re taking a look at the most significant U.S. copyright moments of 2017 from a few different perspectives: what happened on Capitol Hill, in the courts, and in the headlines.

With Congress concentrating on other issues, most changes to copyright law in 2017 came through the courts. A dozen cases made a notable impact, and another six are ones to watch in 2018.

Perfect 10, Inc. v. Giganews, Inc

A dozen cases made a notable impact, and another six are ones to watch in 2018.

In January, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court ruling in favor of Giganews in Perfect 10, Inc. v. Giganews, Inc., a case involving the unauthorized distribution of photos over Giganews’ servers. The court found that Giganews did not engage in the volitional conduct necessary to be culpable for unauthorized display, distribution, and reproduction of Perfect 10’s images. The Ninth Circuit thus declined to hold Giganews liable for contributory copyright infringement, holding that Perfect 10 “failed to raise a triable issue of fact as to whether Giganews materially contributed to or induced infringement of Perfect 10’s copyrights.” The court also declined to hold Giganews liable for vicarious infringement, holding that the direct financial benefit inquiry requires evidence that a plaintiff’s specific works acted as a “draw” to a defendant’s service, rather than a showing that infringing activity in general acted as a “draw.” Later in the year, the U.S. Supreme Court denied the cert petition in the case.

Fox Television v. Aereokiller

In March, in Fox Television v. Aereokiller [aka FilmOn case] — a case involving whether a service which transmits broadcast television over the internet is eligible for a compulsory license under Section 111 — the U.S. Court of Appeals for the Ninth Circuit, in a reversal of the lower court’s decision, held that internet-based retransmission services are not eligible for a cable compulsory license under Section111 of the Copyright Act. Shortly after the decision and the Ninth Circuit’s denial of FilmOn X’s petition for rehearing en banc, FilmOn X, which also had appeals pending in the DC and Seventh Circuits, settled all its disputes with CBS, Fox, Disney, and NBC.

Star Athletica v Varsity Brands

In June, the U.S. Supreme Court handed down a very important decision to the fashion design industry in the so-called cheerleader uniform case, Star Athletica v Varsity Brands, holding that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work — either on its own or fixed in some other tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated. In so holding, the Court explained that copyright affords “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions.” and that “two-dimensional designs appearing on the surface of [clothing]” including “combinations, positionings, and arrangements” of shapes, colors, lines, etc. are protectable by copyright.

Lenz v. Universal Music

The Court also denied the petition for cert in the famous dancing baby case, Lenz v. Universal Music, which concerned the liability of a copyright owner under Section 512(f ) for materially misrepresenting in a notification of claim that the challenged material or activity is infringing. The issue at stake was whether a DMCA takedown notice sender formed a good faith belief that material or activity is infringing.

Elsevier Inc. v. Sci-Hub, ACS v. Sci-Hub

Also in June, in Elsevier Inc. v. Sci-Hub — a case involving Sci-Hub’s unauthorized reproduction and distribution of Elsevier’s copyrighted works — the U.S. District Court for the Southern District of New York ruled in favor of Elsevier, awarding the publisher $15 million in damages. Likewise, ACS took Sci-Hub to court, although that verdict included the additional boon of the ability to seek orders against search engines like Google to cut links to Sci-Hub due to its status as an infringer.

Disney v. VidAngel

In August, the Ninth Circuit affirmed a lower court ruling in Disney v. VidAngel, in which VidAngel which was providing a service that decrypts DVDs and filters “objectionable” content from movies and TV shows, and streams the programs to its customers. The U.S. District Court for the Central District of California issued a preliminary injunction against VidAngel, holding that its service violated Plaintiffs’ exclusive rights to reproduce and publicly perform the movie-studio plaintiff’s copyrighted works, and violated DMCA Section 1201(a)(1)(A) by circumventing the technological protection measures on DVDs and Blu-ray discs. It further rejected VidAngel’s argument that a content filtering service complies with the Family Home Movie Act (FMA) as well as its fair use defense.

Penguin Random House v. Colting

In September, in Penguin Random House v. Colting [aka Kinderguides case] — a case involving a series of children’s books that “contain a condensed, simplified version of the plot[s]” of classic American novels — Judge Rakoff of the U.S. District Court for the Southern District of New York ruled in favor of the authors and book publishers, holding that the series of children’s books “infringe[d] upon plaintiffs’ exclusive right to reproduce their novels … and [their] exclusive right to exploit the market for derivative works based on their novels.”

Naruto v. Slatter

Also in September, the famous Monkey-Selfie case — Naruto v. Slater — settled. The case, which PETA brought against photographer David Slater who they alleged infringed the copyright belonging to a monkey, raised the issue of whether a monkey can be considered the author of a photograph. Under the terms of the settlement, Slater agreed to “donate 25 percent of any future gross revenue that he derives from using or selling any or all of the monkey selfies to registered charities dedicated to protecting the welfare or habitat of Naruto and other crested macaques in Indonesia.”

Flo & Eddie v. SiriusXM

In October, in Flo & Eddie v. SiriusXM, a case concerning pre-1972 sound recordings, which are not protected under federal law, and the public performance right, Florida’s Supreme Court stated that, in bringing the case, “Flo & Eddie essentially asks this Court to recognize an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognized in any sound recording” and ruled that “Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings.”

The Leaders Institute v. Jackson

In November, in The Leaders Institute v. Jackson, the U.S. District Court for the Northern District of Texas rejected the Perfect 10’s “server test,” in which the Ninth Circuit held that in-line linking (also known as “framing”) images on a website without actually hosting (i.e. copying) those images did not infringe the author’s right of public display. The Dallas court rejected that test, ruling that “to the extent Perfect 10 [case] makes actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth Circuit.” The court went on to say that “the text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.”

Signature Mgmt. Team v. Doe

Later that month another significant case, this one by the Sixth Circuit in Signature Mgmt. Team v. Doe, held that there is a presumption in favor of unmasking John Doe defendants after a judgment in favor of the plaintiff has been entered. The court explained that “courts must consider both the public interest in open records and the plaintiff’s need to learn the anonymous defendant’s identity in order to enforce its remedy” and that “where a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.”

U.S. v. BMI

And coming in right under the wire is U.S. v. BMI case, which was decided on December 19. At issue in the case was the Department of Justice’s 100% licensing mandate which it was attempting to enforce under BMI’s consent decree. The U.S. Court of Appeals for the Second Circuit upheld the lower court decision, ruling against the mandate and holding that no provision of BMI’s consent decree prohibits the performing rights organization from engaging in fractional licensing. The decision is tremendous victory for songwriters, composers, and music publishers.

Anticipated Verdicts

Looking ahead to 2018, there will no shortage of important copyright decisions. In 2017, oral arguments were heard in BMG Rights Management (U.S.) LLC v. Cox Communications in the Fourth Circuit, which involves standards for contributory infringement and repeat infringer policies under the DMCA; Capitol Records v. Redigi, in the Second Circuit, which concerns the applicability of the first sale doctrine to the distribution of digital files; and Oracle v. Google in the Federal Circuit, which relates to whether Google’s use of Oracle’s software code was fair use; Fox News Network v. TVEyes in the Second Circuit, a case involving TVEyes’ service copying of broadcasts from over 1,400 TV and radio stations 24/7 and distributes the content to subscribers under the guise of fair use; and Cambridge University Press v Becker [aka the GSU case] in the Eleventh Circuit, in which several publishers sued for a pattern of illegal distribution of copyrighted book and journal content through digital course management and similar systems controlled by Georgia State University.

In addition, the U.S. Supreme Court is considering the cert petition in Fourth Estate v. Wall-Street.com — a case concerning whether the requirement in Section 411(a) that a “registration of the copyright claim [must be] made” prior to instituting a case for copyright infringement means the application, fee, and deposit must have been submitted, or that the U.S. Copyright Office must have acted to approve or reject the application.

With all these important cases likely to be decided over the next 12 months, 2018 is shaping up to be another important year for copyrights in the courts.

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Copyright Law in 2017: A Look at What Happened on Capitol Hill http://www.copyright.com/blog/copyright-law-2017-look-happened-capitol-hill/ http://www.copyright.com/blog/copyright-law-2017-look-happened-capitol-hill/#respond Tue, 09 Jan 2018 08:00:17 +0000 http://www.copyright.com/?post_type=blog_post&p=15278 Major 2017 legislation included Register of Copyrights Selection and Accountability Act of 2017 and Copyright Alternative in Small-Claims Enforcement Act.

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by Keith Kupferschmid Keith is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.

2017 was a tumultuous year — even in the copyright world.

In this three-part series, we’re taking a look at the most significant U.S. copyright moments of 2017 from a few different perspectives: what happened on Capitol Hill, in the courts, and in the headlines.

Copyright and Capitol Hill

In December 2016, we were recoiling from the Librarian of Congress’ abrupt removal of Maria Pallante as the Register of Copyrights. There was an immediate backlash against the Librarian in response to a public survey regarding the next Register. Around that same time, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and then-Ranking Member John Conyers, Jr. (D-Mich.) released the first policy proposal to come out of the Committee’s review of U.S. Copyright law. Among other things, that proposal made it clear “the next Register and all that follow should be subject to a nomination and consent process” and thus, not chosen by the Librarian.

Introducing the Register of Copyrights Selection and Accountability Act of 2017

The Rules Committee very rarely considers legislation relating to copyright or the U.S. Copyright Office, and therefore there was a significant learning curve for the Committee staff that took up most of the second half of 2017.

This proposal led to the introduction and eventual passage by the House of the H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, a bill that would make the Register of Copyrights a presidential appointee. This was a significant accomplishment as it represented the most substantive, stand-alone copyright bill to pass through the House in a decade (since the PRO-IP Act, which passed in 2008). It is worth noting that the vote was not even close — with the bill passing by an overwhelming 378-48 vote on April 26, which coincidentally is World IP Day.

The bill then headed to the Senate for approval where it was joined by companion bill Section 1010, which was introduced by Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Ranking Member Dianne Feinstein (D-CA), and Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT). Instead of being referred to the Senate Judiciary Committee, where virtually all copyright bills are sent, the bill was referred to the Senate Rules Committee. The Rules Committee very rarely considers legislation relating to copyright or the U.S. Copyright Office, and therefore there was a significant learning curve for the Committee staff that took up most of the second half of 2017. At the same time, the Librarian agreed to pause her search for the next Register while Congress considers the legislation. With the Committee now sufficiently briefed on the issues by stakeholders, the bills are more likely to be considered going forward in 2018. If that proves not to be the case, it’s likely the Librarian will take her finger off the pause button and select a new Register. If and when that happens, we may very well revisit the turmoil we witnessed during the Fall/Winter of 2016.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017

Another bill that received a lot of attention and support in 2017 is H.R. 3945, the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017, which was introduced in October by Representatives Hakeem Jeffries (D-NY) and Tom Marino (R-PA), as well as Representatives Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA). The bill would create a voluntary small claims board within the Copyright Office to provide copyright owners with an alternative to the expensive process of bringing infringement claims in federal court. This new board, called the Copyright Claims Board (CCB), would cap damages at $15,000 per work infringed and $30,000 total. With strong bipartisan support, little opposition and creators across the country beginning to voice their support for the bill, we expect H.R. 3945 to receive significant consideration in the House in 2018.

Several Music Bills Came to the Forefront

Several music bills, like the Fair Play Fair Pay Act, the AMP Act, the CLASSICS Act and the PROMOTE Act were also introduced. A much more controversial and contentious music bill, H.R. 3350, the Transparency in Music Licensing and Ownership Act, was introduced by Rep. Sensenbrenner (R-WI). This bill, which would seek to establish a government-administered database for music and sound recordings within the U.S. Copyright Office, faced steep opposition from many in the music community, including the Copyright Alliance.

The music bill that is most likely to move in 2018 is actually one that wasn’t introduced until the end of 2017 (December 21 to be exact). For several months, Rep. Collins had been working with stakeholders on a bill called the Music Modernization Act that will change the way on-demand streaming services pay mechanical royalties and would create an organization to collect and distribute those royalties. That organization would create a database to make it easier to identify, locate and pay rights holders and reform Section 114 to improve the rate court process for ASCAP and BMI. The bill is co-sponsored by Congressmen Hakeem Jeffries (D-NY), Marsha Blackburn (R-TN), Diane Black (R-TN), Joe Crowley (D-NY), Steve Cohen (D-TN) and Ted Lieu (D-CA).

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Managing Intellectual Property in the Era of the Socially Responsible Organization http://www.copyright.com/blog/managing-intellectual-property-socially-responsible-organization/ http://www.copyright.com/blog/managing-intellectual-property-socially-responsible-organization/#respond Mon, 08 Jan 2018 14:49:56 +0000 http://www.copyright.com/?post_type=blog_post&p=15269 We're highlighting six core social responsibility practices for managing intellectual property and copyright in the era of CSR.

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Kraft Heinz released a 70-page document outlining its first-ever corporate social responsibility (CSR) plan, according to the Chicago Tribune. The plan includes the promise to use only eggs from cage-free hens by 2025, representing a significant shift for corporations to make a stronger commitment to socially sustainable initiatives. In fact, “sustainable, responsible and impact investing” in the U.S. totaled $8.72 trillion in 2016, a 33 percent increase from 2014 according to the US SIF Foundation: The Forum for Sustainable and Responsible Investment.

This shift in spending is an indication that stakeholders now expect businesses to operate in ways that demonstrate their efforts to be good corporate citizens. Like Kraft Heinz, organizations should consider developing a strategy for corporate social responsibility. A CSR program consists of initiatives that support the three dimensions of economic, environmental and social responsibility. In particular, in the area of social responsibility organizations must integrate the respect for and protection of copyright and intellectual property into broader CSR initiatives.

Intellectual property and copyright compliance play an expanding role in CSR as well as broader governance, risk management and compliance strategies. Organizations need policies and processes to identify, capture, organize and protect their portfolio of intellectual property internally, such as copyrights, trademarks, patents, trade secrets and related intangible assets with inherent value. It also includes — with growing awareness and focus —respect for and protection of intellectual property and copyrighted materials produced by others that fall within the corporation’s scope of responsibility.

The core social responsibility practices for managing intellectual property and copyright in the era of CSR are:

1. Understand your risk

An organization should conduct a regular assessment of its policies and controls to see how well they protect the copyrighted material and intellectual property of others — particularly how the company protects the rights of others who create and publish the materials used by the organization. This starts with understanding and creating an inventory of how copyrighted and protected information of all media types — print, electronic, images, motion pictures, music, and more — is used throughout the organization, and identifying areas of the organization at increased risk of noncompliance.

2. Monitor risk and business change

There is a constant cycle of change in employees, business partners, relationships and processes. There is also change in the copyrighted information being used within the organization at any given time. The organization must make sure it is current in understanding where and how copyrighted information is used and then take steps to keep employees and business partners up-to-date on the policies and protection of the company’s property, as well as the intellectual property of others.

3. Set the tone at the top

The critical message of the socially responsible organization, including respect for copyright and other intellectual property rights, must be communicated from and demonstrated by executives who follow the same rules as everyone else.

4. Keep policies and training current

Written policies that are inaccessible are meaningless. Organizations need active training programs to educate and develop a culture of respect and protection with respect to copyrighted information. This goes beyond messaging about compliance with the law, and extends to establishing a culture that behaves in a socially responsible way when using and sharing the information of others inside and outside of an organization.

5. Make someone accountable

Someone needs to be in charge. The socially responsible organization will see there is a role focused on keeping policies and controls current for the protection of copyright and intellectual property. This role serves as an advocate for developing such a culture and making sure policies are understood and training is completed.

6. Keep it consistent

Every organization needs ongoing assessment of intellectual property and copyright protection policies and controls to assess the state of compliance across the organization. This involves surveys, self-assessments and automated assessments for regular compliance risk and control monitoring. Success requires that risk assessments not only be done on a periodic basis, but also when there is significant business change that could impact compliance policies.

The sharing of information company-wide puts organizations at risk

A CSR plan is an opportunity to help reinforce an organization’s values and boundaries.

When related practices — including policies, training and controls — are not centrally defined, managed and communicated, organizations risk violating the copyright and intellectual property rights of others. The socially responsible organization understands this and ensures that the organization uses the property of others in a way that complies with the law and is respectful of copyright.

Still, the ability to share timely information is paramount for businesses striving to build and maintain a competitive edge. While technology has made it easy to find and use content, obtaining copyright permissions can be time-consuming and potentially expensive. An enterprise-wide annual copyright license which covers common uses of materials across the organization may be an effective solution to mitigate risk and increase efficiencies.

Keep Reading:

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