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Copyright Principles Project – House Judiciary Committee Hearing…

Congressional recording available from the May 16 hearing on the Copyright Principles Project.  You may need to move the play button pretty far in to get to it.

Here are the details:

A Case Study for Consensus Building: The Copyright Principles Project

Thursday 5/16/2013 – 2:00 p.m.

Subcommittee on Courts, Intellectual Property and the Internet

2141 Rayburn House Office Building

Witness List

Mr. Jon Baumgarten
 Former General Counsel Copyright Office (1976 – 1979)

Professor Laura Gasaway
 University of North Carolina School of Law

Professor Daniel J. Gervais
 Vanderbilt University School of Law

Professor Pamela Samuelson
 University of California Berkeley School of Law

Mr. Jule Sigall
 Assistant General Counsel for Copyright Microsoft Corporation


Chairman Goodlatte:  This afternoon we will hear from several participants in the Copyright Principles Project who collectively have worked on or studied copyright issues for decades. They have also traveled here from all over the United States and I thank them for their willingness to be here today.Watch Webcast

By Direction of the Chairman

Statement of Judiciary Committee Chairman Bob Goodlatte Subcommittee on Courts, Intellectual Property and the Internet Hearing on “A Case Study for Consensus Building: The Copyright Principles Project”

Statement of Judiciary Committee Chairman Bob Goodlatte
Subcommittee on Courts, Intellectual Property and the Internet
Hearing on “A Case Study for Consensus Building: The Copyright Principles Project”

Copyright is a fundamental economic principle enshrined in our Constitution. It has become a core part of our economy and society in ways the framers of our Constitution could never have imagined. The ways in which creators could express themselves when the Constitution was written were very limited. Photography, musical recordings, film, and software did not arrive for decades, if not centuries, afterwards. Even many of these creations have changed significantly as digital technologies made the creation of content more diversified. Digital technologies have also enabled wider distribution to occur -local artists can have a global reach. The passion and skills of our nation’s creators have enhanced our society and culture. Creators deserve our support and respect.

Despite rapidly changing technologies and business models since the enactment of the 1976 Copyright Act, there appear to have been few efforts to bring together parties from different perspectives to discuss how the 1976 Act has worked as technology and business models evolve. There have certainly been short-term events where interested parties spoke for a few minutes each about the latest technology or the latest court decision. What has been lacking is something broader in perspective.

What impressed me about the Copyright Principles Project was not its report or even on what issues its participants were able to agree or disagree. In fact, the Committee does not endorse the specific recommendations and findings of the report. However, we do want to highlight that its participants with strongly held views on copyright law, many of which were in direct opposition to each other, committed to spending three years together in an effort to productively discuss copyright issues. The Committee has invited five of the participants here today as an example of how people with divergent views on copyright law can productively debate a range of copyright issues. Their written testimony highlights the fact that they are all here this afternoon, certainly not speaking with one voice, but speaking with a recognition that the person next to them at the witness table has just as much right to advocate their position on copyright law as they do.

This Judiciary Committee is no stranger to policy issues on which opinions vary widely. This hearing room has, and is continuing, to debate numerous policy issues in which there are sharp disagreements. There were of course sharp disagreements on the 1976 Copyright Act that we use today and whose hearing record in the Committee journals is before me.

Since announcing my interest in a comprehensive review of copyright law several weeks ago, a variety of interested parties began identifying their specific areas of interest that they wanted to see reviewed. I appreciate their input and I look forward to working with all interested parties. We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy. It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.

There are numerous questions that will be raised by interested parties during this review. I have several myself including:

How do we measure the success of copyright and what metrics are used?
How do we ensure that everyone’s voice is heard?
How is copyright working for individual artists?
How is copyright working for our nation’s economy?

These are only a few of the issues we will be looking into. This review of copyright law will not be a quick process simply because the issues are so numerous. However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.

 

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You probably know that the Register of Copyrights testified before Congress last month that we need a new copyright act.  [See The Register’s Call for Updates to U.S. Copyright Law Subcommittee on Courts, Intellectual Property and the Internet (3/20/13) Related Lecture  View Webcast Part 1 | Webcast Part 2]

You probably have also noticed the erosion of First Sale as we live more and more in the land of digital. Witness the Redigi decision that said that even if you forward and delete, you can infringe copyright. That’s because you need to make a copy for sending before you delete your original.

You may also live in the real world where everyone is remixing digital content, yet the uncertainty that accompanies these creative efforts can be stifling to those that are aware of copyright penalties.

To that end, it is important to speak out and say what you need in the Next Great Copyright Act. Read the short petition below, and if you agree with it, sign it. If you know of communities that would sign, please forward. There’s a short deadline to get this out by May 14th.  If you don’t have a White House account, you can create one very easily.

http://tinyurl.com/recastcopyright

WE PETITION THE OBAMA ADMINISTRATION TO:

Recast copyright law for the digital era. It’s time to regain public respect with laws that make sense.

The public disregards copyright law because it is out of sync with the digital age. We want the right to resell digital content (ebooks, etc.) that we’ve paid for. We need transparency in the marketplace to understand what rights we have.

Additionally, as responsible creators we need to be able to freely remix existing music and other forms of creative expression to create new works without undue fear of prosecution. This upholds the original Constitutional purpose of copyright, which is to promote progress.

This will nurture the process of innovation and the sharing of our culture. The language of the existing copyright law must be changed to accommodate the way information is being created and consumed in our digital world.

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Even very popular government mandates have opponents, and the National Institutes of Health’s (NIH) Public Access Policy certainly has its critics.

According to the agency, “The NIH Public Access Policy implements Division G, Title II, Section 218 of PL 110-161 (Consolidated Appropriations Act, 2008). The law states:”

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

Critics of the policy are making a move, yet again, to eviscerate it.

Last month, Representatives Darrel Issa (R-CA) and Carolyn Maloney (D-NY) introduced The Research Works Act, H.R. 3699. The bill is currently referred to the House Committee on Oversight and Government Reform (which Rep. Issa chairs).

The Association of American Publishers lauds the bill, which it describes as

… [prohibiting] federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding. It would also prevent non-government authors from being required to agree to such free distribution of these works. Additionally, it would preempt federal agencies’ planned funding, development and back-office administration of their own electronic repositories for such works, which would duplicate existing copyright-protected systems and unfairly compete with established university, society and commercial publishers.

(Emphasis mine)

Evolutionary biologist and Public Library of Science co-founder Michael Eisen has done some research, finding that 12 of Reed Elsivier’s (and their senior executives) 31 political contributions for 2011 went to Rep. Maloney, co-sponsor of the bill, totaling $8,500. He also argues that while the bill refers to “private-sector research work,” the definition of such in the bill encompasses research products that receive funds from government agencies, thus invalidating the NIH Public Access Policy.

Some Blogosphere reactions to the bill include:

SOPA and the Research Works Act: Evil master plan or do publishers think so little of us? from Library Attack

Representatives Issa (R-CA) and Maloney (D-NY) introduce anti-open access legislation from Knowledge Ecology International

Congress Considers Paywalling Science You Already Paid For
Congress wants to limit open access publishing for the US government’s $28B/year subsidized research from BoingBoing

Why Is Open-Internet Champion Darrell Issa Supporting an Attack on Open Science? from The Atlantic Online

Scholarly Societies: It’s time to abandon the AAP over The Research Works Act from Confessions of a Science Librarian

New bill to block open access to publicly-funded research from Peter Suber

The Alliance for Taxpayer Access, an Open Access advocacy group, already has a Take Action page, asking supporters of the NIH Public Access Policy to call Reps. Issa and Maloney, as well as other members of the House Committee on Oversight and Government Reform.

We at Fairly Used will continue to look for news and reactions to this bill.

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Behind the Scenes With Winston Tabb, Representing Libraries…

Mary Minow: Good morning. I understand that international treaty discussions concerning libraries, archives and copyright are scheduled in Geneva in November 2011. How did that come to be?

Winston Tabb: Really, where we began was at the International Federation of Library Associations and Instititutions (IFLA) World Congress in Oslo in 2005. We didn’t start with the idea of a treaty at all, but with an interest in finding real-life, detailed examples from our colleagues from all parts of the world about what issues they were facing with copyright and managing their libraries. So, we planned a program session in which we organized people into discussion groups based on regions, both because of linguistic affinities and because typically regional differences may matter a lot in the challenges faced by libraries in dealing with intellectual property. Through this session we came up with a list of very specific problems that our library colleagues face in different parts of the world, and that became the basis of our thinking.

I should add that we were led to plan this session in the first place because a group of Latin American countries had strongly suggested at WIPO in 2004 that the Standing Committee on Copyright and Related rights (SCCR) should focus in the need for limitations and exceptions, and we as a library community wanted to be prepared to say which L&Es were most critical to our mission.

Continue reading →

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Copyright Case Summaries: Interview with Cicely Wilson and…

The Stanford Copyright and Fair Use site is pleased to announce a new feature to aid readers in keeping up and understanding copyright cases in a timely manner: copyright case summaries. To explain this new feature, Mary Minow talks to two editors of Justia, Cicely Wilson and Courtney Minick.

Mary Minow: Tell us about the copyright case summaries that the Stanford Fair Use site will be offering to readers.

Cicely Wilson and Courtney Minick: We will send a feed of summaries for cases that involve copyright issues to the Fair Use site. The summaries themselves are short blurbs that describe the key issues and holdings of a particular case. They are designed to give the reader a sense of whether they need or want to read the case in its entirety. The summaries link to the full text of the opinion on the Justia site, and they are also displayed on the same page as the opinion. This way someone browsing or searching for caselaw on our site gets the benefit of the overview as well.

As the number of opinion summaries grow in this feed, it serves as a survey of sorts for copyright and fair use law — something that we hope will provide a lot of value as a free tool.

Minow: Who is writing the summaries?

Wilson and Minick: We have hired a team of experienced writers, all of whom are licensed attorneys, to write the summaries. They summarize the cases in a concise manner and tag the cases with relevant areas of law.

Minow: You’re saying that a private company has hired a team of attorneys to write case law summaries, and then make those summaries available to the public for free? Why would you do that?

Wilson and Minick: Great question, Mary. At Justia we believe we all “do well by doing good.”  To that end, one part of our core mission is to advance the availability of free legal resources on the web. The newsletter summaries fit in as a part of this by expanding access to the law and add value to the free primary law on our portal.

Minow: Any last words?

Wilson and Minick: Thanks Mary! We are very excited about this new product, and hope it will provide a lot value to lawyers, law librarians, and others who need to stay on top of legal developments. We are also looking forward to the addition of editorial information to our database of free legal opinions, as a way to help organize and contextualize the material.

Minow: By the way, who are the pugs?

Wilson and Minick: The pugs are our co-workers, Sheba and Belle!  You can see more of there Justia office adventures on their Facebook page.

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Rich StimRich Stim is corporate counsel for Nolo. Rich is the author of several Nolo intellectual property books including:

Patent, Copyright & Trademark: An Intellectual Property Desk Reference
Patent Pending in 24 Hours

Music Law: How to Run Your Band’s Business

Rich also writes two blogs for Nolo, What Price Justice and Nolo’s Patent, Copyright & Trademark Blog, and provides information about trade secrets and nondisclosure agreements at NDAs For Free. He lives in San Francisco and has been without cable TV since 2006.

Nolo has published a new edition of the volume Getting Permission, a comprehensive, up-to-the-minute book on securing the use of copyrighted images, text, music and more. Moreover, Nolo has granted permission to the Stanford Copyright & Fair Use to provide free and open access to salient chapters dealing with copyright, fair use, and web-based content. Fair Use’s Executive Editor Mary Minow has a brief interview with Rich Stim about the new edition of the book, and what’s new in fair use law.

Mary Minow: thanks so much for sharing the rich Nolo content with the Fair Use site. What have been some of the recent changes worth pointing out?

Rich Stim: The mix of recent fair use case hasn’t been too surprising. For example, we learned it’s not a fair use to create a Harry Potter lexicon or to create a postage stamp from a sculpture. And it’s not a fair use/parody to create a sequel to Catcher in the Rye. It is a fair use, however, to reproduce movie monster magazine covers in a book about the cover artist. No surprises with any of these decisions.

The most important fair use ruling may have been Lenz v. Universal Music Corp. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, ‘Let’s Go Crazy,’ by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. Faced with this novel issue, a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. That may have an effect on the trend towards automated mass DMCA notices. Let’s hope so.

Minow: What’s your assessment of these changes with regards to the big picture of copyright law, especially as it affects the higher education community?

Stim: I’m not sure much has happened recently will affect the higher education community. It’s all been business as usual although we’ll see what happens as a result of this recent ruling regarding the Google book archive. That may have a profound effect on the ability to access orphaned works.

There was a recent case that may, by analogy, effect the ability to claim fair use when copying electronic texts. In Capitol Records Inc. v. Alaujan, a defendant in a music file sharing case was prohibited from claiming fair use because he had failed to provide evidence that his copying of music files involved any transformative use. The court held that “In the end, fair use is not a referendum on fairness in the abstract …” In other words, making a copy of a digital file and using that file for the purpose for which it was intended (in the case of purloined MP3s, that means copying it to listen to) can not be a fair use. To some people that may seem to chip away at the underpinnings of the Betamax case in which time-shifting of television shows for the purpose of later viewing was permitted as a fair use.

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The Council on Library and Information Resources (CLIR) and the Digital Library Federation (DLF) have launched a new publication series, with the inviting name of “Ruminations.”  It will feature short research papers and essays with fresh perspectives in the digital environment for scholarship and teaching.

Kicking off the launch is a new rumination from John P. Wilkin, who we interviewed not so long ago, about his work helping old titles “rise” into the public domain.

John writes us:

“I’d like to point readers to a piece I recently wrote about publication patterns and copyright status, which was just published on the CLIR website at http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html.  Based on the analysis of over 5 million books in HathiTrust and several years of copyright status analysis for US 1923-1963 works, I point out some important patterns in the dates and origin of the works.  The date distributions and work Michigan has led on copyright determination helps make clear how few of these books (proportionately) are likely to be in the public domain.  On a more speculative note, the numbers lead me to conclude that ‘orphans’ may represent a startlingly high percentage of published books.  If nothing else, I hope what I show here stimulates more debate and even more work to help refine our sense of what’s in the public domain, what’s in copyright, what’s likely to be an orphan, and what the consequences of these numbers is.”

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