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For the first time in twenty years, published works in the U.S. expired into the public domain. This anomaly was the direct result of the Copyright Term Extension Act that extended the length of copyright for works still in their renewal term at the time of the Act to 95 years.  This effectively froze the replenishing of the public domain for twenty years. I remember giving copyright workshops with pictures of frozen ice, thinking the year 2019 was some futuristic date. The future is finally here.

But an important note to remember amidst the rejoicing:  the length of copyright has not shrunk back. We’ve just finally waited it out long enough for those 1923 works to join their brethren in the public domain. The works published in 1922 joined the public domain back twenty years ago. Hm.

Back at the party, the Internet Archive celebrated the Public Domain Day in style last Friday, with flappers from the 1920s, treats made from recipes in the 1920s and an impressive list of speakers (below). Cory Doctorow gave a rousing closing keynote, in which he spoke about grifters, who use paperwork to somehow shift your stuff to the grifter’s stuff, giving many examples in the world of intellectual property.

We tweeted the Larry Lessig portion of the event and he was joined many other speakers captured in the livestream:

  • Lawrence Lessig – Harvard Law Professor
  • Cory Doctorow – Author & Co-editor, Boing-Boing
  • Pam Samuelson – Berkeley Law Professor
  • Paul Soulellis – Artist & Rhode Island School of Design Professor
  • Jamie Boyle – Duke Law Professor & Founder, Center for the Study of the Public Domain
  • Brewster Kahle – Founder & Digital Librarian, Internet Archive
  • Corynne McSherry – Legal Director, Electronic Frontier Foundation
  • Ryan Merkley – CEO, Creative Commons
  • Jennifer Urban – Berkeley Law Professor
  • Joseph C. Gratz – Partner, Durie Tangri
  • Jane Park – Director of Product and Research, Creative Commons
  • Cheyenne Hohman – Director, Free Music Archive
  • Ben Vershbow – Director, Community Programs, Wikimedia
  • Jennifer Jenkins – Director, Center for the Study of the Public Domain
  • Rick Prelinger – Founder, Prelinger Archives
  • Amy Mason – LightHouse for the Blind and Visually Impaired
  • Paul Keller – Communia Association
  • Michael Wolfe – Duke Lecturing Fellow, Center for the Study of the Public Domain
  • Daniel Schacht – Co-chair of the Intellectual Property Practice Group, Donahue Fitzgerald LLP

 

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Rich Stim

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

Q: Thank you for updating the copyright overview on this site. What are the most important changes that you want us to know?

A: Because the update reflects changes from 2014 through 2016 it includes a few decisions that readers may be familiar with such as the Google book scanning decision (Author’s Guild v. Hathitrust, discussed below), the sequel rights to Catcher in the Rye, (Salinger v. Colting), the use of news – including business news and video clips – for transformative purposes (Swatch Grp. Mgmt. Servs. Ltd. and Fox News v. TVEYES, Inc.), the use of pop culture references (the “Who’s on First” comedy routine) within a play (Fox News v. TVEYES, Inc), and the ability to parody a popular movie (Point Break). (Keeling v. Hars). I think the cumulative importance of these and other cases that are discussed, is the evolving liberalization of fair use standards.

Q: Do we have any more clarity on Fair Use with respect to academic or library uses?

A: In order to provide more clarity, I think academics and librarians would like to see courts or legislators adopt quantitative guidelines – for example, establishing what percentage of a book or article constituted fair use. That seems unlikely based on the Eleventh Circuit rejection of the “10% rule” in Cambridge University Press v. Patton. The District court had allowed copying of 10% of a work as recommended by the Code of Best Practices, a set of fair use guidelines established by a group of publishers and academics. But the Eleventh Circuit rejected that standard and instead emphasized the importance of a flexible case-by-case fair use analysis. The good news for the academics was that on remand the majority of copying at issue was permitted under fair use.

The other good news for academics was the ruling in Author’s Guild v. Hathitrust. Most of your readers are probably aware of this case, in which the Second Circuit ruled that digital scans of a book constituted a fair use when used for two purposes: a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The Second Circuit remanded as to whether “preservation” constituted a third fair use purpose, but the parties settled in 2015 before the issue could be litigated.

 

 

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

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Stanford Technology Law Review

https://journals.law.stanford.edu/stanford-technology-law-review/online/ip-without-ip-study-online-adult-entertainment-industry

 

Kate Darling

Existing copyright policy is based largely on the utilitarian theory of incentivizing creative works. This Article looks at content production incentives in the online adult entertainment industry. A recent trend of industry-specific studies tries to better understand the relationship between intellectual property (IP) and creation incentives in practice. This Article makes a contribution to the literature by analyzing a major entertainment content industry where copyright protection has been considerably weakened in recent years. Because copyright infringement is widespread and prohibitively difficult to prevent, producers have been effectively unable to rely on the economic benefits that copyright is intended to provide.

Qualitative interviews with industry specialists and content producers support the hypothesis that copyright enforcement is not cost effective. As a result, many producers have developed alternative strategies to recoup their investment costs. Similar to the findings of other scholarly work on low-IP industries, this research finds a shift toward the production of experience goods. It also finds that some incentives to produce traditional content remain. The sustainability of providing convenience and experience goods while continuing content production relies partially on general, but also on industry-specific factors, such as consumer privacy preferences, consumption habits, low production costs, and high demand. While not all of these attributes translate to other industries, determining such factors and their limits brings us toward a better understanding of innovation mechanisms.

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[UPDATE from Peter Hirtle: That didn’t take long.  The authors of the handbook have responded to my specific issues below by updating and/or correcting the handbook.  A new version is available at http://www.law.berkeley.edu/files/FINAL_PublicDomain_Handbook_FINAL(1).pdf.  A very good resource has become even better.]

Stanford Copyright and Fair Use Center Advisory Board Member Peter Hirtle reviews Is it in the Public Domain?

Hirtle

Peter Hirtle, Stanford Copyright and Fair Use Center Advisory Board

It is very difficult to determine whether works are in the public domain in the United States.  That is why I had to create my duration chart as an aidemémoire: any time I tried to remember the various options, I got them wrong.  It is also why I felt compelled to write an article highlighting some of the traps lurking within the seeming clear-cut categories.  And it is why Stephen Fishman needs 700+ pages in his legal treatise, Copyright and The Public Domain. Continue reading →

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The Samuelson clinic has put together what  looks like a useful, thorough new handbook to help you determine if a work is in the public domain. http://www.law.berkeley.edu/files/Final_PublicDomain_Handbook.pdf

Most helpful is the complete FLOW CHART. We’ll put both the handbook and the flowchart in our CHARTS AND TOOLS section for your hand reference. http://www.law.berkeley.edu/files/Final_PublicDomain_Flowcharts(6).pdf

 

Public Domain Flow Chart

 

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The flawed copyright system has an impact on creative economy. Copyright’s influence on digital opportunities in the UK’s creative economy provided impetus for broad scale initiatives for improvement. Audience expectations have changed dramatically.  #mediaxfocpod

mediaX connects businesses with Stanford University’s world-renowned faculty to study new ways for people and technology to intersect.

 

 

 

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The U.S. Copyright Office came to Stanford Law School yesterday to conduct a roundtable on Recordation Reengineering,  The Stanford Law School Law and Policy Lab submitted comments and a thoughtful White Paper, and live tweeted the proceeding along with us (see @slspolicylab and @fairlyused). The Law and Policy Lab was represented at the roundtable by Peter Holm, third year law student.  We interviewed Peter to get the essence of the issue and the White Paper, which is available as document 23 on the Copyright Office comments page.

The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

The White Paper was submitted to Brauneis by Ariel Green, Sean Harb, Peter Holm, Kingdar Prussien, Kasonni Scales, and Juliana Yee, Copyright Policy Lab Practicum

Mary Minow: What was the impetus that led Stanford to research and write this White Paper?

Peter Holm:  The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us.  I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.

Minow: That sounds broad.  When did the focus narrow to copyright document recordations?

Holm:  That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.

Minow:  Why does this matter?

Holm:  To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.

Minow: How do people find out now about who owns what copyrights?

Holm: It varies by industry.  Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably.  So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency.  So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.

Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information.  There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?

There is a substantial cost to investigating this, and often one doesn’t know who to talk to.

Minow: What’s the gist of your proposal?

Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs.  We look at the role of the copyright office. Should it hold a giant database, partner with third parties?  Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements?  We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.

Minow: What are the benefits of recording transfer documents, since it’s not required?

Holm:  It gives constructive notice of the transfer.  Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.

Minow: Thanks for talking with us today.

——

Peter Holm is a third year law student at Stanford Law School.

Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use page.