Archive for the 'Copyright' Category

"TPP Undermines User Control and That’s Disastrous for Accessibility"

Posted in Copyright, Digital Copyright Wars on July 28th, 2015

Maira Sutton has published "TPP Undermines User Control and That's Disastrous for Accessibility" in Deeplinks.

Here's an excerpt:

The passage of the Marrakesh Treaty led to a change in the TPP's Limitations and Exceptions section of the Intellectual Property chapter, expanding the definition of a legitimate use as one that is "facilitating access to works for persons who are blind, visually impaired, or otherwise print disabled" (some of this wording is still contested, but on the whole is included in the most recent leak of the agreement). This was of course a welcome change to see in the TPP.

What's worrying however, is that in order to pass a new international exception for other kinds of disabilities, such as for the deaf, it will require another agonizing, years-long process. While Marrakesh was intended to set a lower limit on the number of potential exceptions for accessibility, the wording of trade agreements like the TPP could turn the same language into an upper limit. This is due to its approach to copyright exceptions, exemplified by its "three-step test" provision. It's a set of criteria that governments must follow in order to pass any new exception (like say, allowing works to be used for educational or even accessibility purposes). In practice, the three-step test can embolden restrictions against using copyrighted works, rather than being more permissive like fair use.

So instead of providing only a narrow right to people with visual impairments, the TPP could include an exception that would help anyone who has difficulty accessing work due to a disability. But unlike at Marrakesh there are no representatives of the disabled to make that argument in the closed negotiating rooms of the TPP.

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    "Developing and Implementing a Technical Framework for Interoperable Rights Statements"

    Posted in Copyright, Licenses, Standards on May 21st, 2015

    Mark Matienzo has published "Developing and Implementing a Technical Framework for Interoperable Rights Statements" in DPLA Updates.

    Here's an excerpt:

    Within the Technical Working Group of the International Rights Statements Working Group, we have been focusing our efforts on identifying a set of requirements and a technically sound and sustainable plan to implement the rights statements under development. Now that two of the Working Group's white papers have been released, we realized it was a good time to build on the introductory blog post by our Co-Chairs, Emily Gore and Paul Keller. Accordingly, we hope this post provides a good introduction to our technical white paper, Recommendations for the Technical Infrastructure for Standardized International Rights Statements, and more generally, how our thinking has changed throughout the activities of the working group.

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      "Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation"

      Posted in Copyright, Digital Copyright Wars on May 20th, 2015

      Jacqueline D. Lipton and John Tehranian have published "Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation" in the Northwestern University Law Review.

      Here's an excerpt:

      As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (1) reworking the strict liability basis of copyright infringement for noncommercial works, (2) tempering damages awards for noncommercial or innocent infringement, (3) creating an "intermediate liability" regime that gives courts a middle ground between infringement and fair use, (4) developing clearer ex ante guidelines for fair use, and (5) reworking the statutory definition of "derivative work" to exclude noncommercial remixing activities.

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        Written Testimony of Maria A. Pallante, US Register of Copyrights and Director of the U.S. Copyright Office

        Posted in Copyright, Digital Copyright Wars on May 8th, 2015

        The House Judiciary Committee has released the 4/29/15 written testimony of Maria A. Pallante, United States Register of Copyrights and Director of the U.S. Copyright Office.

        Here's an excerpt:

        Related to the problem of orphan works, the Office is completing its analysis of copyright issues inherent to mass digitization projects. In our study, witnesses have described some of the difficulties presented by mass digitization projects under current copyright law, and proposed specific statutory solutions.

        As hearing testimony indicated, the problem with respect to mass digitization is not so much a lack of information as a lack of efficiency in the licensing marketplace. For a digitization project involving hundreds, thousands, or millions of copyrighted works, the costs of securing ex ante permissions from every rightsholder individually often will exceed the value of the use to the user. Thus, even where a library or other repository agrees that a use requires permission and would be willing to pay for a license (e.g., to offer online access to a particular collection of copyrighted works), the burdens of rights clearance may effectively prevent it from doing so. To the extent that providing such access could serve valuable informational or educational purposes, this outcome is difficult to reconcile with the public interest.

        While fair use may provide some support for limited mass digitization projects—up to a point—the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution. In the Office's view, the legitimate goals of mass digitization cannot be accomplished or reconciled under existing law other than in extremely narrow circumstances. For example, access to copyrighted works, something many view as a fundamental benefit of such projects, will likely be extremely circumscribed or wholly unavailable. For this reason, as part of its orphan works and mass digitization report, the Office will recommend a voluntary "pilot program" in the form of extended collective licensing ("ECL") that would enable full-text access to certain works for research and education purposes under a specific framework set forth by the Copyright Office, with further conditions to be developed through additional stakeholder dialogue and discussion. Such input is critical, we believe, because ECL is a market-based system intended to facilitate licensing negotiations between prospective users and collective management organizations representing copyright owners. Thus, the success of such a system depends on the voluntary participation of stakeholders.

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          ARL Signs The Hague Declaration on Knowledge Discovery in the Digital Age

          Posted in ARL Libraries, Copyright, Digital Copyright Wars, Research Libraries on May 7th, 2015

          ARL has signed The Hague Declaration on Knowledge Discovery in the Digital Age.

          Here's an excerpt from the announcement:

          More than 50 organizations around the world—including ARL—have signed the Hague Declaration on Knowledge Discovery in the Digital Age, which calls for immediate changes to intellectual property (IP) law and the removal of other barriers preventing widened and more equal access to data. . . .

          The declaration asserts that copyright was never designed to regulate the sharing of facts, data, and ideas—nor should it. The right to receive and impart information and ideas is guaranteed by the Universal Declaration of Human Rights but the modern application of IP law often limits this right, even when these most simple building blocks of knowledge are used.

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            USTR Releases 2015 Special 301 Report on Intellectual Property Rights

            Posted in Copyright, Digital Copyright Wars on May 1st, 2015

            The Office of the United States Trade Representative (USTR) has released its 2015 Special 301 Report.

            Here's an excerpt from the announcement:

            The "Special 301" Report is an annual review of the global state of IPR protection and enforcement. USTR conducts this review pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act.

            USTR reviewed seventy-two (72) trading partners for this year's Special 301 Report, and placed thirty-seven (37) of them on the Priority Watch List or Watch List.

            In this year's Report, trading partners on the Priority Watch List present the most significant concerns this year regarding insufficient IPR protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection. Thirteen countries—Algeria, Argentina, Chile, China, Ecuador, India, Indonesia, Kuwait, Pakistan, Russia, Thailand, Ukraine, and Venezuela—are on the Priority Watch List. These countries will be the subject of particularly intense bilateral engagement during the coming year.

            See also “Error: Copyright Balance Not Found in United States’ Special 301 Report” from the EFF.

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              "Aaron’s Law Reintroduced: CFAA Didn’t Fix Itself"

              Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on April 30th, 2015

              The EFF has released Aaron's Law Reintroduced: CFAA Didn't Fix Itself by Cindy Cohn.

              Here's an excerpt:

              Aaron's law, the proposed law named in honor of Internet hero Aaron Swartz was reintroduced last week by Rep. Zoe Lofgren (D-Calif.) and Senator Wyden (D-Ore.), with new co-sponsor Senator Rand Paul (R-Ky.). This bill is the same as the one introduced in 2013 and we call upon Congress to move it forward.

              The CFAA is one of the laws that is misused by prosecutors, piling on potential jail time to relatively minor charges in order to ratchet up pressure on defendants and get them to plead guilty rather than risk trial. In the time since Aaron's tragic death, EFF has continued to see misuses of the CFAA in prosecutions across the country. While this bill wouldn't fix everything that is wrong with the law, it would ensure that people won't face criminal liability for violating a terms of service agreement or other solely contractual agreements. It would also rein in some of the potential for prosecutorial discretion by limiting penalties and stop some of the game playing with duplicate charges that we continue to see. More specifics on our website, along with links to EFF's ongoing work in the courts can be found on our CFAA Issue page.

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                "ARL Joins New Re:Create Coalition to Promote Balanced Copyright"

                Posted in ARL Libraries, Copyright, Digital Copyright Wars on April 29th, 2015

                ARL has released "ARL Joins New Re:Create Coalition to Promote Balanced Copyright."

                Here's an excerpt:

                Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

                Re:Create promotes and defends the important balance of copyright. ARL's member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

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                  "Steps toward a New GSU Ruling"

                  Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing, Research Libraries on April 28th, 2015

                  Kevin Smith has published "Steps toward a New GSU Ruling" in Scholarly Communication @ Duke University.

                  Here's an excerpt:

                  It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage. Now Judge Evans has explicitly told them, in her scheduling order, that what is required is "consideration and reevaluation of each of the individual claims" in order to redetermine "in each instance… whether defendants' use was a fair use under 17 U.S.C. section 107." Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now. Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

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                    "New ‘Breaking Down Barriers to Innovation Act’ Targets Many of DMCA Section 1201’s Problems"

                    Posted in Copyright, Digital Copyright Wars on April 21st, 2015

                    The EFF has released "Breaking Down Barriers to Innovation Act' Targets Many of DMCA Section 1201's Problems" by Mitch Stoltz.

                    Here's an excerpt:

                    On Thursday, Senator Ron Wyden and Representative Jared Polis introduced a new bill to fix many of the problems that Section 1201 of the Digital Millennium Copyright Act causes for free speech, privacy, security research, and innovation. Called the "Breaking Down Barriers to Innovation Act," the bill would make it a little easier to get three-year exemptions to the DMCA's ban on circumventing digital restrictions. It also expands and clarifies the exemptions for encryption research, security testing, strengthening privacy, and reverse engineering. . . .

                    There's another bill that strikes at the root of the problem. Just a few weeks ago, Representative Zoe Lofgren, along with Representatives Massie, Polis, and Eshoo, re-introduced the Unlocking Technology Act. It makes a simple and straightforward change to Section 1201 of the DMCA: circumventing DRM would only be illegal if a person intends to infringe copyright. With that change, extracting video clips from digital media to make fair uses, as well as modifying our own digital devices and making work more accessible would all be free from legal threats under the DMCA.

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                      Understanding Rights Reversion: When, Why, & How to Regain Copyright and Make Your Book More Available

                      Posted in Copyright, Publishing, Scholarly Books on April 13th, 2015

                      The Authors Alliance has released Understanding Rights Reversion: When, Why, & How to Regain Copyright and Make Your Book More Available.

                      Here's an excerpt from the announcement:

                      This guide is the product of extensive outreach to the publishing industry. In the process, we interviewed authors, publishers, and literary agents, ranging from a CEO of a major publishing house to contracts and rights managers of trade and academic presses, editorial assistants, novelists, and academic authors.

                      We were happily surprised by the consistency of publishers' responses: across the board, publishers told us that they want to work together with their authors and that they are often willing to give authors their rights back if its in the books' best interests.

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                        "Justifications for Copyright Limitations & Exceptions"

                        Posted in Copyright on March 18th, 2015

                        Pamela Samuelson has self-archived "Justifications for Copyright Limitations & Exceptions."

                        Here's an excerpt:

                        The essay traces the historical development of L&Es in U.S. copyright law. . . .

                        The essay then considers nine justifications for the existence of these L&Es. One set promotes ongoing authorship. A second recognizes both authorial and broader public interests in dissemination of news, freedom of expression, and access to information. A third protects privacy, personal autonomy, and ownership interests of consumers. A fourth aims to fulfill certain cultural and social policy goals. A fifth enables public institutions, such as courts and legislatures, to function more effectively. A sixth fosters competition and ongoing innovation. A seventh exempts incidental uses lacking in economic significance. An eighth addresses market failure problems. A ninth encompasses L&Es adopted for politically expedient reasons.

                        It also discusses a tenth type of L&E, those designed to enable copyright law to be flexible and adaptable over time.

                        The essay concludes that the optimal policy for L&Es may well be to have specific exceptions for categories of justified uses that are relatively stable over time and for which predictability is more important than flexibility and to have an open-ended exception such as fair use to allow the law to adapt to new uses not contemplated by the legislature.

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