Category: Copyright

A coalition of organizations, including the European Bureau of Library, Information and Documentation Associations (EBLIDA), the International Federation of Library Associations and Institutions (IFLA), the German Library Association (GLA), the Stichting LIBER Foundation (LIBER), the Special Libraries Association (SLA), and others, has released Copyright for Creativity—A Declaration for Europe.

Here's an excerpt from the press release:

Copyright is based on both protection of creative works and exceptions to that protection, which allow for businesses and creators to innovate, make creative reuses of content, and to build on the work of others. For example, copyright protects a novelist’s rights over her novel, while an exception recognising parody would allow another writer to create a new work of parody based on the original. While copyright protects an academic’s published research, exceptions allow for others to cite, copy in-part, and quote from that research. A balance is therefore struck between the need to protect creators’ rights, and the public benefit that can be realised through reuses, references, and other derivations of the work being created.

These exceptions are key to enabling legitimate reuses and innovation, and the activity of a number of socially and economically important stakeholders depends on them. While the public debate and political agenda around copyright focuses heavily on measures to protect ownership of creative works, the Copyright for Creativity declaration sets out a positive agenda by identifying a set of objectives that need to be achieved if copyright is to fully drive digital competitiveness, creativity and innovation.

Among its recommendations, the declaration calls for European copyright law to act as a spur to innovation, support education and research, facilitate digital preservation and archiving, and harmonise exceptions further across the EU. Also accompanying the declaration are clear examples of the shortcomings of the existing copyright regime; these examples illustrate the application of copyright exceptions in everyday life and their benefit to everyone.

Today’s declaration is only a start, as the coalition expects many more signatories to join after the launch. Given that Members of the European Parliament already support the declaration, the coalition also expects it to serve as a basis for a much needed debate on copyright and the way to ensure that it best serves the interest of creators, innovators and users alike.

The Library Copyright Alliance and other organizations have released "Concerns with April 2010 ACTA Text."

Here's an excerpt:

The proposed statutory damages language in Article 2.2.2 differs from section 504(c) [of the U.S. Copyright Act] in several critical respects. First, section 504(c)(2) directs the court to reduce statutory damages in cases of innocent infringement. If the court finds that the infringer was not aware and had no reason to believe that its acts constituted infringement, the court can reduce the award to $200. And the court can remit statutory damages altogether if a library, archives, or educational institution believed that its copying was a fair use. In contrast, Article 2.2.2 make no provision whatsoever for innocent infringement. By mandating statutory damages without relief for innocent infringement, ACTA could subject U.S. entities to significantly greater damages overseas than in the U.S., thereby discouraging international expansion.

The Office of the United States Trade Representative has announced that the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) will be made public on 4/21/10.

Here's an excerpt from the press release:

The 8th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) was held in Wellington, New Zealand from 12-16 April 2010, hosted by New Zealand. Participants were welcomed by New Zealand's Minister of Trade Hon Tim Groser at a function attended by a wide range of stakeholders with an interest in the ACTA negotiations.

Participants in the negotiations included Australia, Canada, the European Union, represented by the European Commission, the EU Presidency (Spain) and EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America. . . .

Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

It is intended to release this on Wednesday 21 April.

In agreeing to release publicly this draft text in the particular circumstances of this negotiation, participants reaffirmed the importance of maintaining the confidentiality of their respective positions in trade negotiations.

ACTA will not interfere with a signatory's ability to respect its citizens' fundamental rights and liberties, and will be consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health.

There is no proposal to oblige ACTA participants to require border authorities to search travellers' baggage or their personal electronic devices for infringing materials. In addition, ACTA will not address the cross-border transit of legitimate generic medicines.

While the participants recognise the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a "graduated response" or "three strikes" approach to copyright infringement on the Internet.

Michael Geist has uploaded The Truth about ACTA, a digital video of his presentation at the PublicACTA conference, to Blip.tv.

Wendy Seltzer has self-archived "Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment" in SSRN.

Here's an excerpt:

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. . . .

Part I surveys the legal, economic, and architectural sources of the DMCA's chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright's place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

ACRL, ALA, ARL, and other organizations have sent a letter about the secret ACTA negotiations to U.S. Trade Representative Ambassador Ron Kirk.

Here's an excerpt:

This recent leak of a full [ACTA] text heightens our concern that this negotiation is not primarily about counterfeiting or piracy; nor is at all about trade law. The public rationale that the treaty would not impinge on domestic law has been placed in doubt—particularly when one considers whose domestic law would be endangered. As Google executives have recently experienced, it is not only U.S. domestic law that has consequences for U.S. technologists and service providers. Similarly, domestic interests in other participating countries should consider themselves at risk from provisions that are novel or antithetical to their national law.

The leaked text reveals detailed substantive attention to core principles of any nation’s intellectual property law:

• Whether copyright plaintiffs may or shall have the option of receiving pre-established damage awards that have little or no relation to any harm that has been suffered.
• The extent to which principles of inducement, newly introduced by the U.S. Supreme Court in the Grokster case, are to be accepted as supporting a separate basis for copyright liability or are a gloss on existing principles of contributory and vicarious infringement. This is not yet clear even in the United States.
• The export of secondary liability principles to ACTA countries without simultaneously including the limitations and exceptions contained both in U.S. statutory law (e.g., fair use) and in the significant court decisions limiting secondary liability (e.g., Sony).
• How technological measure anti-circumvention provisions are to be interpreted and applied, whether they will apply to access to works, whether they are to be limited to circumventions for infringing purposes, and whether account will be taken of the variations in national law, practice, and context, such as U.S. adherence to fair use and the imposition of levies under other national law.
• The extent to which a "three strikes" approach and express or implied "filtering" mandates are to be imposed on ISPs.

U.S. negotiators have assured the Congress and the public that they cannot and will not agree to any provision that is contrary to domestic law. Other national negotiators have likely given similar assurances at home, publicly or privately. Hence the annotated documents appear rife with linguistic tugs and footnotes. To the extent compromise is achieved through ambiguity, no national of any participant nation will have assurance that domestic law will not be affected.

The time for public discussion as to exactly what this document will and won’t do is now.

ACRL, ALA, ARL, and other organizations have responded to the U.S. Intellectual Property Enforcement Coordinator's "Coordination and Strategic Planning of the Federal Effort against Intellectual Property Infringement: Request of the Intellectual Property Enforcement Coordinator for Public Comments Regarding the Joint Strategic Plan."

Here's an excerpt from the ALA, ACRL, and ARL letter:

ARL, ALA, and ACRL believe it is very important that the IPEC has asked that assertions about the costs of intellectual property infringement clearly identify the methodology used and any critical assumptions relied upon to calculate those costs, as well as a copy or citation to the source of any data. As the comments of CCIA and the NetCoalition make clear, industry-commissioned studies rarely, if ever, rise to a level of rigor that justifies emergency intervention along the lines that content industries routinely demand. Rather, they are shot through with fallacies and sleights of hand that have done more to confuse and confound this discussion than to contribute to it. We refer you to the comments of CCIA and the NetCoalition for a detailed discussion of the problems with these studies and the arguments that are made in connection with them.

The fundamental flaw of these studies is that they beg the question of whether a particular private business interest is entitled to government protection for perpetual, stable profits regardless of changing business conditions. The mere fact of declining profits in one business model does not constitute a cognizable harm that government must step in to remedy. Government intervention in any area has costs for taxpayers, and in this area there are added costs to the public when IP policy becomes further slanted in favor of rightsholders and against public access and use.

Here's an excerpt from the American Association of Law Libraries, EFF, Medical Library Association, Public Knowledge, Special Libraries Association, and U.S. PRIG letter:

Thus, when determining enforcement priorities, the government should be guided by three principles. First, it should only seek to prevent private economic harms when the costs of enforcement do not exceed the harm caused. Second, it should pursue harms that meet the standards for criminal conduct. When society marks certain conduct as criminal, it authorizes public enforcement, recognizes that deterrent (as opposed to merely remedial) actions are more appropriate, and allows that in an individual case the cost of punishing the violation may outweigh the economic harm of the violation itself because of the moral wrong committed. Third, publicly funded enforcement resources should be reserved for clear violations of the law, rather than in "gray areas" characterized by uncertain and evolving legal or marketplace norms. The government should spend public funds on enforcement only when all three of these principles are met.

Read more about it at "ALA Calls for Openness in Copyright Negotiations and Enforcement Efforts," "Groups Ask Targeted Enforcement for Intellectual Property," and "Public Interest Groups Call on IP Czar to Get the Priorities Straight."

A consolidated draft of ACTA (Anti-Counterfeiting Trade Agreement) has been leaked.

Here's an excerpt from "The Consolidated Anti-Counterfeiting Trade Agreement Leaks":

Although this is not the most updated version, when combined with the earlier leaked table on the Internet and civil enforcement chapters (which include changes from the January Mexico meeting), the complete current ACTA text is now publicly available.

Here's a brief description of ACTA from Public Knowledge:

ACTA is the Anti-Counterfeiting Trade Agreement being negotiated by the US, the EU, Japan, South Korea, Canada, Mexico, Australia, and New Zealand. The stated goal of the agreement is the international enforcement of strong intellectual property rights through increased cooperation and coordination among international governmental agencies.

Read more about it at "Complete ACTA Text Finally Leaked" and "Full ACTA Draft Leaked. . . EU Wants Injunctions against the Possibility You Might Infringe."

The Electronic Frontier Foundation has released Unintended Consequences: 12 Years Under the DMCA.

Here's an excerpt from the announcement:

EFF today released Unintended Consequences: 12 Years Under the DMCA. This is the sixth update to the report, which aims to catalog all the reported instances where the DMCA's ban on tampering with DRM have been abused to stymie fair use, free speech, and competition, rather than to attack "piracy."

Congress enacted the DMCA's ban on bypassing DRM at the urging of entertainment industry lobbyists who argued that DRM backed by law would quell digital copyright infringement. Of course, 12 years later, that exactly hasn't worked out. Nor is it likely to ever work out. But lots of industries have recognized that these provisions of the DMCA are good for other things—like impeding scientific research and legitimate competition. The Unintended Consequences report collects these stories, including oldies like Lexmark's effort to block toner cartridge refilling and new cases like the lawsuit against RealDVD.

Other new additions to the report include Apple's use of the DMCA to lock iPhone owners to Apple's own App Store for software, Apple's DMCA threats against Bluwiki for hosting discussions about iPod interoperability, and Texas Instruments' use of the DMCA to threaten calculator hobbyists trying to write their own operating systems.

Sonia Katyal, Professor of Law at the Fordham University School of Law, has self-archived "Filtering, Piracy Surveillance, and Disobedience" in SSRN.

Here's an excerpt:

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players have opted in favor of “tolerated use,” a term coined by Professor Tim Wu to denote the allowance of uses that may be otherwise infringing, but that are allowed to exist for public use and enjoyment. Thus, while the eventual specter of copyright enforcement and monitoring remains a pervasive digital reality, the market may fuel a broad degree of consumer freedom through the toleration or taxation of certain kinds of activities.

This Article is meant largely to address and to evaluate these shifts by drawing attention to the unique confluence of these two important moments: the growth of tolerated uses, coupled with an increasing trend towards more passive forms of piracy surveillance in light of the balance between copyright enforcement and civil liberties. The content industries may draw upon a broad definition of disobedience in their campaigns to educate the public about copyright law, but the market’s allowance of DRM-free content suggests an altogether different definition. The divide in turn between copyright enforcement and civil liberties results in a perfect storm of uncertainty, suggesting the development of an even further division between the role of the law and the role of the marketplace in copyright enforcement and innovation, respectively.