Category: Copyright

Victoria A. Espinel, U.S. Intellectual Property Enforcement Coordinator, has released the 2010 Joint Strategic Plan on Intellectual Property Enforcement.

Here's an excerpt:

The U.S. Government supports the free flow of information and freedom of expression over the Internet. An open and accessible Internet is critical to our economy. At the same time, the Internet should not be used as a means to further criminal activity. The Administration encourages cooperative efforts within the business community to reduce Internet piracy. The Administration believes that it is essential for the private sector, including content owners, Internet service providers, advertising brokers, payment processors and search engines, to work collaboratively, consistent with the antitrust laws, to address activity that has a negative economic impact and undermines U.S. businesses, and to seek practical and efficient solutions to address infringement. This should be achieved through carefully crafted and balanced agreements. Specifically, the Administration encourages actions by the private sector to effectively address repeated acts of infringement, while preserving the norms of legitimate competition, free speech, fair process and the privacy of users. While the Administration encourages cooperative efforts within the business community to reduce Internet piracy, the Administration will pursue additional solutions to the problems associated with Internet piracy, including vigorously investigating and prosecuting criminal activity, where warranted.

Annemarie Bridy has self-archived "ACTA and the Specter of Graduated Response" in SSRN.

Here's an excerpt:

This short paper, prepared for a workshop on the Anti-Counterfeiting Trade Agreement (ACTA) and the Public Interest at American University’s Washington College of Law, considers the draft Internet provisions of ACTA in the context of concerns raised in the media that the treaty will require signatories to mandate graduated response regimes (à la France’s controversial HADOPI system) for online copyright enforcement. Although the Consolidated Text of ACTA, released in late April, confirms that mandatory graduated response is off the table for the treaty’s negotiators, the treaty in its current form both accommodates and promotes the adoption of graduated response. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms – be they domestic or international – are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement.

The Government of Canada has introduced Bill C-32, An Act to Amend the Copyright Act.

Here's an excerpt from the press release:

The Honourable Tony Clement, Minister of Industry, and the Honourable James Moore, Minister of Canadian Heritage and Official Languages, today announced the introduction of legislation to modernize the Copyright Act. This legislation is a key pillar in the government's commitment in the 2010 Speech from the Throne to position Canada as a leader in the global digital economy.

"Our government promised to introduce legislation that will modernize Canadian copyright law for the digital age while protecting and creating jobs, promoting innovation and attracting new investment to Canada," said Minister Clement. "This legislation will ensure that Canada's copyright laws are forward-looking and responsive in a fast-paced digital world.". . .

The popularity of Web 2.0, social media, and new technologies such as the MP3 player and digital books have changed the way Canadians create and make use of copyrighted material. This bill recognizes the many new ways in which teachers, students, artists, software companies, consumers, families, copyright owners and many others use technology. It gives creators and copyright owners the tools to protect their work and grow their business models. It provides clearer rules that will enable all Canadians to fully participate in the digital economy, now and into the future.

This legislation will bring Canada in line with international standards and promote home-grown innovation and creativity. It is a fair, balanced, and common-sense approach, respecting both the rights of creators and the interests of consumers in a modern marketplace. The Government of Canada is working to secure Canada's place in the digital economy and to promote a more prosperous and competitive Canada.

For more information, visit www.balancedcopyright.gc.ca.

Read more about it at "The Canadian Copyright Bill: Flawed But Fixable," "Canadian Library Association Gives Passing Grade to New Copyright Legislation, and "Moore's Strong Rejection of Three Strikes Model for Canada."

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."