Category Archives: Law and Policy

Appeals Court Issues Important Opinion For Open Access Community And Licensees Of Creative Commons’ Non-Commercial Licenses

Posted January 27, 2020

Authors Alliance is grateful to Elizabeth H. Yandell, associate at Latham & Watkins, for contributing this post about a recent decision interpreting the “non-commercial” element of Creative Commons licenses.

The Ninth Circuit Court of Appeals recently issued an important opinion interpreting a widely used Creative Commons “Non-Commercial” license. The case, Great Minds v. Office Depot, Inc., addresses whether the license terms are violated when a bona fide non-commercial user pays a for-profit enterprise, like a copy shop, to make copies at the non-commercial licensee’s direction. The court’s answer is no: “Under the License, a non-commercial licensee may hire a third-party contractor, including those working for commercial gain, to help implement the License at the direction of the licensee and in furtherance of the licensee’s own licensed rights.”

In other words, a licensee may rely on contractors like Office Depot to assist in its own non-commercial use of the work without violating the license, even when the contractor earns a profit for its trouble. The opinion provides valuable confirmation of the license’s scope and will ensure continued ease of access to the more than 300 million works licensed under Creative Commons’ non-commercial licenses.

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Many in this community are familiar with Creative Commons and may have interacted with their public licenses. For those who are not: Creative Commons is a non-profit organization that has developed a suite of free-to-use, off-the shelf copyright licenses. Authors use these licenses to communicate that others are legally free to use their works, so long as certain conditions are satisfied. For instance, the license at issue in the lawsuit requires that the licensed work be used only for “non-commercial” purposes, in addition to other conditions.

The lawsuit concerned an elementary school math curriculum called Eureka Math, which is created and published by Great Minds. Great Minds sells Eureka Math in print form, and makes a digital version available for download and non-commercial use pursuant to the license. The most common licensees of Eureka Math—school districts that incorporate Eureka Math into their curriculum—often engage commercial copy shops, including Office Depot, to create copies of the Eureka Math course packet. Great Minds sued Office Depot over these copies, claiming they were not “non-commercial” in nature, even if done at the direction of the non-commercial licensee school districts, because Office Depot made a profit. Great Minds’ position was that Office Depot became a licensee in its own right, and was therefore required to abide the terms of the license. It argued that Office Depot’s for-profit copies violated the license’s non-commercial requirement, and therefore infringed Great Mind’s copyright in Eureka Math.

Creative Commons recognized that Great Minds’ position, if adopted, would severely undermine the utility of its non-commercial licenses. It would mean that bona fide non-commercial users, such as the school districts that use Eureka Math, would be required to handle all intermediate steps in-house (i.e., copying and shipping), or else find contractors that were willing to pay a royalty to the licensor. In turn, Great Minds’ position could also have discouraged or prevented proper licensees who do not have sufficient resources to perform these services themselves from using the works at all.

Creative Commons decided to take action. Represented by the law firm Latham & Watkins, Creative Commons submitted an amicus curiae (friend of the court) brief in support of Office Depot to provide its interpretation of its license and the applicable law. Creative Commons’ submission explained that it is the end-user who is the licensee, and that it is only the end-user licensee’s purpose that must be non-commercial. Creative Commons explained that the alternative interpretation would yield absurd and arbitrary results. For instance, under Great Minds’ interpretation, a school district can rent or purchase a copy machine and have their employee, who is paid a salary, make copies on it, but may not pay a non-employee contractor to use the same machine. It could also send the same employee to pay a fee to “hit copy” on Office Depot’s copy machines, but could not pay Office Depot to have its employees press the same button.

The court agreed with Creative Commons’ interpretation and held in favor of Office Depot. The court’s decision holds that a “licensee’s hiring of a third-party copy service to reproduce licensed material strictly for the licensee’s own permitted use does not turn that third party into a licensee that is bound to the License terms” and that the license “extends to all employees of the schools and school districts and shelters Office Depot’s commercial copying of Eureka Math on their behalf.”

The Ninth Circuit’s decision is consistent with the Second Circuit’s decision in an earlier lawsuit by Great Minds that made the same claims against FedEx. These results provide important guidance and confirmation for the open access community, and will protect and encourage continued use of works that benefit the broader community and public. Authors Alliance members seeking to share their works with non-commercial licensees can rest assured that those individuals can access and use materials to the fullest extent intended.

Authors Alliance Supports Immediate Access to Federally Funded Research

Posted December 20, 2019

Media sources report that the Trump Administration is considering a policy to make the results of federally funded research immediately available for the public to freely access and use. Current policy requires results of federally funded research be made available in pre-print form within 12 months of publication. The rumored policy would eliminate the 12-month embargo. As an organization with a mission to advance the interests of authors who want to serve the public good by sharing their creations broadly, Authors Alliance strongly supports such a policy.

Many of our members are authors who rely on taxpayer dollars to fund their research and want the results of that research to be immediately available for potential readers to readily locate and access without being turned away by paywalls. Immediate and free online availability increases their works’ visibility, helping it to reach readers and benefit the public. Absent a federal policy, many authors simply do not have the bargaining power necessary to demand from publishers the level of access they want for their research.

Removing barriers to access creates a more hospitable environment for future scientific advancements. Medical patients and their family members have especially compelling needs for this information. Many students, teachers, researchers, and other professionals from low- and middle-income countries struggle to get access to prohibitively expensive subscription-based journals. Even individuals at U.S.-based institutions may find that their libraries do not have the resources to subscribe to relevant journals in their fields. By removing price barriers, it is easier for students, teachers, researchers, and practitioners to access the information they need to learn, teach, research, and practice in their fields.

The rumored policy change does not require publishers to make the final version of articles based on federally funded research free—just for authors to make the pre-publication versions available. Publishers can still charge subscriptions for access to the final published version of these articles, not to mention all of the articles not funded by taxpayer dollars. Or publishers can charge for their value-added publishing services to those institutions who want professional peer review. By paying for publishing services rather than paying for the right to read, institutions can use their budgets to pay for publishing rather than for subscriptions, publishers can earn a living, and the public can then read taxpayer funded research without paying for the privilege.

A policy requiring the outputs of federally funded research be made immediately available would maximize the value of investment in research by ensuring that more readers can access research results than if the works were available through restricted means alone. For these reasons, Authors Alliance supports a policy that would ensure that the public is not made to pay both to create and to read research and would open up opportunities for others to build upon research, accelerating the pace of innovation and discovery.

Georgia v. Public.Resource.Org: Copyright Case Before the Supreme Court

Posted December 2, 2019

photo of the Supreme Court building — photo by MarkThomas | Pixabay

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an overview of Georgia v. Public.Resource.Org Inc. Today, the Supreme Court of the United States will hear oral arguments in this case, which examines whether the “government edicts” doctrine extends to the Official Code of Georgia Annotated, rendering it uncopyrightable.

Background

The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.

Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.

Georgia filed suit against PRO claiming copyright infringement. Before the lower courts, PRO invoked the judicially-created “government edicts” doctrine. As a matter of public policy, courts have held that government edicts having the force of law, such as statutes and judicial decisions, are not eligible for copyright protection. While the court of first instance agreed with the State of Georgia and the OCGA was found to be copyrightable, on appeal the Eleventh Circuit held that under the government edicts doctrine, OCGA is not copyrightable and rejected Georgia’s infringement claim against PRO. Now, the issue before the Supreme Court is whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an edict of government.

Position of the Parties

The State of Georgia and the Georgia Code Revision Commission submit that the annotations are not excluded from copyright protection; the annotations lack the force of law and therefore do not trigger the government edicts doctrine. Georgia also argues that the annotations are “derivative works” from the statutes and though published alongside materials in the public domain, they nonetheless are produced by a private entity. Finally, Georgia states that copyright in the annotations is the underlying incentive for its partnership with Lexis and, absent copyright protection for OCGA, Lexis would lose incentive to produce the annotations unless Georgia used taxpayer funds to directly pay for the services.

Public.Resource.Org argues that, in addition to texts with binding legal effect, any works that represent an “authentic” exercise of state legal authority, including legal works adopted or published under the authority of the state, are uncopyrightable edicts of government and therefore cannot be copyrighted. They posit that as long as the documents embody the authority of the state, such works would not be subject to copyright, even if they do not have legal force. PRO concludes that since the OCGA is an official legal document that holds itself out as “published under the authority of the State,” it is therefore a government edict that is ineligible for copyright protection.

Next Steps

Audio of the oral arguments in Georgia v. Public.Resource.Org should be available on the website of the Supreme Court on Friday. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the implications and outcome of this case. We will provide an update once the Court issues its decision in this case.

Dr. Seuss, Picasso, and Grease: Fair Use in the Courts

Posted November 5, 2019

As a follow up to our recent coverage of the fair use issues in the Chronicle Books v. Audible Inc. case, Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on three current cases involving the doctrine of fair use. Click on each case name below to learn more.

Dr. Seuss Enterprises v. ComicMix LLC.

Oh, the Places You’ll Boldly Go! (“Boldly”) is a book that combines the use of imagery, characters, and other visual elements from the Star Trek franchise and the works of Dr. Seuss (most notably Oh, the Places You’ll Go!). In 2016, Dr. Seuss Enterprises sued the creators of Boldly, alleging that the work infringes on Dr. Seuss’ works. (The plaintiffs also brought trademark and unfair competition claims, which are not reviewed in this post.) As for the copyright claim, the defendants argued that the use was permitted under the fair use doctrine.

Dr. Seuss’s *Oh, the Places You’ll Go!* (left) and ComicMix’s *Oh, the Places You’ll Boldly Go!* (right)

In March 2019, the district court held that the use of elements of Seuss’s work in Boldly is a fair use. Under the first fair use factor (the purpose and character of the use), the court found that although defendants borrowed from Dr. Seuss’ work, these elements were always adapted and the work is highly transformative, thus favoring fair use. Because Dr. Seuss’ work is highly creative, the court found that the second factor (the nature of the work), slightly favored the plaintiffs. Under the third factor (the amount and substantiality of the portion taken), the court found that because the elements are similar, but not replicated, the third factor does not weigh against the defendants. The court explained that while some shapes were borrowed, they were adapted to the Star Trek universe; for example, the narrator is transformed into Captain Kirk and instead of a Seussian landscape, the cover image is set in space. Under the fourth factor (the effect of the use on the market), the court found that the plaintiff failed to introduce evidence demonstrating that Boldly will substantially harm the market for Oh, the Places You’ll Go!, concluding that the fourth factor therefore favors neither party. Balancing all factors together, the court concluded that Boldly is a fair use of Dr. Seuss’ literary universe.

Dr. Seuss Enterprises appealed the decision, and the case is now before the US Court of Appeals for the Ninth Circuit. In its opening brief filed in August, Dr. Seuss Enterprises argues that the four factors do not lead to a finding of fair use. They argue that Boldly is not transformative since it does not parody, comment, criticize or comment on Oh, the Places You’ll Go!. They argue that the defendants “merely aped the purpose of Go!: entertaining the readers (mostly graduates starting out in the world) with an uplifting story.” They further highlight that Dr. Seuss’ works are substantially borrowed because elements central to the Seussian universes are taken, and that merely putting Star-Trek elements in what is otherwise a Seuss world does not result in any transformation. Finally, Dr. Seuss Enterprises argues that Boldly is likely to harm the market for authorized mash-ups.

Recently, the defendants filed a reply brief maintaining that Boldly makes fair use of Dr. Seuss’ books. We will follow developments in the Ninth Circuit.

De Fontbrune v. Wofsy

In the late 1990s, Alan Wofsy, a San Francisco-based art gallery and art book publisher, published and distributed in France The Picasso Project, a catalogue containing reproduction of photographs of Pablo Picasso’s works. These photographs were taken from another catalogue initially published by Christian Zervos (the Zervos Catalogue). Yves Sicre De Frontbrune then acquired the rights into the Zervos Catalogue, and later filed a copyright infringement claim against Wofsy on the basis that The Picasso Project infringed on the copyrights over the photographs. In 2001, a judgment of copyright infringement was obtained in France against Wofsy which also ordered an “astreinte” that required the defendant to pay €10,000 for each future act of copyright infringement in the works. In 2011, copies of The Picasso Project were again found in France and De Fontbrune sought enforcement of the astreinte and consequently a French court awarded €2 million to De Fontbrune in 2012.

Recognition of the 2012 judgment in California was then sought to enforce the award of money. As part of its analysis to determine whether a foreign judgment can validly be recognized and enforced in the United States, a court must determine whether the judgment is repugnant to the public policy of the forum state or the United States. Wofsy argued that, based on the same facts in the United States, the use of the copyrighted photographs was protected by US fair use and there would be therefore no finding of copyright infringement, which would mean that the astreinte judgment issued by the French court was “repugnant” to US public policy.

The California district court analyzed the four fair use factors to assess whether a conduct constitutes fair use. The Court decided that the first (purpose and character of the use) and fourth (the effect of the use on the potential market) factors weighed strongly in favor of fair use. The Picasso Project is a reference work intended for libraries, academic institutions, art collectors, and auction houses, which demonstrates that it has an educational purpose, despite the concurrent commercial nature of the work. The Court also found that The Picasso Project and the Zervos Catalogue were destined to disparate markets and were offered at wildly different price points, Zervos being sold as high as $100,000 at auction while The Picasso Project’s volume can be purchased at $150 a piece or as a set ranging from $2,780 to $3,780. It appeared unlikely to the Court that one would ever compete against the other. The court found the second factor (the nature of the copyrighted work), to slightly disfavor fair use, because while the photographs are creative works, the goal was to faithfully reproduce Picasso’s work, not to showcase the original artistic expression of the photographer. Finally, the court found that the third factor (the amount and substantiality of the portion taken), weighs in favor of fair use because Wofsy copied less than ten percent of The Zervos Catalogue’s photographs. The court ultimately concluded that it would not recognize the 2012 judgment because The Picasso Project’s use of copyrighted photographs qualifies as fair use.

On September 12^th 2019, the district court granted summary judgment in favour of Wofsy on the basis of the fair use doctrine, and partly in favour of the representatives of De Fontbrune on other procedural grounds. Both parties have appealed.

Sketchworks Industrial Strength Comedy, Inc. v. Jacobs

Sketchworks, an Atlanta-based sketch comedy company, wrote and produced a play titled Vape: The Musical. Vape follows the narrative arc of the hit musical Grease, but brings the cast of characters into the modern day by integrating elements such as online dating, millennial slang, and vaping. A link to the full performance can be found here.

Sketchworks performed Vape in Atlanta in 2018 with enough success to warrant a production of the play in New York, which was scheduled to open in August 2019. Prior to the show’s opening, Sketchworks received a cease-and-desist letter from the copyright holders in Grease, claiming that Vape infringes on Grease and demanding that the production immediately be stopped. Shortly after, the New York theatre cancelled the performances. On August 9^th 2019, Sketchworks filed a motion for a declaratory judgment, asking a district court in New York to find that to the extent that Vape uses copyrightable elements from the play Grease, it is fair use under the exception of parody in copyright law.

Sketchworks argues that Vape is a deliberate parody of Grease that is intended to criticize its misogynistic and sexist elements, which the creators argue have not aged well. At the same time, the play is set in modern times and attempts to show that the struggles of contemporary teenagers are similar to what their Grease-counterparts experienced in their time. As stated in the complaint, “Vape not only comments on the controversial themes in Grease, it also explores whether modern society has progressed at all by pointing to current systemic issues that still exist based on the misogyny of the era in which Grease was written and is set.” Sketchworks concludes that any elements that may be copyrightable are used in a sufficiently transformative manner and are used for parody purposes which justify a finding of fair use on its play’s use, if any, of copyrightable elements borrowed from Grease.

The response to the complaint is due November 8.

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To learn more about fair use, we recommend taking a look at our Fair Use FAQs. Nonfiction authors can explore Authors Alliance’s Fair Use for Nonfiction Authors, a guide that helps nonfiction authors make confident fair use decisions when incorporating source materials into their writings. Other communities of creators can learn how their communities apply fair use in situations typical to their given community through best practices documents developed by those communities.

Authors Alliance Supports Limitations and Exceptions and Rights Reversion at SCCR/39

Posted October 29, 2019

Last week, Authors Alliance participated in the thirty-ninth session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/39) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for libraries and archives and for educational and research institutions. Authors Alliance presented a statement to the Committee on how limitations and exceptions can benefit authors.

Authors Alliance was pleased to partner with Rebecca Giblin of the Author’s Interest Project to host a side panel at the SCCR/39, “Supporting Authors in a Digital Age.”

Giblin shared preliminary results from a study of more than 50 years of publishing contracts from the archive of the Australian Society of Authors. The research revealed that publication contracts are often insufficient to protect authors’ interests. For example, 14% of the contracts examined by Giblin and her colleague Joshua Yuvaraj did not include out-of-print rights, and only 6% of contracts used objective criteria (such as sales or revenue numbers) to define out-of-print status.

Giblin described how reversion rights give authors fresh opportunities to financially benefit from their works, open up new investment opportunities for publishers, and promote ongoing availability to the public. Giblin explained that their research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to US termination of transfer laws.

Brianna Schofield discussed how reverting rights can help authors to reach more readers, continue to contribute to scholarly and cultural discourse, and ensure that their works’ continuing impact and relevance are not limited by their commercial lives. She shared examples of authors who have regained rights and subsequently released their books on open terms, self-published their works, and placed their books with a new publisher. Schofield explained that, because of the tremendous benefits of reversion for authors and the public, Authors Alliance supports statutory termination rights for authors, as well as strengthening provisions governing reversion rights in publication contracts.

Audible Captions: The Case For and Against Fair Use

Posted October 15, 2019

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on recent developments in the Chronicle Books v. Audible case, currently in the Southern District of New York. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the proposed Audible Captions feature.

Update (Jan. 2020): After the publication of this post, the parties announced that they have settled the dispute.

Earlier this summer, Audible announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that prompted a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—to initiate a lawsuit against Audible. As our previous discussion of the litigation explained, the publishers maintain that the Captions feature would infringe their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of the books.

Preview of the proposed Audible captioning function

In its recent filing, Audible argues that the publisher’s case should be dismissed because the licenses granted to Audible bar such a claim, and that in any event, the Captions technology is a fair use of the copyrighted works. This post focuses on the fair use arguments; a detailed account of the license issue can be found here (and in the related court filing, here).

A refresher on fair use may be useful to readers: Fair use is a limitation on U.S. copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a use is fair.

Audible’s Fair Use Argument

Audible argues that Captions is a quintessential fair use. Audible argues that under the first fair use factor, Captions is unequivocally “transformative” and is a “utility-expanding” use of the licensed audiobooks: After paying for the right to experience the audiobook, listeners can use Captions to verify and focus on what they are hearing and to access external resources such as dictionaries or translations. Instead of allowing a user to read a book in any meaningful sense, Audible maintains that the purpose of Captions is to improve a listener’s ability to understand the work she has purchased.

Under the third fair use factor, Audible argues that the amount of the copyrighted work used to generate Captions is reasonable in relation to the purpose of the copying. Under the fourth factor, Audible argues that the Captions feature is unlikely to dissuade a user from purchasing the full text of the books, since the captions are not a substitute and do not provide a replacement for a book or e-book. Audible claims that the brief display of words does not provide a meaningful substitute for the actual book because the text of the original work is transcribed in small portions, it is displayed only momentarily and in sync with the audio, and it does not provide the ability to refer back or flip through a full coherent text. (As for the second fair use factor, Audible argues that the fair use case hinges on the other three factors.)

Taking the four factors together, Audible argues that Captions is a fair use of the licensed audiobooks.

Publishers’ Reply to the Fair Use Argument

In reply to Audible’s fair use arguments, the publishers argue that the Captions feature is not transformative and gives access to the entirety of the text, which is not fair use. Under the first fair use factor, the publishers argue that Captions is not transformative as it does not serve another and different purpose than what would be accomplished by the underlying text: both serve the purpose of reading. The publishers argue that the Captions feature “does not shed any new light on the text of Publishers’ Works, it does not comment on or criticize them, and it is not used to find an authorized version of them; it merely provides the Works’ text in competition with authorized offerings.”

Under the second factor, the publishers argue that most of the copyrighted works at issue are creative and fictional, weighing against a finding of fair use. Under the third factor, the publishers argue that the Captions feature provides access to the entirety of the work, also weighing against fair use. Here, publishers distinguish Captions from the Google Books snippets fair use case. Where Google Books only provides snippets of books to allow a user to assess whether access to the entire book would be useful, at no point do these snippets display more than 1/8 of a page around a searched keywords and 10% of each book is permanently unavailable. In contrast, Captions has no such restrictions and the feature would allow access to 100% of the underlying text.

Finally, under the fourth factor, publishers argue that Captions would cannibalize market opportunities for publishers to distribute or license the eBooks of its texts, thus weighing against a finding of fair use. The publishers maintain that Captions is likely to discourage users to purchase the print and ebook versions of the underlying text, and that Captions directly competes with parallel markets for the texts, including cross-format services like Audible’s own Immersive Reading services.

In sum, the publishers argue that the balance of the factors weighs against Audible’s fair use claim.

Going Forward

The parties are currently waiting on a decision on whether a preliminary injunction will be granted, which would prevent Audible from launching Captions on all of the publishers catalog pending trial. Meanwhile, Audible is delaying the complete rollout of Audible Captions, making it available only for audiobooks in the public domain until the litigation is resolved. We will continue to monitor and provide updates on the litigation.

Authors Alliance Voices Concerns About the CASE Act

Posted September 10, 2019

Today, the United States House Committee on the Judiciary is scheduled to review H. R. 2426, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”). The CASE Act would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the CASE Act as written invites abuse and poses a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of the CASE Act, our letter urges the Committee to:

Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
Require potential respondents to affirmatively opt-in to the small claims process; and
Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.

Publishers Sue to Block Audible Captions

Posted August 26, 2019

Last Friday, a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—filed suit in the U.S. District Court for the Southern District of New York against the audiobook platform Audible. Earlier this summer, Audible (which is owned by Amazon) announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that the publishers view as copyright infringement. The lawsuit, Chronicle Books, LLC et al. v. Audible, Inc., seeks an injunction to prevent the September release of the captioning function.

According to the publishers’ complaint, the proposed caption feature infringes on their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of books in the form of the text accompanying the audiobooks. They argue that the text could act as a direct substitute for a book’s text in a physical book or e-book form and therefore competes with the publisher’s existing markets. The publishers state that “Audible’s admitted goal is to give users a reading experience, despite Audible only having the right to distribute audiobooks.”

Audible issued a statement in response to the lawsuit, stating that “We disagree with the claims that [the caption feature] violates any rights and look forward to working with publishers and members of the professional creative community to help them better understand the educational and accessibility benefits of this innovation.” According to the statement, the caption function was developed “to help kids who are not reading engage more through listening” and to address “the risk of losing a significant portion of the next generation of book readers.”

We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the proposed Audible caption feature and this litigation.

New Accessibility Resource: The Law and Accessible Texts: Reconciling Civil Rights and Copyrights

Posted July 30, 2019

black and white photo of a person's finger reading Braille — photo by Eddau | CC0

The Association of Research Libraries (ARL) and the University of Virginia Library recently released The Law and Accessible Texts: Reconciling Civil Rights and Copyrights, a white paper by Brandon Butler of the University of Virginia and Prue Adler and Krista Cox of ARL. The paper provides an overview of relevant caselaw, policy, and best practices.

As the Introduction states, “[t]he report begins with a brief description of the current state of civil rights laws favoring accessibility, including trends in enforcement in recent years. Section II provides an account of why and how copyright concerns have served as stumbling blocks for disability service offices (DSOs). Section III walks through each step in a remediation workflow and provides some key legal ramifications for how that step may proceed. Section IV explores more deeply the key provisions in copyright law favoring the creation and sharing of accessible texts; this section will be of most interest to university counsel’s offices and other legal experts. Finally, Section V surveys some legal and policy considerations beyond copyright and civil rights that may be worth bearing in mind as institutions design their collaborations in areas where law gives them flexibility.”

Authors Alliance’s recent coverage of accessibility issues includes a collection of resources and background about the Marrakesh Treaty. For a deeper dive into the topic of accessibility, see also our previous resource roundup, released in the fall of 2018 in connection with our report on Authorship and Accessibility in the Digital Age.

Ruth Okediji on the Limits of International Copyright Exceptions for Developing Countries

Posted June 25, 2019

bridge with flags in Geneva — photo by hpgruesen on Pixabay

In a recent article in the Vanderbilt Journal of Entertainment & Technology Law (available on SSRN), Ruth Okediji of Harvard Law School offers a critical analysis of the design of the international copyright system as it relates to economic development in the Global South. In the article, Okediji proposes changes to the international copyright limitations and exceptions (“L&Es”) system based on those insights.

Okediji argues that while liberty-enhancing L&Es (such as those that facilitate civic and social engagement, or ensure freedom of expression) have enjoyed considerable acceptance in the international copyright system, new international L&Es are needed that strengthen the capacity of developing and least-developed countries to absorb and utilize knowledge inputs (what Okediji refers to as “development-inducing L&Es”). In particular, Okediji argues that efforts to formulate a coherent L&E standard for education, particularly for online educational activities, could be an important step in providing the legal framework necessary to facilitate access to knowledge. She also argues that mandatory L&Es for libraries, archives, and other educational and cultural institutions are essential to facilitate both liberty-enhancing and development-inducing goals.

As Okediji writes:

“The prospects for developing and least-developed countries to benefit from global research and development (R&D) spillovers, to participate in international scientific collaborations, and to reduce the innovation divide are brighter than at any other time in history. Turning these prospects into realizable gains, in part, requires addressing barriers to knowledge acquisition and facilitating the diffusion of knowledge across borders. International copyright law is not the only hurdle to these goals, but it is an important one. Efforts by various stakeholders to address the global knowledge and innovation gap would benefit from renewed attention to the international copyright framework and, especially, a redesign of international copyright L&Es.”

While Okediji considers the L&Es agenda at WIPO to be a crucial part of the longstanding attempts to align copyright law with broader welfare concerns, she emphasizes that the reform that is necessary for copyright to accomplish the encouragement of learning and development in developing countries must be also advanced at national and regional levels.

The full text of Professor Okediji’s article can be viewed and downloaded here.

Authors Alliance has recently participated in conversations about international limitations and exceptions to copyright. Last November, Authors Alliance presented a statement to the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights explaining how limitations and exceptions for education can benefit authors, without undermining fundamental purposes of copyright policy, and can encourage the diffusion of knowledge.