Category Archives: Law and Policy

Resource Roundup: The Public Domain

Posted January 15, 2018

public domain image courtesy of the Library of Congress

The first day of Copyright Week is dedicated to the public domain and creativity. It’s an opportunity to reflect on the most recent Public Domain Day, which took place on January 1. On that date, a host of works entered the public domain in Canada, New Zealand, and Europe, as detailed here. But due to copyright term extensions that went into effect in 1998, those of us in the United States have been in a public domain drought for decades. We’ll have to wait until 2019 to freely access many works first published in 1923—almost 100 years ago.

Although some works first published in the United States in or after 1923 may already be in the public domain as a result of failure to comply with formalities, and some unpublished works may also be in the public domain, it can be devilishly difficult to determine when this is the case. We recommend Peter Hirtle’s Copyright Term and the Public Domain in the United States and Berkeley Law’s “Is it in the Public Domain?” Handbook to help you evaluate a work’s copyright status.

We at Authors Alliance are already looking forward to next January 1, when all works first published in the United States in 1923 will (finally) enter the public domain in the United States and become “free as the air to common use.” Read why in Molly Van Houweling’s post on how the public domain benefits authors.

In the meantime, check out Public Domain Review’s Guide for thorough guidance on how to find public domain works online.

Authors Alliance Comments in Support of Modified Exemption to Section 1201 of the DMCA

Posted December 19, 2017

photo by 422737 |CC0

Earlier this week, Authors Alliance submitted comments to the Copyright Office in support of a modified exemption to Section 1201 of the DMCA for multimedia e-books. The proposed exemption would allow all authors to access the clips they need to make fair use of video clips in their e-books. These comments were submitted as part of the seventh annual triennial rulemaking process for 2018, with the goal of building on the success of our previous efforts to advocate for fair uses of copyrighted content.

2017.12.18 Multimedia E-Books Modification Long Form Comment AuAll AAUP ...

As we wrote in the comment, “Electronic books continue to represent a well-utilized form of authorship that becomes more dynamic when multimedia elements are added. With modern technology, authors are now able to incorporate audiovisual content directly into their e-books for lawful fair use purposes. Multimedia e-books allow a unique experience not possible through simple static text and visuals. By allowing authors to embed non-static forms of content into e-books, multimedia e-book technology empowers authors to conduct scholarship, express new ideas, facilitate rich discussion, educate others, engage in creative expression, and share research and findings in a way that mere prose cannot.”

We also joined with EFF, New Media Rights, the Organization for Transformative Works, the American Library Association, the Association of Research Libraries, and the Association of College Research Libraries on a comment in support of one clear, easier-to-use exemption for video excerpts that would allow authors, educators, libraries, documentary filmmakers, remix artists, and others to use video snippets without fear of legal repercussions by copyright owners. The comment is available here.

We will continue to track the status of these proposed 1201 exemptions and to provide updates as the rulemaking process moves forward in 2018.

DMCA Exemptions: We Want To Hear From You

Posted November 21, 2017

photo by 422737 |CC0

The Digital Millennium Copyright Act (DMCA) is hurting authors’ ability to make fair use.

But you can help by taking 5 minutes to fill out this short survey.

The problem: The DMCA makes it illegal to rip from DVDs, Blu-ray discs, and many other encrypted technologies, and this restriction is blocking authors’ ability to make fair use. This causes serious harm to authorship in the digital environment. Why? Because even though fair use allows authors to use copyrighted video in their e-books in certain situations, the DMCA restricts authors’ access to such material.

What we are doing about it: Fortunately, the law allows for a triennial rulemaking process where the Copyright Office can recommend exemptions for authors to access the works they need. There is an exemption currently in effect—but it only applies to nonfiction multimedia e-books offering film analysis. That’s why Authors Alliance and other organizations are fighting for a modified exemption that will allow all authors of e-books to access the clips they need from DVDs, Blu-ray discs, and digital streaming services.

How you can help: The Copyright Office places a heavy emphasis on stories from authors who have been harmed by the DMCA in the past or are likely to be harmed by the DMCA in the future. Please CLICK HERE TO SHARE YOUR STORIES.

Want to learn more: Click here to learn more about our petition.

Policy Update: DMCA Exemptions and Advocacy

Posted November 2, 2017

Since our founding, Authors Alliance has been tracking developments around Section 1201 of the Digital Millennium Copyright Act (DMCA). Every three years, the Copyright Office can adopt temporary exemptions to Section 1201’s prohibition against circumvention of technological measures that control access to copyrighted works. In 2016, we advocated for a streamlined, less burdensome rulemaking process in order to protect the fair uses of copyrighted works. And in August, we petitioned to renew an exemption that allows for the use of film clips in multimedia ebooks.

Beginning with this rulemaking, the Office did adopt a streamlined procedure for renewing exemptions granted during previous rulemaking sessions, with the goal of making the triennial process more efficient and less repetitious. We are pleased to report that the Copyright Office announced last week that it is recommending the renewal of all the exemptions granted in the previous rulemaking session of 2015—welcome news for authors, critics, scholars, and all who support fair uses of copyrighted content.

We applaud the Copyright Office adopting common-sense improvements to encourage a smoother path for renewals and for recommending the re-adoption of all existing exemptions.

Our work on this issue is ongoing. In September, we filed a new petition, which requests the following:

Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only); and
Removing limitations that refer to screen-capture technology.

In December, Authors Alliance—with legal assistance from the UC Irvine and the University of Colorado, Boulder and joined by other like-minded organizations—will submit a new round of comments in support of these additional exemptions to the Register of Copyrights as part of the seventh annual triennial rulemaking process for 2018, with the goal of building on the success of our previous efforts. We will continue to track this issue closely, and will provide updates on our comments and the eventual response from the Copyright Office, expected in the spring of 2018.

Who Owns the Termination of Transfer Right?

Posted November 1, 2017

We would like to thank R. Anthony Reese, Chancellor’s Professor of Law at UC Irvine, for contributing the following post.

Head shot of R. Anthony Reese U.S. copyright law gives an author the right, under certain conditions, to terminate a copyright transfer or license that the author granted decades earlier, as Lydia Loren’s earlier post explained. This termination right must be exercised within a specific time, and the formal termination process can’t begin until 25 years after the author executes the grant.

Given this long delay, who can terminate if the author dies before the time for termination arrives? The basic answer is fairly straightforward. If the deceased author left only a surviving spouse (whom the statute names as the author’s “widow or widower”), then the spouse can exercise the termination right. If the deceased author left only surviving kids, then the kids can exercise the termination right. If the author left a surviving spouse and kids, then the spouse and kids share the termination right. (Other situations are more complicated: if the author left any surviving grandkids of a deceased child, those grandkids get to share in the termination right as well.) Only if the author left no surviving spouse, kids, or grandkids does the author’s will (or the law of intestate succession) determine who owns the termination right.

This aspect of termination has always created problems for gay and lesbian authors with same-sex partners. Because the termination right belongs to a deceased author’s “widow or widower,” copyright law must determine who qualifies as the author’s spouse. In doing so, copyright law has treated gay and lesbian authors with same-sex partners less favorably than authors with different-sex partners ever since the copyright act first allowed termination in 1978.

The statute defines an author’s “widow” or “widower,” using facially neutral language, as “the author’s surviving spouse under the law of the author’s domicile at the time of his or her death.” 17 U.S.C. § 101. This definition doesn’t expressly distinguish between same-sex and different-sex spouses. In practice, though, in deciding which marriages copyright law will recognize, this definition has always treated authors with same-sex partners unequally, because it incorporates unequal treatment embedded in state law, in federal non-copyright law, and in foreign law.

An author’s widow or widower for copyright termination purposes is the author’s surviving spouse under the law of the deceased author’s domicile. In the U.S., the author’s place of domicile is generally the state where the author resides. But from 1978 until 2004, no U.S. state allowed same-sex couples to marry. As a result, no same-sex partner of a gay or lesbian author could qualify as a widow or widower entitled to termination rights. (Indeed, before 1998, an author whose partner did not qualify as a surviving spouse could not even designate that partner in the author’s will as the person who could exercise the termination right.)

The Termination Right and Authors’ Human Rights

Posted October 18, 2017

We are delighted to feature the following guest post by Professor Graeme Austin of Victoria University of Wellington (NZ) and Melbourne University (Australia).

Headshot of Graeme Austin If people think of “international copyright law” at all, they probably think of the IP chapters in international trade agreements. These agreements are mostly about economic links between groups of countries. Protecting copyrights, along with other kinds of IP, is the quid pro quo for access to commodity markets and markets for services. The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) brought copyright squarely into the world trade regime with the requirement that World Trade Organization members must protect copyrights up to certain minimum standards.

But there’s a whole other side to the rights of authors that many people don’t know about: international human rights law. In 1948, the Universal Declaration of Human Rights (UDHR) announced: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” A similar guarantee appears in the American Declaration on the Rights and Duties of Man (1948). Authors’ rights are also included in the International Covenant on Economic, Social and Cultural Rights, which came into force in 1976. “Material interests” means financial support: the ability to earn an income from creative work. “Moral interests” spring from the emotional and spiritual connections between creators and their works. They can be given force through legal prohibitions against subjecting works to certain kinds of derogatory treatment or prohibitions against failing to name the author of a work when it is released to the public.

Copyright Office Reports on Extended
Collective Licensing Inquiry

Posted October 5, 2017

In 2015, Authors Alliance submitted comments to the U.S. Copyright Office in response to a proposal in the Report on Orphan Works and Mass Digitization to establish a pilot program for Extended Collective Licensing (ECL) for mass digitization projects. We suggested that the Copyright Office’s proposal, while well intentioned, is not the solution we need to realize the potential of mass digitization, and urged the Office to reconsider implementing its proposed pilot program.

Yesterday, the Copyright Office announced that it submitted a letter to Congress reporting on the results of the Office’s public inquiry on establishing the pilot program. The letter explains that the proposal was met with a lack of stakeholder consensus on key elements of such a program, and concludes that proposed legislation in this area would be premature at this time.

We still believe that mass digitization plays a crucial role in disseminating knowledge for the public good, and welcome the attempts to simplify the copyright and permissions complexities that can impede digitization efforts. However, as we wrote in our comment, the ECL proposal did not adequately address the interests of authors who write to be read, nor did it consider the complexity and feasibility of managing permissions and licenses across multiple groups of potential rightsholders. For these reasons, we are pleased to see that the Copyright Office declined to move forward with its proposal at this time.

A Tale of Two Cases: Fair Use in Who’s Holiday!
and KinderGuides

Posted September 28, 2017

Dr. Seuss (Ted Geisel) at work on a drawing of a grinch, the hero of his forthcoming book, “How the Grinch Stole Christmas” / World Telegram & Sun photo by Al Ravenna | Courtesy of the Library of Congress

We would like to thank Authors Alliance legal research assistant Allison Davenport for writing the following analysis.

Two courts in the Southern District of New York recently decided two fair use cases that, on the surface, may appear to be similar but ultimately reached different outcomes. In one, a beloved children’s classic is grown-up for an adults-only stage adaptation. In another, classic adult novels are presented as colorfully illustrated children’s books. Yet, the former was judged to be a fair use and the latter was not. What led the court to these opposite rulings, and what can it teach us about how fair use works?

Fair Use

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 work is fair.

Who’s Holiday! – Matthew Lombardo and Who’s Holiday, LLC v. Dr. Seuss Enterprises

“In creating these juxtapositions, the Play, rather than trading on the character of Cindy-Lou Who and the setting of Who-Ville for commercial gain, turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”

Who’s Holiday! is a one-woman stage play by Matthew Lombardo which features a 45-year-old Cindy-Lou Who from How the Grinch Stole Christmas recounting the circumstances that led to her life as a drug addict living in a trailer, alone on Christmas. In the play, Cindy retells the events of Seuss’ story but then goes on to describe how she became pregnant with the Grinch’s baby at 18, married him, and suffered through unemployment and starvation before eventually killing the Grinch and being imprisoned for his murder. The play is told in rhyming couplets similar to the style of Seuss’ original, with a few exceptions.

David Hansen on Proposed Changes to Section 108 of the Copyright Act

Posted September 18, 2017

On September 15, the U.S. Copyright Office released a Discussion Document outlining proposed changes to Section 108 of the U.S. Copyright Act, which would update and expand on limited exceptions to copyright for libraries and archives. David Hansen, Director of Copyright & Scholarly Communications at Duke, has written a thoughtful consideration of the proposed changes. We’re grateful to him for his careful attention to the topic and for granting permission for us to reprint the following post, which originally appeared on the Scholarly Communications @ Duke blog.

Earlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions, and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

___________

* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.

Authors Alliance Petitions for New Exemption to Section 1201 of the DMCA

Posted September 14, 2017

photo by 422737 |CC0

Last month, we reported in detail on our petition to the U.S. Copyright Office to renew exemptions to the DMCA for lawful uses in multimedia e-books. Now, together with Professor Bobette Buster and the Organization for Transformative Works, we have also filed a petition to modify the exemption to Section 1201 as part of the Copyright Office’s seventh triennial rulemaking process.

The new petition, filed today, requests the following:

Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only);
Removing limitations that refer to screen-capture technology.

We’re grateful to law students from legal clinics at the UC Irvine and the University of Colorado, Boulder for their work preparing the petition.

Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

Authors Petition for Modification