Author: Jonathan Band

Library Copyright Alliance Comments on South Africa’s Copyright Amendment Bill (B13-2017)

[Printable PDF of this Comment]  The Library Copyright Alliance (“LCA”) consists of three major library associations in the United States: the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries. These associations represent over 100,000 libraries in the United States employing more than 350,000 librarians and other personnel. An estimated 200 million Americans use these libraries over two billion times each year. These libraries spend over $4 billion annually acquiring books and other copyrighted material. In 2015, LCA submitted comments on the South African Copyright Amendment Bill, 2015. We now appreciate the opportunity to provide our views on the Copyright Amendment Bill, 2017. We commend the South African government on the proposed exceptions for libraries, archives, museums and galleries (section 19C); persons with disabilities (section 19D); and educational activities (section 13B). Long experience in the United States with similar provisions indicates that these exceptions will significantly benefit the citizens of South Africa without harming the interests of domestic and foreign copyright holders. At the same time, we offer three suggestions to further improve the Bill. First, the fair use provision in section 12 should be open-ended, and not limited to the eight purposes enumerated in section 12. The fair use right in the U.S. Copyright Act, 17 U.S.C. 107, is not restricted to the purposes listed in the statute. Rather, these purposes...

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Finding Fair Use in Unexpected Places

[Reposted from the Association of Research Libraries, Link (CC-BY)] In December 2016, strong endorsements of fair use appeared in somewhat unexpected places. First, the Joint Strategic Plan (“JSP”) released by the Office of the Intellectual Property Enforcement Coordinator on December 12, 2016, stated that nothing in the JSP: should be interpreted as limiting the scope of exceptions and limitations, such as fair use, under U.S. copyright law. To the contrary, the basic principles that have permitted the Internet to thrive must be safeguarded, and the Strategic Plan expressly recognizes and celebrates advancements in technology. The way people use and access content – which has led to new and innovative uses of media (e.g., remixes and mashups involving music, video and the visual arts), and fair use, for example – will undoubtedly continue to evolve. We must work to foster creativity, understanding the role of exceptions and limitations as not only part of our body of laws, but as an important part of our culture. Indeed, it is the combination of strong copyright rights with a balance between the protection of rights and exceptions and limitations that encourages creativity, promotes innovation, and ensures our freedom of speech and creative expression are respected. The JSP concludes this discussion by observing that “IP enforcement options must be crafted to allow for effective measures against actors that unlawfully prey on the works of...

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Fair Use as a Tool for Reining In Foreign Judges?

[Cross posted from Project Disco, Link] At a conference last week sponsored by Columbia Law School’s Kernochan Center for Law, Media, and the Arts, a panel I participated in considered an unexpected prospect: the copyright fair use doctrine as a mechanism for creating more certainty in international copyright law. Balanced copyright proponents have long supported the “export” of fair use through trade agreements. If the United States was encouraging trading partners to adopt U.S. IP standards, those standards should include not only the higher protections provided by U.S. law (e.g., copyright term of life plus 70 and prohibitions on circumvention), but also our robust exceptions and limitations, such as fair use. This advocacy contributed to the inclusion of Article 18.66 in the IP chapter of the Trans-Pacific Partnership Agreement. Article 18.66 provides that “each party shall endeavor to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions…, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” (See here for a detailed discussion of the development of this Article.) Fair use, has its critics, however, including major content owners — notwithstanding their...

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The Impact of Specific Exceptions on Fair Use: An Update

In 2012, I published a law review article where I argued that when a defendant engages in the type of activity permitted by a specific exception under the Copyright Act, but does not qualify for a technical reason, the court should give weight to the defendant’s substantial compliance with the exception when considering the first fair use factor (the purpose and character of the use).1 In adopting a specific exception, Congress recognized the strong public policy interest in permitting the use in cases meeting the exception’s requirements. Significantly, the same public policy interest still exists in cases where many, but not all, of the exceptions’ requirements are met. While the existence of a specific exception should not be dispositive of the fair use analysis, I argued that it should have a positive influence on the first fair use factor. Since then, both the Second Circuit and the Register of Copyrights have given substantial weight to specific exceptions in the context of consideration of the first fair use factor. Click here for the full update...

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Flexibility in the TPP Statutory Damages Provision

This article is part of an IP-Watch and Infojustice.org series analyzing the Trans Pacific Partnership intellectual property provisions by leading experts around the world.  The series will publish weekly through the first quarter of 2016. During the negotiation of the Trans-Pacific Partnership Agreement, many concerns were voiced about how TPP would mandate adoption of U.S. style statutory damages. Under the U.S. Copyright Act, a court can award damages of up to $30,000 per work infringed, which can be ratcheted up to $150,000 per work infringed in cases of willful infringement. Scholars have found that statutory damages in the U.S. have discouraged investment in innovative technologies while incentivizing the emergence of copyright trolls. So how bad is the statutory damages provision in the final TPP agreement? The TPP damages provisions go beyond TRIPS but are more flexible than the Korea-U.S. Free Trade Agreement (KORUS) and allow the adoption of a statutory damages framework less onerous than that of the U.S. Copyright Act. In addition to providing for the recovery of actual damages under TPP Article 18.74.3 and the infringer’s profits under Article 18.74.5, a Party under Article 18.74.6 must establish or maintain a system that provides for “pre-established damages” or “additional damages.” Footnote 111 clarifies that “additional damages may include exemplary or punitive damages.” Thus, pre-established damages means what the U.S. Copyright Act calls statutory damages. Article 18.74.8 then requires...

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Evolution of the Copyright Exceptions and Limitations Provision in the Trans-Pacific Partnership Agreement

Note:  The original version of this paper was posted on October 20, 2015.  It was updated on November 10, 2015 taking into account the release of the official TPP text. (eds.) The Trans-Pacific Partnership (TPP) Agreement contains an important provision concerning achieving balance in the copyright systems of the twelve countries party to that free trade agreement. This provision was not present in the early draft of the agreement. Then, in July 2012, the United States proposed language that formed the basis of the text of the provision. This language subsequently was strengthened over the next three years to its final form. This paper recounts the evolution of this provision. Because of the lack of transparency of the TPP negotiations, it is difficult to reconstruct a precise timeline of when specific language was proposed, who proposed it, and why. However, a combination of leaked drafts and public statements provides evidence of the provision’s trajectory. Click here for the full paper...

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The Fair Use/Fair Dealing Handbook

Updated March 10, 2015, to include UK Fair Dealing amendments. Updated on April 3, 2013, to include Liberia. More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments. Fair dealing was first developed by courts in England in the eighteenth century, and was codified in 1911. Fair dealing became incorporated into the copyright laws of the former British Imperial territories, now referred to as the Commonwealth countries. Over the past century, the fair dealing statutes have evolved in many of the Commonwealth countries, and increasingly resemble the fair use statute in the United States. Thus, although fair dealing is generally considered to be less flexible and open-ended than fair use, this is no longer the case in many Commonwealth countries. This handbook contains all the fair use and fair dealing statutes we were able to identify. THE FAIR USE/FAIR DEALING HANDBOOK (Last updated March 10, 2015)    ...

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The Complexity Dialectic: A Case Study From Copyright Law

Both political parties have begun to focus greater attention on the growing income inequality in the United States. While there probably are many factors contributing to the inequality, one factor has received relatively little attention: the nature of the U.S. political system encourages increasingly complex regulatory frameworks, which benefit those with more resources to navigate those frameworks. As the frameworks get more complex, the advantage of those with resources increases. Federal and state legislatures and executive agencies are highly responsive to stakeholder interests. When confronted by stakeholders with competing interests, these institutions try to reach accommodations, which tend to increase complexity, e.g., exceptions and exceptions to exceptions. This complexity by itself benefits those with more resources. Thus, to some extent, the very responsiveness of political institutions inadvertently contributes to inequality. I suspect that this dynamic, which I term the complexity dialectic, occurs throughout our economy, but I discuss it in this paper with an example from the Digital Millennium Copyright Act. The DMCA places restrictions on the circumvention of technological measures that control access to copyrighted works or that prevent the infringement of copyrighted works. The initial prohibition proposed by the Clinton Administration in 1995 was a 75-word sentence banning the manufacture of a device whose primary purpose was to circumvent any system that prevents the infringement of a copyrighted work. By the time of its enactment in 1998,...

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David and Project Goliath

The name the Motion Picture Association of America used for its anti-Google campaign—“Project Goliath”—may be more self-revelatory than the MPAA expected. It has been widely reported that the hacked Sony Pictures emails reveal that in early 2014, MPAA launched Project Goliath, a policy initiative to develop legal tools to block access to websites that facilitate infringement. The effort to develop such legal tools at the federal level failed spectacularly with the SOPA/PIPA debacle, so Project Goliath attempted to enlist the support of state attorneys general. The news reports about Project Goliath speculate that “Goliath” is a code name for Google, one of the most vocal opponents of SOPA/PIPA and a frequent target of entertainment industry complaints that its search engine directs users to infringing sites such as cyberlockers. Google in a policy blog expressed “deep concerns” about the revelations, and asked why the MPAA, an organization that claims to be committed to the First Amendment and artists’ freedom of expression, was “trying secretly to censor the Internet.” The MPAA responded that “Google’s effort to position itself as a defender of free speech is shameful.” The MPAA presumably selected the name Project Goliath as an allusion to the Biblical story of David and Goliath, where David, then a young shepherd, defeated the Philistine giant Goliath. “David and Goliath” is a frequently used metaphor for a weak underdog defeating a much...

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The End of the Cell Phone Unlocking Saga?

[This post was updated on August 4, in response to the President’s signature of the cell phone unlocking bill.] On July 25, 2014, the House of Representatives passed the version of cell phone unlocking legislation adopted ten days earlier by the Senate. President Obama promptly announced that he would sign the legislation, bringing at least a short-term resolution to a controversy that had burst into the public eye early in 2013. The underlying issue, however, has much deeper roots, stretching back to the enactment of the Digital Millennium Copyright Act in 1998. Moreover, the legislation only temporarily permits consumers to unlock their cell phones to access other mobile networks. In 2015, the Librarian of Congress will determine whether to renew this permission for another three years. A permanent solution to this problem appears precluded by the free trade agreements to which the United States is a party. This paper examines the legal background of this matter.[1] [Click here for a PDF of this paper] INTRODUCTION The Digital Millennium Copyright Act (DMCA) prohibits the circumvention of technological protection measures, and thus blocks the disabling of software that locks cell phone customers into a particular mobile network. The DMCA contains a handful of permanent exceptions. Additionally, it authorizes the Librarian of Congress to issue temporary exemptions during a rulemaking process that occurs every three years. In the 2006 rulemaking cycle, the...

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