Author: Jonathan Band

The Fair Use/Fair Dealing Handbook

[Jonathan Band and Jonathan Gerafi] 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.

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New Nigerian Copyright Act Creates Open Fair Dealing Exception

[Jonathan Band] Nigerian President Muhammadu Buhari has assented to a new copyright act that updates the country’s exceptions and limitations for the digital environment. Most significantly, the act replaces a closed fair dealing provision based on the English copyright law with an open provision modeled on the U.S. Copyright Act’s fair use right. The adoption of an open fair dealing provision by Africa’s largest producer of copyrighted material should put to rest arguments elsewhere on the continent that open exceptions are inimical to copyright industries.

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Israel Ministry of Justice Issues Opinion Supporting the Use of Copyrighted Works for Machine Learning

[Jonathan Band] The Israel Ministry of Justice has issued an important opinion concluding that the use of copyrighted materials in the machine learning (ML) context is permitted under existing Israeli copyright law. In particular, the opinion found that ML typically will fall within the scope of the Israel Copyright Act’s fair use provision. The opinion thus adds to the growing body of law around the world permitting the use of copyrighted works for ML and text and data mining (TDM).

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U.S. Copyright Office Finds That Ancillary Copyright May Violate the Berne Quotation Right

[Jonathan Band] The U.S. Copyright Office’s recently released study Copyright Protections for Press Publishers raises serious questions about the compatibility of ancillary copyright regimes with international copyright treaty obligations. The Copyright Office conducted the study at the request of members of Congress to assess the viability of establishing ancillary copyright protections in the United States similar to protections now being implemented in Europe. Under such regimes, online news aggregators must pay for publishers for excerpts of content they provide for others to view.

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The Complexity Dialectic: A 2021 Update

[Jonathan Band] In March 2015, I published The Complexity Dialectic: A Case Study From Copyright Law, where I argued that the nature of the U.S. political system encourages increasingly complex regulatory frameworks, which benefit those with more resources to navigate those frameworks. I used the triennial rulemaking under the Digital Millennium Copyright Act (“DMCA”) as a case study to demonstrate this point. I showed that the rule issued by the Librarian of Congress (upon the recommendation of the Copyright Office) had grown increasingly complex. The number of words in the exemptions increased from 35 words for two exempted classes of works in the 2000 rulemaking cycle to 1,172 words for five exempted classes in the 2013 cycle. The most recent set of exemptions continues this trend.

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Librarian of Congress Adopts Research-Friendly Exemptions to Section 1201

[Jonathan Band] On October 27, 2021, the Librarian of Congress issued new exemptions to the prohibition on the circumvention of technological protection measures set forth in the 17 U.S.C. 1201. Several of these exemptions adopted in the triennial section 1201 rulemaking explicitly support research activities. Moreover, the 350-page recommendation of the Register of Copyright, on which the Librarian based the exemptions, provided a detailed analysis of the lawfulness of the underlying research activity necessitating the exemption. The National Telecommunications and Information Administration generally concurred with the Register’s recommendations. The exemptions and their supporting documents reflect the broad right to research in current U.S. copyright law.

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Interfaces on Trial 3.0: Google v. Oracle America and Beyond

[Jonathan Band] The final version of Interfaces on Trial 3.0: Google v. Oracle America and Beyond is now available for free download here. This updated version includes an extensive discussion of the Supreme Court’s April 5, 2021, decision in the case, especially its impact on software interoperability. This is the third volume of a history of the global legal debate concerning copyright and competition in the software industry.

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Australian Link Code May Violate Berne Convention and Provoke Trade Litigation

[Jonathan Band and Sean Flynn] Next week, the Australian Parliament is set to vote on the “News Media and Digital Platforms Mandatory Bargaining Code” (“Code”). The Code has been a top lobbying priority of Rupert Murdoch’s News Corp, which dominates the news industry in Australia. The Code is incredibly worrisome from an international copyright law perspective, as it is the latest attempt to tax quotation rights protected by the Berne Convention. According to a newly published analysis by two leading international copyright scholars, enactment of the Code would likely violate Article 10(1) of the Berne Convention.

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The Sale of Bob Dylan’s Catalogue and Reversion Rights in South Africa

Universal Music Publishing Group’s purchase of the copyrights to 600 of Bob Dylan’s songs for over $300 million demonstrates the importance of reversion rights to artists. In many countries, a creator who assigns his copyright to a publisher has an opportunity to recapture her rights at some point in the future. These “reversion” or “termination” rights recognize that early in the artist’s career, she has little bargaining strength, and may enter into a one-sided deal favoring the publisher. These reversion rights apply regardless of the contract the artist may have signed with the publisher.

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Balanced Copyright in RCEP

The Regional Cooperation for Economic Partnership (RCEP), signed on November 15, 2020 by sixteen countries in the Asia Pacific region, includes language on copyright exceptions that builds on provisions that appeared in the Comprehensive and Progressive Trans Pacific Partnership Agreement (CPTPP) and the Korea US Free Trade Agreement (KORUS).

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Justices Display Concern About Monopolization and Disruption in Google v. Oracle Argument

In yesterday’s oral argument in Google v. Oracle, several Justices expressed serious concerns that an Oracle victory could lead to legal monopolies over de facto standards and serious disruption of settled expectations in the software industry… Significantly, all the Justices understood that the case concerned only the lawfulness of Google’s use of the declarations in the Java application programming interface (“API”), as opposed to the copyrightability of computer programs more generally.

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Ambivalence to Fair Use in U.S. Trade Policy

On June 16, 2020, President Ramaphosa of the Republic of South Africa referred the Copyright Amendment Bill (“CAB”), which had been awaiting his signature for more than 18 months, back to the Parliament. This action appears motivated at least in part by the U.S. Trade Representative (“USTR”)’s concerns about the CAB’s inclusion of a fair use right. This is the most recent example of apparent ambivalence towards the “exportation” of fair use in U.S. trade policy over the past 25 years—notwithstanding that the Supreme Court has twice held that fair use is a built-in accommodation between the Copyright Act and the First Amendment.

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COMMENTS BY WIPO COPYRIGHT DIRECTOR UNDERMINE IIPA’s SOUTH AFRICA PETITION

[Jonathan Band] The documents provided to Knowledge Ecology International in response to its Freedom of Information Act request to the U.S. Trade Representative concerning the South African Copyright Amendment Bill (“CAB”) led to the discovery of a set of comments on the draft bill prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization. These comments, dated October 1, 2018, in effect refute the central argument of the International Intellectual Property Alliance’s petition to USTR that South Africa should be denied U.S. trade preferences because the CAB, if signed into law, would not provide adequate and effective protection to intellectual property. Woods prepared these comments as a member of a panel of experts appointed by the Portfolio Committee of the South African Parliament to review the CAB. Woods stated that the comments reflected her views and are not official WIPO interpretations of international treaty obligations.

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Libraries and Archives File Amicus Brief Promoting Digital Preservation

Organizations representing libraries and archives filed an amicus brief in the U.S. Supreme Court in Allen v. Cooper, a case concerning the constitutionality of a statute that seeks to limit the sovereign immunity of state governments against claims for copyright infringement. The amicus brief focuses on the negative impact the elimination of sovereign immunity would have on digital preservation.

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The Gap Between Artistic Practice and Copyright Rhetoric

[Jonathan Band] A recent article by Pulitzer Prize winning art critic Jerry Saltz demonstrates the gap between the artistic process and the rhetoric of copyright policy. In “How to be an Artist,” Saltz provides 33 lessons “to take you from clueless amateur to generational talent.” The lessons underscore the importance of imitation and non-financial incentives to a fulfilling creative life.

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Cautionary Tales About Collective Rights Organizations, Part 2

[Jonathan Band and Brandon Butler] In 2013, we published Cautionary Tales About Collective Rights Organizations [21 Michigan State Int’l L. Rev. 687 (2013)]. We acknowledged that properly regulated collective rights organizations (“CROs”) in some circumstances enhanced efficiency and advanced the interests of rights holders and users. At the same time, we observed that CROs had a long history of corruption, mismanagement, lack of transparency, and hostility towards users and artists alike. The 2013 article compiled episodes detailing this history to provide balance to any policy discussion that addressed collective licensing and CROs. In the five years that have passed since we published that article, CROs around the world have continued to misbehave, often serving their own interests at the expense of artists and the public. We decided it was time to recount these latest episodes.

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The Second Circuit’s Fair and Balanced Fair Use Decision in Fox News v. TVEyes

[Originally posted on the CCIA’s DisCo Blog, Link] This week is Fair Use Week, so at first blush, the Second Circuit’s decision that TVEyes’s service was not a fair use might appear ironic. However, a closer read reveals that the decision does not in any way undermine the Second Circuit’s recent fair use jurisprudence. As DisCo has previously covered, TVEyes continuously records the audiovisual content of more than 1,400 television and radio channels, imports that content into a database, and enables its clients to view, archive, download, and email to others ten‐minute clips. Fox News sued TVEyes for copyright infringement. In 2014, the district court granted summary judgment to TVEyes. Fox appealed, and now the Second Circuit has reversed the decision below.

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Captured Copyright Law

A new book by Brink Lindsey and Steven Teles, The Captured Economy, contains important insights on how the U.S. copyright system impedes economic growth and promotes income inequality in America. Lindsey, vice president of the Niskanen Center, describes himself as a libertarian. Teles, a professor of political science at Johns Hopkins University, describes himself as a liberal. Their basic thesis is that powerful corporations and professionals use government regulation to eliminate competition and increase their wealth, thereby promoting inequality and slowing economic growth. Intellectual property law is one of their case studies.

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