[Reposted from TechDirt, Link] Last Thursday, Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). “Lecture” doesn’t really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi’s favorite subjects, second only to fair use.
[Originally posted on the Communia Blog, Link] The Creative Commons Summit, a bi-annual meeting of members of the CC network and friends of the Commons, took place in mid-October in Seoul, South Korea. One of the event’s tracks was devoted to copyright reform advocacy. The track was organised by member organisations of Communia, including Creative Commons.
In 2013, during the previous CC Summit, Creative Commons adopted a position on copyright reform. CC re-emphasized that even though the licenses are an essential mechanism to share creativity within the existing bounds of the law, it is now more important than ever to engage in a review and modernisation of copyright law itself. This commitment was confirmed during this year event.
[Cross posted from EIFL.org, Link (CC-BY)] For the last few decades, the United States has been aggressively and systematically “exporting” half of its copyright system. In treaties and in trade agreements, the US has insisted on longer terms of protection, stiffer penalties for infringement, legal protection for digital locks, and a variety of other measures designed to benefit copyright holders. Only recently, however, has the US even acknowledged the part of its copyright law that protects the public, including schools, libraries, technologists, and entrepreneurs, against overreaching copyright laws.
We in the US have known all along, however, that the real secret of the US’s relative success in both the culture and technology spheres is the balance to copyright protections provided by limitations and exceptions, especially the fair use doctrine.
Abstract: This paper investigates whether compulsory licensing – which allows governments to license patents without the consent of patent-owners – discourages invention. Our analysis exploits new historical data on German patents to examine the effects of compulsory licensing under the US Trading-with-the-Enemy Act on invention in Germany. We find that compulsory licensing was associated with a 28 percent increase in invention. Historical evidence indicates that, as a result of war-related demands, fields with licensing were negatively selected, so OLS estimates may underestimate the positive effects of compulsory licensing on future inventions.
Judge Pierre Leval’s opinion today in the Google Books case offers another fascinating glimpse into the richness of his thinking about the concept of fair use. (For more, be sure to attend (or stream) his talk at WCL’s Fourth Annual Peter Jaszi Lecture on November 12.) A law review article by then-district court Judge Leval was the source of the now-dominant theory of fair use, grounded in a concept he called “transformative use,” an idea later adopted wholesale by the Supreme Court in Campbell v. Acuff-Rose and spread throughout the land in subsequent cases.
Although the outcome in Google Books (Google wins, duh) was obvious to anyone whose paycheck didn’t depend on their believing otherwise, the discussion that gets us there sheds light on a host of hot fair use topics in ways that courts and copyright wonks will be citing and unpacking for years to come. In a later post I’d like to explore the ways Judge Leval managed to weigh in on a remarkable number of fair use controversies over the course of a single opinion.
For now, though, rather than take a grand tour of all the nooks and crannies of the opinion, in this post I want to make my first foray into the text by highlighting one big idea that I think is woven throughout the fabric of the opinion in a fundamental way: the distinction between protected expression and unprotected facts.
Chile is about to become the first country to successfully kill creative commons and other open licensing for audiovisual works with a copyright bill that has been already approved in the House of Representatives in an unprecedented fast speed. It is now in the Senate. This dream bill for collective societies of rightholders is the Bill for Copyright for Audiovisual Authors.
Here is a link to the bill and the legislative discussions. Here is how it works against open licensing:
Abstract: In 2015, Spain’s new copyright law entered into effect including many new provisions including one that requires Universities to pay Collecting Societies for using manuals and textbooks made available online in virtual campuses. This license cannot be waived and means that Universities have to pay even for works released under free licenses, such as Creative Commons, and for works already in the public domain. This weakens the protection offered by limits such as the one in favor of educational uses (art. 32 of the Spanish copyright act) and also reduces the public domain as it establishes unalienable licenses for content no longer in copyright.
Creative Commons USA and over 100 other groups have sent a letter to President Obama urging a policy to ensure that “educational materials created with federal funds… are made available to the public as Open Educational Resources to freely use, share, and build upon” through the use of open licenses. The letter further notes that “the global standard for public copyright licensing for copyrighted content is Creative Commons. Existing U.S. Government grant programs including the TAACCCT and First in the World Programs mentioned above, use the Creative Commons Attribution License (CC-BY). Releasing materials under a standard license, such as CC-BY, allows for increased reuse and compatibility between materials produced by different institutions, including private charitable foundations and other national governments.”
Dear Ambassador Froman: All consumers are users of intellectual property. The average American interacts with hundreds, if not thousands, of IP-protected products and goods each day. The Trans-Pacific Partnership must not weaken or otherwise disrupt the protections afforded to American consumers.
The United States is a global leader in intellectual property, not only because of the rights enjoyed by creators of knowledge goods, but also because of those rights granted to consumers. Preserving these rights must be central to any trade negotiation.
[The Commons Network, Link, (CC-BY] How can we address the high prices of medicines that are straining health budgets? How can openly sharing green knowledge help an agreement at the climate change talks in Paris this year? How could TTIP further privatize knowledge and what can we do about it? What does it mean to say the Internet belongs to everyone?
The Commons perspective sheds light on the democratic governance of knowledge for the common good and identifies knowledge as a shared resource that is a collective responsibility. It emphasizes equitable access to knowledge resources such as health-care, the need to prioritize ecological sustainability in knowledge policy and to promote participation in the management of an open and democratic Internet.
[Timothy Vollmer, Creative Commons, Link, (CC-BY)] Today Creative Commons and 22 other organizations published a letter urging the publishing giant Elsevier to alter its newly revised policy regarding the sharing and hosting of academic articles so that it better supports access to scholarly research.
Elsevier’s new policy, announced 30 April 2015, is detrimental to article authors as well as those seeking access to these research papers.
This post presents preliminary data showing that firms in industries sensitive to copyright can succeed in countries other than the U.S. when copyright limitations include fair use. It is an early product of an interdisciplinary project at American University, in which legal researchers are working with economics professor Walter Park to study how country’s copyright exceptions effect economic outcomes. The project has been undertaken as part of American University’s larger role coordinating the Global Network on Copyright User Rights. The research supports and expands on other recent research attempting to measure the value of fair use abroad.