[University of Cape Town IP Unit, Link, (CC-BY-SA)] On 5 May 2016, the Gauteng High Court delivered the long awaited decision in Moneyweb v Media24. The case’s history is nicely captured here. In a nutshell, the case dealt with, among other things, the alleged copyright infringement of 7 articles published by Fin24, a part of Media24. Moneyweb had argued that through publishing these articles, Media 24 infringed its copyright by unlawfully copying, appropriating and/or plagiarising articles previously published by Moneyweb. The dispute raised important issues regarding the substance and extent of copyright protection in news articles and the outcome clarified crucial aspects of South African copyright law, including fair dealing and the meaning of originality.
Flexible Exceptions Work in Developing Countries
I was asked in the hearing to comment on the proposition that flexible exceptions like fair use are only appropriate for the U.S. or other countries with highly developed adjudication systems. As I noted in the hearing, this idea is based on some key fallacies.
[Reposted from the Association of Research Libraries Policy Notes, Link (CC-BY)] On February 22–26, 136 organizations and numerous individuals participated in Fair Use/Fair Dealing Week 2016, an annual celebration of the important—and flexible—doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, Re:Create, and Wikimedia.
[Maira Sutton, EFF, Link (CC-BY)] The Internet is a diverse ecosystem of private and public stakeholders. By excluding a large sector of communities—like security researchers, artists, libraries, and user rights groups—trade negotiators skewed the priorities of the Trans-Pacific Partnership (TPP) towards major tech companies and copyright industries that have a strong interest in maintaining and expanding their monopolies of digital services and content. Negotiated in secret for several years with overwhelming influence from powerful multinational corporate interests, it’s no wonder that its provisions do little to nothing to protect our rights online or our autonomy over our own devices. For example, everything in the TPP that increases corporate rights and interests is binding, whereas every provision that is meant to protect the public interest is non-binding and is susceptible to get bulldozed by efforts to protect corporations.
[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.
[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.
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.
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.
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.
The Senate and House Reports on the Trade Promotion Authority bills working through Congress include important, albeit limited, steps toward endorsing balanced intellectual property norms in trade policy.
The Senate report, released today, states:
Abstract: The manuscript explores how U.S. fair use – a “standard” in a world of statutory copyright rules – has become an arena of ideological struggle over IP policy. At the international level, this debate frequently plays out in terms of how 17 U.S.C. 107 complies with or fails the “three-step test” of Berne and TRIPS. This manuscript reasons that asking whether section 107 complies with the three-step test is asking the wrong question: section 107 structure is not an exception – it is a mechanism to establish particular exceptions.
I released a statement earlier today opining that the today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement (available at https://wikileaks.org/tpp-investment/WikiLeaks-TPP-Investment-Chapter.pdf) would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. This note gives further background and analysis supporting that statement.