By Jonathan Band The U.S. Court of Appeals for the Ninth Circuit just issued a decision that on its surface appears to be a straightforward interpretation of the Copyright Act, but likely will have far reaching implications for...
Read MoreBy Jonathan Band Policybandwidth During the presidential campaign, the Heritage Foundation organized Project 2025, which produced a 925-page plan for transforming the federal government if Donald Trump were elected. Trump...
Read MoreBy Jonathan Band, Policy Bandwidth In the heated copyright discussions over generative artificial intelligence, the term “text and data mining” is sometimes used interchangeably with “machine learning” or the “ingestion of...
Read More[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.
Read More[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.
Read More[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).
Read More[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.
Read More[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.
Read More[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.
Read More[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.
Read More[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.
Read MoreUniversal 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.
Read MoreThe 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).
Read MoreIn 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.
Read MoreOn 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.
Read More[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.
Read MoreThe Library Copyright Alliance, which consists of three major library associations in the United States, writes to respond to some of the complaints made by the International Intellectual Property Alliance (“IIPA”) to the U.S. Trade Representative concerning the Copyright Amendment Bill.
Read MoreOrganizations 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.
Read More[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.
Read More[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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