17.0 News on Copyright Law
UPDATED JANUARY 2010:
17.3 What happened on World Fair Use Day in Washington DC on January 12 2010?
I attended “The First Annual World’s Fair Use Day” at the Newseum in Washington D.C. It was organized by the D.C.-based non-profit consumer advocacy group, Public Knowledge. There is lots of information and coverage on this event at http://worldsfairuseday.org/. I will limit my comments to some personal musings (in chronological order as the day unfolded.)
First, I note, the event was free.
Second, Nina Paley (listed bio as filmmaker, animator, cartoonist and copyright critic) wore a black short-sleeved t-shirt with the word: ©ensorship. We know her perspective on copyright. Nina did say that her content is free online however she sells her CD’s. Nina advocates copyright reform and/or broader fair use. Her comments were general but she wants full use of all content for use in her own creations. She is fine with others using her works in any manner.
Third, Dan Walsh, creator of Webcomic “Garfield Minus Garfield” is happy to make money from his work, but through ads, as he does not want to deal with licensing his own works.
Fourth, Pat Aufderheide, director of social media at American University’s School of Communication and person behind the many best practices guides on fair use for online video (remixes), education and documentary filmmaking, proudly shared her work. She mentioned future guides including one on fair use best practices for research librarians. Interesting guidelines and worth reading however remember they are guidelines and not what the Supreme Court or the Copyright Act is stating. My own perspective: having copyright compliance policies are almost always helpful; make sure your policies/guidelines work within the policies and culture of your own organization.
Fifth, Professor Peter Jaszi (AU Washington College of Law) words of wisdom: Best thing U.S. Congress can do is leave Section 107 on Fair Use alone and leave us all to interpret it. Concurred by Tony Falzone (Director of Fair Use Project and lecturer in Law at Stanford Law School). Tony also added: ambiguity and flexibility = strength behind fair use.
Sixth, internationally speaking, there was little discussion. It was mentioned that fair use as in the U.S. is uniquely American. Also, it is unlikely that fair use would ever be the international norm. During my time today I heard no panellists speak about the fact that fair use is likely/arguably broader in the U.S. than most elsewhere (including fair dealing in other countries), and what happens with national treatment and applying the standards in another country when content (legally used in the U.S.) is an infringement in another country? Also missing from the discussions -- moral rights protection which exist in most copyright laws around the world but only in a minor manner in the U.S. A relevant topic for online content use and remixes and mash-ups and other situations where a fair use defense may be claimed.
Seventh, a word from the U.S. administration. White House Deputy Chief Technology Officer, Andrew McLaughlin (also proud owner of a Droid phone and former global public policy head for Google) disclaimed anything he said could be held as representing the White House. He then said: the administration is “serious about IP enforcement”, fair use is not an excuse for infringement, and there is a need to balance both sides of the copyright equation - reward creators and have flexible fair use principles.
17.2 Question: What is the latest on revising the Canadian Copyright Act?
Answer: The Canadian government, as promised, held a round of public consultations in the summer of 2009 on revising the Canadian Copyright Act. Take the time to read the many submitted briefs offering a variety of perspectives at http://copyright.econsultation.ca.
17.1 Question: What is the word on the French Bill on Creation and the Internet?
Answer: The French Constitutional Council ruled on June 10th 2009 on the Bill on Creation and the Internet (Project de loi favorisant la diffusion et la protection de la creation sur Internet). The Bill contemplates the establishment of an administrative body (Haute Autorite pour la Diffusion de Oeuvres et la Protection des Droits sur Internet, "HADOPI") which would have been granted the authority to track illegal Internet downloading. The HADOPI was to be given the authority to cut off Web access for repeat offenders - three strikes and an accused offender would have been had his Internet service suspended for up to a year.
Throughout the course of the World Copyright Summit conference in June 2009 in Washington DC, members of CISAC and its guest speakers the Bill's three strikes provisions was seen as a leading example of how states, creators and rights holders can have some control against modern day pirates lurking in the online sea. A press release by CISAC referred to the Bill and its three strike provision as "a beacon of hope offered by the French in the continuing battle against the plague of Internet piracy". The Constitutional Council however ruled that the HADOPI should only be allowed to issue warnings and that any decision to order ISPs to cut access to alleged offenders would need to be made by a court of competent jurisdiction. See: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html
Has the removal of this power truly dimmed the beacon for those trying to control illegal downloads of copyright-protected materials? Or will the creation of HADOPI, even with its limited powers, launch a new assault against the pirates’ activities by providing a centralized and collaborative approach to identifying and curbing would-be pirates and curbing potentially illegal activity? If the legislative intent is to curb unauthorized downloads by individuals, notice by an administrative body may be a sufficient deterrent. If however the French legislators were seeking to control wholesale piracy then without the ability to impose significant sanctions, the HADOPI will have a very limited impact.
Thanks to Lisa Balaban, Lawyer and Negotiations Consultant, who provided the answer to this question.