Fair Use & Creative Control

Copyright in the Community: From Fair Use to Creative Control

This month we’d like to discuss some updates in the area of fair use and also invite you to the official launch of Creative Control, the IP community education and pro bono advice initiative.

What is Fair Use?
Fair use is a legal doctrine within the copyright law that allows the public to use copyrighted works and material without the permission of the copyright owner. The fundamental social purpose of copyright protection is to promote the progress of the arts and sciences: to advance American learning and culture by encouraging authors and other creators to share their works with the public. Consequently, copyright reserves to authors only certain specific uses of their works, such as making a copy, while all other uses, such as reading a book aloud as a bed-time story, are freely available to the public. In addition, fair use allows the public to also engage in the authors’ reserved uses, typically referred to as the authors’ exclusive rights, when allowing the activity promotes the social purpose of copyright.

For example, while making a copy of a work is an exclusive right, it would undermine the purpose of copyright if authors could always control whether their work, or any part of their work, can be copied. Without the fair use doctrine, the author of a news article or a history book could prevent a teacher from copying any part of a copyrighted work for use in a classroom discussion. Similar uses by the public, such as reproducing works for purpose of literary or public criticism or social activism, or reproducing portions or aspects of works to create new works such as “fan fiction”, are other activities that are dependent upon fair use.
Fair Use Recent Court Decisions
Some recent court decisions demonstrate the importance of fair use to the creation of new works and art forms and to free speech. In Drake Winning Sampling Case Over Fair Use Is Big News... But Still Demonstrates The Madness Of Music Licensing, Mike Masnick discusses how courts are reevaluating hip-hop sampling as fair use of portions of pre-existing music. In Reaction video YouTubers win landmark ‘fair use’ copyright case in the US,” Heather Gay discusses how a court recently held that a YouTube “reaction video”, video wherein viewers of various Internet videos share their opinions of these works, was protected by fair use.
For more information on how courts have applied fair use, visit the Fair Use Index on the U.S. Copyright Office website. The index is a searchable database of court decisions on fair use compiled to aid the public in understanding the types of uses that have previously been determined to be fair use. For more information on criticism and commentary as fair use, check out “Copy This Podcast Episode 9: Parody Isn’t Always a Laughing Matter.”
Fair Use and Halloween (and other uses…)
In light of the past week’s festivities, you might find interesting a recent op-ed by Joshua Lamel, Fair Use and Halloween, which discusses how fair use supports this All Hallowed American pastime.
Is there an IP social justice development or issue that you think might interest other IIPSJ readers? Please let us know - and as always, we look forward to your comments and questions.
IIPSJ

Creative Control

The Lawyers’ Committee invites you to the launch of Creative Control - an initiative to elevate and empower online expression. The event will feature local DC artists, thought leaders on protecting your creative works, and one-on-one free advice with attorneys.

The event takes place Thursday, November 16 from 7 -10 pm at RedRocks on H St in NE DC.

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Other Programs

Other IIPSJ Education and Outreach Programs

From its inception in 2002, IIPSJ has conducted programs to reach out to the bench and bar and to government officials through workshops and seminars as well as through participation in professional organizations such as the Giles Rich Inn of Court and the American Intellectual Property Association. One of IIPSJ's earliest conferences was a continuing legal education program designed for lawyers and judges. The CLE has been done annually ever since.

Over the years IIPSJ has sponsored or participated in various outreach initiatives and programs to educate undergraduates and community members about IP and its opportunities. This aspect continues to grow through partnering with the NAACP, the USPTO, Sramani, and with other organizations for particular programs. Below is information on current and some past programs that IIPSJ has sponsored or participated in.

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Net Neutrality

Over the summer, you likely noticed an increase in webpages and social media posts on Net Neutrality. And when you visited various webpages on July 12 you may have seen ads supporting the Internet wide day of action to save net neutrality.

These posts refer to the April 26 announcement and May 18 Notice of Public Rulemaking (“NPRM”) on “Restoring Internet Freedom” by the FCC to reverse the 2015 Open Internet Order, which categorized broadband service as a communications service under Title II of the Communications Act. This order barred broadband providers from throttling connection speeds, blocking websites, and accepting payment for prioritizing web traffic. There are many articles and other materials online explaining the effects of these rules. Here are links to a few:

• National Public Radio: Internet Companies Plan Online Campaign To Keep Net Neutrality Rules

• Vimeo: https://vimeo.com/blog/post/join-the-fight-net-neutrality-2017

• ACLU: https://www.aclu.org/feature/what-net-neutrality

Many Internet Service Providers (“ISPs”) are in favor of the NPRM, agreeing with FCC Chairman Pai’s comments that the Open Internet Order provides too much regulation of broadband service and has led to a decreased investment of infrastructure.

Opponents of the new rule include many content providers as well as consumers of broadband services. Despite the name of the NPRM, “Restoring Internet Freedom” comments submitted by opponents of the rule argue that it would limit consumers access, by making it more difficult to reach webpages hosted by smaller businesses that cannot afford to pay for higher prioritization, and possibly limiting connection speeds or blocking websites of competitors providing similar services.

For a social justice perspective on net neutrality see Net Neutrality: The Social Justice Issue of Our Time by Summer Google Policy Fellow at Public Knowledge and Third Year Howard Law student, Willmary Escoto, which discusses how revoking the 2015 rules can also limit access to minority points of view, such as current online social justice movements such as #BLACKLIVESMATTER.

The House Energy and Commerce Committee has announced a Full Committee hearing on September 7 entitled “Ground Rules for the Internet Ecosystem.” The committee has invited the CEOs of leading tech companies, including Facebook, Amazon, and Netflix, as well as broadband providers including Comcast, Verizon, and AT&T to testify before the committee.

We will continue to follow and share developments on this rulemaking. You may also want to follow these threads on the EFF and PK websites for more up to date information.

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IP Symposium: Best Practices in Rights Clearance

As we all welcome the New Year IIPSJ continues its collaborative work in community IP education and empowerment initiatives as a co-sponsor of

Best Practices in Rights Clearance:

A Symposium By and For Professional Visual Artists and Arts Lawyers,

Presented by the Center for Protection of Intellectual Property at the Anton Scalia Law School at George Mason University, on Thursday, January 18, 2018, beginning at 1pm.

This symposium will bring together scholars, industry representatives, and visual artists to discuss when and whether rights need to be cleared when using the work of others. During the networking reception to follow, students from the Arts & Entertainment Advocacy Clinic at the Scalia Law School will be available to consult one-on-one with attendees about copyright questions they may have and to otherwise facilitate further consultation with the Washington Area Lawyers for the Arts and other Volunteer Lawyers for the Arts organizations.

Please visit the link here at Center's website for further information and to register for the Symposium.

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International IP

This month we thought it might be informative to spotlight IP social justice legal issues and developments arising in other countries. We have provided links below to various relevant articles, which we hope you'll find of interest.

1. Copyright Implications of Renegotiating the North American Free Trade Agreement (“NAFTA”) – In May 2017, the United States Trade Representative (“USTR”) published a request for comments on the Trump administration objectives for renegotiation of NAFTA. Here are links that discuss some of the comments submitted on copyright and social justice concerns.

Re:Create Coalition: What They’re Saying: Protecting A Balanced Copyright System In NAFTA Renegotiations

Program on Information Justice and Intellectual Property (“PIJIP”): Copyright Balance as a NAFTA Negotiating Objective: Testimony to the Trade Policy Staff Committee

Creative Commons: Is Re-negotiating NAFTA Opening Pandora’s Box?

2. Updates on the Marrakesh (“Books for the Blind”) Treaty – In May we included an article announcing that the Electronic Information for Libraries (“EIFL”) library guide to the Marrakesh Treaty for persons with print disabilities is now available six languages: English, French, Lithuanian, Russian, Serbian, and Nepali. This month we bring some links for background on the treaty as well as an update on the status in the EU.

World Intellectual Property Organization (“WIPO”): The Marrakesh Treaty In Action

WIPO: Stevie Wonder to UN Member States: Help Others Beat the Odds Like I Did, Join Marrakesh Treaty

Intellectual Property Watch: EU Parliament Adopts Marrakesh Treaty; Blind Union Prepared To Fight Publisher ‘Compensation’

3. Copyright Reform in South Africa - The South African Parliament published a pending Bill amending the Copyright Act and a request for comments. Click here to read the pending Bill.

IP Watch: Lessons From South Africa: Protecting Non-Expressive Uses In Copyright Reform

Infojustice: Comments on South Africa's Copyright Amendment Bill (B13-2017)

4. Other Articles of Interest

Infojustice, reposted from EIFL: Course Packs for Education Ruled Legal in India

Public Knowledge: Net Neutrality Challenges in the World: Zero-Rating in the European Union

Reposted by Infojustice: German Federal Court of Justice Grants Compulsory License in Preliminary Proceedings

Follow-up on Matal v. Tam – Last month we discussed the U.S. Supreme Court decision on the disparagement provision in the Trademark Act. As a follow-up, we recommend listening to the National Public Radio podcast Code Switch on July 5: The Supreme Court Decides In Favor Of A Racial Slur...Now What?

Is there an IP social justice development or issue that you think might interest other IIPSJ readers? Please let us know - and as always, we look forward to your comments and questions.

IIPSJ

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Matal Tam

Matal v. Tam

On Monday, June 19, 2017, the Supreme Court held that the law prohibiting the federal registration of disparaging trademarks, part of Section 2(a) of the Lanham Act, was unconstitutional as viewpoint discrimination prohibited by the First Amendment guarantee of freedom of speech. Matal v. Tam, https://www.supremecourt.gov/opinions/slipopinion/16. The Court ruled 8-0 on the result and 8-0 on the theory of viewpoint discrimination, but split on a number of other issues considered by the Court. The social justice implications of this decision fall along several lines.
First, those who seek to "reclaim" disparaging words like "dykes" and "slants" will be able to use federally registered trademarks in support of their efforts to do so. This is empowering to such advocates. While some advocates of such "reclamation" strategies may find the Tam decision empowering, some other social justice advocates have raised competing concerns.

Second, the federal government will no longer be able to reject trademarks because they disparage a group or person. Trademarks like, STOP THE ISLAMISATION OF AMERICA, which the Federal Circuit (“CAFC”) previously affirmed a refusal to register the mark because it disparaged the Muslim community. Those with power and money are most likely to be able to exploit this change thereby further legitimating disparaging discourse not just in general, but also in the marketplace.

Third, the Court continues to support hate speech while ignoring the adverse impacts of it even in a quintessential commercial type of speech like trademarks.

Fourth, the implications of the Court's continuing shift toward formulaic evaluations of subtle freedom of expression issues signaled both in Reed v. Town of Gilbert from 2015 and in this case are troubling insofar as it results in more rigid rules with less room for balancing legitimate, strong, and even compelling interests against the extremely important, but not unlimited, right of freedom of expression.

Now that the disparagement provision has been struck down by the Supreme Court, we hope that Congress will work on a new version that can pass constitutional muster.

Many are also wondering how much of Section 2(a) of the Trademark statute, which also includes a ban on trademarks that are immoral or scandalous, will survive this decision. A decision from the CAFC may answer this question in the suspended case In re Brunetti, which appeals the TTAB decision affirming a refusal of FUCT under the scandalousness provision of the statute.

And we plan to continue the debate as well. We expect to have a lively panel discussion on this topic at our 2018 CLE program. And our own Professor Steven Jamar, who serves as the Institute’s Associate Director for International Programs, is currently preparing a journal article on the decision.

Below we have included links to recent articles further discussing the decision. And we invite you to post comments and questions on our Facebook page.

IIPSJ

Articles of interest on Matal v. Tam

https://www.forbes.com/sites/rogergroves/2017/06/20/supreme-court-ruling-is-not-the-savior-for-the-washington-redskins/2/#12432da85515

https://ucsocialjustice.com/2017/06/23/supreme-court-offensive-speech-may-be-trademarked/#more-2883

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Copyright Office Comments & Race

The U.S. Copyright Office requested comments on the impact and effectiveness of the DMCA Safe Harbor provisions in 17 USC 512. Comments submitted by Professors Lateef Mtima and Steven D. Jamar, on behalf of IIPSJ and several other organizations, can be found here. The comments are categorized into the following themes:

- Characteristics of the Current Internet Ecosystem;

- Operation of the Current DMCA Safe Harbor System;

- Potential Future Evolution of the DMCA Safe Harbor System; and

- other developments in the law.

Also, as a reminder, IIPSJ is a co-sponsor for the RACE + IP Summit held at Boston College April 20-22. The conference will feature five plenary sessions which develop and engage the subfield of critical race IP, concurrent sessions with scholars across disciplines conducting multimethodological research, roundtable discussions on special topics related to race and intellectual property (e.g. the intersections of social media, algorithmic culture, and racial justice), and a special presentation by Chinatown Dance Rock band and trademark renegades, The Slants. Accepted participants will be invited to participate in these and other conference events, including a Saturday evening dance party cocktail reception.

We welcome any comments or questions you might have.

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Copyright & Social Justice Podcast

We thought the following might be of interest to you:

1) IISPJ’s Director, Lateef Mtima, is a guest on the recent edition of the CopyThis podcast hosted by Kirby Ferguson and presented by the Re:Create Coalition. You can find the podcast along with a full description here on the Re:Create Coalition website. A portion of the description is reproduced below.

Copy This Podcast Episode 5: Copyright Drives the Beat of Social Justice

“…While many may think about copyright law in terms of music, books and movies and how to access them, Lateef Mtima, Professor of Law at the Howard University School of Law and Founder and Director of The Institute for Intellectual Property and Social Justice, points to the Constitution to remind listeners that copyright’s “most important function is to provide people with knowledge, to educate themselves… to share ideas and information.”…

From the Black Lives Matter movement, to the high profile “Blurred Lines” case that has pitted Robin Thicke and Pharrell Williams against Marvin Gaye’s estate, and even led to varying opinions across the full spectrum of the copyright community, Lateef helps bring to light copyright discussions that are playing out in communities and the courts in real time today so be sure to tune in.”

2) http://www.eifl.net/news/eifl-marrakesh-guide-launches-nepali

Please see the following information from EIFL on the Marrakesh Treaty:

EIFL is delighted to announce that our popular library guide to the Marrakesh Treaty for persons with print disabilities is now available in Nepali, bringing to six the total number of languages for the guide.

The Marrakesh Treaty, which entered into force in September 2016, gives organizations like libraries the right to reproduce printed works in accessible formats like braille and audio, and to exchange these works across national borders. EIFL has been a strong advocate for ratification of the Marrakesh Treaty and its implementation into national law.

‘The Marrakesh Treaty: an EIFL Guide for Libraries’ is a key resource for librarians supporting ratification and national implementation of the Treaty. The guide provides a straightforward introduction to the Treaty and its key provisions, and concrete recommendations for implementation in order to maximize accessible reading materials available through libraries.

In addition to the new Nepali version, EIFL has published the guide in English, French, Lithuanian, Russian and Serbian.

EIFL would like to thank Mr Pratyush Nath Upreti and colleagues at Upreti & Associates for translating the EIFL Marrakesh guide and for invaluable assistance in producing the Nepali version. We hope it will be a useful resource for librarians, the visually impaired community and policy-makers who are working towards ratification of this important Treaty.

Visit EIFL Resources to download The Marrakesh Treaty: an EIFL Guide for Libraries (Nepali)

3) On April 26 WIPO celebrated World IP Day. This year’s theme was Innovation – Improving Lives. On the WIPO website you can find videos on the topic, including videos by WIPO Director General Curry and innovators such as Consuelo Cano Gallardo, inventor of a downhill skateboard and Arthur Zang, inventor of a cardiac care tablet.

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Update on H.R. 1695

Update on H.R. 1695: Should the Register of Copyrights Become a Political Appointee?

For those not familiar with the Register of Copyrights Selection and Accountability Act (H.R. 1695) this Legislative Bill would extinguish the authority of the Librarian of Congress to appoint the Register of Copyrights, a responsibility that the Librarian has held since 1870. There has been relatively little public discussion of the Bill – in fact it has already passed in the House of Representatives. If the Bill is passed by the Senate, the power to appoint and dismiss the Register would shift to the President.

Supporters of the Bill argue that removal of the Librarian’s appointment power is necessary to modernize the Copyright Office. Among the questions that have been raised by the Bill’s proposal, however, is how modernization of the Copyright Office would be aided by making the Register’s appointment a political process. Given the Constitutional directive that the primary function of copyright is to serve the national interest in promoting the progress of the arts and sciences, it seems reasonable to expect that the expert entrusted with curating the national repository of knowledge and culture would also be well-qualified to appoint a Register capable of serving the public interest in the modern administration of the copyright system.

The actual text of H.R. 1695 does not enumerate modernization of the Copyright Office as one of its objectives. Consequently some critics urge that the Bill is actually an effort to benefit the Content Industries at the public’s expense. “This bill serves no purpose other than to take power away from the Librarian of Congress and give it to powerful lobbyists, who will have a major say in who runs the Copyright Office,” writes Michael Masnick on TechDirt.com. “It’s…a gift to Hollywood.” Other critics argue that the Bill is a veiled attack on the current Librarian. According to Laura Burke of NewsOne Now, “President Barack Obama appointed [Dr. Carla] Hayden the 14th Librarian of Congress on February 24, 2016. She is the first African American to hold the position, as well as the first woman to be the Librarian of Congress….On March 23, legislation was introduced to block Hayden from appointing the next Register of Copyrights.”

Both supporters and opponents seem to agree that Dr. Hayden’s reassignment of former Register Maria Pallante, who subsequently resigned, is one issue at the heart of the controversy. In an article in The Hill, H.R 1695 supporters Dina LaPolt and John Meller write that “[T]he Librarian of Congress…is rarely … in tune with copyright issues…to put it mildly…. [L]ast year, without warning or justification, the Librarian fired Register Maria Pallante, long heralded as a fantastic Register and advocate for strong copyright protection.” While serving in her position, Register Pallante publicly expressed the view that “Copyright is for the author first and the nation second.”

Given the important public interest functions that both the Librarian and the Register embody in the copyright system, H.R. 1695 raises important issues of copyright social justice. Attached below is a link to the text of the Bill, as well as links to various commentaries in support of and in opposition to the proposed legislation.

We invite you to post comments and questions on our Facebook page.

IIPSJ

H.R. 1695 Bill Text

https://www.congress.gov/bill/115th-congress/house-bill/1695/text

Commentaries in support of H.R. 1695

http://thehill.com/blogs/congress-blog/politics/328189-enough-with-the-back-and-forth-hr-1695-is-a-no-brainer-get-it

http://thehill.com/blogs/congress-blog/politics/330397-hr-1695-a-vital-first-step-towards-copyright-office

Commentaries in opposition to H.R. 1695

http://shareblue.com/house-gop-seizes-power-from-first-black-female-librarian-of-congress/

http://www.blackpressusa.com/house-votes-to-limit-powers-of-first-black-librarian-of-congress/

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