Argument analysis: Justices wade deep into the copyright weeds — On Tuesday, the Supreme Court heard oral arguments in Fourth Estate Public Benefit Corp v Wall-street.com, a case that will determine when a copyright owner has satisfied the registration prerequisite for filing an infringement lawsuit—can she go to court as soon as she has sent the registration materials to the US Copyright Office, or must she wait until the Copyright Office has either issued a registration certificate or refused the registration? Courts have split on the question, and University of Michigan law professor Jessica Litman recaps the Supreme Court’s discussion. A full transcript of the oral arguments is available here.

Argument preview: Justices to consider limits on awards of “costs” to prevailing parties in copyright cases — Two copyright cases at the Supreme Court in two weeks! On Monday, the Supreme Court will hear arguments in Rimini Street v Oracle to determine what types of court costs a court may award a prevailing party in copyright litigation under 17 USC § 505. Columbia law professor Ronald Mann previews the issue, which he considers “a textbook problem of statutory interpretation.”

Does it pay to be a writer? — From the New York Times, “’In the 20th century, a good literary writer could earn a middle-class living just writing,’ said Mary Rasenberger, executive director of the Authors Guild, citing William Faulkner, Ernest Hemingway and John Cheever. Now, most writers need to supplement their income with speaking engagements or teaching. Strictly book-related income — which is to say royalties and advances — are also down, almost 30 percent for full-time writers since 2009.”

It’s Still All About the Music… And Labels Remain at Its Heart — A new report from Musonomics highlights the transformation record labels have undertaken over the past two decades. “In today’s environment, it’s no wonder that artists seek to partner with label teams to achieve their dreams and succeed both creatively and commercially. This report shows why artists of all stripes seek to collaborate with a label instead of taking any of a multitude of other paths available, and why the most listened-to artists are backed by labels.”

Tech Expertise in Congress, Additional Thoughts — The question of whether policymakers can benefit from additional tech expertise is sometimes raised in the copyright sphere. William Rinehart cautions that the answer is not an unqualified yes: “Let’s assume for the moment that legislators do become more technically proficient by any number of means. If policymakers are normal people, and let me tell you, they are, the result will be overconfidence of one sort or another. In psychology research, overconfidence includes three distinct ways of thinking. Overestimation is thinking that you are better than you are. Overplacement is the belief that you are better than others. And overprecision is excessive faith that you know the truth.”

It’s a new year, and the world is split between those who call it “two thousand nineteen” and those who say “twenty nineteen.” What can we expect in U.S. copyright law and policy over the next twelve months?1Previous installments include 2018, 2017, 2016, and 2015. Let’s take a look.

Congress

The 116th Congress gaveled in on January 3, 2019, and the most significant change from the 115th Congress is the flip in party control of the majority. While copyright historically has been a nonpartisan issue, the change in majority control will affect what non-copyright issues will receive priority and thus what attention will remain for copyright issues.

The House Judiciary Committee has jurisdiction over intellectual property, but it also has jurisdiction over several other key political issues. It’s most likely that those issues will dominate the Committee’s attention for at least the first several months of the new Congressional session. But when it does turn toward copyright, it will do so under the eyes of two Representatives who have been very active on copyright issues. Both Chairman Jerrold Nadler (D-NY) and Ranking Member Doug Collins (R-GA) were critical to the drafting and passage of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), which was signed into law last October, and have introduced or co-sponsored many other copyright bills over the years.

Among the first set of issues that the Committee might take up this year is copyright small claims. Last session, Reps. Hakeem Jeffries (D-NY) and Tom Marino (R-PA) introduced the Copyright Alternatives in Small Claims Enforcement (CASE) Act, which would have created a streamlined tribunal for hearing small copyright claims based off recommendations made by the US Copyright Office in its 2013 report on small copyright claims. The Committee held a hearing on the bill just this past September, with a number of members indicating support for moving the bill forward.

We may also see a bill addressing resale royalty rights. A resale royalty provides visual and fine artists—who often rely primarily on income from the sale of their individual works rather than licensing their exclusive rights provided through copyright—with the opportunity to capture a percentage of the proceeds when their works are resold through art auctions.2See U.S. Copyright Office, Resale Royalties: An Updated Analysis (2013). Although there have been a number of resale royalty right bills introduced in previous Congressional sessions that never advanced, there are at least two indications of greater momentum this session: first, the issue’s biggest supporter, Chairman Nadler, is now in charge of the Committee, and second, the most recent bill, the American Royalties Too Act of 2018, was introduced in both the House and Senate by Judiciary Committee leaders, giving it a higher stature than previous versions of the bill.3See, e.g., American Royalties Too Act of 2014, H.R. 4103, S. 2045, 113th Cong. (2014); American Royalties Too Act of 2015, H.R. 1881, S.977, 114th Cong. (2015).

The Committee may also continue its work on modernizing the Copyright Office. In 2016, it identified modernization as the first issue it would address following its three-year review of copyright law. Part of that proposal—elevating the Register of Copyrights to a Presidential appointment with the advice and consent of the Senate—was introduced as a separate bill, the Register of Copyrights Selection and Accountability Act, in March 2017, given the current lack of a permanent Register. The bill easily passed the House with a vote of 378-48 in April 2017 but stalled in the Senate Rules Committee. Momentum resumed several months ago, with the Committee holding a hearing on the bill in September, but the bill was unable to make it to the Senate floor before the end of the legislative session.

The copyright compulsory licenses for satellite retransmission of distant broadcast signals (along with related Communications Act provisions) are due to expire at the end of 2019. The compulsory license, found in 17 USC §119, was originally created by Congress in 1988, when the satellite television industry was still in its infancy, and set to expire in 1994.4A separate, permanent compulsory license for satellite retransmission of local broadcast signals, found in 17 USC § 122, was created in 1999. But Congress reauthorized the compulsory license for an additional five years, and continued to do so (along with other changes), most recently with the STELA Reauthorization Act of 2014.5Reauthorization of the Satellite Television Extension and Localism Act (STELA), Congressional Research Service, R43490 (2014). Will it reauthorize again before the provisions expire on December 31, 2019 or let them sunset? We can already see positions being staked out: for example, the National Association of Broadcasters is supporting the law’s expiration, while the Satellite Broadcasting & Communications Association is looking to make the provisions permanent.

What other issues may advance over the next twelve months? One possibility is a terrestrial performance right for sound recordings, the subject of perennial legislative efforts since the 1950s.6See U.S. Copyright Office report on Performance Rights in Sound Recordings (1978). When Congress extended federal copyright protection to sound recordings in 1971, it did not extend the right of public performance to them. In 1995, Congress extended to sound recording owners the exclusive right to perform the work publicly by means of a digital audio transmission, but legislative efforts for a full public performance right since then have been unsuccessful.7See, e.g., Performance Rights Act, H.R. 848, S. 379, 111th Cong. (2009); Performance Rights Act, H.R. 4789, S. 2500, 110th Cong. (2010); Free Market Royalty Act, H.R. 3219, 113th Cong. (2013); Fair Play Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015); Fair Play Fair Pay Act of 2017, H.R. 1836 (2017). A terrestrial performance right for sound recordings was not included in the Music Modernization Act, but now that that bill has passed, some in the music industry are returning their attention to the issue, hoping to build on the momentum of the MMA.

U.S. Copyright Office

The U.S. Copyright Office will continue to work at a brisk pace through 2019 (and unaffected by the government shutdown).8A bill providing appropriations for the Legislative Branch, which covers Copyright Office funding, was passed in September 2018. A lot of that work will focus on modernizing the Office itself. As Congress looks at broader structural changes and other modernization issues that require legislative attention, the Office, in coordination with the Library of Congress, has been focused on those areas that don’t require legislative attention, such as IT, operations, and regulations—in its own words, its modernization efforts seek to “(1) build a new enterprise copyright system featuring a user-centered and flexible design, (2) streamline processes and policies, (3) improve access [to its public records], and (4) reimagine the entire Office.”

Currently the Office is seeking public comments on modernizing its registration system. It will incorporate these public comments into the development of the technological infrastructure for a new registration system, though we likely won’t see any public-facing results this year. It is possible, however, that we may see an initial version, toward the end of this year, of the Office’s updated recordation system,9The recordation system indexes documents filed with the Copyright Office pursuant to 17 USC § 205, along with sundry other provisions scattered throughout Title 17. For a complete list, see Transforming Document Recordation at the United States Copyright Office, pp. 13-14 (2014). which is less complex than the registration system and which the Office began working on earlier.

As part of its modernization efforts, the Office has been working on updating its rules and regulations to streamline Office practices and anticipate updated systems. Currently, it is collecting public comments on a number of proposed rules it issued toward the end of 2018, including a proposed new group registration option for blogs and other collections of short, online literary works, and simplifying copyright registration for architectural works. We can likely expect final rules for those sometime in 2019, along with any number of additional rulemakings.

Finally, the Copyright Office last year proposed an updated fee schedule for its services, as it periodically does. The proposal generated a healthy number of public comments in response, most voicing concerns about proposed fee increases for copyright registration. We will likely see a follow up to the proposal, perhaps in the earlier part of 2019.

On the policy front, 2018 came and went without the release of the Office’s long-awaited report on Section 512, which establishes safe harbors for online service providers and provides a notice-and-takedown system for addressing online infringement. The Office launched the study December 31, 2015 to evaluate the impact and effectiveness of the law, which was enacted in 1998. Through February 2017, it solicited two rounds of public comments and held a series of public roundtables to gather input. I predicted that we should see the release of the final report last year. Oof.

The Copyright Office doesn’t have any formal timeline for releasing the study, and it’s not surprising that it hasn’t been released yet, considering the scope and complexity of the issues it has solicited feedback on. At this point, given the amount of time since it has collected public input, the Office may, as it did for its study on the Making Available right, solicit an additional round of public comment to address any new developments in case law, technology, business practices, or developments in foreign countries that are relevant to assessing the impact and effectiveness of Section 512.

The Copyright Office has also previously initiated public studies on moral rights and copyright issues for visual works. It’s possible we may see developments—whether in the form of a written report or further inquiries—on either of these some time in the coming year.

Music Modernization Act

The MMA was signed into law October 11, 2018, the most significant copyright legislation in at least a decade, if not two, and we should expect the law to begin being implemented throughout 2019, with the Copyright Office charged with many of those duties.

The largest and most complex component of the MMA is the establishment of a Mechanical Licensing Collective to collect, administer, and distribute royalties under the blanket license created by the law for mechanical reproductions of musical compositions. Although the blanket license will not be available until January 1, 2021, much work will be done before then in preparation. The Copyright Office has already issued a notice regarding designation of the Collective and is accepting initial comments through March 21 and reply comments through April 22. It will use those comments to identify the entity that will act as the Mechanical Licensing Collective, something it is required by law to do within 270 days of the MMA’s enactment (sometime in mid-July of this year). The same process is being used to identify the Digital Licensee Coordinator, an entity created by the MMA to act as a sort of representative for the digital music providers. The Copyright Office has initiated a number of other rulemakings related to the implementation of the MMA and may release others in the upcoming months.

Also within 270 days of the enactment date, the Copyright Royalty Judges will commence proceedings to determine the initial administrative assessment for the Mechanical Licensing Collective—i.e., the fee that licensees must pay to cover the costs of operating the Collective. That proceeding must be concluded within one year of commencement.

Title II of the MMA provides federal protection for pre-1972 sound recordings and creates a new exception that would allow the noncommercial use of pre-1972 sound recordings that are not being commercially exploited. The Copyright Office solicited comments regarding requirements for this exception in October, and we can reasonably expect to see the final rules and guidance issued sometime this year.

U.S. Patent and Trademark Office

The USPTO, despite its name, provides advice to the Administration and other federal agencies and analysis on all types of intellectual property issues, including copyright.1035 USC § 2. It is currently operating during the shutdown by using prior-year fee collections but may cease operations if those funds are exhausted before the shutdown ends.

At the end of this month, the USPTO has scheduled a conference on the intellectual property considerations of artificial intelligence. The topics to be discussed include “the copyright implications when AI is used to create new works or when copyrighted works are used to ‘train’ artificial intelligence systems.” This event was originally scheduled for December 2018 but postponed following the passing of former President George H.W. Bush.

Other Agencies

The Federal Trade Commission is currently not operating during the shutdown, but when that ends, the FTC will resume a series of hearings it has been holding since September on “Competition and Consumer Protection in the 21st Century.” The purpose of the hearings is to consider whether “broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.” The FTC held a hearing focusing on the role of intellectual property and competition policy in promoting innovation last October and collected public comments on that issue through late December. While the hearing and comments touched upon general copyright issues relating to competition, including piracy and enforcement, much of the focus was on software copyright issues. The FTC will provide an additional opportunity for public comment at the conclusion of all hearings, which were originally scheduled to end in January. The FTC has modeled these hearings after its 1995 “Pitofsky hearings” on global competition and innovation.11Named after then-Chairman Robert Pitofsky, who through unfortunate coincidence, passed away in October, a month after the current round of hearings began. The 1995 hearings cumulated in a report published in 1996, though the FTC has not indicated any explicit outcomes for the current series of hearings.

The Intellectual Property Enforcement Coordinator will likely release its Joint Strategic Plan for 2019-2021 in the coming weeks. The IPEC, which is charged with coordinating and developing U.S. intellectual property policy and strategy across the numerous agencies involved with IP issues, is directed by Congress to develop a joint strategic plan on intellectual property enforcement every three years. The IPEC solicited public comment to help prepare its latest plan last October.

Trade

Much activity on the trade front can be expected in 2019, though it is unlikely copyright issues will be in the forefront.

The United States, Canada, and Mexico signed a renegotiated trilateral agreement on November 30, 2018, which has been renamed the USMCA (at least in the US) and replaces NAFTA. As with prior free trade agreements (including the original NAFTA), the agreement includes a chapter on minimum standards for intellectual property protection. The chapter is generally consistent with US law, but may require some changes to Canadian and Mexican law, and while some specific provisions have raised concern among the copyright community, the overall response to the chapter has been positive.12See generally, Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) on A Trade Agreement with Mexico and potentially Canada (Sept. 27, 2018) and United States-Mexico-Canada Trade Agreement Addendum to the Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) dated September 27, 2018 on a Trade Agreement with Mexico and Potentially Canada (Oct. 25, 2018).

The agreement must now be ratified and implemented in each of the three countries before going into effect. To qualify for fast-track consideration in Congress under Trade Promotion Authority, the U.S. International Trade Commission has until mid-March of this year to issue a report on the likely economic impacts of the new agreement.13See Congressional Research Service, In Focus: Proposed U.S.-Mexico-Canada (USMCA) Trade Agreement (Nov. 30, 2018). The Administration is also required to submit a list of required changes to U.S. law under the agreement to Congress by the end of January.

From there, the timeline for implementation remains indeterminate—there is no deadline for introducing implementing legislation in Congress. But the Administration is required to submit a final draft of the agreement and a Statement of Administration Action, which provides a proposal for implementing the agreement, to Congress 30 days prior to submitting its draft of implementing legislation to Congress. And once that occurs, it triggers a series of deadlines for Congress to bring implementing legislation to the floor for expedited consideration.

The U.S. last October announced its intention to enter into trade negotiations with Japan, the European Union, and the U.K. The US Trade Representative’s intellectual property negotiating objectives for the Japan agreement are virtually identical to those it published for the NAFTA renegotiations, so we likely won’t expect any copyright-related surprises there. We can likely see even less copyright-related news in the European Union negotiations, since those talks are expected to have a limited focus.

The wild card here is the U.S.-U.K. negotiations. Those cannot begin until after the U.K. has exited the European Union on March 29, 2019—though how (and if) that happens remains uncertain. The U.S. and U.K. obviously share a long historical kinship on copyright law, and both provide high standards of protection. The USTR is accepting public comments on negotiating objectives for the potential agreement until January 15 and will hold a public hearing on January 29. Both will provide some indication of what copyright stakeholders would like to see in any trade agreement.

Supreme Court

The Supreme Court begins the year with two copyright cases on its docket, both of which will be argued over the next two weeks. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, the Court will settle the Circuit split over when a copyright owner has satisfied the registration requirement and can file a lawsuit. That case will be argued tomorrow, January 8. In Rimini Street v Oracle, the Court will determine what costs a court may award a prevailing party under 17 USC § 505. Oral arguments are scheduled for January 14. Decisions for both cases should come out before the end of the Court’s term in June, and likely sooner than that.

Parties in a number of interesting copyright cases have or are expected to file cert petitions in early 2019. Those cases include: Rentmeester v Nike (scope of copyright protection for photographs), Stevens v Corelogic (§1202 mental state requirement, cert filed January 3), Allen v Cooper (state sovereign immunity for copyright infringement, cert due today), Google v Oracle (copyrightability and fair use of Java software code, cert due January 25), and Georgia v Public Resource (scope of government edicts doctrine, cert due March 4).

References   [ + ]

1. Previous installments include 2018, 2017, 2016, and 2015.
2. See U.S. Copyright Office, Resale Royalties: An Updated Analysis (2013).
3. See, e.g., American Royalties Too Act of 2014, H.R. 4103, S. 2045, 113th Cong. (2014); American Royalties Too Act of 2015, H.R. 1881, S.977, 114th Cong. (2015).
4. A separate, permanent compulsory license for satellite retransmission of local broadcast signals, found in 17 USC § 122, was created in 1999.
5. Reauthorization of the Satellite Television Extension and Localism Act (STELA), Congressional Research Service, R43490 (2014).
6. See U.S. Copyright Office report on Performance Rights in Sound Recordings (1978).
7. See, e.g., Performance Rights Act, H.R. 848, S. 379, 111th Cong. (2009); Performance Rights Act, H.R. 4789, S. 2500, 110th Cong. (2010); Free Market Royalty Act, H.R. 3219, 113th Cong. (2013); Fair Play Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015); Fair Play Fair Pay Act of 2017, H.R. 1836 (2017).
8. A bill providing appropriations for the Legislative Branch, which covers Copyright Office funding, was passed in September 2018.
9. The recordation system indexes documents filed with the Copyright Office pursuant to 17 USC § 205, along with sundry other provisions scattered throughout Title 17. For a complete list, see Transforming Document Recordation at the United States Copyright Office, pp. 13-14 (2014).
10. 35 USC § 2.
11. Named after then-Chairman Robert Pitofsky, who through unfortunate coincidence, passed away in October, a month after the current round of hearings began.
12. See generally, Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) on A Trade Agreement with Mexico and potentially Canada (Sept. 27, 2018) and United States-Mexico-Canada Trade Agreement Addendum to the Report of the Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-13) dated September 27, 2018 on a Trade Agreement with Mexico and Potentially Canada (Oct. 25, 2018).
13. See Congressional Research Service, In Focus: Proposed U.S.-Mexico-Canada (USMCA) Trade Agreement (Nov. 30, 2018).

Happy New Year! I hope all my readers enjoy a happy and healthy 2019.

Argument preview: When has registration of a copyright claim “been made”? — On Tuesday, the Supreme Court will hear its first copyright case this term, Fourth Estate Public Benefit Corp. v Wall-Street.com. University of Michigan School of Law professor Jessica Litman takes a look at the issue involved: “whether a prospective plaintiff who submits an application to register its copyright may proceed immediately to file suit, or whether Section 411(a) requires the copyright owner to wait until the Register has either registered the owner’s claim or denied registration.” The difference, given the current pendency times at the Copyright Office for processing registration claims, may be one of 6 months or more.

Justice Alito ‘Unrecuses’ for 9th Time, Rejoining Oracle Copyright Case — Less than a week later, the Supreme Court will hear a second copyright case, Rimini Street v Oracle, and the National Law Journal reports that Justice Alito is no longer recused from the case, likely because he has since divested himself of any Oracle stock. So, no potential for a tied vote. The question for the Court is whether a statutory provision outside the Copyright Act limits the types of costs a prevailing party may recover under 17 USC § 505.

Looking Back at International Copyright Developments in 2018 — Hugh Stephens covers the world in just over a dozen paragraphs, reviewing a selection of major copyright developments over the last year in Canada, Australia, New Zealand, and Europe.

Meet Skull Snaps, a Forgotten Funk Band That Soundtracked Hip-Hop — Aaron Carnes, writing for Bandcamp’s newsletter, interviews the Skull Snaps, a funk band you may not have heard of, but whose music you’ve likely heard. A drum break from their track It’s a New Day has been reportedly sampled on nearly 500 records.

“Immediately everyone’s thoughts went to, ‘Oh my God, they’re here to sue us,’” Culley says. “But they found out it was just the opposite. We wanted to meet those people who had used that sample,” Culley says. “All of them were like, ‘You know how many careers you saved, how many lives you saved with that breakbeat?’ That’s amazing. And they’re still using it.”

Stezo, on the other hand, thinks that some of these rappers, particularly the more famous ones, should do the honorable thing and cut Skulls Snaps a check.  

“They live. They’re here. They’re healthy. Talk to them now while they can enjoy the money. Not when they’re gone,” Stezo says.

How Much of the Internet Is Fake? Turns Out, a Lot of It, Actually. — A disturbing but essential read on all the ways the internet is fake, from ad fraud, to bots, to counterfeit content. One of the questions for policy folks is how much of this fakery is a consequence of the (often inadequate) copyright rules that shaped the internet.

Group Registration of Short Online Works — Do you write a blog, or know someone who does? Than this might be for you. The US Copyright Office is proposing a new group registration option for short (between 100 words and 17,500 words) online literary works. Registrants will be able to register up to 50 works published within the same 3 month window on a single application for a single fee.

Judge Recommends Dropping ISP Grande’s DMCA Safe Harbor Defense — Torrentfreak reports on the recommendation from a magistrate judge in a copyright infringement case brought by record labels against a Texas internet service provider, similar to the Fourth Circuit’s BMG v Cox. If the magistrate judge’s recommendations are adopted by the district court, the ISP will not be able to rely on the DMCA safe harbor to shield it from any liability.

Google isn’t the company that we should have handed the Web over to — Peter Bright of Ars Technica writes how Google’s dominance in the web browser market means it holds considerable sway over how the web operates.

Spotify Settles $1.6 Billion Lawsuit from Wixen Publishing — The lawsuit was filed just shy of one year ago, and its claims involved issues at the heart of the since enacted Music Modernization Act. Of course, the digital music service is still involved in similar lawsuits, including one brought by publisher Bluewater, where it is seeking appeal on several issues.

Rising Instagram Stars Are Posting Fake Sponsored Content — The latest trend in user-generated content. “It’s street cred—the more sponsors you have, the more credibility you have.”

Capitol Records, Virgin Records Win Copyright Spat with ReDigi — The long-awaited opinion in a case involving the application of the first sale doctrine to works that are distributed through digital transmission—i.e., can you sell your “used” mp3s?—was published this week by the Second Circuit. Writing for the panel, Judge Leval explained that the first sale doctrine only applies to copyright’s distribution right, and because digital transmission necessarily involves the creation of a new copy, it implicates the reproduction right, which is not within the scope of the first sale doctrine. The court also held that ReDigi’s copying was not shielded by fair use.

The AG Opinion in Metall auf Metall: it’s not a fundamental rights violation to say that sampling requires a license — Also this week, the EU’s Court of Justice’s Advocate General delivered an advisory opinion on a case dealing with questions regarding whether digital sampling is an infringement of copyright. Among the answers, the AG argued that the right of artistic expression, protected under the EU Charter of Fundamental Rights, does not take priority over the property rights of the copyright owner. Wrote the AG,

It is the censorship of that content which is particularly likely to lead to a violation of the freedom of the arts. I take the view, however, that the freedom of artists is less extensive so far as concerns acquiring the means of their creation. Artists must adapt to societal living conditions and the situation of the market on which they operate. The freedom of the arts does not free artists from the constraints of everyday life. Is it conceivable for a painter to rely on his freedom of creation so as not to pay for his paint and paintbrushes?

Watch List: Commission sets sights on counterfeit and piracy hotspots — Also in Europe, the European Commission launched its first piracy watchlist, which identifies, among other things, online websites offering infringing materials. The Commission will “use the Watch List to continue the cooperation with EU’s trading partners in the framework of intellectual property rights dialogues and working groups and also in the framework of the ongoing technical cooperation programmes in China, Southeast Asia and Latin America.”

Norms for copyright reform: my submission to the INDU Committee — Canadian attorney and copyright expert Barry Sookman presents his written remarks to the Parliamentary Committee, which is currently reviewing Canada’s copyright law. The submission responds to a number of broader arguments seen in copyright debates outside of Canada and are well-worth a read.

U.S. Instrument of Accession to the Berne Convention – An Untold Story — In one sense, the U.S. joins a treaty when the President signs it and the Senate concurs. But in a strictly formal sense, joining a treaty requires depositing the accession instrument with the treaty body—in the case of the Berne Convention, the oldest and most widely adopted copyright treaty, that meant physically taking a signed document on a plane to Switzerland. Michael Remington, who carried the actual document, recounts the previously untold story.

Four Executives of the Year Will Be Honored at Billboard’s Women in Music Event — Billboard honored Danielle Aguirre, executive vp/general counsel for the National Music Publishers Association; Dina LaPolt, founder/owner of LaPolt Law, who serves as legal counsel to the Songwriters of North America; Jacqueline Charlesworth, of counsel, Covington & Burling; and Susan Genco, co-president, Azoff MSG Entertainment. All four were instrumental in creating and passing the Orrin G. Hatch-Bob Goodlatte Music Modernization Act.

Quality digital content can’t break through sea of online garbageAxios‘ Sara Fischer reports on how “Tech platforms have littered the media universe with crap — stolen ideas, pirated video, plagiarized text, manipulated content, and fake news.” Who knew there was a downside to watering down copyright protections?

The fight to save music online — UK Music, a music industry association, has published a handy guide to understanding Article 13 of the proposed EU Copyright Directive. Article 13 clarifies the copyright liability of user-uploaded content platforms, like YouTube, and it has attracted significant attention.

New Documents Show that Facebook has Never Deserved Your Trust — The EFF examines the documents, which allege troubling instances of the social media platform undermining user privacy and playing hardball with competitors. According to CNN, the documents were obtained and published by a UK parliamentary committee, one of those pesky “Governments of the Industrial World.”

Jaco’s Legacy — Stephen Carlisle writes a life that was cut short but a legacy that still lives on, and his role in ensuring that Jaco’s family could share in that legacy. Bonus tip: register your copyrights.

Jean-Michel Jarre talks creativity, tech and music’s AI future — Eamonn Forde talks with electronic music pioneer Jean-Michel Jarre about his work, touring as an electronic musician, and the role of technology in art. “Technological and technical limits are so important and this is probably the difficulty for young musicians today. Technology today makes you believe that there are no limitations.”

As the European Union engages in a “trilogue” on an updated Copyright Directive, here is a “trilogue” of pieces about one of the more contentious portions of the Directive, Article 13, which would place new conditions on service providers to qualify for exemptions from liability for copyright infringement by their users. First, in Behind the Epic Moral Battle Over Article 13: Youtube Money, Rob Levine provides a blow-by-blow account of the online video provider’s lobbying efforts against the Article. Then, in YouTube’s Tactics Re. Article 13 Are the Real Concern, David Newhoff considers the potentially troubling aspects of YouTube using its platform to urge users directly to lobby on its behalf. Finally, in this Twitter thread, Christopher Bingham (@helloiambing), a YouTube creator of 12 years, criticises and counters YouTube’s lobbying efforts against Article 13.

A lawsuit by rapper Big Freedia raises the question again: can dance be copyrighted? — Travis Anders of the Washington Post takes a look at the copyright issues underlying a dispute between Big Freedia and her former choreographer, with some quotes from yours truly.

Study: Over 20 years, Silicon Valley workers’ median wage has fallen by 14% — “In short, most workers—regardless of whether they work in the tech sector or not—are getting poorer due to venture capital-driven business models that prioritize outlandish returns fueled by low-wage work that captures a given market quickly.”

Do not mess with Taylor Swift on streaming money — “‘There was one condition that meant more to me than any other deal point. As part of my new contract with Universal Music Group, I asked that any sale of their Spotify shares result in a distribution of money to their artist, non-recoupable,’ Swift explained.” UMG agreed.

Stan Lee, Marvel Comics’ Real-Life Superhero, Dies at 95 — “I guess one person can make a difference … ’nuff said.”

Walt Whitman Championed Democracy and Fought for Copyright – Part I — David Newhoff shares a wonderful and well-researched look at the American poet’s views on literary property and push for international copyright protections. Be sure to also check out Part II.

The Unintended Consequences of the ‘Free’ Internet — From the Wall Street Journal, “…’free’ is intrinsic to the profit model of search and social media: to generate ads they must maximize users and engagement, which results in the lowest possible barriers to their platforms. To target those ads, they must learn as much about their users as possible. This pits volume and revenue against quality and privacy.” I would point readers also to Sean O’Connor’s essay, Creators, Innovators, and Appropriation, which makes the additional point that this business model also places pressure on copyright and creators’ rights: “The business models of Google/YouTube, Facebook, Pinterest, Instagram, and other search firms and social media platforms rely on content as a mere ‘commodity’ that is sent through the systems by users as fuel for this community of users to engage with the platforms in ever-increasing amounts. Because the business models are largely ad-based and depend on data mining for revenue, the number one imperative for the platforms is to maximize the number of users and click-throughs…Thus, when considering all the business and revenue models, none give the search or social media platform firms any incentive to protect user or third-party creator content, other than legal compliance.”

EU copyright reforms will preserve the creative ecosystem — “So are we scared the directive will take away our jobs? No. On the contrary, increased remuneration for uploaded creative works will make it easier for artists and their partners to thrive. Do we think that platforms will deal with big companies only? No. The directive levels the playing field in a way that means we can all negotiate in a normal licensing environment. That’s how you make the ecosystem sustainable for all. This is about the artists you haven’t heard of yet.”

IPA Warns South Africa’s Copyright Amendment Bill Conflicts with Berne — The International Publishers’ Association issued a statement this week warning about deficiencies in proposed copyright legislation currently being considered in South Africa. “The IPA opposes the introduction of a ‘fair use’ clause that captures more permitted purposes than the ‘fair use’ clauses in other jurisdictions, which, coupled with a clause that overrides all contracts, broad co-extensive general exceptions and new exceptions for educational institutions, libraries, archives, museums and galleries, will allow reproduction and making available of entire works without the consent of or remuneration to the rights holder.”

Are Electronic Course Packs Fair Use? — The Authors Guild looks at last week’s Eleventh Circuit decision in Cambridge University Press v Albert, an ongoing dispute over Georgia State University’s use of copyrighted works through its digital coursepack system.

Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works — Every three years, the US Copyright Office engages in a rulemaking to determine temporary exemptions to allow circumvention of technological protection measures in certain works. Yesterday, the exemptions for the most recent rulemaking were published.

Fox News Tells Supreme Court to Reject TVEyes Petition — As Eriq Gardner reports, Fox News has filed its opposition brief responding to TVEye’s Supreme Court cert petition. TVEyes, which copies and distributes clips of television programming to paying subscribers, failed to convince the Second Circuit that it is shielded by fair use and is now seeking to have the Supreme Court review its case.

Money for nothing: copyright law, YouTube, and the future of music [Part II] — “Musicians should take comfort that, 19 years after Napster launched, there’s a growing sense among legislators that music’s value has been detached from its price for too long. And that’s a start.”

Advocacy is a Verb: My Testimony on The Hill — A fantastic look (with some fantastic photos) at last September’s House Judiciary Committee hearing on the CASE Act, which would establish a copyright small claims process for creators who cannot afford to bring claims in federal court. The article is a first hand account of the experience by Jenna Close, a working photographer, and one of the witnesses who testified at the hearing.

The Orrin G. Hatch-Bob Goodlatte Music Modernization Act — A look at the landmark legislation, signed into law October 11, from the experts at the Copyright Office. Read to learn what the bill does, and what happens now that it has been enacted.

Riders on the Storm: How Ray Manzarek & the Doors Helped Change the Course of Copyright History — Neil Turkewitz provides an engaging look at the role Manzarek played in the first dispute brought under the TRIPs agreement in 1996.

Is Richard Prince in a Jam? — Appropriation Artist Richard Prince recently filed briefs in two copyright infringement suits he’s currently involved in, arguing, unsurprisingly, that he is protected by fair use.

American Airlines sues over U.S. government’s refusal to copyright ‘garden-variety’ logo — What’s the deal with copyright protection for airline logos?