Improving Licensing Should Not be Alarming

By , May 19, 2015.

The US Patent and Trademark Office (USPTO) held a public meeting on April 1 to discuss how the federal government could facilitate the development of the online licensing environment for copyrighted works. Specifically, the USPTO was interested in hearing how the government could encourage “development and use of standard identifiers for all types of works of authorship, interoperability among databases and systems used to identify owners of rights and terms of use, and a possible portal for linking to such databases and to licensing platforms”—a portal possibly modeled after the United Kingdom’s Copyright Hub, launched nearly two years ago. In other words, how can we make online licensing easier?

During the audience comment period of the meeting, Jonathan Band, here representing the Library Copyright Alliance,1The Library Copyright Alliance is an advocacy organization whose members include the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. Band also represents the CCIA, a “membership organization for a wide range of companies in the computer, Internet, information technology, and telecommunications industries”, whose members include Amazon, Google, and Pandora. stood up to say,

In the morning, I felt pretty good, because it seemed—you know, it was a very technical conversation in talking about standard definitions, it talked about interoperability, very focused obviously on the specific problems of the music industry in this country and all the complexity of the way it’s structured. And, so, I felt okay.  I felt this is not really threatening the interests of libraries and their users.

And then we had this afternoon’s conversation, which I frankly have found quite alarming. And what I found very alarming is in the presentation about the Copyright Hub that it seemed—you know, the examples were about educational uses or personal uses and that those were the kinds of uses that should be licensed. And then, you know, when [USPTO Chief Policy Officer and Director for International Affairs] Shira [Perlmutter] was sort of introducing this panel, talking about low-value uses, and I say, okay, I get in the morning when we were talking about, you know, commercial works and commercial uses, you know, that makes sense, I get that.

But when you start talking about low-value uses, I say, okay, they’re talking about me, you know, they’re talking about what my people are doing. And, so, you know, I know there’s been a few references to fair use during the course of this panel, but, you know, my ultimate point here is that we’re very worried that this discussion sort of leads to a place where fair use is undermined. I mean, we’re comfortable where fair use in this country is now. I know some of you on the panel are not, and …Â= the fact that you like all this makes’is also alarming to me. But, you know, the bottom line is, you know, you have to—you know, there’s a lot of skepticism in the library community about where this could end up.

In short, “We should not make online licensing easier.”

The “licensing undermines fair use” talking point was expected, and several panelists rebutted Band’s hand-wringing. But what was not entirely expected was what occurred several minutes later when another audience member stood up, and said,

I am Janice Pilch, Copyright and Licensing Librarian at Rutgers University Libraries. And I want to say that I didn’t find anything said this afternoon to be alarming. I don’t think that any ideas expressed this afternoon or the idea of the Hub is incompatible with copyright limitations and exceptions. We don’t—it doesnt mean that we would cut them out of the picture; it doesnt mean that they would go away.

Pilch added, “On the other hand, as [Songwriters Guild of America President] Rick Carnes said this morning, it all starts with creators. And if we cut creators out of the picture, we’re not helping anything. And that should be the primary thing that we think about in using works.” I couldn’t have said it better myself.

The public dissent from Band by a librarian suggests that not all in that community accept the view that user rights can only come at the sacrifice of author rights. The public interest might instead be served by recognizing both have interests, and these interests are mutually reinforcing. What librarian, after all, doesn’t hold books and authors in high regard? And what author wouldn’t cite libraries as playing a role in inciting their interest in writing? The suggestion that authors and publishers would want to undermine uses of their works outside their exclusive rights secured by copyright law is alien to those authors and publishers.

Nevertheless, it’s true that rhetoric as heated up in recent decades in the copyright arena. Some of this rhetoric has centered around the fair use doctrine. As Justin Hughes noted in a recent address, fair use has become “a principal arena in the struggle between proponents and opponents of IP.” This is not unexpected, the open-ended and vague nature of the doctrine practically invites struggle. It is also an antagonistic doctrine: someone wins, someone loses. Either a copyright owner loses all right to a use, or a copyright user faces full legal liability for infringement.

Band’s remarks illustrate one particular view that has emerged from this stuggle: the idea that fair use is under attack, and is the only thing standing between purely private interests and a broader public interest. This view is unfounded.

At this year’s Fordham IP conference former US Copyright Office General Counsel and retired Proskauer Rose partner Jon Baumgarten reiterated the important point that while there may be concern over expansive directions the fair use doctrine has taken in recent years, that does not translate into opposition to fair use itself from authors and copyright owners. Said Baumgarten,

My first concern is that the fair use doctrine is apparently moving far away from the objective of ancillary or incidental furthering of independent authorship. I deliberately used the terms “ancillary” and “incidental.” I do not mean unimportant, I do not mean not valuable; I just mean occasional and ancillary to the creation of a new work of authorship.

I think fair use is indeed quite important. I represented publishers of biographies, histories, historical fiction, newspapers and documentaries for many years. We had to believe in and exercise fair use or we could not survive. So I am not “anti-fair use” by any means.

This support for traditional fair use is not merely lip service. The only statutory change to fair use since the 1976 Copyright Act came in 1992, when Congress amended § 107 to add that “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” This expansion of fair use was aided by lobbying from authors and publishers.2See, e.g., William Patry, Copyright Law and Practice, Amendments to the 1976 Act (2000) (“The legislation was introduced out of misplaced concerns by some publishers and authors that the Second Circuit’s decisions in Salinger v. Random House, Inc. and New Era Publications International ApS v. Henry Holt & Co. would make the publication of biographies and history using unpublished material more difficult by allegedly erecting a per se rule against fair use of unpublished works.”); Accord Statement of Floyd Abrams, Hearing: Fair Use and Unpublished Works, Joint Hearing on S.2370 and H.R.4263, pg 186 (July 11, 1990) (Expressing support of legislation on behalf of, inter alia, Authors Guild and Association of American Publishers).

This rhetoric also draws focus from other mechanisms in the copyright framework that can balance the plurality of interests, such as licensing. Too often forgotten are the benefits that licensing offers. Since licensing agreements are the result of negotiations, they approach mutually beneficial ends. On a more general note, they encourage goodwill and collaboration. The absense of formal inclusion mechanisms like licensing invites antagonism and opportunism. 3See, generally, Daniel Kelly, The Right to Include, 63 Emory Law Journal, 857 (2014). Licensing also provides certainty and reduces exposure to risk.

That’s not to say licensing can solve all problems; there are certainly legitimate concerns on both sides that can raise challenges. Libraries want to make sure that licensing of digital works does not unduly impede their circulation and archival missions. Authors and publishers want to make sure they can continue to recoup their investment in creation and dissemination of new works.

Statutory exceptions play an important role as well. Though not as flexible as fair use, they provide far greater certainty since they spell out exactly what is permitted. At the House Judiciary Committee’s final copyright review hearing last month, US Register of Copyrights Maria Pallante identified a number of issues ripe for legislative action. Among these issues was updating the Section 108 library exceptions. Pallante said, “The Office agrees that the provisions should be comprehensible and should relate logically to one another, and we are currently preparing a discussion draft. This draft will also introduce several substantive changes, in part based upon the recommendations of the Study Group’s 2008 report. It will address museums, preservation exceptions and the importance of ‘web harvesting’ activities.”

Obviously, the details will be determinative, but the principle behind the recommendation is a good one, and no cause for alarm.

References

References
↑1 The Library Copyright Alliance is an advocacy organization whose members include the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. Band also represents the CCIA, a “membership organization for a wide range of companies in the computer, Internet, information technology, and telecommunications industries”, whose members include Amazon, Google, and Pandora.
↑2 See, e.g., William Patry, Copyright Law and Practice, Amendments to the 1976 Act (2000) (“The legislation was introduced out of misplaced concerns by some publishers and authors that the Second Circuit’s decisions in Salinger v. Random House, Inc. and New Era Publications International ApS v. Henry Holt & Co. would make the publication of biographies and history using unpublished material more difficult by allegedly erecting a per se rule against fair use of unpublished works.”); Accord Statement of Floyd Abrams, Hearing: Fair Use and Unpublished Works, Joint Hearing on S.2370 and H.R.4263, pg 186 (July 11, 1990) (Expressing support of legislation on behalf of, inter alia, Authors Guild and Association of American Publishers).
↑3 See, generally, Daniel Kelly, The Right to Include, 63 Emory Law Journal, 857 (2014).

Friday’s Endnotes – 05/15/15

By , May 15, 2015.

At West Point, Shaping Future Warriors Through Plutarch and Shakespeare — Elizabeth Samet teaches literature to soldiers. “Lessons from literature, she said, can guide soldiers ‘to follow lawful orders and never surrender their moral judgment.'” A fascinating read.

What Hollywood Can Teach Us About the Future of Work — Interesting article: “Our economy is in the midst of a grand shift toward the Hollywood model. More of us will see our working lives structured around short-­term, project-­based teams rather than long-­term, open­-ended jobs.” And later in the story: “It helps that, despite the work’s fleeting nature, Hollywood is strongly unionized, which keeps wages high.”

Copyright from the lens of a lawyer (and poet) — For 350 years, academic journals have preserved and shepherded scientific knowledge. One of the leading scholarly publishers today is Elsevier; here, read a personal account of Elsevier’s general counsel Mark Seeley.

‘Mad Max: Fury Road’ Composer: ‘The First Time I Saw The Movie I Thought, This Is So Insane!’ — “Miller hired Holkenborg for the job in the summer of 2013 and the two worked for 18 months melding sound and vision, developing a pulse-pound and often hair-raising score. On it nearly 200 instruments were used — many of which were played by Holkenborg — conjuring primal drums, searing guitar riffs and string and woodwind passages that recall the work of Alfred Hitchcock’s longtime collaborator Bernard Hermann.”

The revenue sources for websites making available copyright content without consent in the EU [PDF] — This recent report found that the vast majority of pirate sites relied on advertising as a source of revenue. More importantly, nearly one-third of advertisements on such sites are malicious or potentially harmful to end users.

Friday’s Endnotes – 05/01/15

By , May 01, 2015.

https://www.youtube.com/watch?v=gGmnElFkeZo

Grooveshark Shuts Down to Settle Copyright Infringement Suit — The notorious service, beset by lawsuits, announced yesterday that it would be ceasing operations, along with this apology: “We failed to secure licenses from rights holders for the vast amount of music on the service. That was wrong. We apologize.” Rather than license catalog, the site opportunistically hid behind the DMCA safe harbors and populated its service with user-uploaded content. And unlike good faith user-generated content sites, it jury-rigged its service to ensure that takedown notices would be ineffective and instructed its own employees to upload music to its servers.

Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law? — “The academics, lawyers, and others involved in the ALI copyright project have rather strongly held, but disparate views on the legal principles they have been tasked to restate. Restatement, therefore, could easily drift in the direction of rewriting. For instance, NYU School of Law Professor Christopher Sprigman, ALI’s appointed Reporter for the project, has signed several recent letters sent to federal policymakers that, among other notions, support broader interpretations of fair use, and has written books and articles that equate increased innovation with less protective intellectual property laws.”

Why the U.S. Copyright Office Wants to Run Away From Home — Copyright Office modernization, including the question of what legal structure is needed for the Office to operate most effectively, dominated this week’s final copyright review hearing in the House Judiciary Committee. The National Journal’s Kaveh Waddell takes a look at that discussion.

U.S. Copyright Office Fair Use Index — Speaking of the Copyright Office, it released a fantastic new fair use index this week. It’s geared toward making fair use more understandable to the general public and should prove useful for individual artists and creators.

Innovation: Did Google Just Launch a New Astroturf Organization Made Out of Own Astroturf Orgs? — Says Lowery, “EFF? CCIA? CEA? CDT? MDF*? Public Knowledge? Are we getting the band back together? Is this a reunion tour?”

Get That Life: How I Co-Wrote the Music and Lyrics for “Frozen” — Great profile of Kristen Anderson-Lopez, who co-wrote “Let it Go,” from Disney’s Frozen.

How the ‘Average American’ Actually Consumes Media… — Radio and TV still top the charts.

Copyright Review: A Review

By , April 30, 2015.

On March 20, 2013, US Register of Copyrights Maria Pallante sat in front of the House IP Subcommittee to discuss her call for updates to US copyright law. House Judiciary Committee chairman Bob Goodlatte afterwards announced that his Committee would hold “a comprehensive series of hearings on US copyright law… to determine whether the laws are still working in the digital age.”

Now, two years and twenty hearings later, Pallante returned to the Committee to offer her perspective on the copyright review. The hearing is the last in this stage of the review process.

In her written testimony, Pallante begins by observing some general themes that emerged from the review:

  • “The constitutional purpose of copyright law informs all aspects of the debate”;
  • “To support this purpose, it is essential that authors are incentivized to contribute to our culture and society at large, and that they be appropriately credited and compensated for the music, art, movies, literature, theater, photography, art, news, commentary, and computer code that we so appreciate and enthusiastically monetize as a nation”;
  • “Likewise, a sound copyright law must recognize and promote the many businesses that identify, license, and disseminate creative works”;
  • At the same time, “while the rights of authors largely coincide with the interests of the public, a sound copyright law will balance the application of exclusive rights with the availability of necessary and reasonable exceptions, and it will ensure the ongoing availability of a flexible fair use defense”;
  • But “where the law is silent or non-specific, interested parties may at times bridge the gaps in limited ways by undertaking best practices or voluntary solutions to defined problems”;
  • And finally, “To properly administer the copyright laws in the digital era, facilitate the marketplace, and serve the Nation, the United States Copyright Office must be appropriately positioned for success.”

As she did in her article on The Next Great Copyright Act, Pallante takes some time reviewing the numerous studies and reports that the Copyright Office has worked on, particularly those which have yet to receive Congressional action. Since the copyright review process began, the Office completed four such reports: Copyright Small Claims, Resale Royalty, Transforming Document Recordation, and Copyright and the Music Marketplace. It is also working on two reports that are forthcoming, one on orphan works and mass digitization and another on the making available right under US law.

Pallante also discusses the challenges facing the Copyright Office itself, whether structural, technological, or financial. This is an issue that she has raised consistently throughout the review process and most extensively in her 2014 article The Next Generation Copyright Office: What it Means and Why it Matters, as well as a March 2015 letter to Rep. John Conyers in which Pallante wrote that the “long-term interests of the nation’s copyright system” would be “served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Proposals

But perhaps most attention will focus on the substantive recommendations that Pallante makes to the Committee. These are roughly divided into three categories: policy issues that are ready for legislative process, policy issues that warrant near-term study and analysis, and additional policy issues that warrant attention.

The first category of issues, those that Pallante says “Congress has at its disposal the necessary legal analysis and a clear public record,” include music licensing, small claims, felony streaming, Section 108 library exceptions, orphan works, resale royalty, improvements for persons with print disabilities, and a regulatory presumption for existing exemptions under Section 1201.

Those issues “that are important to a twenty-first century copyright system, but require more foundational study and analysis,” include other Section 1201 issues, Section 512, mass digitization, and moral rights.

Finally, Pallante notes that there are some issues which “lack consensus as to the problem, require preliminary research or consultation to identify issues, or reflect agreement that a legislative solution is premature.” In addition “certain issues are of paramount importance, but in our view should be left to the courts to develop. Among these issues are fair use, the right of making available, copyright registration and recordation issues, mandatory deposit provisions, “statutory damages, the first sale doctrine, compulsory video licenses, term of protection, termination rights, and the copyrightability of public standards and codes.”

During the hearing, House Judiciary Committee members predominantly focused their questions on Copyright Office modernization and music licensing issues, universally recognizing the challenges caused by the status quo for both. Representatives Conyers and Judy Chu specifically indicated their support for a copyright small claims court. Most members also expressed high praise for Pallante and the work of the Copyright Office.

Next Steps

As for what comes next, Chairman Goodlatte said in his opening statement, “Over the next several months, the Committee will be reaching out to all stakeholders to invite them to share their views on the copyright issues we have examined over the course of our review so far, as well as any others.” Meanwhile, along with the forthcoming reports from the Copyright Office mentioned above, the USPTO has a forthcoming report on copyright that will contain possible recommendations for administrative and legislative actions. Not to mention a number of bills that have already been introduced on copyright related issues this Congressional term. While it’s rarely useful to predict the future of policy, it does seem fair to say that the next few months will see a good amount of proposals floating around.

There is one last point to note in closing. During her testimony, Register Pallante said, “I have been especially inspired by the stories of authors across the country, many of whom took time to talk with me personally, including songwriters, recording artists, producers, photographers, graphic artists, book authors, dramatists, and independent filmmakers, all of whom want to be credited and compensated for their work.” Authors of all types have proven integral to ensuring copyright law is responsive and effective throughout US history—from book author Noah Webster, who almost single-handedly was responsible for the first state copyright laws in the 1780s, to composer Victor Herbert, whose efforts helped establish the public performance right as a meaningful source of income for songwriters. It’s thus critical for authors, artists, and creators to remain active and participate in the ongoing copyright review process.

Friday’s Endnotes – 04/24/15

By , April 24, 2015.

5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating — John Degen kicks us off this Friday with a provocative and entertaining look at some of the common criticisms of copyright and authors’ rights.

Judiciary Committee to Hold Copyright Review Hearing — Two years ago, Register of Copyrights Maria Pallante pondered a Next Great Copyright Act. Now, after 20 hearings and 100 witnesses, the House Judiciary Committee will be hearing from Pallante to get her perspective on copyright review. The hearing is April 29, 10amET, with a webcast available here.

From Mockingjay to Boardwalk Empire, Seamstress Lara A. Greene Has Dressed the Best — “If clothes make the man or woman, than costumes often go a long way towards making a movie, particularly in historical dramas. Costumes are a major part of setting the tone of a film or a television show; they tell us so much, even before an actor utters his or her first word.”

PWC Report Confuses the “Stealing Economy” With the “Sharing Economy” — “PwC equates peer-to-peer sharing of copyrighted works—an illegal action that deprives the owner of that copyright their just compensation—with the legitimate peer-to-peer networks that people use to sell rides via their personal automobiles or to rent out their power tools. This distinction is stark: The latter encompasses sharing things that individuals own and thus have the right to share, and the former encompasses sharing things that individuals do not own, and therefore do not have the right to share. By equating these two things, PwC is buying into the false narrative that digital media companies are fighting tech innovation by not succumbing to the peer-to-peer sharing model. The truth is that the film and TV industry are offering a variety of legal services that allow users to watch their favorite programming.”

Term extension and respect for artists: a reply to Michael Geist — From Barry Sookman: “Michael Geist, a long-time advocate of weaker laws for artists and makers of sound recordings and loopholes for those wanting to use their creations without compensation…  was quick to criticize the proposed amendments in a post the day after the proposal was announced and in another one earlier today. Unfortunately, many of his assertions are inaccurate or do not stand up to scrutiny.”

Green party plan to limit copyright attacked by writers and artists — “The Green party may be forced to backtrack on its proposals to limit UK copyright terms to 14 years after a howl of protest from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman.”

Copyright and Trade

By , April 22, 2015.

Last Thursday, Senators Hatch and Wyden and Representative Ryan introduced the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, commonly referred to as Trade Promotion Authority, or TPA. The bill provides a mechanism for Congress to establish negotiating objectives for US trade negotiators and is considered essential to concluding major agreements in the works such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). A hearing was held Tuesday by the Senate Finance Committee, and a markup is scheduled for today.

The US Constitution splits authority for entering into trade agreements between Congress and the Executive Branch. 1Article I accords the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties” and Congress the power “To regulate Commerce with foreign Nations.” TPA enables both to exercise their power in an efficient and effective manner.

For decades, US trade agreements have included provisions concerning copyright and other forms of intellectual property. Through the proposed TPA, Congress would provide, in part, that

The principal negotiating objectives of the United States regarding trade-related intellectual property are — to further promote adequate and effective protection of intellectual property rights, including through —

  • ensuring that the provisions of any trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law;
  • providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;
  • preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
  • ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;
  • providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms;
  • and preventing or eliminating government involvement in the violation of intellectual property rights, including cyber theft and piracy.

Though copyright has been the subject of international agreements for well over a century, its presence in trade fora is more recent, dating back to the 1980s. Given the increased attention to trade related issues of copyright sure to come over the next several weeks, I thought it would be helpful to sketch a very brief overview of how copyright and other intellectual property rights became a part of the trade agenda.

A brief history of US trade policy

In the US, the issue of import duties was the very first order of business taken up by the First Congress. After establishing its own rules of operation, Virginia Representative James Madison on April 8, 1789, told the other members of the House that the subject “requires our first attention.” 2Annals of Congress, House of Representatives, 1st Congress, 1st Session, pg. 107 (April 8, 1789). He added that he believed Congress should pursue regulation “as free as the policy of nations will permit.”

For nearly a century and a half, tariffs were the primary instruments of trade policy.3Ian F. Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service (2015). During that time, the concept of “free trade” began to develop further, with the help of economists such as Adam Smith, David Ricardo, and James Mill. Essentially, the policy is premised on the prediction that when barriers to trade between two countries are reduced or eliminated, producers and consumers in both countries benefit.

However, following World War I, the pendulum swung back to protectionism. The US passed the Smoot-Hawley Tariff Act in 1930, setting high tariff rates that led to retaliatory measures by major trading partners, a drop in international trade and a prolonging of the Great Depression.4Fergusson. Within four years, the US reversed course and set on a path of trade liberalization, which it continues to this day.

Internationally, the General Agreement on Trade and Tariffs, the first multilateral forum for trade negotiations, was established in 1947. The initial focus was on tariff reductions, but over time, negotiations began to consider non-tariff trade barriers.5Fergusson.

IP and trade

Beginning in the early 1980s, both the Executive and Legislative branches began to recognize trade-related aspects of intellectual property protection.

The private sector played a key role in getting the issue on the agenda. As a task force on intellectual property within the Advisory Committee for Trade Negotiations (a group made up of private sector representatives who provided input to US trade negotiators) noted in a 1986 report

The growing economic importance of intellectual property to all industries and the inadequacies of the present IP system—both at the international and national levels—have led the U.S. private sector to seek a trade-based response, as a supplementary tool to deal with the resultant distortion of international trade flows.

After detailing several specific problems that could be addressed through a trade-based approach, the task force urged that, at this point in time, “the basic concept of a trade approach to IP must be recognized and its legitimacy accepted by the IP community.”

In 1985, a Presidential Commission on Industrial Competition called for placing a higher priority on trade policy, including “a new round of GATT negotiations to achieve some coverage for trade in services and agriculture, foreign governments targeting and tax policies, countertrade, protection of intellectual property, and nontariff barriers.”6Report of the President’s Commission on Industrial Competitiveness, hearing before the Subcommittee on Economic Stabilization of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Ninety-ninth Congress, first session, March 5, 1985.

President Reagan gave a major policy speech that following September on trade. In it, Reagan laid out principles for his trade agenda, making specific note of intellectual property. For example, he observed, “Above all else, free trade is, by definition, fair trade. When domestic markets are closed to the exports of others, it is no longer free trade. When governments subsidize their manufacturers and farmers so that they can dump goods in other markets, it is no longer free trade. When governments permit counterfeiting or copying of American products, it is stealing our future, and it is no longer free trade.” He later explained, “I have instructed the United States Trade Representative to accelerate negotiations with any and all countries where the counterfeiting and piracy of U.S. goods has occurred to bring these practices to a quick end. And I look forward to working with the Congress to increase efforts to protect patents, copyrights, trademarks, and other intellectual property rights.”

The speech described the foundations of the Administration’s trade agenda. The Joint Economic Committee Subcommittee on Trade, Productivity and Economic Growth heard from Administration officials in March 1986 about Executive Branch efforts to address “International Piracy Involving Intellectual Property.” Alexander Good, Director General, US and Foreign Commercial Service, Department of Commerce, explained that, among these efforts, the Administration was looking at multilateral action through GATT, to “have a code across the board on patents, trademarks, copyrights, and unfair trading practices.”

Next month, the Administration released a statement on the protection of US intellectual property rights abroad. It said that foreign infringement “severely distort[s] international trade and deprive[s] innovators, creators and inventors of rewards and opportunities that are rightfully theirs.”7Office of the United States Trade Representative, Administration Statement on the Protection of U.S. Intellectual Property Rights Abroad, April 7, 1986. It went on to note several reasons why IP protection was important not just to the US but also to its trading partners and the global economy as a whole:

  • Adequate and effective protection fosters creativity and know-how, encouraging investment in research and development and in new facilities.
  • Innovation stimulates economic growth, increases employment and improves the quality of life.
  • Technological progress is a critical aspect of US competitiveness as well as freer and fairer global trade.
  • In developing countries, improved intellectual property protection can foster domestic technologies and attract needed foreign know-how and investment.

Congress was also active during this period, with the Senate Committee on Finance and House Committee on Foreign Affairs holding hearings focusing on intellectual property rights aspects of trade during 1986.8Intellectual Property Rights, S. Comm. Finance (May 14, 1986); Status of Intellectual Property Protection, H. Comm. on Foreign Affairs (July 31, 1986).

Proponents were successful in getting the issue on the radar of negotiators when the eighth round of GATT talks began in September 1986 in Uruguay. When they concluded in 1994, the contracting parties had negotiated the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), introducing IP rules into the multilateral trading system for the first time. TRIPs was built around several key principles, including “national treatment (treating one’s own nationals and foreigners equally), and most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO).” The Agreement establishes minimum standards of protection and enforcement for signatories to adhere to. It also makes the settlement of disputes concerning the provisions of the Agreement subject to the WTO’s dispute settlement process.9TRIPs Article 64.

Beginning with the 1994 North American Free Trade Agreement (NAFTA), the US has also sought IP provisions through bilateral and plurilateral free trade agreements. The latest was the US-Korea Free Trade Agreement, which entered into force in 2012. The US is seeking similar provisions as it negotiates TPP. The USTR says,

The provisions that the United States is seeking — guided by the careful balance achieved in existing U.S. law — will promote an open, innovative, and technologically-advanced Asia-Pacific region, accelerating invention and creation of new products and industries across TPP countries, while at the same time ensuring outcomes that enable all TPP countries to draw on the full benefits of scientific, technological, and medical innovation, and take part in development and enjoyment of new media, and the arts.

Given their increasing importance to economic growth and innovation, copyright and other IPRs will no doubt continue to play a vital role in trade policy.

References

References
↑1 Article I accords the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties” and Congress the power “To regulate Commerce with foreign Nations.”
↑2 Annals of Congress, House of Representatives, 1st Congress, 1st Session, pg. 107 (April 8, 1789).
↑3 Ian F. Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service (2015).
↑4 Fergusson.
↑5 Fergusson.
↑6 Report of the President’s Commission on Industrial Competitiveness, hearing before the Subcommittee on Economic Stabilization of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Ninety-ninth Congress, first session, March 5, 1985.
↑7 Office of the United States Trade Representative, Administration Statement on the Protection of U.S. Intellectual Property Rights Abroad, April 7, 1986.
↑8 Intellectual Property Rights, S. Comm. Finance (May 14, 1986); Status of Intellectual Property Protection, H. Comm. on Foreign Affairs (July 31, 1986).
↑9 TRIPs Article 64.

Friday’s Endnotes – 04/17/15

By , April 17, 2015.

Hatch, Wyden and Ryan Introduce Trade Promotion Authority Legislation — “The bill establishes new trade-negotiating objectives that reflect today’s economic challenges, including measures to combat currency manipulation, and eliminate barriers to innovation and digital trade, among others. Updated provisions address government involvement in cyber theft, protect trade secrets and the negotiating objectives continue to call for trade agreements to provide a high standard of intellectual property protection. The bill also updates provisions to promote human rights, and strengthen labor and environment protection, to reflect America’s most recent trade accords.”

Warren pitches arts to music industry — On Monday, the Fair Play Fair Pay Act was introduced, which would, among other things, finally extend the sound recording public performance right to terrestrial radio. Senator Elizabeth Warren echoed the goals of that bill in an address later in the week at the annual Grammys on the Hill event, saying “The way I see it is that it is very important that Congress support music and the arts and that we do it both with good laws in terms of making sure that people are fairly compensated — that compensation is fairly divided.”

Protecting Copyright: Securing Rights and Improving the Copyright Office — From the Free State Foundation: “With this volume of copyright registrations and recordations, and the social and economic benefits associated with these processes, it is important the vital Copyright Office functions be carried out effectively and efficiently. These basic functions serve to secure copyright protection, provide constructive notice of copyright claims, and establish priority between conflicting transfers of rights.”

Library of Congress’s and Copyright Office’s IT Needs Upgrade, Says GAO — From the Authors Guild: “In its report on the Copyright Office’s information technology, the GAO stated that the Copyright Office’s mission is ‘hindered by technical and organizational challenges,’ corroborating what many have identified as a main challenge to the Office fulfilling its mission.”

Appeals Court Agrees to Review Sirius XM’s Challenge Over Pre-1972 Music — The Second Circuit appeal arises out of a Southern District of New York ruling that the public performance of pre-1972 sound recordings is protected under New York state copyright law. “SiriusXM is presenting two questions to the 2nd Circuit. First, ‘Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?’ … Second, ‘Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?'”

Creatocracy: How the Constitution Invented Hollywood

By , April 13, 2015.

Perhaps one of the last individuals you’d expect a book on copyright to come from is Elizabeth Wurtzel.

But that’s indeed what the author of Prozac Nation has done with Creatocracy: How the Constitution Invented Hollywood. Through a breezy 121 pages from Thought Catalog Books, Wurtzel provides an interesting and provocative defense of authors’ exclusive rights and commercial culture.

Creatocracy unabashedly embraces American exceptionalism, describing the country as “one big huge accident” that nevertheless “was always cool.” Wurtzel writes,

The defining characteristic of America is our fanaticism: We dream big, we think large, we create granderu. We invented Hollywood, rock ‘n’ roll, blue jeans, the Gold Rush, cable TV with thousands of channels, a military that is larger than those of the next ten combined, the shopping mall, and a store that sells nothing but socks.

Against this backdrop, Wurtzel takes us to the beginning of the American republic to look at the development of copyright. And her thesis is this: the Founders chose to encourage art, science, and knowledge through the marketplace—rather than government subsidy or patronage—and this choice has proven successful, creating a vibrant commercial culture.

In establishing at the outset that all creative people would be at the mercy of the marketplace, the Framers invented a uniquely American form of creativity, which is commercial, widely appealing, and inevitably the stuff of empires. The Constitution is the force behind Hollywood and Silicon Valley, behind rock stars and rocket scientists, behind everything we love and everything we love to hate.

Wurtzel traces the path by which the Constitution established Congress’s authority to promote art and science through copyright. I was initially skeptical when I saw she would be taking us through history—much intellectual property (IP) scholarship has trouble with history. But Wurtzel’s recount of the history is adept. At the same time, she shows a canny ability of anticipating and responding to common criticisms of IP in academia. For example, she devotes one chapter to the IP views of Thomas Jefferson, who is often put forward as an arbiter of IP minimalism. But as Wurtzel notes, Jefferson’s views were far more nuanced than such proponents allow, and regardless, he had little to do with the shaping of the federal IP power.

When not recounting us with history, Wurtzel celebrates talent and pop culture, describing the mass market of culture enabled by copyright as producing “the most commercially inventive and artistic country ever.” Peppered throughout are observations about the nature of the creative process, no doubt drawn from Wurtzel’s own experience.

It has always been difficult to be a successful creative person, because talent is rare, but the rewards were good. They had to be. Consider how boring most people are. Consider how often you sit and talk to someone and wish you could leave because he is not interesting at all. Then think about a book you can’t put down and hope will never end: The author is not even in the room and is only holding your attention with words on a page, but he has you trapped and you don’t want to ever escape. Most people, using everything they have in real life, cannot take hold of you the way a talented writer can without even being there. Talent is the ability to mesmerize people when you are nowhere near. Talent is the ability to make something that is more stunning than human presence.

Wurtzel centers in on the market as an essential element in translating such talent into great works. In chapter 13, she writes that “The greatest of the great American art forms have been done in factory settings, with profit in mind.

[S]ongs written by teams in rows of rooms in the Brill Building or in cubicles in the Motown studios are as emotionally resonant and haunting as the dark part of the night when the sky is big and there are no stars, no moon, and all is terrifying. Talented people do not need atmosphere to work. They do not need inspiration. They just need time and payment. They need to treat what they do like a job. They need to show up. Writing the Great American Novel has more in common with coal mining than it does with keeping a journal—it is hard labor, long and intense.

The commercial creativity enabled by copyright is indeed successful, both economically and culturally. And it is not all pop songs and Transformer films, because of one of the benefits that emerges from successful creative industries: the subsidization of riskier, more challenging work.

To give one example: actress Kristen Stewart is best known for her role in the blockbuster Twilight films. She most recently starred in the decidedly non-blockbuster film Clouds of Sils Maria. Glenn Kenny of Rogerebert.com says of the role:

The young actor, who catapulted to worldwide fame in the “Twilight” series, has, like her co-star Robert Pattinson, been using the clout that such stardom brings to effectively branch out as a performer. In the contemporary movie business, the transaction works both ways: big young star stretches creative muscles by signing on to challenging, filmmaker-driven projects; challenging, filmmaker-driven projects get their financing because a young star who wants to stretch his or her creative muscles has signed on to it.

It is true that patronage or government subsidy can also fund challenging and artistically relevant projects, but nothing like on the scale that the market could provide.

Creatocracy is not perfect. Wurtzel meanders from the main point at times. These diversions are meaningful, don’t get me wrong, but with such a short book, they could stand to be more tightly edited perhaps.

But overall, it is an interesting and compelling defense of copyright from a perspective not typically seen in academic or policy circles. The result is a book that should appeal especially to lay audiences. You may not necessarily agree with absolutely everything Wurtzel says (I didn’t), but it an absolute delight to hear her say it.

Friday’s Endnotes – 04/03/15

By , April 03, 2015.

Is There a Fundamental Right to Intellectual Property? — Rob Merges says “yes,” beginning with John Rawls’ principles of fundamental rights. Merges argues that these principles justify property in general and intellectual property specifically. He concludes by pointing out that, consistent with his approach, the European Court of Human Rights recognizes intellectual property as a human right.

Letter from Register of Copyrights Pallante to Ranking Member Conyers — In a response to a request for views on the recent House Judiciary Committee hearing that focused on the functions and resources of the US Copyright Office, the Office writes that the nation’s long term copyright interests “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Judge Rules ‘Three’s Company’ Parody Play to Be Fair Use — A thorough court decision finding a play that critiques and subverts the characters and situations of the hit 70’s show Three’s Company not infringing. “The former has turned the latter into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

The Man Who Makes Hollywood’s Smallest Sounds — A fantastic portrait of 30 year film veteran Gregg Barbanell. “Barbanell is a Hollywood ‘Foley’ artist, a member of a small, highly-skilled group of experts who add custom sounds into television and film scenes in post-production, using a bevy of makeshift props. Named after one of film’s earliest sound pioneers, Foley is an antiquated craft—and in a digitized era of cinema, it is one of the last of the industry’s ‘low-tech’ jobs. These folks are responsible for recording nearly every footstep and prop sound in the movies—the things that you never really notice, yet bring a scene to life. It’s at once one of the most important elements in film, and the most overlooked. Unlike sound effects editors, Foley artists don’t rely on libraries of pre-recorded sounds: they perform them ‘ive,’ using creativity, intuition, and a small dose of physics.”

Nigeria: ‘Copyright piracy is a cyber security matter,’ says President Goodluck Jonathan — “President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria’s entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter.”

Google admits it has huge influence in Washington as it tries to deny having influence — The Verge reports, “Last week, a Wall Street Journal report suggested Google tampered with an FTC investigation that was looking to see if the search giant was engaging in anti-competitive practices. While the FTC ultimately decided not to bring a lawsuit against Google, reports published by the WSJ indicated the commission was deeply divided on whether it should sue — and another report exposed the close ties that Google has with the Obama administration.” And Brendan Sasso reports that this development has caught the eye of Congress in Senate to Investigate White House Role in Google’s Antitrust Victory.

Cracker’s David Lowery updates his Silicon Valley relationship status: It’s complicated (interview) — Great interview from Lowery. “‘I’m seen as a digital critic, but I don’t think that’s really fair,’ he said. ‘I’m really a critic of how the digital realm pays artists. It’s more of a labor dispute. It’s like if we were the coal miners in the coal mine. It’s not that we’re against the coal mine. We just want to be paid better.'”

An Open Letter to Garbage from photographer Pat Pope over whether the band should pay to use his photos in new book — Says Pope, “No, you don’t have my permission to use my work for free. I’m proud of my work and I think it has a value.”

Friday’s Endnotes – 03/27/15

By , March 27, 2015.

Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91 — “But his central focus was intellectual property — copyright, patents and trademarks. He was the author of 48 laws in that area, 21 of them dealing with copyright. Many reflected technological advances. The landmark 1976 bill set rules governing radio, television, photocopying, tape recording, microfilming and computer storage, breaking a 15-year logjam on a subject that bored most lawmakers.”

Remapping a Broken Internet, Chris Ruen:

Putting authors at the heart of the digital economy — A new white paper from the Society of Audiovisual Authors looks at the rights and remuneration of authors in Europe. “Copyright is the moral link that connects the author to their work. It’s also their remuneration and creative financing tool. In a Europe of diverse cultures, traditions and languages, authors have fought to be able to express themselves in their own language, without being forced into exile in order to complete their projects.”

Beyond Free Trade vs. Protectionism — “In the 21st-century knowledge economy, this means agreements that allow for effective intellectual-property enforcement and prohibit new mercantilist practices (such as forced technology transfer, data-residency requirements, and standards manipulation). It also means our nation should neither be indifferent to its industrial mix nor try to preserve its existing mix indefinitely. Rather, trade policy should be a means to drive U.S. global competitiveness in the knowledge-based industries of the future. In other words, computer chips are more important than potato chips.”

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