April 2022 Roundup of Copyright News

At the end of April, creators and innovators all across the globe celebrated World Intellectual Property (IP) Day— this year focusing on how young inventors, creators, and entrepreneurs can use intellectual property rights to help further create, invent, and innovate in various fields. As part of the worldwide celebration, the Copyright Alliance hosted a panel discussion on how copyright law affects youth. In other news, the U.S. Copyright Office published a final rule and some clarifying and correcting rules related to the new copyright small claims court, the Copyright Claims Board (CCB), and officially launched the CCB website. Here is a quick snapshot of several copyright-related activities that happened during the month of April and a few events to look forward to for the month of May.

Copyright Alliance to Host with TALA and ASMP: Learn About the Copyright Claims Board (CCB): On May 16 from 2 p.m. to 3:15 p.m. ET, the Copyright Alliance, Texas Accountants and Lawyers for the Arts (TALA), in partnership with the American Society of Media Photographers (ASMP), will host a panel titled Learn About the Copyright Claims Board (CCB). With the CCB due to launch before the end of June, the panel is designed to provide parties with the information they will need to know to bring and defend cases before the CCB. The panel will walk attendees through each step of the CCB process from filing a case to the final decision. Panelists include David Carson, Copyright Claims Officer, U.S. Copyright Office; Whitney Levandsuky, Supervisory Copyright Claims Attorney, Copyright Claims Board, U.S. Copyright Office; Thomas Maddrey, ASMP General Counsel & Head of National Content and Education; Terrica Carrington, Vice President of Legal Policy and Copyright Counsel, Copyright Alliance; and Keith Kupferschmid, CEO, Copyright Alliance (panel moderator).

Copyright Alliance Celebrates World IP Day, Hosts Panel: On April 26, the Copyright Alliance hosted a World IP Day panel titled Copyright and Youth: Creating a Better Futurein keeping with the World Intellectual Property Organization’s (WIPO) 2022 theme of IP and Youth: Innovating for a Better FuturePanelists included Kick Lee of the Cincinnati Music Accelerator (CMA); Janet Hicks of Artists Rights Society (ARS); David Sohn of Copyright and Creativity; fine artist Mary Adelaide (Addie) ClarkKim Tignor, Executive Director of the Institute for Intellectual Property & Social Justice and founder of the Take Creative Control program; and Keith moderated the panel. The event video can be viewed on our World IP Day webpage, along with our blog, video messages from elected officials, and more.

Copyright Alliance Files Amicus Brief in § 512(h) Subpoena Case: On April 4, the Copyright Alliance filed an amicus brief (in support of neither party) in In re DMCA § 512(h) Subpoena to Twitter, Inc., urging the U.S. District Court for the Northern District of California to adopt a magistrate judge’s ruling denying Twitter’s motion to quash a 512(h) subpoena on free speech grounds. The brief explains the legal framework behind Section 512(h) and the importance of the provision to copyright owners who seek to identify alleged infringers. In response to Twitter and its amici supporter’s claim that the burden of establishing an absence of fair use rests with the copyright owner, the brief explains that the burden is always on its proponent and that Twitter cannot raise a fair use defense on behalf of a user who declined to assert it themselves. The brief concludes by warning that if Twitter and its amici’s arguments are adopted, it would erect unnecessary and even insurmountable barriers to U.S. copyright owners who need to enforce their copyrights against anonymous infringers and leave them without effective protection for their valuable intellectual property. A hearing has been scheduled for May 12.

Copyright Alliance Files Amicus Brief in Capitol Records v. VimeoOn April 19, the Copyright Alliance joined the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA) in an amicus brief filed in support of plaintiff-appellant Capitol Records in the case Capitol Records v. Vimeo. In 2016, Vimeo was granted summary judgment on the red flag knowledge issue (i.e., whether some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyright protected song is sufficient to establish red flag knowledge). However, there is now a consolidated appeal in the Second Circuit Court of Appeals that addresses an issue that was not decided, namely what it means for an online service provider to have “the right and ability to control” users’ infringing activity under 512(c)(1)(B). The brief argues that Vimeo’s “curation practices constituted substantial influence over their users’ infringing videos and should have disqualified Vimeo from the safe harbor.”

Copyright Alliance Sends Letter to Congress on U.S. Innovation and Competition Act: On April 5, the Copyright Alliance submitted a letter to Senate Majority and Minority Leaders Senators Chuck Schumer (D-NY) and Mitch McConnell (R-KY), and House Majority and Minority Leaders Representatives Nancy Pelosi (D-CA) and Kevin McCarthy (R-CA), expressing concerns that the United States Innovation and Competition Act of 2021 will undermine copyright protections for American rightsholders. Specifically, the letter points out that while public access to research reports and raw data is important, the bill’s public access language goes too far by undermining copyright protection through unreasonable licensing requirements.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs this month.

  • In March, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced important new legislation, the Strengthening Measures to Advance Rights Technologies (SMART) Act. But as we explain in this blog, the bill has its detractors—anti-copyright groups who unsurprisingly make the same arguments used countless times in the past from their tired playbook.
  • In light of the announcement that the Supreme Court will hear the photography fair use case Andy Warhol Foundation v. Goldsmith, we explored the scope of copyright law as applicable to photography by examining some of the most impactful photography cases in this blog.
  • Lastly, we celebrated World IP Day in this blog by examining some of the reasons why young creators should care about copyright law and what resources are available to them. We also profiled several incredible Arab American creators in this Arab American Heritage Month 2022 blog, highlighting their many accomplishments and impact in their respective creative disciplines and also on American culture.

Copyright Office Activities

USCO Launches New Copyright Claims Board Website: On April 7, the U.S. Copyright Office launched ccb.gov, “a website serving as a gateway to the first copyright small claims tribunal in the United States, the Copyright Claims Board (CCB).” The launch of [this site] is considered to be “a major milestone toward the full opening of the CCB to creators and users of copyrighted materials later this spring.” The new website is also considered to be the home of the CCB “and is focused on helping everyone understand [its] mission and processes.” The site will become the “primary location for information about filing and responding to claims, opting out of a proceeding, accessing the CCB’s Handbook, and contacting the CCB with questions.” The new site hosts the Designated Service Agent Directory and will also host  “updates on the status of CCB-related rulemakings as well as a list of libraries and archives that have preemptively opted out of CCB proceedings on the Office’s Libraries and Archives page.

USCO Publishes Final Rules on Law Student and Business Entity Representations: On April 8, the U.S. Copyright Office published final rules governing the appearance of law student representatives and representatives of business entities in proceedings before the Copyright Claims Board (CCB). The final rules expand the scope of law student participation to include law student representatives who are part of pro bono legal services organizations that have a connection with the student’s law school. The final rule also relaxes various prerequisite requirements for law student representatives and clarifies that law school clinics and pro bono organization participation in the CCB’s pro bono database is voluntary. The language in the rules governing representations of business entities remains unchanged from the language of the proposed rule.

USCO Hosts Modernization Webinar on Copyright Public Records System: On April 19, the U.S. Copyright Office held a modernization webinar to update the public on the Copyright Public Records System. Program Analyst Shawn Gallagher and Director of Copyright Records Denise Wofford were the presenters. They provided a brief overview of Release 1.0 in December 2020, Release 2.0 in August 2021, and Release 3.0 in March of 2022, which included the updated name directory and related registration records search. They also talked about the new public records system, including PDF certificates, and the virtual card catalog. As for future developments, the Office will provide additional indexing information captured by the new recordation pilot and plans for user accounts to have saved search and saved records capabilities.

USCO Corrects and Clarifies Some CCB Final Rules: On April 22, the U.S. Copyright Office published a correction to the final rules on initiating of proceedings and related procedures and a clarification to the final rules on small claims expedited registration procedures. The corrected final rule reverses an inadvertent instruction in the Federal Register to ensure that the rule incorporates the fee table for initiating a Copyright Claims Board (CCB) proceeding. The clarified final rule amends language to provide that when a CCB proceeding cannot continue because a registration is still pending, the Board may hold proceedings in abeyance at any point before a final determination is issued. The rule also describes the process for the Board to receive registration certificates when they are issued while a proceeding is pending, allows parties to request expedited registration before a proceeding becomes active, and corrects non-substantive typographical errors.

USCO Requests Comments on Standard Technical Measures: On April 27, U.S. Copyright Office published a notice of inquiry (NOI) titled Standard Technical Measures and Section 512, which solicits comments to “gather information on the development and use of standard technical measures for the protection and identification of copyrighted works” in order to “enhance the public record and advise Congress.” The NOI is separate from the Office’s ongoing consultations regarding technical measures. Comments are due on Friday, May 27. The Office will announce a due date for reply comments if needed.

USCO Names Brent Lutes as First Chief Economist: On April 12, Register of Copyrights Shira Perlmutter announced the appointment of Dr. Brent Lutes as the first Chief Economist of the U.S. Copyright Office. “As Chief Economist, Lutes will evaluate the economic impacts of programs and policies relating to the U.S. and international copyright systems [and advise] the Register and other senior officials on how these impacts affect the Office, copyright stakeholders, and the general public.” In a statement about Lutes, Register Perlmutter noted, “I am excited to welcome Brent to the Office… Bringing in-depth economic expertise to the Office has been one of my priorities since I became Register; economic analysis will assist in realizing progress on the goals of our new strategic plan.” 

Congressional Copyright Related Activities

Judge Ketanji Brown Jackson’s Questions for the Record on Copyright Law Available: Around April 1, Judge Ketanji Brown Jackson answered several questions for the record related to copyright law during her nomination process to become a U.S. Supreme Court Justice. The Senate posed various questions including whether artificial intelligence (AI) systems would be eligible for copyright protection and whether the Takings Clause applies to copyrighted works. In response to many of the copyright law policy questions, Judge Jackson noted that public policy was within Congress’ purview and that she would focus on faithfully applying the relevant statutes and regulations.

Copyright in the Courts

Real Estate Organizations File Amicus Brief in SCOTUS Case: On April 7, the National Association of Realtors (NAR), along with other real estate organizations, filed an amicus brief with the U.S. Supreme Court in support of the defendant Columbia’s cert petition, in Columbia House of Brokers Realty, Inc. v. Designworks Homes, Inc., a case concerning “[w]hether floor plans constitute ‘pictures, paintings, photographs, or other pictorial representations’ of an architectural work within the meaning of [the] § 120(a)” exception. The case involves a dispute between Charles James, a home designer who registered the designs with the U.S. Copyright Office for the home at issue and a realtor group that separately sketched out a floor plan of the home and used the sketch in marketing materials to sell the home. The Eighth Circuit Court of Appeals, after reviewing the statutory text and legislative history, had held that the § 120(a) exception “does not provide a defense to copyright infringement to real estate companies, their agents, and their contractors when they generate and publish floorplans of homes they list for sale.”

Maryland Declines to Oppose Possible Permanent Injunction of its State eBook Licensing Bill: On April 11, the state of Maryland filed a response to a show cause order from the U.S. District Court for the District of Maryland, in the lawsuit filed by the Association of American Publishers against the state over the state’s compulsory eBook licensing bill. Maryland stated that it “does not intend to oppose the court should it convert the preliminary injunction against the state’s compulsory eBook licensing bill.” However, noting that the state did not enforce the law against the publishers at any point, the state argued that it was not necessary for the court to grant any relief beyond a declaratory judgment.

Copyright in Other Countries

EU Reaches Agreement on Digital Services Act: According to reports, on April 23, the European Parliament, the French Presidency of the Council of the EU, and the European Commission agreed on the final text for the Digital Services Act (DSA) — new legislation that could come into effect before the end of the year. Among other provisions, the DSA aims to obligate internet platforms to remove illegal or infringing content “expeditiously” and to provide more information about their processes and algorithms to increase transparency and accountability. To address free speech and data protection rights, the DSA reportedly will include safeguards so that removal of illegal content will be “processed in a non-arbitrary and non-discriminatory manner and with respect” for those rights.

EU Court Upholds Article 17Upload Filter Challenge: On April 26, the Court of Justice of the European Union (CJEU) rejected a legal challenge made by Poland to Article 17 of EU Directive 2019/790 on Copyright in the Digital Single Market. Article 17 “establishes the principle that providers of online content-sharing services . . . are directly liable when protected subject matter (works and so forth) is illegally uploaded by users of their services.” Article 17 also sets forth a safe harbor provision for online service providers that requires them to “actively monitor the content uploaded by users, in order to prevent the uploading of protected subject matter [that] the rightsholders do not wish to make accessible on those services.” The court stated in its press release that contrary to Poland’s arguments that Article 17 violated the rights to freedom of expression and information, the legislation was accompanied by Article 11 of the EU Charter of Fundamental Rights, which ensured the proper safeguards and struck the balance between those rights and IP rights.

Biden Administration Requests Release of Official TRIPS Waiver Text: According to reports, the Biden Administration is urging the World Trade Organization’s (WTO) Director-General Ngozi Okonjo-Iweala to release an official draft of the waiver agreement of The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for which the U.S., European Union, South Africa, and India were spearheading negotiations. The request was made ahead of the WTO’s 12th Ministerial Conference taking place in Geneva on June 13.

Canadian Budget Proposes Copyright Term Extension: On April 7, Canada’s Finance Minister Chrystia Freeland put forth the government’s budget, which included a proposal to amend the Canadian Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author as agreed under the Canada-United States-Mexico Agreement. Margaret McGuffin, CEO of Music Publishers Canada stated that, “For music publishers, composers and their songwriters, copyright is their paycheck. We applaud Budget 2022’s commitment to ensuring a strong, modern copyright regime through the implementation of copyright term extension.”

USTR Releases 2022 Special 301 Report: On April 27, the Office of the U.S. Trade Representative (USTR) released the 2022 Special 301 Report, identifying 27 trade partners on its “Priority Watch List” or “Watch List,” which highlights countries that have problems with intellectual property protection, enforcement, or market access for U.S. IP rightsholders. Countries on the Priority Watch List include Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.

Look Forward To And Save the Date For…

George Mason University’s Antonin Scalia Law School’s C-IP2: From Great Ideas to Global Impact: A Talk with Andrew Byrnes: On May 4 from 2.00 pm to 3.15 p.m. ET, George Mason University’s Antonin Scalia Law School’s Center for Intellectual Property x Innovation Policy (C-IP2)will host a discussion with tech executive, attorney, and investor Andrew Byrnes regarding “the path from developing innovative ideas to achieving broad impact, including key legal issues, and business imperatives.” In addition, Byrnes will offer insights on leadership, building high-functioning teams, engaging policymakers, and other critical stakeholders, and navigating existing and emerging regulatory regimes and challenges.” More information can be found on the registration page.

ASMP, APA, Authors Guild, MWA, SSFWA, Graphic Artists Guild, Dramatists Guild, International Counsel of Design, and National Writers Union: Creators Conference: On May 11 at 11.am. to 5:30 p.m. ET, nine creator rights organizations are hosting a free one-day conference open to writers, photographers, illustrators, designers, dramatists, songwriters and composers on what creators can do to avoid being taken advantage of in the marketplace. The event will feature three panels titled Working for Free/Paying to Work: Contests, Crowdsourcing, and Publishing Platforms; Contracts and Terms: the Unethical, the Unenforceable, and the Unavoidable; and Copyrights and Rights Grabs: How Your work Is Taken, and How You Can Protect Your Rights. More information is available on the registration page.

Copyright Alliance and WALA Webinar: Copyright Basics: On May 17 from 11 a.m. to 12:30 a.m. ET, the Copyright Alliance and the Washington Area Lawyers for the Arts (WALA) are hosting a webinar presentation and Q&A on Copyright Basics, which will be facilitated by Copyright Alliance CEO Keith Kupferschmid and Copyright Counsel Rachel Kim. Topics will include copyright registration, copyright licensing, third parties, fair use basics, and more. More information can be found on the registration page.

WIPO Webinar: EUIPO’s Registries for Orphan and Out-of-Commerce Works: On May 25 at 7.00 a.m., the World Intellectual Property Organization (WIPO), will host a webinar focusing on copyright infrastructure and “feature a number of speakers from the public and private sectors on a range of topics relevant to copyright infrastructure, such as metadata, identifiers, technology solutions and WIPO services.” The host of the event is Gyta Bernasneviciute-Singh.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

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