April 2023 Roundup of Copyright News
In April, the copyright community celebrated World IP Day by recognizing the importance and legacies of women trailblazers in intellectual property. The U.S. Copyright Office also kicked off its first Artificial Intelligence (AI) listening session on literary works and the Biden Administration published several key copyright-law annual reports. Here is a quick snapshot of the copyright-related activities that occurred during the month of April as well as a few events to look forward to in May.
Copyright Alliance Activities
Copyright Alliance Celebrates World IP Day: From April 24-28, the Copyright Alliance marked World IP Day 2023, which is celebrated yearly on April 26, by initiating a celebratory statement and co-hosting an event on April 26, titled Women Trailblazers Creating Success Through Copyright, which drew more than 190 attendees and featured the following speakers: Karyn A. Temple, former Register of Copyrights and SEVP & Global General Counsel at the Motion Picture Association; Jayda Imanlihen, Founder of the Black Girl Film School; Alicia Calzada, Deputy General Counsel for the National Press Photographers Association; Tristen Norman, Director, Creative Insights, Getty Images; and Miriam Lord, Associate Register of Copyrights and Director of Public Information and Education at the U.S. Copyright Office.
Copyright Alliance Launches AI Webpage: The Copyright Alliance launched an AI and Copyright webpage as a source of information on the responsible development and use of AI technologies as they relate to copyright. The page includes a wealth of information—including blogs and articles, the Copyright Alliance’s policy position paper on AI, U.S. Copyright Office policies and updates, a registration link for our AI Copyright Alert, industry events, information on AI and fair use, and much more.
Copyright Alliance Blogs: We published several blogs in March:
- To celebrate World IP Day 2023, we published a blog post highlighting the impactful IP leadership and legacies of women Registers of Copyrights of the U.S. Copyright Office.
- We also published the second part of our current AI copyright cases blog series. Additionally, we explored in this blog post if the use of copyrighted works to train AI would qualify as fair use and published another blog post exploring how existing fair use case law might apply in the AI context.
- We also published a blog post, emphasizing how respect for copyright is a component of Environmental, Social, Governance (ESG) for businesses.
Copyright Office Activities
CCB Status Update: At the end of April 2023, 436 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 159 are “smaller claims.” In at least 140 of all cases, the claimant is using legal counsel. There are 374 infringement claims, 64 Section 512(f) misrepresentation claims, and 10 claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (200 cases); Literary Works (59); Motion Picture and Audiovisual Works (92); Sound Recordings (43); Musical Works (30); and some cases include claims for multiple works. Thirty-nine foreign residents have filed claims. Of all the cases filed, 262 have been dismissed for the following reasons: Due to Respondent’s Opt Out (33); Due to Failure to Amend Noncompliant Claim (135); Due to Failure to Provide Proof of Service of Process (56); and Claimant Withdrawal and Dismissal of Claims (36). There are 40 active proceedings.
USCO Hosts First AI Listening Session on Literary Works; Announces Speaker List for Visual Works Listening Session: On April 19, the U.S. Copyright Office hosted the first session in a series of AI listening sessions pertaining to generative AI and copyright issues for literary works. The list of speakers included Keith Kupferschmid (Copyright Alliance), Mary Rasenberger (Authors Guild), Chris Mohr (SIAA), Catie Rowland (CCC), Terry Hart (AAP), and Cynthia Arato (News Media Alliance). Register Perlmutter shared opening remarks, stating that the sessions will guide the Office in studying AI issues, and that stakeholders will be able to submit written comments to further inform the Office. Speakers addressed how AI tools are used by creators, the harms or lack thereof regarding AI ingestion of copyrighted works, AI licensing markets, confusion over the Office’s recent AI registration guidance, and the effects of AI on creators of literary works. During his comments, Kupferschmid noted that, “As AI technology continues to evolve and questions arise about how copyright laws apply to the creation of AI-generated works, it’s critical that when the Office makes determinations about AI policies, that the underlying goals and purposes of our copyright system are upheld; and that the rights of creators and copyright owners are respected.”
The U.S. Copyright Office also published the list of speakers for the AI Listening Session on Visual Works. The session will take place today, Tuesday, May 2 from 1 p.m. to 4 p.m. ET and will include two panels and a 25-minute period at the end of the session for additional speakers to weigh in. Speakers include Adobe, National Press Photographers Association, Graphic Artists Guild, Getty Images, Professional Photographers of America, American Society for Collective Rights Licensing, the PLUS Coalition, Stability AI, and Jasper AI.
USCO Replies to Thaler’s Opposition to Its Rejection of AI-Authored Work: On April 5, the Copyright Office filed a reply to Stephen Thaler’s opposition to its motion for summary judgment in a case brought against it for refusing to register a work claimed to be autonomously created by artificial intelligence (AI). The reply reiterates the Office’s position that Thaler’s assertions that the Copyright Act allows for non-human authorship are incorrect and not supported by statutory text. Once again arguing that Thaler misconstrues the work made for hire doctrine, the reply explains that Thaler’s “Creativity Machine” lacks the capacity to enter into a valid contract and cannot plausibly qualify as Thaler’s agent or employee. Going on to refute Thaler’s argument that case law supports non-human authorship, the Office’s reply cites appellate court decisions that have uniformly rejected authorship for things like celestial beings and animals. Addressing policy issues, the Office asserts that Thaler disclaims the importance of economic incentives for human creators. Finally, the Office explains that courts’ deference to the Copyright Office is routine and that its decision is not arbitrary and capricious.
Biden Administration Copyright-Related Activities
IPEC Issues Annual Intellectual Property Report to Congress: On April 4, the Office of the Intellectual Property Enforcement Coordinator (IPEC) issued its Annual Intellectual Property Report to Congress. The joint report provides an overview of the intellectual property enforcement strategy and related efforts undertaken by various departments and agencies during fiscal year 2022. The report also notes copyright-related activities carried out by the Customs and Border Protections (CBP), including a joint video interview conducted with the Copyright Alliance to educate copyright owners on recording copyright registrations with the CBP.
USTR Publishes Special 301 Report: On April 26, the Office of the U.S. Trade Representative (USTR) published its annual Special 301 Report, which is the agency’s annual review of the state of intellectual property (IP) protection and enforcement in U.S. trading partner countries around the world. Countries on the priority watch list include Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.
President Biden Announces Appointments to the President’s Committee on the Arts and Humanities: On April 13, President Biden announced appointments to the President’s Committee on the Arts and the Humanities (PCAH), which advises the President on cultural policy. The list of appointees includes Bruce Cohen, Lady Gaga, Jon Batiste, Constance Carroll, M. Angélica Garcia, Shonda Rimes, Pauline Yu, and others.
Congressional Copyright Related Activities
Affordable College Textbook Acts Introduced in Congress: On March 27, Representative Joe Neguse (D-CO) introduced H.R. 1811 in the House, and Senator Dick Durbin (D-IL) introduced S.978, The Affordable College Textbook Act, to expand the use of open school textbooks and direct the copyright owners of such textbooks or supplemental materials and informational resources thereof to license the copyrighted work to the public under a non-exclusive, royalty-free, perpetual, and irrevocable license to exercise any of the rights under copyright conditioned only on the requirement that attribution be given as directed by the copyright owner.
Copyright in the Courts
AI Developers File Motions to Dismiss Creators’ Class Action Infringement Case: On April 18, Stability AI, DeviantArt, and Midjourney filed separate motions to dismiss a class action lawsuit for copyright infringement brought by a group of artists for copyright infringement and right of publicity violations for the use of the their works in training data sets for the AI image-generating platforms. Stability AI’s motion first moves to dismiss claims brought by two of the named plaintiffs for not having registered any works with the U.S. Copyright Office. It then goes on to argue that the plaintiffs’ direct copyright infringement claim based on output images fails because they do not allege a single act of direct infringement and they do not allege that any Stable Diffusion output is substantially similar to the plaintiffs’ works. The motion also asserts that DMCA claims related to the removal of copyright management information (CMI) fail because the plaintiffs do not identify any works from which CMI was altered or removed. Finally, the motion argues that the plaintiffs’ right-of-publicity and unfair competition claims are expressly preempted by the Copyright Act “because they are simply efforts to recast copyright claims under other legal rubrics.” Midjourney’s motion to dismiss repeats many of the same arguments as Stability’s, adding that the plaintiffs’ complaint doesn’t identify any works that Midjourney allegedly used as training data. The motion also claims that the plaintiffs’ allegation that all AI platforms’ output constitutes infringing derivative works, no matter how dissimilar they appear, “badly misconstrues the law.” DeviantArt’s motion to dismiss takes a different approach, asserting that it cannot be liable for any of the alleged violations because the conduct complained of—specifically the scraping of copyrighted works from the internet for use as AI training material—is conduct by other actors and not DeviantArt. Plaintiffs’ opposition to the motions to dismiss is due June 2.
Federal Circuit Sides with Alleged Infringer in SAS Institute v. World Programming Ltd.: On April 6, the U.S. Court of Appeals for the Federal Circuit issued a decision finding that SAS Institute, Inc.—a multinational software developer—failed to establish copyrightability of its asserted software program elements in a case brought against competitor World Programming Ltd. (WPL) for infringement of SAS System’s input formats, output designs, and keywords. The opinion affirms a district court’s decision in favor of WPL, adopting the lower court’s view that once WPL showed that at least some of the elements of the SAS System were not protectable, it was SAS’s burden to identify the constituent elements that were, and that they failed to do so. Specifically, the opinion finds that SAS failed to “filter out” unprotectable elements using the abstract-filtration test, which resulted in “an improper comparison of unprotectable elements to the accused products.” Further, the opinion finds that the district court acted within its authority in holding a “Copyrightability Hearing” to “assist it in its analysis of the scope of copyright protection.” Judge Pauline Newman wrote a dissenting opinion, finding for SAS on all of the issues. The Copyright Alliance filed an amicus brief in support of SAS, arguing that the district court erred by improperly shifting the burden to the copyright holder to prove that its registered copyright contained protected elements rather than requiring the defendant to prove that those elements were unprotected.
Fifth Circuit Upholds Discovery Rule: On April 13, the Court of Appeals for the Fifth Circuit upheld the circuit’s “discovery rule” approach to copyright infringement in the case Martinelli v. Hearst Newspapers, L.L.C. The case involved a photographer, Antonio Martinelli, whose photographs of an Irish estate were used in web articles published by Hearst Newspapers and its associated websites. The court ruled that the Supreme Court rulings in Petrella v. Metro-Goldwyn-Mayer, Inc. and Rotkiske v. Klemm did not overrule Fifth Circuit case law on applying the discovery rule (that the Copyright Act’s three-year statute of limitations for copyright infringement does not start until after the plaintiff knows or has reason to know of the injury upon which the claim is based).
Copyright in Other Countries
EU Parliament Agrees On Language for EU AI Act: According to reports, the European Parliament passed a draft of the EU AI Act. The draft Act addresses generative AI models introducing additional responsibilities for such AI to disclose information about the use of copyrighted material in their systems. In the next stage of the process, the trilogue, EU lawmakers and members states will continue to negotiate over the final details of the bill.
German Court Orders Website Hosting Provider to Take Stream-Ripping Tool Offline: On April 3, a German court in Hamburg ruled in favor of a group of record label companies in their case against website hosting provider, Uberspace, which hosted the stream-ripping tool, youtube-dl. According to a press release, the court ordered Uberspace to take youtube-dl’s website offline.
Taiwanese Court Sentences Pirate Website Operators to 18 Months in Prison: On April 11, the Alliance for Creativity and Entertainment (ACE) announced that the district court in Taiwan sentenced the two operators of the notorious 8maple network of piracy sites to 18 months in prison in addition to confiscating $1.97 million in illicit gains. The operators reportedly maintained 25 servers in five different countries and one of its main domains drew in more than 30 million visits per month and generated over $133,000 per month in advertising revenue.
French Appeals Court Holds for Nintendo in Case Against Share-hosting Website Operator: According to reports, the Paris Court of Appeals sided with Nintendo in its lawsuit against share-hosting website operator, Dstorage, for refusing to remove or withdraw access to authorized copies of Nintendo’s games on the website, 1fichier. The court awarded Nintendo approximately $485,000 USD in addition to legal fees.
NMPA Urges Closer Examination of AI Impact on Rightsholders: National Music Publishers Association (NMPA) President and CEO, David Israelite, wrote a letter to Senator Chuck Schumer (D-NY), urging the Senator to “consider the impact of AI technologies on the creative industries in the U.S.” Israelite also stressed the importance of AI companies needing to “seek permission and licenses from copyright owners” for the ingestion of copyrighted works for AI training, noting that “rightsholders must also retain exclusive control over how and with what technologies their works are used.”
Look Forward To And Save the Date For…
USCO AI Listening Sessions: The U.S. Copyright Office announced its new Artificial Intelligence (AI) Initiative, which includes hosting a series of virtual public listening sessions on Copyright and Artificial Intelligence (AI) with stakeholders from various creative industries. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. The session on Visual Works takes place today, May 2, from 1:00- 4:00 p.m. ET. The session on Audiovisual Works will take place on May 17, from 1:00-4:00 p.m. ET and the session on Music and Sound Recordings will take place on May, 31, from 1:00-4:00 p.m. ET. The deadline for speakers for the Music and Sound Recordings session is May 10. More information about the sessions and registration options is available on the Office’s Listening Sessions webpage.
Deadline to Submit Reply Comments to USCO on MMA Late Fees NOI: May 9 is the deadline by which to submit reply comments to the U.S. Copyright Office in response to its notice of inquiry regarding when fees for late royalty payments should be assessed in connection with reporting by digital music providers under the Music Modernization Act’s (MMA) blanket license.
Copyright Society Hosts Copyright Claims Board State of the Union: On May 23, the Copyright Society will host a Copyright Claims Board State of the Union with Monica McCabe, CCB Copyright Claims Officer at the U.S. Copyright Office. During the event, McCabe will provide an update on the CCB, its cases, and its progress during the past nine months following its launch. More information is available on the registration page.
USCO Recordation System Webinar: On May 25 at 1:00 p.m. ET, the U.S. Copyright Office will host its monthly webinar to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation module allows users to transfer their copyrights to someone else electronically. The webinar will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.
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