February was another busy month for the copyright community—there were several Congressional hearings and a landmark decision coming from the U.S. Supreme Court in Unicolors v. H&M.
Here are a few important copyright-related activities that happened during the month of February and a few deadlines and events to keep in mind for the month of March.
Copyright Alliance Activities
Copyright Alliance Blogs on Supreme Court Nominee, Fair Use Week, Fashion Week, and Black History Month: The Copyright Alliance posted several new blogs this month. Following on the heels of President Biden’s recent announcement of his Supreme Court nominee pick, the Copyright Alliance wrote a blog about Judge Ketanji Brown Jackson’s prior experience with copyright law. Also on our website is a blog for Fair Use Week about some fair use myths in the context of social media and a blog for Fashion Week 2022, exploring what copyright protects for works of fashion. Lastly, the Copyright Alliance highlighted several Black creators who are giving back to their communities through their creative works in this blog post in honor of Black History Month.
Copyright Office Activities
USCO Receives Comments on CASE Act NPRM Related to Law Student and Business Entity Participation: On December 30, 2021, the U.S. Copyright Office posted a Notice of Proposed Rulemaking (NPRM) regarding procedures governing the appearance of law student representatives and employees of business entities in proceedings before the Copyright Claims Board (CCB).On February 3, the Copyright Alliance submitted comments urging the Office to broaden, clarify, and delay various definitions and requirements to increase law school clinic participation in CCB representations and to facilitate streamlined, efficient processes for business entities representations. The Office received a total of eleven initial comments. On February 18, the Copyright Alliance (joined by 19 other organizations) submitted reply comments to the same NPRM. The comments urge the Office to reject the proposal to require that business entities hire attorneys as representatives as well as any proposal for disciplinary proceedings for representatives engaging in improper conduct before the CCB. The Office received a total of six reply comments.
USCO Receives Comments on CASE Act NPRM Relating to CCB Proceedings and Evidence: On December 8, 2021, the U.S. Copyright Office posted a Notice of Proposed Rulemaking (NPRM) regarding procedures governing active proceedings before the Copyright Claims Board and post-determination procedures. On February 7, the Copyright Alliance (joined by 19 other organizations) submitted comments, urging the Office to reconsider the rules to reduce the complexity of the proposed regulations, finesse the rules on the annual limitations of cases, reduce the complexity of the smaller claims process, rescind the current rule on default determinations, and limit the scope of discovery to reduce complexity. The Office received a total of thirteen initial comments. On February 23, the Copyright Alliance (joined by 18 other organizations) submitted reply comments to the same NPRM. Among other points, the comments urged the Office to reduce the complexity of the proposed regulations, qualify any rules on the annual limitations of cases, rescind the current rule on default determinations, and reject proposals to undermine recoverable statutory damages by a CCB claimant. The Office received a total of three reply comments.
USCO Receives Statements of Interest and Hosts Plenary Session on STM Consultations: On December 22, 2021, the U.S. Copyright Office posted a notice of inquiry seeking public input on a variety of questions in relation to its future consultations on Standard Technical Measures (STMs) to identify or protect copyrighted works online. On February 8, the Copyright Alliance submitted a statement of interest, identifying several current technical measures used to identify or protect copyrighted works, the prevalence and use of such measures, the desirability of any standard technical measures, and the need to consider the variety of creators and OSPs when adopting any standard measures. The Office received almost 6,000 comments. On February 22, the Office held a plenary session for the Standard Technical Consultations. Kevin Madigan, Vice President and Copyright Counsel of the Copyright Alliance, participated in the Office’s plenary session for the STM Consultations.
LOC Hosts USCO Public Modernization Meeting: On February 23, the Library of Congress hosted its second bi-annual meeting of the Copyright Public Modernization Committee (CPMC). Copyright Alliance CEO Keith Kupferschmid participated in the meeting as a member of the CPMC. The meeting featured demos of three components of the Enterprise Copyright Systems (ECS): the recordation, historical records, and public records systems. The LOC announced that the ECS recordation pilot program will be made available to the public in the coming months, and that the online public records pilot is now publicly available. Members of the CPMC talked about ensuring cybersecurity in cloud functions, enabling a feature for machine readable searches in the records systems, and convening the CPMC more often to discuss and track the developments over the Copyright Office’s electronic systems.
USCO Denies Registration Application for AI Authored Work: On February 14, the U.S. Copyright Office Review Board affirmed a denial of registration for a two-dimensional artwork “authored” by an algorithm called the “Creativity Machine.” The registration was filed by an individual, Steven Thaler, for a work called “A Recent Entrance to Paradise,” which he was seeking to register as a “work for hire to the owner of the Creativity Machine.” The Office maintained that Thaler failed to show requisite human authorship in the work and that the work could not qualify as a work-made-for-hire.
USCO Launches First Digitized Historical Record Books: On February 7, the U.S. Copyright Office announced the first release of its digitized Copyright Historical Record Books Collection, which is comprised of digitized versions of historical record books. The collection will eventually include images of copyright related records, such as registration applications bound in books dating from 1870 to 1977. The first release features images from record books dating from 1969 to 1977. Register of Copyrights Shira Perlmutter stated that, “Today’s release of the first batch of our digitized historical record books will ensure that these records are preserved for future research and that anyone can access them from anywhere.”
Congressional Copyright Related Activities
HJC Holds AMFA Hearing: On February 2, the House Judiciary Committee (HJC) held a hearing titled Respecting Artists with the American Music Fairness Act. The focus of the hearing was the American Music Fairness Act, also known as the AMFA, a bipartisan bill introduced by Representatives Ted Dutch (D-FL) and Darrell Issa (R-CA), which would provide a terrestrial public performance right for sound recordings. The following witnesses participated in the hearing: Gloria Estefan, Singer, Songwriter, Musician, and Recording Artist; Barry Massarsky, Partner and Co-Leader, Music Economics and Valuation Services Practice, Citrin Cooperman Advisors LLC; Lawrence “Boo” Mitchell, Engineer, Producer, Musician, and Owner of Royal Studios; Curtis LeGeyt, President and CEO of the National Association of Broadcasters (NAB); and Dave Pomeroy, Bassist, Writer, Producer, and President of the Nashville Musicians Association. In his opening statement, Chairman Jerry Nadler (D-NY) voiced his support for AMFA. He highlighted the inequity of broadcasters not paying artists performance royalties for their work and mentioned the amount of international royalties that artists in the United States are unable to claim due to the lack of a reciprocal royalty (nearly $200 million annually). More information and a video of the hearing is available on the HJC’s website. Prior the hearing, the Copyright Alliance sent a letter to Chairman Jerry Nadler (D-NY) and Ranking Member Jim Jordan (R-OH) supporting the AMFA, stating that “copyright law should recognize an effective public performance right for sound recordings.”
SJC Antitrust Subcommittee Holds JCPA Hearing: On February 2, the Senate Judiciary Committee (SJC), Antitrust Subcommittee held a hearing titled Breaking the News—Journalism, Competition, and the Effects of Market Power on a Free Press. The hearing featured testimonies from Jennifer Bertetto, President and CEO, Trib Total Media, Inc.; Joel Oxley, General Manager, WTOP News; Dan Gainor, Vice President, Free Speech America and Business for the Media Research Center; Daniel Francis, Lecturer, Harvard Law School; and Hal Singer, Managing Director, Econ One Research. In her opening statement, Chairwoman Amy Klobuchar (D-MN) explained that the purpose of the hearing was to talk about the critical work that news outlets are doing and explore solutions to the existential challenges journalists are facing. She pointed to her legislation, the bipartisan Journalism Competition and Preservation Act (JCPA), which would allow small news outlets to band together to negotiate with large online platforms such as Google and Facebook. More information and a video of the hearing is available on the Subcommittee’s website. Prior to the hearing, the Copyright Alliance sent a letter to Chairwoman Amy Klobuchar (D-MI) and Ranking Member Mike Lee (R-UT) generally supporting the JCPA in its current form, and highlighting that “[e]nacting legislation like the JCPA would represent a crucial step toward…bolstering press publishers’ abilities to continue to generate and disseminate news content for the American public.”
Pro Codes Act Introduced in the House: On February 18, Representatives Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the Pro Codes Act, H.R. 6769. The Act clarifies that model codes and standards do not lose copyright protection by virtue of having been adopted or incorporated by reference into law or regulation, provided that the codes/standards are available for free viewing on a publicly accessible website. If passed, the bill would allow citizens to access the law is without having to pay for it, while still preserving the efficient and effective system used by standards development organizations to create model codes and the copyright protection for those model codes.
Right-to-Repair Bills Introduced in House and Senate: Three so-called right-to-repair bills were introduced in Congress in February. These include:
- On February 1, Senator Jon Tester (D-MT) introduced the Agriculture Right to Repair Act, which obligates manufacturers of agricultural equipment to provide repair documentation, parts, software, and tools on fair and reasonable terms to owners or independent repair providers of agricultural equipment. In relation to copyright law, the bill would override section 1201(a) by permitting circumvention of a technological measure for the purposes of diagnosing, repairing, enabling interoperability with other devices, conducting security research, and enabling “non-infringing modification.” The bill also states that if a manufacturer stops offering the repair tools, documentation, and software, as mandated under the Act, the underlying copyright and patents would be “placed in the public domain.”
- On February 2, Representatives Mondaire Jones (D-NY) and Victoria Spartz (R-IN) introduced the Freedom to Repair Act, which would override Section 1201 of the Copyright Act by permitting the “diagnosis, maintenance, or repair of a digital electronic equipment, to circumvent a technological measure that effectively controls access to a [copyrighted] work,” except in the cases of medical devices.
- On February 3, Representative Bobby L. Rush (D-IL) introduced the Right to Equitable and Professional Auto Industry Repair Act (REPAIR ACT), H.R. 6570, which would prohibit automobile manufacturers from employing technological barriers that impair vehicle owners or repair shops from accessing vehicle-generated data or repairing/maintaining vehicles. The bill does not stop a manufacturer from employing certain cryptographic or technological protection over vehicle data related to critical vehicle systems and safety. Further, the bill does not expressly mention or override Section 1201 of the Copyright Act.
Copyright in the Courts
SCOTUS Rules That a Mistake of Law or Fact Will not Invalidate a Copyright Registration in Unicolors v. H&M: On February 24, the U.S. Supreme Court issued a landmark opinion in the case of Unicolors v. H&M, ruling in favor of Unicolors. Justice Stephen Breyer delivered the 6-3 decision, with Justice Thomas penning the dissent that Justice Alito joined and Justice Gorsuch joined in part. Relying on case law, the plain meaning of “knowledge,” and other parts of the Copyright Act, the Court held that section 411(b) of the Copyright Act does not distinguish between a mistake of law or fact, and that a lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration application under section 411(b)(1)(A). The Court also adopted an “actual knowledge” standard for determining whether a registrant could qualify for the safe harbor from registration invalidation under section 411(b)(1)(A). Additionally, the Court stated that the question of “actual knowledge” was fairly included in this case as a subsidiary question to the original question presented (whether section 411(b) requires an intent to defraud the Copyright Office) since knowledge was an element in determining fraud. The Court also held that the Ninth Circuit had addressed the “actual knowledge” inquiry because it had stated that Unicolor’s knowledge of the facts about publication of the 31 designs was enough to demonstrate Unicolor’s “knowledge” of the mistake under section 411(b)(1)(A). Justice Thomas dissented, maintaining that the Court had improvidently granted the case as the question at hand was: (1) different from the original question presented of whether 411(b) includes an “intent to defraud” requirement; and (2) the issue of “actual knowledge” was not the subject of any Circuit split, not entertained by the Ninth Circuit, and was not sufficiently related to the original question presented.
MD District Court Grants a Preliminary Injunction for Publishers on Maryland’s Compulsory State eBook Licensing Law: On February 7, the federal District Court in the District of Maryland held a preliminary injunction hearing regarding the Association of American Publishers’ (AAP) motion filed for relief against the state of Maryland over its compulsory eBook licensing law. Less than 10 days later (on February 16), the District Court for the District of Maryland granted a preliminary injunction for AAP. In granting the preliminary injunction, the court noted that AAP “clearly satisfied” all four factors of the preliminary injunction test. In its ruling, the court explicitly recognized that a “forced transaction” between publishers and libraries would effectively strip publishers of their exclusive right under the Copyright Act to decide whether, when, and to whom to distribute their copyrighted works. The court ruling also made clear that forcing publishers to offer licenses for electronic literary products on terms that would enable public libraries to provide users with access to the electronic literary product will not necessarily increase access to those products for library users over time, and that it is only through the protection of copyright law that books and other creative works may be generated and distributed at all. AAP’s President and CEO Maria Pallante stated, “We are extremely pleased with the court’s swift opinion and strong analysis in granting a preliminary injunction today. As the court concluded, this outcome is very much in the public interest, and it ‘is only through the protection of copyright that books and other creative works may be generated and distributed at all.” Copyright Alliance’s CEO Keith Kupferschmid also applauded the outcome, stating, “We are thrilled to learn of the Maryland court’s decision in granting a preliminary injunction in the case involving AAP challenging the state’s unconstitutional eBook licensing mandate, and in concluding that AAP has clearly satisfied the four preliminary injunction factors. We have believed all along that the eBook legislation would be preempted and that the court would reach the right decision, as it has clearly done.”
Word Collections Sues Pandora for Infringement of Comedy Albums: On February 7, rights management company Word Collections sued Pandora in California federal court, alleging that the internet radio company failed to pay composition royalties for streaming comedy albums of various comedians including Bill Engvall, Andrew Dice Clay, Ron White, and the late Robin Williams and George Carlin. According to the complaint, Word Collections had approached Pandora in August of 2020 to strike a deal, but Pandora declined to state any official position on the matter. Word Collections is seeking a total of $41.55 million in damages.
$83 Million Award for Record Labels Against Stream Rippers Affirmed: On February 10, the District Court for the Eastern District of Virginia affirmed a magistrate judge’s $83 million award, in addition to reasonable attorney fees and costs, for record labels against YouTube ripping services, FLVTO.biz and 2conv.com. The services’ operator, a Russian national named Tofig Kurbanov, was further enjoined from circumventing technological protection measures contained in copyrighted works.
Large-Scale Infringer Sentenced to 22 Months in Prison: The District Court in the Southern District of New York sentenced British national George Bridi to 22 months of prison for his role in the large-scale criminal copyright group, known as The Sparks Group. The group purchased DVDs and Blu-Ray discs prior to retail release dates, copied the content, and disseminated it on the Internet using a network of private servers. Judge Richard Berman noted that infringement was “a big problem in the [U.S.] economy” and that it was “doubly troubling” that infringement could be conducted abroad.
Copyright in Other Countries
Rightsholders Criticize EU Digital Services Act: A group of French publishers and 53 other creative rightsholders’ organizations issued a public statement criticizing the current version of the European Union’s Digital Services Act (DSA), as the EU’s trialogue has started on the legislation. The group also urged the French government, as France has begun its six-month term in the European Council presidency, to advocate for French rightsholders in ensuring that content is adequately protected “against the giants of the Internet” and “to put an end to the ‘digital wild west.’” The Association of European Professional Football Leagues (European Football Leagues) also released a statement, criticizing the European Parliament’s approval of the Digital Services Act, stating that the Parliament “did not respond to the urgent request from live content producers and in particular sport event organizers to address the issue of digital piracy.” In particular, the European Leagues pointed out that live content providers were not only hurt by the removal of the requirement that hosting providers ‘expeditiously’ remove or block access to illegal content, which is reported to them,” but also by the addition of a new provision, article 14.3a, which would allow hosting providers to leave content up until they are able to assess the legality. The Parliament’s approval will begin trilogue negotiations with the European Council and Commission.
WTO Reschedules Ministerial Meeting to June 13: On February 23, the World Trade Organization (WTO) members agreed that the postponed 12th Ministerial Conference (MC12) will be held during the week of June 13 in Geneva. It is expected that the TRIPS waiver will be a main topic of discussion. More information is available here.
Indian Court Denies Researchers’ Motion to Intervene in Sci-hub/Libgen Case: An Indian court denied a motion by a group of three researchers to intervene in the ongoing copyright infringement suit by academic publishers Elsevier, Wiley, and the American Chemical Society against Sci-Hub and Libgen. The researchers had argued that if Sci-Hub and Libgen services were no longer freely accessible in India, this would negatively impact public interest and deny the researchers’ access to scientific papers distributed on those websites. The court held that it could not let parties like the researchers intervene in the current case because “it would be a carte blanche for persons, who claim to be beneficiaries of material [that] is alleged to be infringing in nature, to start intervening in the infringement proceedings, which would seriously impact the prosecution of the proceedings in the Court.”
Rightsholders Decry New Kenya Copyright Bill: The Kenya Publishers Association, the Kenya Film and Television Professionals Association, the International Publishers Association, and other Kenyan rightsholders criticized the National Assembly’s Bill No. 44 of 2021 as “an inexplicable step backward for Kenya’s copyright policy.” The bill, which has been read twice, has been amended to eliminate notice and takedown mechanisms and other provisions establishing Internet Service Providers’ obligations and liabilities as a “first line of defense against piracy.”
UK Court Orders UK ISPs to Block Infringing Cyberlocker Website: The High Court in the United Kingdom granted an application made by the Motion Picture Association and Sky to direct the country’s largest internet service providers to block customers from accessing a cyberlocker website called Mixdrop. The site was reportedly a major provider of pirated TV content.
UK’s IPO Publishes Strategy to Combat Piracy: On February 4, the United Kingdom’s Intellectual Property Office (IPO) published its new Intellectual Property (IP) Counter-Infringement Strategy. In the five-year strategy, the UK government outlines five key commitments, including collaborations with various police and enforcement agencies and development of antipiracy campaigns to establish how its various agencies and forces will collaborate with stakeholders as they combat IP infringement.
Spanish Government Reports Blocking 869 Pirate Domains and Subdomains: On January 31, the Spanish government announced that the country’s internet service providers (ISPs) blocked 869 domains and subdomains containing pirated content. The results were due to a voluntary agreement struck by the Coalition of Content Creators and Industries, a group of Spanish ISPs and rightsholders, to block infringing websites and to prevent users from further accessing such sites.
Japanese Manga Publishers Sue Cloudflare: Four major Japanese manga publishers sued content delivery network service provider Cloudflare in Tokyo District Court for hosting nine manga pirate websites. The publishers are asking for $4 Million USD in damages and an injunction to restrain Cloudflare from providing further services to the pirate sites.
IIPA Releases Its 2022 Special 301 Submission to the USTR: On January 31, the International Intellectual Property Alliance (IIPA) filed its 2022 Special 301 submission with the U.S. Trade Representative (USTR) in response the USTR’s request for comments for the agency’s 2022 Special 301 Review. The Review “identifies countries that deny adequate and effective protection of intellectual property (IP) rights or [that] deny fair and equitable market access to U.S. persons who rely on IP protection.” The IIPA recommended that a total of 19 countries be placed on the USTR’s Watch List.
USTR Issues 2021 Congressional Report on China’s WTO Compliance: On February 16, the U.S. Trade Representative released its 2021 Congressional Report on compliance by China to its WTO commitments. The USTR raised concerns with China’s state-led, non-market approach to economy and trade and reiterated that the country still inadequately enforced copyrights and had significant market access barriers in copyright-intensive industries.
USTR Releases Notorious Markets List: The Office of the United States Trade Representative (USTR) published its 2021 Review of Notorious Markets for Counterfeiting and Piracy. USTR identified a host of pirate domains, cyberlockers, IPTV, and other infringing web services, including The Pirate Bay, FLVTO.biz, Sci-Hub, Libgen, FMovies, and 2embed. Amazon, which had been included on the Notorious Markets list in 2020 was removed in 2021.
U.S. Chamber’s GIPC Releases International IP Index Report: On February 24, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) released its annual IP Index report titled Compete for Tomorrow, which grades countries around the globe in terms of intellectual property protections and the ability to promote innovation. This year’s index covers 55 countries including an analysis of IP protections in Ghana and Honduras. The Chamber also hosted a virtual launch event in honor of the report’s release.
What’s To Expect in March…
WIPO Webinar: Rights Data and Identifiers for Visual Artists: On March 2, at 7:00 a.m., the World Intellectual Property Organization (WIPO), will host a webinar which will focus 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.” Check out the registration page to attend the webinar.
Institute for Intellectual Property & Social Justice: 4th Annual HBCU Tech Law Summit and 19th Annual IP and Social Justice CLE Seminar: On March 3-4, the 4th Annual Historically Black Colleges and Universities (HBCUs) Tech Law Summit and 19th Annual Intellectual Property (IP) and Social Justice CLE Seminar will be held together, enabling attendees to benefit from all programs offered. The HBCU Tech Law Summit “aims to educate minority legal professionals on the issues and opportunities in the tech industry in an effort to help infuse the legal workforce with a diverse pipeline to ensure fair, transparent and accountable development of AI as a service, and other new technologies that empower everyone.” The IP and Social Justice CLE program “provides annual updates in IP law, a panel of sitting federal judges, and discussions [about] IP, diversity, and social justice concerns.” On March 4 at 2:30 p.m. ET, Copyright Alliance Vice President of Legal Policy and Copyright Counsel Terrica Carrington will be speaking on the CASE Act Implementation. Additional information is available on the registration page for the event.
USCO Deadline for Comments on Remitter Payment Options and Deposit Account Requirements: On March 7, comments are due to the U.S. Copyright Office for its notice of proposed rulemaking (NPRM), issued February 4, regarding its regulations related to remitter payments for Office services and requirements for to deposit account requirements. The Office notes that the proposed rules consolidate regulatory provisions about payment options and reflect current Office practices regarding payment methods.
USCO and WIPO Roundtables: International Copyright Education: IP and Creativity for the Youth (RICE): On March 15, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) will host its final roundtable in its “year-long virtual roundtable series on copyright education for youth enrolled in primary and secondary schools” titled The Roundtables on International Copyright Education: IP and Creativity for the Youth (RICE). The roundtables have been held on a monthly basis, with the first event occurring on June 15, 2021. The Copyright Office will post the agenda for the final session on its website as soon as it becomes available.
Deadline for Section 710 Declarants to Submit Deposits to USCO: March 31 is the last day for copyright registration applicants who filed electronic applications with declarations under section 710 of the Copyright Act to submit their deposits to the Office in order for their requests for timing adjustments to be considered. On February 3, Register of Copyrights Shira Perlmutter announced that the U.S. Copyright Office will extend the time period for applicants.
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