Starting this month and throughout 2022 we will be summarizing the previous month’s activities and events in the world of copyright. Judging by the activities in January, 2022 is on a brisk start to becoming another eventful year in copyright law.
Here are some of the copyright related issues and activities that the Copyright Alliance, the U.S. Copyright Office, various U.S. courts, and other countries were involved in.
Copyright Alliance Activities
Comments to NIST on Artificial Intelligence Study: On January 25, the Copyright Alliance submitted comments in response to the National Institute of Standards and Technology’s (NIST) Request for Information on the current and future state of emerging technologies. The comments discuss copyright law issues that may arise in the artificial intelligence (AI) context including copyright ownership, licensing, infringement, liability, and record keeping and security. The comments also urge NIST to study these issues closely with other governmental agencies including the U.S. Copyright Office and the U.S. Patent and Trademark Office.
Diversity & Inclusion Event Video: The Copyright Alliance launched a BIPOC Creators webpage which features an event video from the web event, A Conversation on Diversity and Inclusion in Copyright which was jointly hosted by the Copyright Alliance and the U.S. Chamber of Commerce’s Global Innovation Policy Center and Equality of Opportunity Initiative. Panelists and event attendees discussed ways to promote and facilitate increased participation from underrepresented communities in copyright sector industries.
Copyright Office and Court Cases Year-In-Review Blogs: The Copyright Alliance posted two year-in-review blogs to summarize U.S. Copyright Office activities and major copyright cases from 2021. The blogs highlighted key activities and cases from a very busy year in copyright law, including the CASE Act notice of proposed rulemakings (NPRMs), the Section 1201 Triennial Rulemaking, SCOTUS’ decision in Google v. Oracle, the oral arguments heard by SCOTUS in Unicolors v. H&M, and the Second Circuit Court of Appeals’ decision in Warhol v. Goldsmith.
Changes to Instagram Embedding Feature: Alicia Calzada Wagner, Deputy General Counsel of the National Press Photographers Association, wrote an informative post about the recent changes Instagram implemented to its embedding policies and tools. Instagram users, creators, and photographers can now disable the embedding function to prevent downstream users from embedding photos uploaded to the platform. But as she points out, though the technical change is a welcomed development, best practices still dictate that it’s best to ask for a copyright owner’s permission and to license.
Copyright Office Activities
Office Names Suzanne Wilson as Its New GC and Associate Register of Copyrights: On January 5, Register of Copyrights Shira Perlmutter named Suzanne “Suzy” Wilson as the Copyright Office’s new General Counsel (GC) and Associate Register of Copyrights. In a statement regarding the announcement, Register Perlmutter stated: “I am delighted to welcome Suzy to this important role. She brings to the Copyright Office deep knowledge and expertise in copyright law, litigation, and technology and will be a valuable addition to our senior management team.” Most recently, Wilson served as the deputy general counsel for Disney and prior to that she was a partner at Arnold & Porter Kaye Scholer LLP, where her practice focused on intellectual property litigation and counseling for internet and technology clients.
Additional Comments Submitted for the Office’s Press Publishers Protections Study: The Copyright Office received a total of 17 additional comments in regards to the Office’s initial Notice of Inquiry soliciting comments for its press publishers’ protections study. The study focuses on “the current copyright protections available to publishers, the desirability and scope of potential new protections, and the interaction between potential new protections and existing laws and international obligations.” On January 5, the Copyright Alliance submitted additional comments, reinforcing the importance of press publishers. The comments highlight that various considerations must be taken into account when evaluating the scope and applicability of copyright law to news content in aggregation, and also urge the Office to implement an effective registration system for dynamic web content.
Comments Submitted for the Office’s Deferred Registration Examination Study: The Office received a total of 13 comments in response to the Office’s Notice of Inquiry, which solicited input on its study of “the merits of providing an option to defer examination of copyright registration application materials until a later request by the applicant.” On January 24, the Copyright Alliance submitted comments which detail how a deferred examination option during the registration process would encourage more registrations by reducing financial burdens on individual creators and small businesses, reduce financial and administrative burdens on the Copyright Office, and improve the Library of Congress’ collections and the public record of copyright ownership.
Office Announces 2022-2026 Five Year Strategic Plan: On January 20, the Copyright Office released its 2022–2026 Strategic Plan, titled Fostering Creativity and Enriching Culture, which outlines its 2022-2026 goals with a focus on “expanding the Office’s outreach, improving integration of data and technology, and continuing to provide expertise to the copyright community as a whole.” According to the Office, the strategic plan includes four broad stroke goals: “Copyright for All, Continuous Development, Impartial Expertise, and Enhanced Use of Data.” In a statement, Register of Copyrights Shira Perlmutter noted that, “The Office is adapting and responding to new demands, needs, and expectations…This strategic plan builds on our strong foundations, and charts a course for future initiatives.” Additional information and previous strategic plans are available on the Office’s website.
Judge David R. Strickler Reappointed to Copyright Royalty Board: On January 19, Librarian of Congress Dr. Carla Hayden reappointed Judge David R. Strickler as Copyright Royalty Judge (economics) for a six-year term. Judge Strickler has been serving in this position since May 2013. He was initially appointed by then-Librarian James H. Billington and reappointed to the position by Dr. Hayden in 2016.
Congressional Copyright Related Activities
House Small Business Committee Holds Hearing on the Creative Economy: On January 19, the House Small Business Committee held a hearing titled The Power, Peril, and Promise of the Creative Economy. The hearing featured testimony from the following witnesses: Carson Elrod, Co-Founder of #BeAnArtsHero and Arts Workers United; Nataki Garrett, Artistic Director of the Oregon Shakespeare Festival; Sandra Karas, Secretary-Treasurer of the Actors’ Equity Association; and Raeanne Presley, Co-Owner of Presley’s Theater and former Mayor of Branson, MO. The hearing focused on lawmakers evaluating the impact of the COVID-19 pandemic on the arts sector and creative economy. Witnesses provided recommendations on investments for key infrastructure and spoke about the impact of the pandemic on their small businesses and the performing arts. Legislation mentioned included The Shuttered Venue Operators Grant Program (SVOG), The Performing Arts Tax Parity Act, The HITS Act, The Arts Education for All Act, The Creative Economy and Revitalization Act, and The 21st Century Federal Writers Project.
Kathi Vidal’s USPTO Nomination Reported Favorably by SJC: On January 13, the Senate Judiciary Committee (SJC) favorably reported Kathi Vidal’s nomination to become Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office by a 17-5 vote, sending her nomination to the full Senate for consideration. Senators John Kennedy (R-LA), Mike Lee (R-UT), Ted Cruz (R-TX), Josh Hawley (R-MO), and Ossoff (D-GA) voted “no.” During his opening statement, Ranking Member Chuck Grassley (R-IA) said that he was confident that Vidal understands and will work to address the challenges facing the U.S. patent process, as well address the concerns about how these challenges impact small inventors. Chairman Dick Durbin (D-IL) said that Vidal has a deep understanding of the Office and would be an asset to its management. IP Subcommittee Chairman Leahy (D-VT) and Ranking Member Thom Tillis (R-NC) also voiced their support for her nomination. It is expected that the full Senate will vote soon on Vidal’s nomination.
Copyright in the Courts
State of Maryland Files Unpersuasive Response to Publishers’ Lawsuit: On January 14, the state of Maryland filed its weak reply to the lawsuit brought by the Association of American Publishers, in which the publishers are defending their copyrights from the State’s overreaching and unconstitutional law. As discussed in our blog post earlier last week, Maryland enacted a law in 2021 which forces publishers to license electronic formats of literary works to libraries under the vague definition of “reasonable terms.” AAP CEO Maria Pallante responded: “The Maryland Attorney General’s arguments are unresponsive and unpersuasive as to the legal problems presented in our lawsuit. By interfering with the exclusive rights that are the basis of copyright transactions in online markets, including library markets, the Maryland Act creates confusion in a vibrant digital economy, undermines publishing contracts, and preposterously threatens copyright owners with penalties for following the uniform authority of the U.S. Copyright Act…AAP will continue to pursue this case forcefully in federal court because a uniform and effective Copyright Act is essential to sustaining a vibrant and independent publishing industry in the United States.”
Movie Studios Granted Preliminary Injunction Against Primewire: The U.S. District Court in the Central District of California granted a preliminary injunction for Paramount, Universal, Warner Bros., Columbia Pictures, Disney, and Netflix against the notorious pirate website, PrimeWire. The companies filed suit against Primewire in early December 2021, alleging that the site operators engaged in intentional inducement of copyright infringement and contributory copyright infringement. Applauding the decision, MPA’s Senior Executive Vice President and General Counsel, Karyn Temple, stated: “The Motion Picture Association applauds the court’s decision to enter a preliminary injunction against the operators of PrimeWire, a notorious foreign online piracy operation that operates anonymously with blatant and repeated disregard for the law. Filing civil actions against piracy operators is one of the many ways the MPA is actively engaged in protecting the legitimate market for creative content around the world.” Since then, Primewire created a new website dedicated to informing and updating users on where they can continue to find the service if Primewire’s main domain names are blocked and no longer available.
Court Awards $7.8 Million to Authors and Publishers in eBook Piracy Case: On December 30, 2021, “the U.S. Court for the Western District of Washington awarded $7.8 million in statutory damages to 12 Authors Guild members, Amazon Publishing, and Penguin Random House for 52 acts of copyright infringement in a default judgment against Kiss Library, permanently shutting down the Ukraine-based ebook piracy ring.” According to Authors Guild CEO Mary Rasenberger, “We could not be happier with the decision…Authors rarely have the necessary resources to fight commercial-scale piracy and take on protracted litigation, so we are extremely grateful to Amazon Publishing and Penguin Random House for their collaboration on this action.”
Federal Circuit Court Hears Oral Argument in SAS v. WPL: On January 13, the Federal Circuit Court heard oral arguments in the case of SAS Institute, Inc. v. World Programming, in which SAS argued that World Programming infringed SAS’s analytics software, including certain selections and arrangements of outputs generated from the software code. The three-judge panel questioned the parties on topics including issues with SAS’s expert witness testimony, the presumption of validity and burden of proof for a registered work, and the proper standard of review on questions of copyrightability. The Copyright Alliance filed an amicus brief in support of SAS, emphasizing that under the Copyright Act a plaintiff-author who holds a registered copyright for a work should not have to prove in court that their work contains protectable elements, but rather that this burden shifts to the defendant-infringer who should challenge whether those elements in the registered work were protectable or not.
FBI Arrests Pirate Who Leaked Pre-Release Books: In an indictment that was unsealed on January 5, the FBI revealed that it had arrested an Italian citizen named Filippo Bernardini for running a five-year scheme in which he impersonated publishers and literary agents in order to obtain hundreds of unpublished manuscripts and other pre-release versions of literary works. Bernardini, who previously worked for Simon & Schuster, faces a maximum sentence of 20 years in prison for a wire fraud charge and a possible mandatory consecutive sentence of two years in prison for aggravated identity theft.
Copyright in Other Countries
EU Parliament Adopts the Digital Services Act: On January 21, the European Union Parliament voted to adopt a version of the Digital Services Act (DSA), which included several copyright related provisions related to the obligations of digital service platforms in Europe. Several proposed amendments to the DSA were rejected, including an expansion of the obligation called “know your business customer” and a clarification that platforms must expeditiously remove illegal content to qualify for safe harbor protections. The Parliament’s approval will begin negotiations with the European Council and Commission, which should begin at the end of the month.
New Global Anti-Piracy Group IAPO Launching in April: Japan-based anti-piracy group Content Overseas Distribution Association (CODA) is partnering with 32 local companies, various U.S. organizations including the Motion Picture Association and Netflix, and approximately 450 companies in China, including the Copyright Society of China, to launch the International Anti-Piracy Organisation (IAPO). According to CODA Director Masaharu Ina, “Our plan is to start the new organization in or around April [of] this year and share the information on piracy sites compiled in each country and provide same to the police of the country, where the servers are located, for example.”
UK Government Releases Annual Report on Piracy Habits: The UK Intellectual Property Office (IPO) published its annual report analyzing the piracy habits of the UK population ages 12 and up. In its Executive Summary, the UK IPO reported that online consumption of content generally increased, though it decreased for some categories such as live sporting events. The report also showed that overall levels of infringement increased slightly, by 2%, from 2020, though music piracy rates decreased by 3%.
UK Maintains Rightsholders’ Exhaustion of IP Rights: The Intellectual Property Office in the United Kingdom announced that after reviewing data and comments from a consultation it launched in June 2021, it would maintain the country’s current regime regarding the exhaustion of intellectual property (IP) rights. Under this system, IP rightsholders have a limited ability to control the distribution of goods protected by such rights. The U.K. government studied this issue as a result of Brexit to see if the country’s laws would need to update or revise this right. The Chief Executive of the U.K. publishers organization, Publishers Association, stated: “We are delighted that the government has chosen to maintain the UK’s gold standard copyright regime, which our world-leading creative industries are built on, and that ministers have listened to authors, readers, and the wider industry on the risks of any change.”
Joint Effort by International Law Enforcement Agencies Results in Shuttering of VPNLabs: In a joint effort and investigation, Europol, the FBI, U.K.’s National Crime Agency, the Royal Canadian Mounted Police, and various police organizations from other countries seized the domain for VPN provider, VPNLab. Authorities had been investigating the service which facilitated illicit activities including malware distribution and ransomware campaigning.
Look Forward To…
House Judiciary Committee to Hold Hearing on the American Music Fairness Act: On February 2 at 10 a.m. ET, the House Judiciary Committee will hold a hearing titled Respecting Artists with the American Music Fairness Act to discuss the American Music Fairness Act (AMFA), H.R. 4130, a bi-partisan bill introduced by Representatives Ted Deutch and Issa on June 24, 2021, which would provide a terrestrial public performance right for sound recordings.
Senate Antitrust Subcommittee to Hold Hearings on JCPA: On February 2 at 2:30 p.m., the Senate Judiciary Committee, Subcommittee on Competition Policy, Antitrust, and Consumer Rights will hold a hearing titled Breaking the News – Journalism, Competition, and the Effects of Market Power on a Free Press. The Journalism Competition and Preservation Act, which aims to allow news publishers to collectively negotiate with digital platforms, will be the focus of the hearing.
Copyright Alliance To Host Copyright Basics Webinar with WALA: On February 15, the Copyright Alliance, the Washington Lawyers for the Arts (WALA) and the DC Commission on the Arts and Humanities will host A Copyright Basics webinar with a Q&A session. Information covered will include the definition of copyright, when copyright exists, what it covers, what an impact a copyright notice has on a creator’s works, the basics of fair use, the DMCA, and much more. Registration and more information is available at the WALA website.
MLC Webinar: Making Matches Makes You Money: On February 15, from 12:00 p.m.-1:00 p.m. EST, the Mechanical Licensing Collective (MLC) is hosting a webinar to explain how its newest resource—the Matching Tool—can increase your royalty payments. MLC CEO Kris Ahrend and Head of Customer Experience Lindsey Major will host a demo, showing you how to access the Matching Tool via the MLC Portal “to easily search for and ‘link’ unmatched sound recordings connected to your musical works” and to answer all of your questions.
SoundExchange and Music Biz Host Event Exploring the Impact of Technology on the Music Industry: Copyright Alliance member SoundExchange, in partnership with the Music Business Association (Music Biz), announced that they will host a four-part virtual event series exploring the impact of technology on the music industry. The first event of the series is titled “The Future of Live Events” and will take place on February 16 from 2 p.m. to 3 p.m. ET. The event will feature Jon Vlassopulos, global head of music at Roblox, and a performance by TikTok star Tai Verdes.
WIPO Announces 2022 WIPD Theme: The World Intellectual Property Organization (WIPO) announced the 2022 World IP Day theme (WIPD), which will be celebrated on April 26, 2022: IP and Youth: Innovating for a Better Future. According to the announcement, “Across the globe, young people are stepping up to innovation challenges, using their energy and ingenuity, their curiosity and creativity to steer a course towards a better future. [This year], we explore how these innovative, energetic and creative minds are driving positive change.” World IP Day is celebrated each year on April 26. Stay tuned for more announcements from the Copyright Alliance team on celebrating this important day!
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