July 2022 Roundup of Copyright News
Here is a quick snapshot of several copyright-related activities that occurred during the month of July and a few events to look forward to for the month of August.
Copyright Alliance Activities
Copyright Alliance Launches CCB Video Series and Other CCB Related Materials: On July 13, the Copyright Alliance launched the first Copyright Claims Board (CCB) educational video as part of the Alliance’s Copyright Academy creator video series, to help CCB claimants in better understanding the new smalls claims court. The Copyright Academy CCB video is titled Fees Associated with Bringing or Defending a Case Before the CCB. The goal of this video is to help educate users on what CCB fees are, how they work, when they are due, and more. Stay tuned for additional videos in the CCB Video Series and an expanded FAQ collection on the CCB process by checking out our CCB explained page.
Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of July.
- To help creative professionals better understand the Copyright Office’s new small claims court (the CCB), we kickstarted a CCB blog series by first highlighting in this blog post the top 15 most important things to know about the CCB including the types of claims that can be filed, why the CCB is voluntary, and the appeals process. For claimants interested in bringing a case before the CCB, we took a deeper dive in this blog post into the top 10 things to know about filing a claim with the CCB. Adding to our CCB blog series was this blog post, where we explored the CCB public database and analyzed some statistics and details of the cases and dockets to understand how the CCB is working so far.
- At the end of June, the U.S. Copyright Office released its findings from its study on ancillary rights for press publishers. Though the Office did not recommend that the U.S. adopt new ancillary rights for press publishers, we examined in this blog post how the report still exposes some major obstacles which make it challenging for press publishers to enforce the copyrights in their news content.
- This summer, the music community has been buzzing with the welcomed news of the Copyright Royalty Board’s decision to raise the royalty rates for songwriters in its Phonorecords III decision. However, the major streaming services asked the Copyright Office if they could delay these payments. We explain in this blog post, why it makes no sense to have songwriters bear the brunt of what amounts to poor planning from the streaming services.
Copyright Office Activities
CCB Status Update: As of the end of July, 85 cases were filed with the Copyright Claims Board (CCB). Seventeen of these are “smaller claims.” In at least 31 of the cases, the claimant is using legal counsel. At least 55 of the cases involve infringement claims and six involve Section 512(f) misrepresentation claims, and two involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (38 cases); Literary Works (10); Motion Picture and Audiovisual Works (16); Sound Recordings (seven); Musical Works (four); Software (one); and some cases include claims for multiple works. Seven foreign resident(s) have filed claims. No one has opted out thus far.
CRB Affirms Royalty Rate Increase Paid to Songwriters and Publishers by Streaming Services: On July 1, the Copyright Royalty Board (CRB) maintained its decision to increase the royalty rate paid to songwriters in the United States from on-demand streaming services between the years 2018 and 2022. The rate will be increased to 15.1% despite protests by streaming services such as Spotify. However, the definition of “bundled services” have been modified to an older version and the total content cost has been capped.
David P. Shaw Named New Chief Copyright Royalty Judge: On July 19, Librarian of Congress Carla Hayden announced that David P. Shaw has been selected as the new Chief Copyright Royalty Judge and head of the Copyright Royalty Board (CRB). Shaw replaces Suzanne Barnette, who served as the Interim Chief Copyright Royalty Judge since November 2021. Shaw most recently served as an administrative law judge for the International Trade Commission for more than ten years. He previously worked as an administrative law judge for the Social Security Administration and spent 23 years as an attorney-advisor for the International Trade Commission.
USCO Receives Comments for Its Best Edition Study: On July 18, the Copyright Office received 14 comments in response to the Notice of Inquiry (NOI) regarding the Office’s public study on copyright deposit and best edition requirements. The Office is initiating this study in response to a request by Senator Thom Tillis (R-NC) in a May 2021 letter to Register Shira Perlmutter. The Copyright Alliance also filed comments advocating that the Office reduce the burdens of the current “best edition” deposit requirements on copyright owners, the Library of Congress, and the Copyright Office itself by having the Library articulate which types of copyrighted works they would like best edition copies of and by permitting/expanding the options of submission of electronic copies.
USCO Publishes Amended Deposit Requirements for Registration of a Single Issue Serial Publication: On July 22, the Copyright Office published a final rule amending deposit requirements for a registration of a single issue serial publication. When the rule goes into effect, the Office will allow copyright owners to deposit just one copy of such works and provides an option for copyright owners to upload a digital copy, even if the issue was published in a physical format.
USCO and USPTO Agree to Take on Joint NFT Study: On July 8, the Copyright Office and the U.S. Patent and Trademark Office (USPTO) sent a letter to Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC), agreeing to conduct a joint study to examine various matters related to intellectual property that have arisen from the growth in the use of non-fungible tokens (NFTs). In early July, the Senators sent a letter to USPTO Director Kathi Vidal and the Register of Copyrights Shira Perlmutter, requesting the joint study. Both agencies stated that they have started to discuss next steps and how to best consult with stakeholders on the issue.
USCO Hosts Copyright Public Modernization Committee Meeting: On July 28, the Copyright Office held its public Copyright Public Modernization Committee (CPMC) Meeting. At the meeting, Register Perlmutter announced that the public will be able to access the Online Enterprise Copyright System’s (ECS) Recordation system starting August 1 and that the new public records system will go live later this summer. The Office provided a demonstration of aspects of the ECS software that will be used internally by USCO staff and also fielded questions from the public and CPMC members. The next public meeting will take place in January or February of 2023.
USCO Releases New Webpage on Registration of Non-Photographic Automated Databases: On July 28, the Copyright Office released a new webpage that provides general guidance for registering automated databases that do not primarily consist of photographs. The Office provides information and resources on what kinds of works qualify as databases and the different registration options for such works.
USCO Celebrates 40 Millionth Copyright Registration and 152nd Birthday: On July 8, the Copyright Office announced that it has reached 40 million U.S. copyright registrations, while also celebrating its 152nd birthday. According to a post by the Office, “Today, on our 152nd birthday, the U.S. Copyright Office celebrates a historic milestone: the 40 millionth copyright registration made in the United States! As we acknowledge this monumental achievement, we reflect on the importance of copyright registration and highlight some of our creative works and copyright owners that have received the benefits of registration.”
Congressional Copyright Related Activities
Senators Tillis and Hirono to Serve as New Senate Co-Chairs of the Creative Rights Caucus: On July 1, Senator Thom Tillis (R-NC) announced that he will serve as the new Senate Co-Chair of the Creative Rights Caucus alongside Senator Mazie Hirono (D-HI) in the Senate and Representatives Judy Chu (D-CA) and Drew Ferguson (R-GA) in the House. Senator Tillis stated, “I am excited to further my bipartisan work by being named Co-Chair of the Creative Rights Caucus alongside Senator Hirono. I look forward to working with her and our House Co-Chairs, Representatives Chu and Ferguson, to protect and promote America’s creative community and ensure we continue to be the world’s global leader in creative industries in the 21st century.”
Representative Tlaib to Propose Better Streaming Royalty Rates for Performers: According to reports, on July 26, Representative Rashida Tlaib (D-MI) circulated a letter to her colleagues saying she would be introducing legislation that would create a new royalty program to provide performers with reasonable remuneration on streaming music services on a per-stream basis. The letter states that the proposed program would be overseen by the Copyright Royalty Board and administered by SoundExchange.
RAP Act Introduced in House: On July 27, Representatives Hank Johnson (D-GA) and Jamaal Bowman (D-NY) introduced the Restoring Artistic Protection Act (RAP Act) of 2022, which proposes to amend the Federal Rules of Evidence by adding a presumption that would limit the admissibility of evidence of an artist’s creative or artistic expression against that artist in a criminal proceeding. Supporters of the bill include the Recording Academy, the Recording Industry Association of America (RIAA), Universal Music Group, Artists Rights Alliance, SAG-AFTRA, Black Music Action Coalition, Music Artists Coalition, Song Writers of North America, and several others.
Copyright in the Courts
AAP Members Move for Summary Judgment in Lawsuit Against IA: On July 7, member companies of the Association of American Publishers (AAP) filed a motion for summary judgment against Internet Archive (IA) in its lawsuit against IA for the mass scanning, public display, and distribution of literary works offered to the public through its Open Library and National Emergency Library businesses. AAP member companies argue that IA’s actions infringe on the companies’ copyright and that IA’s use of the books are “the very opposite of fair use.” In a statement regarding the motion, AAP CEO Maria A. Pallante said, “Outrageously, IA has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law. We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”
Ninth Circuit Holds That Copyright Owners Can Recover Damages for All Infringements: On July 14, the Court of Appeals for the Ninth Circuit held in Starz v. MGM, that the discovery rule for accrual allows copyright holders to recover damages for infringing acts that occurred before they knew or reasonably should have known of the infringements. In May 2020, Starz sued MGM after discovering that MGM had been operating in violation of the parties’ licensing agreements for Starz’s content. In July 2020, MGM moved to dismiss the case, arguing that many of Starz’s copyright infringement claims were barred by the Supreme Court’s decision in Petrella v. MGM,which MGM asserted “impose[d] a strict bar to collecting any damages for copyright infringements that occur more than three years prior to the filing of the complaint.” However, the district court denied MGM’s motion and concluded that Petrella left unaffected the discovery rule—that the three-year damages bar under § 507(b) does not applywhen the plaintiff reasonably was not aware of the infringements at the time they occurred. The Ninth Circuit Court of Appeals affirmed the district court’s ruling, noting that “it would make very little sense to bar recovery of damages beyond the three-years before a lawsuit was filed where a copyright holder did not delay, but acted in accordance with” the Copyright Act. The court also cited an amicus brief filed by the Authors Guild (AG), the American Society of Media Photographers (ASMP), the Graphic Artists Guild, and other creator organizations to note that, with technology making infringements “easier to commit, harder to detect, and tougher to litigate,” accepting MGM’s arguments would “incentivize violation of the copyright holder’s exclusive rights, not protect those rights, which is the purpose of the Copyright Act itself.”
Ninth Circuit Rules Rejects Fair Use Defense for Catalogs Containing Photographs of Picasso Works: On July 13, the Court of Appeals for the Ninth Circuit held that the fair use exception did not apply to a defendant who used plaintiff’s photographs of Pablo Picasso’s works in the defendant’s series of books about Picasso. The court held that all four fair use factors weighed against a finding of fair use, finding that the defendant’s use was commercial and not transformative under the first factor and that there was a presumption of market harm under the fourth factor since the use was commercial and non-transformative.
Ninth Circuit Finds Foreign Website Subject to U.S. Jurisdiction: On July 21, the Ninth Circuit Court of Appeals issued an opinion in Lang Van v. VNG, holding that the operators of a Vietnam-based website are subject to personal jurisdiction in the United States. Lang Van, a California corporation that produces and distributes of Vietnamese music and entertainment, sued Vietnam-based music streaming website VNG in 2014 for copyright infringement, alleging that the service offered thousands of Lang Van’s copyrighted works without authorization. In 2019, a district court in California dismissed the claims, finding that Lang Van failed to show that the foreign company had enough contacts with the state for the court to exercise jurisdiction. Reversing and remanding that dismissal, the Ninth Circuit’s opinion explains that because VNG “purposefully targeted American companies and their intellectual property” and “purposefully availed itself of the privilege of conducting business in the United States,” that jurisdiction in the U.S. is reasonable. The opinion adopts many of the points made in an amicus brief filed by the Copyright Alliance in support of Lang Van that, among other things, warns of the burdensome barriers the district court’s decision created for U.S. copyright owners who wish to enforce their copyrights against infringing foreign websites in U.S. courts.
Epidemic Music Sues Meta for Unlicensed Music: On July 20, Epidemic Sound, a company that provides licensed music for online content creators, sued Meta in the district court for the Northern District of California, alleging that Meta curates and offers Epidemic’s music without proper attribution or payment across Facebook and Instagram, allowing users to download, stream, and use those songs—including allowing users to rip licensed Epidemic music from other users’ videos via Instagram’s Original Audio and Reels Remix functions. Epidemic also alleges that Meta denied Epidemic access to Meta’s rights management tool for music content.
Record Labels Win Partial Summary Judgment on TikTok Ad Infringement: On July 11, the district court for the Southern District of Florida partially granted a motion for summary judgment for plaintiffs, a group of record labels, holding that Bang Energy, an energy drink maker, infringed the plaintiffs’ copyrights by posting TikTok advertisements containing unauthorized music. However, the court denied the plaintiffs’ motion for summary judgment on the plaintiffs’ claims that Bang Energy was secondarily liable for encouraging Bang Energy influencers to create and post TikTok videos that incorporated Bang Energy products and plaintiffs’ music, due to insufficient evidence.
Copyright in Other Countries
EU Approves Digital Services Act: On July 5, the European Union Parliament adopted both the Digital Services Act (DSA) and Digital Markets Act (DMA). The DSA lays out Internet Service Provider (ISP) obligations to manage and coordinate with users, rightsholders, and law enforcement with regards to infringing and illicit products and content, while the DMA lays out competition-based obligations for ISPs including making messaging services interoperable and providing business users access to data. Both regulations must be formally adopted by the European Council. The DSA will come into effect 15 months after its publication in the EU Official Journal or from January 1, 2024 (whichever is later) and the DMA will come into effect six months after its publication in the EU Official Journal.
EU Commissioner Confirms that EU Countries Can Introduce New Remuneration Rights for Performers: According to reports, the European Union’s Commissioner for the Internal Market, Thierry Breton, issued a statement confirming that European Union member countries can introduce new remuneration rights for performers when implementing Article 18 of the 2019 European Copyright Directive. The article states that performers who do not own or control the copyright in their sound recordings shall receive “appropriate and proportional remuneration,” but leaves the mechanisms of implementation of this language to each member country. Germany and most recently, Belgium, have added a new remuneration right for performers to their copyright laws.
UK Music Opposes UK’s New Text and Data Mining Exceptions: On July 6, UK Music, the collective voice of the UK Music industry, sent a letter to Culture Secretary Nadine Dorries opposing the UK’s plans to introduce a broad exception in the country’s intellectual property laws for text and data mining for artificial intelligence (AI) machine learning. The letter states, “These proposals…are hugely concerning to the future growth of the whole of the creative industries…Rather than adopt a more sensible targeted approach, the Government has rejected narrower legislative changes and taken a huge risk by opting for the widest possible exception on offer. By seeking a text and data mining exception ‘for any purpose,’ and without an available opt-out, the Government would be inflicting the maximum potential harm on the creative industries as a result of this policy. Our innovation has value. Our creative IP is not raw material for others to freely monetize— yet this is what these proposals open the door to.”
UK Broadband and Mobile Provider Voluntarily Blocks Access to Illicit Site for Its Mobile Networks: According to reports on July 12, UK mobile provider EE announced that it would voluntarily block mobile music piracy sites and apps. Previously, in 2012, the UK High Court granted an injunction that ordered fixed line broadband networks to block access to The Pirate Bay and 70 other websites that pirated music content. EE announced that it would extend that injunction to its own mobile networks, stating that, “Historically the majority of piracy took place on fixed line networks, but as network speeds increase and content file sizes for music decreases, mobile networks are seeing a rise in piracy. EE believes in supporting content creators by combatting piracy across both our mobile and fixed networks.”
Mexico Joins Beijing Treaty on Audiovisual Performances: On July 7, Mexico became the 47th country to join the World Intellectual Property Organization’s (WIPO) Beijing Treaty on Audiovisual Performances, which extends economic and moral rights to actors and performers in audiovisual performances such as films, videos, and television programs.
Italian Court Orders Cloudflare to Block Three Pirate Websites: According to reports, the Milan Court granted an interim injunction against DNS provider, Cloudflare, requiring the company to block three pirate torrent websites (and any future domain names the sites might use) on its public Doman Name System (DNS) resolver. Italian anti-piracy group FPM and music group FIMI argued that Cloudflare’s DNS resolver facilitated piracy by helping users access pirate sites, even when those sites did not utilize Cloudflare’s content delivery network services.
Chinese Authorities Fine Major Manga Pirate: According to reports, Chinese authorities penalized the operator of a major manga pirate website, MangaBank, with a $6,864 administrative fine for making manga works available online and profiting from those activities. A group of major Japanese manga publishers had been investigating popular manga pirate sites, and discovered that MangaBank, which had approximately 81 million monthly visits (making it Japan’s 44th most popular site), had connections in China, leading the publishers to eventually involve Japanese police authorities and the anti-piracy group, CODA, to file a petition for administrative action by the Chinese authorities.
Look Forward To And Save the Date For…
The MLC: Understanding Your Royalty Statements: On August 16 at 12:00 PM ET, the Mechanical Licensing Collective (MLC) is hosting a webinar to share information about how monthly MLC royalty payments work. The team will walk attendees through the royalty statement documents that are sent in tandem with payments. They will also cover what those documents include and how additional detailed royalty information can be accessed via The MLC Portal.
The MLC: Are You Getting All of Your Digital Mechanical Streaming Money?: Additionally, on August 30 at 12:00 PM ET, the Mechanical Licensing Collective (MLC) is hosting this webinar for self-administered songwriters who are looking for step-by-step instructions on how you can “Connect to Collect.” The event will cover how to sign up with The MLC and how to collect all U.S. digital mechanical royalties that are due.