In the month of March, the U.S. Copyright Office published several final rules related to the copyright small claims court while various U.S. courts weighed in on several closely watched copyright cases. On the Congressional side, the Senate introduced a key piece of legislation reforming the Digital Millennium Copyright Act. Here are a few important copyright-related activities that happened during the month of March and a few events to look forward to for the month of April.
Copyright Alliance Activities
Copyright Alliance to Host World IP Day Panel: On April 26 at 12 p.m. ET, the Copyright Alliance will host a World IP Day panel titled Copyright and Youth: Creating a Better Future, in keeping with the World Intellectual Property Organization’s (WIPO) 2022 theme of IP and Youth: Innovating for a Better Future. Panelists include 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) Clark, and Keith will moderate. The panel will discuss topics such as how bright, curious, and talented young minds are transformed into tomorrow’s musicians, artists, writers, actors, photographers, video game designers, and many other types of creators and innovators; how to provide real world examples and education for students to model and learn from as they become career-minded creative professionals themselves; how young creators and innovators learn about protecting their works through copyright and other forms of IP; and much more. To attend the panel, please email us at: RSVP@CopyrightAlliance.org to receive a link to the event.
Copyright Alliance Submits Amicus Brief in Evox v. Yahoo: The Copyright Alliance filed an amicus brief in support of plaintiff-appellant, Evox Productions, arguing that the Ninth Circuit should reverse a district court’s dismissal of copyright infringement claims against Yahoo! related to the unauthorized use of Evox’s digital photographs. The brief explains that the district court erred in dismissing the copyright claims, relying on an interpretation of the reproduction, distribution, and display rights that directly contradicts Ninth Circuit precedent. If left to stand, the brief warns that the district court’s decision to demand more proof at the pleadings stage than required by law would create an insurmountable burden for copyright owners and allow alleged infringers to have cases thrown out at an alarming rate. Further, the brief explains that licensing agreements—similar to the one that Evox and Yahoo! entered into prior to the infringing activity—would be rendered meaningless and the entire creative economy would suffer if the decision was left to stand.
Copyright Alliance Blogs on the SMART Act, the Supreme Court’s decision in Unicolors v. H&M, Copyright Small Claims Court Updates, Women’s History Month, and Copyright in Journalism and News Reporting: 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, a welcomed reform to the Digital Millennium Copyright Act as we discuss in this blog.
- We also updated rightsholders in this blog about the status of the U.S. Copyright Office’s rulemaking proceedings related to the copyright small claims court, including how the Office published a few new final rules.
- After the Supreme Court delivered its decision in the copyright-registration related case, Unicolors v. H&M, we discussed the decision in this blog and why the Supreme Court’s ruling is impactful for individual creators.
- Lastly, we explored the interplay between journalism and copyright laws in this blog and highlighted several incredible Women creators in this Women’s History Month blog who not only impacted their industries, but also inspired other women through their struggles and journeys as creators.
Copyright Office Activities
USCO Publishes Final Rules Related to Certain Aspects of CCB Proceedings; Decreases the Initial Filing Fee From $100 to $40: On March 8, the U.S. Copyright Office issued its partial final rule on establishing procedures for corporations, partnerships, and unincorporated associations to designate service agents to receive service of claims in Copyright Claims Board (CCB) proceedings. The rule details the requirements for designating a service agent, the process for amending such a designation, and the information that an entity can provide to include affiliated entities and multiple trade names in a single designation. The online form for the designation process will be made available later this spring.
On March 9, the Office issued its final rule on the procedures for libraries and archives to preemptively opt out of proceedings before the CCB and the procedures for a party before the CCB with respect to a class action proceeding. The rule details the preemptive opt-out procedures for libraries and archives and extends the preemptive opt-out election to the acts of library and archive employees acting within the scope of their employment. The rule on class action litigation states that a party in an active CCB proceeding who receives notice of a class action must either opt out of the class action or seek written dismissal of the CCB proceeding within 14 days of receiving the notice.
On March 25, the Office published the final rules establishing procedures governing the initial stages of a Copyright Claims Board (CCB) proceeding. The regulations provide requirements regarding filing a claim, the Board’s compliance review, service, notice of the claim, the respondent’s opt-out election, responses, and counterclaims. Importantly, the final rule creates a tiered fee system (as we recommended) that lowers the initial filing fee for a CCB proceeding to $40 and requires a second payment of $60 once a proceeding becomes active (i.e., when the respondent does not opt out). This is a welcome change from the Office’s initial suggestion in its proposed rule that the fee be set at a flat rate of $100, which would have been cost-prohibitive for individual creators.
USCO Receives Comments on Remitter Payments Options and Deposit Account Requirements: On March 7, the Office received 4 total comments in response to its Notice of Proposed Rulemaking related to remitter payments for Office services and requirements for maintaining a deposit account. The Copyright Alliance filed comments urging the Office to consider alternative forms of payment and certain notification procedures for deposit accounts that fall below the minimum balance. We also requested clarification from the Office on the automatic replenishment process for deposit accounts that fall below a threshold amount.
USCO Releases Recording of Copyright Public Modernization Committee Meeting; Next Meeting to Take Place in August: On March 21, the Office posted the full recording of the second biannual meeting of the Copyright Public Modernization Committee (CPMC), which took place virtually on February 22. The Office stated that the next biannual meeting will take place in August, and will focus on the new registration system, using a format similar to the February meeting. It noted that in future CPMC meetings, the committee will focus on the following four topics: (1) Privacy and Security; (2) APIs and Bulk Access; (3) Identifiers; and (4) Registration Functionality Demonstration.
USCO Releases Recording of Plenary Session on STM Consultations: The Office posted the full recording of the plenary session for the Office’s Standard Technical Consultations, which took place on February 22. Kevin Madigan, Vice President and Copyright Counsel of the Copyright Alliance, participated in the Office’s plenary session for the STM Consultations. The Office had previously 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. The Copyright Alliance had submitted a statement of interest ahead of the plenary session, 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 Online Service Providers when adopting any standard measures.
Congressional Copyright Related Activities
Sens. Tillis and Leahy Introduce SMART Copyright Act of 2022: On March 18, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced “the SMART (Strengthening Measures to Advance Rights Technologies) Copyright Act of 2022.” The bill adds a new section—section 514—to the Copyright Act, which establishes a triennial public rulemaking process through which the Librarian will publicly designate certain standard technical measures (or designated technical measures, known as DTMs). Following the introduction of the SMART Act the Copyright Alliance—along with numerous member organizations—released statements welcoming the bill’s introduction. In his statement, Copyright Alliance CEO, Keith Kupferschmid noted: “We want to thank Senators Tillis and Leahy for introducing the SMART Copyright Act and are grateful for their long-standing support for the copyright community and recognition of the importance of strong and effective copyright protection…It is abundantly clear that the existing provisions relating to Standard Technical Measures (STMs) in section 512 of the Copyright Act are not working…The approach taken by the bill—granting the Copyright Office authority to establish a triennial rulemaking process that would require platforms to implement technical measures to protect against piracy on their sites and impose significant consequences on those platforms that fail to comply—is a sensible approach.” You can find all of the statements on our DMCA Legislative Reform webpage.
Copyright in the Courts
Supreme Court Denies Certiorari in Copyright Takings Case: On March 22, the U.S. Supreme Court denied a petition for writ of certiorari in Jim Olive v. University of Houston. The petition followed a years-long sovereign immunity battle by photographer Jim Olive, who sought to hold the University of Houston accountable for unauthorized use of one of his iconic photographs. Olive alleged that the unauthorized publication of his photos was an unlawful taking under the Texas constitution, but in 2021 the Texas Supreme Court held that a violation of copyright is not an unconstitutional taking of property.
SCOTUS Grants Certiorari in Fair Use Case: On March 28, the U.S. Supreme Court of the United States (SCOTUS) granted a petition for writ of certiorari in Andy Warhol Foundation v. Goldsmith, where the Second Circuit Court of Appeals held that Andy Warhol’s mid-1980s silkscreen portrait series of the artist Prince, which was based on a 1981 photograph by Lynn Goldsmith, does not qualify as fair use. The question presented in the Andy Warhol Foundation’s petition is “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the Second Circuit has held).” Oral arguments will take place in the fall 2022 term (following Justice Breyer’s retirement).
New York District Court Rejects Server Test: On March 21, the District Court for the Southern District of New York rejected a defendant’s argument that as a matter of law the embedding of an Instagram post does not infringe any of a copyright owner’s exclusive rights under the Copyright Act. The case, McGucken v. Newsweek, involves a photographer who brought an infringement action against Newsweek alleging the outlet reproduced and displayed his photograph on its website without his consent. Invoking the “server test” espoused by the Ninth Circuit, Newsweek claimed that because the image remained on a third-party’s server and was not fixed in the memory of the infringer’s computer, the embedding did not qualify as a display. Rejecting this argument, the court explained that the server test has not been widely adopted outside of the Ninth Circuit and that “other courts have persuasively argued that such a test may be ‘contrary to the text and legislative history of the Copyright Act.’” The court went on to question the rationality of the server test, explaining that “[t]he Ninth Circuit’s approach, under which no display is possible unless the alleged infringer has also stored a copy of the work on the infringer’s computer, would seem to make the display right merely a subset of the reproduction right.” The court additionally held that Instagram’s terms and conditions were too ambiguous for the court to determine whether those terms granted Newsweek an express or implied license to publicly display the photograph.
District Court Denies Cox’s Motion for Relief from $1 Billion Judgment in Sony v. Cox;Cox’s Appeal to the Fourth Circuit is Pending: On March 9, a panel of judges of the Court of Appeals for the Fourth Circuit heard oral arguments in the case of Sony Music Entertainment v. Cox. After a multi-week jury trial in 2019, the jury in the District Court for the Eastern District of Virginia found Cox liable for contributory and vicarious copyright infringement and for willful infringement since the internet service provider failed to terminate the accounts of repeat infringing customers. On March 23, the District Court for the Eastern District of Virginia denied Cox’s motion for relief from the $1 billion judgment against it. Cox had also filed this motion for relief from judgment in January, arguing that there was new evidence related to the notices of the infringing activities that would have changed the outcome of the case. Though the district court acknowledged that new evidence was introduced after the trial, it found that such evidence would not have affected the case’s outcome. The Copyright Alliance filed an amicus brief in support of Sony Music Entertainment in this case.
Ninth Circuit Rules In Favor of Katy Perry in ‘Dark Horse’ Infringement Suit: On March 10, the Court of Appeals for the Ninth Circuit ruled 3-0 that Katy Perry’s hit song “Dark Horse” did not infringe rapper Marcus Gray and a group of Christian hip-hop artists’ song “Joyful Noise.” The district court judge had previously overturned the $2.8 million jury award against Perry, stating that the short, repeated musical arrangements (ostinatos) were not original enough to be protected under copyright law. The Court of Appeals affirmed, stating that, “Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.”
Copyright in Other Countries
WIPO Gathers Data and Comments on Pandemic’s Impact on the Copyright Ecosystem: The World Intellectual Property Organization (WIPO) solicited input from copyright stakeholders regarding the effects of the pandemic on the copyright ecosystem. WIPO plans to host an Information Session on this topic during its 42nd Session of the Standing Committee on Copyright and Related Rights (SCCR), taking place in Geneva from May 9-13. On March 15, the Copyright Alliance submitted comments, detailing results from our Creator COVID-19 Survey in 2020, showing that creators’ income and livelihoods were severely impacted by the pandemic. We also highlighted the copyright community’s efforts to provide free access to copyrighted content, webinars, and other resources for creative professionals and the general public during such unprecedented times.
Compromise Reached on TRIPS Waiver Draft Language; USTR and WTO Vow to Continue to Work on Compromise: The European Union, United States, India, and South Africa reached a compromise on draft language that would waive intellectual property for the COVID-19 vaccine under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement for “any developing country Members that exported less than 10 percent of world exports of COVID-19 vaccine doses in 2021.” The new language seems to be primarily patent-focused and does not explicitly include copyright.
On March 15, the Office of the U.S. Trade Representative issued a statement noting that the compromise “offers the most promising path toward achieving a concrete and meaningful outcome” but noted, “…while no agreement on text has been reached and we are in the process of consulting on the outcome.” The language will continue to be discussed and negotiated as other World Trade Organization member countries will need to approve the proposal. World Trade Organization Director-General Ngozi Okonjo-Iweala released a statement indicating that the newly proposed language regarding the TRIPs intellectual property waiver, as drafted by the European Union, India, South Africa, and the United States, was a welcome development. Though the Director-General noted that four nations are still in negotiations, she said that she would work “to bring about a full agreement as quickly as possible.”
USPTO Report Finds Industries Using IP Protection Account for More than 41% of U.S. GDP, Employ One-Third of Workforce: On March 17, the U.S. Patent and Trademark Office (USPTO) announced the results of its latest survey, which “[highlights] the economic contributions of industries that make greater use of intellectual property (IP) protection, including patents, trademarks, and copyrights, titled Intellectual Property and the U.S. Economy: Third Edition.” According to the report, “in 2019, 127 IP-intensive industries in sectors such as manufacturing; wholesale and retail trade; and professional, technical, management, and administrative services accounted for $7.8 trillion in U.S. gross domestic product (GDP) or 41% of total GDP. Direct employment in these industries accounted for 47.2 million jobs in 2019, or 33% of total U.S. employment.” The report also notes that “Indirect employment—jobs created in other industries that depend at least partially on final sales in IP-intensive industries—accounted for an additional 11% of U.S. employment,” and in total, “IP-intensive industries contributed 44% of U.S. employment.”
USTR Submits 2022 President’s Trade Policy Agenda and 2021 Annual Report to Congress: On March 1, the Office of the United States Trade Representative (USTR) delivered President Biden’s 2022 Trade Policy Agenda and 2021 Annual Report to Congress. The USTR stated that the report highlights “several notable accomplishments over the last year, including USTR’s work to promote sustainable environmental practices in trade policy, enforce existing agreements, improve the resilience of global supply chains, and combat the COVID-19 pandemic.” Ambassador Tai delivered her remarks on the 2022 Trade Policy as a key witness in House and Senate hearings in the last week of March.
EU Releases Counterfeit and Pirated Goods Report: On March 7, the European Union Intellectual Property Office (EUIPO) and Europol released a report titled Intellectual Property Crime Threat Assessment, which revealed that the distribution of counterfeit and pirated goods increased during the pandemic. In 2020, 15% of fake goods detained by EU authorities infringed copyrights—the third most reported type of intellectual property infringed.
EU Releases Artificial Intelligence Study: The European Union Intellectual Property Office (EUIPO) Observatory published a new study on “The Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs.” The report analyzes how artificial intelligence may affect copyright infringement and enforcement throughout application of different forms of AI in 20 scenarios. The report concludes by stating that “A wide range of AI-related tools and technologies are currently or potentially in use in copyright and design infringement and enforcement. There is clearly a need for better understanding, increased awareness, and enhanced capacities on the part of all stakeholders, including policymakers, IP protection entities, companies, and law enforcement authorities.”
RIAA Releases 2021 Year-End Music Industry Revenue Report: On March 9, the Recording Industry Association of America (RIAA) released its Year-End 2021 Revenue Statistics Report. According to the report, in 2021, “recorded music revenues in the United States grew 23% to $15.0 billion at estimated retail value,” and “all major formats of music grew versus the prior year with the exception of digital downloads.” The report further notes that “paid subscriptions continued to be the biggest growth driver, resulting in the sixth consecutive year of growth for music revenues,” and “at wholesale value, 2021 revenues were up 22% to $9.8 billion.”
IFPI Releases 2022 Global Music Report: On March 22, the International Federation of the Photographic Industry (IFPI) released its 2022 Global Music Report covering the financials of the music business during 2021. According to the report, the global recorded music industry increased by $4 billion in 2021, which was a larger year-to-year increase from the previous two years. In addition, streaming revenues rose by 24.3% in 2021 and recorded music revenues rose by 18.5%. According to a statement by IFPI Chief Executive Frances Moore, “Around the world, record companies are engaging at a very local level to support music cultures and bring on the development of emerging music ecosystems—championing local music and creating the opportunities for it to reach a global audience…This [approach] creates enormous opportunities for artists.”
Look Forward To And Save the Date For…
C-IP2 and Arts Management Program at George Mason University: Beyond the Notes with Maria Schneider—A Conversation about Respecting Artist Rights: On April 14 at 4 p.m. ET, Grammy Award-winning composer Maria Schneider will participate in a conversation “about her boundary-pushing musical career and arts activism,” moderated by George Mason University Antonin Scalia Law School Professor and Arts & Entertainment Advocacy Clinic Director Sandra Aistars. The event is co-hosted by Mason’s Center for Intellectual Property x Innovation Policy (C-IP²) and Arts Management Program. More information is available on the registration page.
USCO Webinar: Update on the Copyright Public Record System: On April 19 at 1 p.m. ET, the U.S. Copyright Office will host its next public modernization webinar to keep the public informed regarding its modernization efforts. The Office recently released the Copyright Public Records System (CPRS) pilot, “which will provide access to the same registration and recordation data that exists in the Copyright Public Catalog but with enhanced search capabilities and an improved interface. This webinar will describe the developments since the launch and where it is headed in the near future.” Panelists will also discuss how the public can provide feedback.” Those wishing to attend must register in advance. The Copyright Office launched its modernization webinar series on January 31, 2019.
WIPO: Overview of WIPO and Its Activities—with a Focus on World Intellectual Property Day 2022: On April 21 at 9 a.m. ET, the World Intellectual Property Organization (WIPO) will hold a webinar share an update on its recent initiatives, with a focus on providing details regarding World Intellectual Property Day 2022 efforts. More details can be found on the registration page.
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