September 2023 Roundup of Copyright News

In September, Artificial Intelligence (AI) continued to be a hot topic in the courts and at the U.S. Copyright Office. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of September as well as a few events to look forward to in October.

Copyright Alliance Activities

Copyright Alliance Relaunches CAB with the Appointment of New Members: On September 12, the Copyright Alliance announced the relaunch of its Creators Advisory Board (CAB) with the appointment of the following board members: Yanique DaCostaJayda ImanlihenLana LoveBlake MorganJeff SedlikT.J. StilesTaura Stinson; and Maimouna Youssef. CAB is a key Copyright Alliance board consisting of creators who are leaders in the creative community with a demonstrated track record of advocating for strong copyright protections.

Copyright Alliance and Community Partners Co-Host ‘AI and Copyright’ Webinar: On September 13, the Copyright Alliance co-hosted a virtual webinar with numerous Community Partners titled Artificial Intelligence and Copyright: The Next Frontier. The event, which garnered more than 460 attendees, explored the complex relationship between copyright and artificial intelligence (AI) and the legal and ethical implications surrounding copyright ownership, licensing, fair use, and other opportunities and challenges. Policy team members Kevin Madigan and Rachel Kim were the event speakers. The webinar was designed for all creators, copyright holders, and others who are interested in AI, as it provided insights into the ever-evolving landscape of AI and copyright. The event video is now available to the public on our AI and Copyright webpage.

Copyright Alliance Blogs: We published several new blogs during the month of September:

  • Copyright Alliance CEO, Keith Kupferschmid, wrote a blog post in support of independent musicians in light of the re-introduction of the Protecting Working Musicians Act.
  • We highlighted in this blog post NBA players’ creative careers on top of their already impressive athletic backgrounds.

CCB Status Update: At the end of September 2023, 600 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 235 are “smaller claims.” In at least 186 of all cases, the claimant is using legal counsel. At least 545 of the cases involve infringement claims, 100 involve Section 512(f) misrepresentation claims, and 18 involve claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (270 cases); Literary Works (90); Motion Picture and Audiovisual Works (113); Sound Recordings (68); Musical Works (37); and some cases include claims for multiple works. Eighty-four foreign residents have filed claims. Of all the cases filed, 434 have been dismissed for the following reasons: Due to Respondent’s Opt Out (55); Due to Failure to Amend Noncompliant Claim (217); Registration Issues (10); Due to Failure to Provide Proof of Service of Process (83); Claimant Withdrawal and Dismissal of Claims (41); Bad Faith Claimant (5); and Settlement (23). There are 43 active proceedings and eight final determinations.

USCO Rejects Registration of AI-Assisted Work: On September 5, the U.S. Copyright Office rejected a second request made by artist, Jason M. Allen for reconsideration for refusal to register a two-dimensional artwork titled Théâtre D’opéra Spatia, because the work contained more than a de minimis amount of AI-generated work which Allen refused to disclaim on the registration application. Specifically, the Office rejected Allen’s three claims to human authorship, stating: (1) the image, as generated by Midjourney, lacked human authorship because Allen’s sole contribution was to input text prompts into Midjourney; (2) the Office could not decide whether Allen contributed any human authorship to the image via adjustments made to the image via Adobe products because there was a lack of information; and (3) the use of Gigapixel AI to scale the image did not introduce new, original elements into the image and that these acts did not amount to authorship.

USCO Issues Rule on Fees for Late Royalty Payments Under the MMA: On September 5, the U.S. Copyright Office adopted the interpretive rule regarding fees for late royalty payments under the Music Modernization Act’s (MMA) statutory mechanical blanket license. In its interpretive rule, the Office declined to issue any regulations, instead finding that the statute is unambiguous as to “(i) due date provisions, (ii) direction to the Office to adopt regulations governing adjustments, and (iii) delegation of authority to the CRJs to promulgate late fee provisions.” Specifically, the Office concluded that “the plain and natural meaning of the statute is that ‘all royalties’ for a given monthly reporting period are ‘due’ no later than 45 days after the end of the monthly reporting period. Thus, any royalties received by the MLC for such reporting period after this ‘due date for payment’ are late.” The Copyright Alliance submitted comments on this issue back in May 2023.

USCO Issues NPRM Regarding Access to Electronic Deposits: On September 1, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) that would update its regulations governing access to electronic deposits of published works submitted to the Office that have been selected for addition to the collection of the Library of Congress by expanding the categories of eligible electronic deposits to all published copyrighted works.

USCO Extends Deadline for Submitting Comments for AI Study: On September 21, the U.S. Copyright Office published a notice in the Federal Register that extends the deadlines for the submission of comments for its ongoing Artificial Intelligence study. Written comments are now due October 30 and reply comments are due November 29. 

USCO Solicits Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: On September 26, the U.S. Copyright Office published a supplemental notice of proposed rulemaking (SNPRM) to further clarify policies and procedures surrounding royalty distribution and dispute resolution practices for royalties administered by the Mechanical Licensing Collective (MLC). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC. Comments are due October 26 and reply comments are due November 13. 

Biden Administration Activities

NAIAC Holds Briefing on AI and Copyright Law Issues: On September 29, the National Artificial Intelligence Advisory Committee (NAIAC) held a two-part briefing on various AI issues, including on AI and copyright law issues featuring a presentation by Aaron Cooper (BSA | The Software Alliance), Keith Kupferschmid (CEO, Copyright Alliance), and Catherine Stihler (Creative Commons). The presenters discussed infringement and fair use issues related to the ingestion of copyrighted works for AI training and the applicability of various cases, including the U.S. Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith on those issues. A recording will be made available on the NAIAC website.

HJC IP Subcommittee Holds USCO Oversight Hearing: On September 27, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Oversight of the U.S. Copyright Office, examining the U.S. Copyright Office’s operations and the status of programs and reforms enacted in previous Congresses. Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter, was the sole witness. During the hearing, Register Perlmutter stated that the Office hopes to have a report on its current notice of inquiry (NOI) on artificial intelligence (AI) published in the first half of 2024 and that registration processing times are at a historic low of 2.1 months on average and just over one month for fully electronic claims.

House Administration Committee Holds USCO Modernization Roundtable: On September 26, the House Administration Committee held a public roundtable to discuss the U.S. Copyright Office’s processes and policies, the current advancements in copyright modernization, and avenues for further improvement. The roundtable was hosted by Chairman Representative Bryan Steil (R-WI) and Ranking Member Representative Joe Morelle (D-NY) who posed questions to members of the Copyright Public Modernization Committee (CPMC), which included Copyright Alliance CEO, Keith Kupferschmid. Topics discussed during the roundtable included the positives of the CPMC, transformations in the digital landscape, copyright accessibility, the need for industry-specific measures, the need for increased funding for the U.S. Copyright Office and the Library of Congress, the low percentage of creators who register their works, and the recent Valancourt v. Garland decision.

SJC Moves Forward on Deborah Robinson IPEC Nomination: On September 28, the Senate Judiciary Committee (SJC) moved forward on Deborah Robinson becoming the next Intellectual Property Enforcement Coordinator (IPEC) with a vote of 13-8. The Copyright Alliance initiated a statement by CEO Keith Kupferschmid noting full support of Deborah Robinson as the next IPEC and thanking the SJC for its support.

SJC Holds Hearing on AI Oversight: On September 12, the Senate Judiciary Committee (SJC) Subcommittee on Privacy, Technology, and the Law held a hearing titled, Oversight of A.I.: Legislating on Artificial Intelligence. Witnesses included Woodrow Hartzog, Professor of Law, Boston University School of Law; William Dally, Chief Scientist and Senior Vice President of Research, NVIDIA Corporation; and Brad Smith, Vice Chair and President of Microsoft Corporation. Overall, the hearing was bipartisan and led to deep discussions on how AI regulation should be looked at going forward. During her second round of questions Senator Klobuchar asked about NVIDIA’s partnership with Getty Images. Mr. Dally replied by saying, “We believe in respecting people’s intellectual property rights. We did not want to infringe on the rights of the photographers that took the images that our models had been trained on. We did not just scrap a bunch of images off the web to train our model, we partnered with Getty. When people use our model, Picasso, to generate images, [those] who provided the original content get renumerated. We see this as a way of going forward in general where people who are providing the IP for the training of these models should benefit from the use of them and that IP.” A recording of the hearing is now available to the public.

Senate Commerce Holds Hearing on AI: On September 12, the Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety & Data Security held a hearing titled The Need for Transparency in Artificial Intelligence. Witnesses included Victoria Espinel, CEO, BSA, The Software Alliance; Dr. Ramayya Krishnan, Dean of the Heinz College of Information Systems and Public Policy, Carnegie Mellon University; Sam Gregory, Executive Director of WITNESS; and Rob Strayer, Executive Vice President for Policy, Information Technology Industry Council. Senator Hickenlooper (D-CO) asked about existing rights for consumers to maintain ownership of their creations and any additional rights they might have. In response, Dr. Krishnan highlighted concerns regarding the use of data and content by AI models, particularly when it comes to compensating creators. He emphasized the importance of copyright protection and suggested that creators should have the right to seek advertising opportunities related to their content used by AI models. A recording of the hearing is now available to the public. 

Senator Schumer Holds Inaugural AI Roundtable: On September 13, Senator Chuck Schumer (D-NY) held an AI roundtable during which lawmakers, technology company CEOs—including Elon Musk, Bill Gates, Sundar Pichai, and Mark Zuckerberg—and leaders of entertainment, labor and civil rights groups— including Charlie Rivkin of the Motion Picture Association (MPA)—discussed issues surrounding AI technologies. Participants agreed that government regulation of AI was necessary. When discussing the potential threat of AI for job displacement, Meredith Stiehm of the Writers Guild of America West described the views of its members on strike seeking a new contract with Hollywood studios in part to address those fears.

PWMA Re-Introduced in House: On September 19, Representative Deborah Ross (R-NC) re-introduced the Protecting Working Musicians Act (PWMA) (H.R. 5576), which would allow independent performers and labels to negotiate collectively with music streaming services. The bill was originally introduced in October 2021 by former Representative Ted Deutch (D-FL). A new addition to the bill would extend the antitrust exemption for the purpose of negotiating generative AI licenses.

Internet Archive Files Appeal of Its Loss in Lawsuit With Publishers: On September 11, the Internet Archive filed an appeal to the Court of Appeals for the Second Circuit from the August 11, 2023 judgment and permanent injunction against it for its widespread copyright infringement from scanning and digital lending of books owned by a group of publishers. According to reports, the Association of American Publishers responded, stating that it plans to “vigorously litigate the appeal of this case.” 

Authors File Class Action AI Lawsuits Against Meta and OpenAI: On September 8, a group of authors, including Michael Chabon, filed a class action lawsuit against OpenAI in the district court for the Northern District of California, alleging that the company used the authors’ books in training ChatGPT. The complaint alleges that when prompted, ChatGPT provides extremely detailed summaries, examples, and descriptions of the authors’ works, and that the authors’ writing styles can be accurately imitated. The plaintiffs are suing for copyright infringement and removal of copyright management information, as well as state-related claims including unfair competition and negligence. On September 12, the same group of plaintiffs filed a similar lawsuit against Meta.

Court Holds that Noncommercial Dissemination of Standards Incorporated into Law is Fair Use: On September 12, the U.S. Court of Appeals for the District of Columbia issued an opinion in American Society for Testing and Materials (ASTM) v. Public.Resource.Org (PRO), finding the defendant’s noncommercial dissemination of safety standards, as incorporated by reference into law, constitutes fair use and thus cannot support liability for copyright infringement. The court held that the first three factors “strongly support” a holding that PRO’s posting of the standards qualifies as fair use, and that the posting of “what the law is, not what industry groups may regard as current best practices,” is a transformative purpose. The court did not find that the standards are not copyrightable (or that they lose copyright protection when they are incorporated by reference), but that the standards fall “at best, at the outer edge of copyright’s protective purposes.” On the fourth factor, the court found that “plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards” and that PRO’s dissemination serves a public benefit. Notwithstanding this analysis, the court found that the fourth factor “does not significantly tip the balance one way or the other.” Ultimately, the decision says that the district court reasonably exercised its discretion in declining to award injunctive relief. The Copyright Alliance had submitted an amicus brief in support of ASTM.

Authors Guild and Group of Authors Sue OpenAI: On September 19, Authors Guild and a group of authors—including David Baldacci, Mary Bly, John Grisham, George R.R. Martin, Jodi Picoult, and Roxana Robinson—filed a class action lawsuit against OpenAI in the district court for the Southern District of New York, alleging copyright infringement claims over the mass ingestion of literary works to train ChatGPT and for infringing outputs generated by the AI machine. The complaint cites examples of ChatGPT being prompted to generate detailed outlines of possible sequels to the plaintiffs’ works and accurate and detailed summaries of such works, including specific chapters of books.

Book Publishers Sue Libgen: On September 14, a group of publishers including Cengage, Macmillan, and Pearson filed a lawsuit against the operators of the shadow library, known as Library Genesis (“Libgen”), in the district court for the Southern District of New York. The plaintiffs allege the Libgen operators are liable for pirating and illegally distributing 200 of the plaintiffs’ textbooks in about 20,000 files to Libgen users for free. 

EU IPO Releases Report on Online Copyright Piracy: The European Union’s Intellectual Property Office (EU IPO) released a report titled Online Copyright Infringement in the European Union: Films, Music, Publications, Software, and TV (2007-2022). The EU IPO reported that the downward trends in piracy of film, music, and TV content were increasing again due to the rise in piracy of TV content and publications. The report noted that 58% of piracy occurs via streaming and 32% via downloads.

Indian Court Grants Dynamic Site Blocking Order for Future Content: On September 9, the High Court of Delhi in New Delhi granted a dynamic website blocking order for a group of movie and television studios against notorious illicit pirate websites and their mirror websites to protect the plaintiff-studios’ copyrighted works “as soon as they are created.”

UK Council of Music Makers Call for Streaming Royalties Reform: The Council of Music Makers, comprised of the Ivors Academy, the Featured Artists Coalition, the Musicians’ Union, the Music Producers Guild and the Music Managers Forum, unveiled a five-point plan for music streaming royalties reform for musicians and songwriters and called on record labels, music publishers, and digital platforms to work with the UK government, including the UK Intellectual Property Office, to deliver such changes.

Look Forward To And Save the Date For…

USPTO Webinar on IP Basics and Helpful Resources: On October 5 from 12:00 p.m. to 1:30 p.m. ET, the United States Patent and Trademark Office (USPTO) is hosting a free informational webinar on intellectual property (IP) for aspiring entrepreneurs, innovators, and students. The webinar will cover different types of IP, why protecting IP is important, and available local resources and assistance. Pending availability, participants may meet with members of the Office staff following the session.

First Sale: The Role of IP Rights in Markets: On October 12 and October 13, the Center for the Intellectual Property x Intellectual Property (C-IP2) at George Mason University Antonin Scalia Law School is hosting its Annual Fall Conference, titled First Sale: The Role of IP Rights in Markets. The event is designed to bring together academics, policymakers, innovators, and creators to discuss key issues in the IP system, namely those surrounding tech, IP, and the arts.

Deadline to Submit Reply Comments to USCO on NPRM on Expanded Access to Electronic Deposits of Copyrighted Works: Reply comments are due October 16 in response to the U.S. Copyright Office’s notice of proposed rulemaking (NPRM). The proposed rule expands the categories of eligible electronic deposits covered by the Office’s current regulation with the same limitations on access as are currently in place. The proposed changes are part of ongoing steps by the Library of Congress and the Copyright Office to encourage submission of works in electronic form and therefore reduce the need for copyright owners to deposit physical copies. 

AIPLA Annual Meeting: October 19 through October 21, the 2023 American Intellectual Property Law Association (AIPLA) Annual Meeting will take place at the Gaylord National Resort and Convention Center. The meeting will encompass more than 1,000 intellectual property practitioners who will attend networking events, committee meetings, receptions, and more. A wide range of IP-related topics will be covered, including the ethical implications of artificial intelligence (AI) in research and development, trademarks and the First Amendment, patent licensing, transformative fair use following the recent Warhol v. Goldsmith decision, and numerous copyright-related discussions.

Deadline to Submit Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: Comments are due on October 26 in response to the U.S. Copyright Office’s supplemental notice of proposed rulemaking (SNPRM). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC.

Deadline for Submitting Comments to USCO for AI Study: Written comments are due October 30 in response to the U.S. Copyright Office’s notice of inquiry of various questions related to artificial intelligence and copyright to inform the Office’s ongoing study of AI issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. 

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