September 2022 Roundup of Copyright News

In September, the U.S. Copyright Office released a new final rule on deposit accounts and Congress held a U.S. Copyright Office oversight hearing. Here is a quick snapshot of those and many other copyright-related activities that occurred during the month of September and a few events to look forward to for the month of October.

Copyright Alliance Activities

Copyright Alliance Launches IPDC Program in Support of BIPOC Creators: On September 27, the Copyright Alliance launched the Initiative to Promote Diversity in Copyright (IPDC program), which brings together volunteers and sponsors from across the copyright community to encourage and support the participation of Black creators, Indigenous creators, and creators of color (BIPOC creators) in the copyright system. BIPOC creators can apply to the program and, if eligible, will work with program volunteers to file their copyright registration applications with the U.S. Copyright Office at no cost to the creator. The goal is to educate program participants on the benefits of copyright registration and empower them to be able to register their own works going forward. Please help us make this program a success by sharing this information with BIPOC creators who may be interested in the program.

Copyright Alliance Launches Photographers Industry Webpage: On September 14, the Copyright Alliance launched an industry webpage geared toward photographers. The page is designed to be a one-stop destination for everything that photographers need to know about copyright law. In the future, we will also be launching other targeted webpages for fine artists, musicians, YouTube creators, and more.

Copyright Alliance Blogs: The Copyright Alliance posted several new blogs during the month of September.

  • In September, we wrote a blog post about our newly launched IPDC program— a copyright registration assistance program for Black creators, Indigenous creators, and creators of color (BIPOC creators)— and how it furthers the Copyright Alliance’s goals of advocating for laws and policies that bolster the strength of our copyright system and helping ensure that the system fosters diversity, equity, and inclusion.
  • When it comes to registering works, creators can come across several questions in the registration application that can be tricky to answer. We explain in this blog post of several tricky copyright law concepts creators should know about before filing a registration application.
  • In celebration of Hispanic Heritage Month, we explore in this blog post the origins of Mexican Muralism, its impact on contemporary muralists, and the legacies of three famous Hispanic artists in this artistic tradition.

Copyright Office Activities

CCB Status Update: During the month of September, 183 cases were filed with the Copyright Claims Board (CCB), an increase of 46 from last month. Fifty-four of the cases are “smaller claims.” In at least 70 of the cases, the claimant is using legal counsel. At least 161 of the cases involve infringement claims, 27 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 (100 cases); Literary Works (27); Motion Picture and Audiovisual Works (27); Sound Recordings (16); Musical Works (nine); and some cases include claims for multiple works. 27 foreign resident(s) have filed claims. 18 claimants have filed multiple cases. 19 cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Six); Due to Failure to Amend Noncompliant Claim (Seven); and Claimant Withdrawal and Dismissal of Claims (Six).

USCO Publishes Final Rule on Remitter Payments and Deposit Accounts: On September 30, the U.S. Copyright Office published its final rule on remitter payments and deposit accounts. The final rule consolidates all regulations regarding payment options for Copyright Office services, eliminates the requirement for a minimum number of 12 transactions per year for deposit accounts, and opts to maintain the current rule that the Office will automatically notify deposit account holders when their accounts fall below a minimum balance of $450 rather than assessing a service change. In response to proposals raised in comments submitted by the Copyright Alliance: (1) the Office will now accept Paypal and Amazon digital wallet options on “to better accommodate a broader range of stakeholders”; and (2) the Office conducted a further investigation and determined that permits automatic replenishment via ACH transactions and will explore the feasibility of implementing that feature to help avoid overdraft of deposit accounts. In light of a general desire from commenters that the Office increase communication regarding account status issues, the Office will automatically notify account holders if their accounts are made inactive due to inactivity or being overdrawn.

USCO Releases New and Updated Resources in Spanish: On September 29, the U.S. Copyright Office announced that it has released the first set of new and updated copyright resources and webpages translated into Spanish. “This set of materials includes educational circulars, handouts related to the Music Modernization Act (MMA), and an updated Frequently Asked Questions (FAQ) page, all in Spanish [language].” The Office timed the release of these materials to coincide with the celebration of Hispanic Heritage Month and in keeping with the Office’s strategic plan. Links to the resources can be found on the new Engage Your Creativity homepage, Involucre su creatividad, in Spanish and English languages.

Former Register of Copyrights Marybeth Peters Passes Away: On September 29, former Register of Copyrights Marybeth Peters passed away at the age of 83 following a long illness. Former Register Peters led the U.S. Copyright Office for 16 years, from 1994 to 2010, and dedicated 40-plus years of her career to copyright policy and leadership. She was a distinguished attorney who was broadly respected around the world, as well as a leading expert on U.S. and international copyright law. During her tenure at the Copyright Office, she was instrumental in countless important initiatives, including helping to implement the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act, which serve as cornerstones of today’s copyright law. In light of the news, the Copyright Alliance initiated a statement as did the U.S. Copyright Office, and many others.

Congressional Copyright Related Activities

SJC IP Subcommittee Holds USCO Oversight Hearing: On September 7, the Senate Judiciary Committee’s Subcommittee on Intellectual Property, held a hearing titled Oversight of the U.S. Copyright Office. The sole witness was Register of Copyrights and Director of the U.S. Copyright Office Shira Perlmutter. Overall, the hearing focused on the current activities and positions of the Copyright Office related to modernization efforts, AWF v. Goldsmith, performance rights, and open access. During the hearing, Register Perlmutter stated that the Office was looking into increasing the limit for group registrations of photographs and that the Office will publish a notice of a rulemaking concerning a group registration option for two-dimensional artwork. Senator Tillis submitted his questions for the record and his opening remarks. Register Perlmutter’s written statement is available on the subcommittee’s website.

American Music Fairness Act Introduced in Senate: On September 22, Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN) introduced the American Music Fairness Act (AMFA), which would ensure that artists and music creators receive sound recording public performance royalties when their songs are played on AM/FM radio. This legislation is the Senate companion to the same House bill introduced last year by Representatives Ted Deutch (D-FL), Darrell Issa (R-CA), Jerry Nadler (D-NY), Karen Bass (D-CA), Diana Harshbarger (R-TN), and Judy Chu (D-CA). In speaking about the bill, Senator Padilla stated, “For too long, our laws have unfairly denied artists the right to receive fair compensation for their hard work and talent on AM/FM broadcasts. California’s artists have played a pivotal role in enriching and diversifying our country’s music scene. That is why passing the American Music Fairness Act is so important. It’s time we treat our musical artists with the dignity and respect they deserve for the music they produce, and [that] we enjoy every day.”

ARTS Act Passed by Congress: On September 19, the House of Representatives passed S.169, the Artistic Recognition for Talented Students (ARTS) Act, which directs the U.S. Copyright Office to waive various copyright registration-related fees for works authored by high school students who win certain competitions sponsored by the Congressional Institute or established by Congress. To qualify for the fee waiver, the copyright registration application must be filed within a specified time frame, but the Copyright Office may waive fees for a qualifying work even if the application is filed outside the timeframe. The full Senate passed the bill in July of last year, and the bill has now been enrolled so it can move to the President’s desk to be signed into law.

JCPA Favorably Reported to Full Senate Floor: On September 22, the Senate Committee on the Judiciary favorably reported the Journalism Competition and Preservation Act (JCPA) out of the committee and to the full Senate floor via a majority voice vote, during which Senators Josh Hawley (R-MO) and Marsha Blackburn (R-TN) registered no votes. Senator Amy Klobuchar stated that parties agreed upon an amendment, SIL22B36, which further clarifies that bill is about compensation and that content moderation is outside the scope of the bill. The full recording of the hearing is available on the committee’s website.

Publishers File Opposition Brief to Internet Archive’s Motion for Summary Judgment: On September 2, a group of plaintiff-publishers in Hachette Book Group, Inc. v. Internet Archive, filed an opposition brief to Internet Archive’s motion of summary judgment. The opposition brief argues that: (1) appellate courts have solidly rejected first sale and fair use arguments for digitized works; (2) the Internet Archive had no way of knowing whether physical and digital copies of a book were in circulation at the same time; (3) the Internet Archive showed contempt for authors and the rule of law; and (4) the Internet Archive is directly competing with authorized eBook channels. On September 29, organizations including the Association for American Publishers (AAP), the Authors Guild (AG), and numerous others, publicly decried an open letter by Fight for the Future (FFTF) that supports the Internet Archive’s (IA) digital lending practices regarding e-books. According to a statement by AAP’s General Counsel Terrence Hart in response to the letter, he stated, “That authors and publishers support libraries is not in dispute and most certainly not at issue in the infringement case against the Internet Archive, which is not a library. On the contrary, the Internet Archive operates an unlicensed digital copying and distribution business that copies millions of literary works without permission and gives them away for free. This activity is unprecedented and outside any reasonable interpretation of the copyright law that grants to authors the decision as to whether, when, [and] through whom…to distribute their works to the public.”

Independent Filmmakers and Major ISPs Quickly Settle Lawsuits: In September, a group of independent filmmakers filed lawsuits against major internet service providers (ISPs), AT&T, Verizon, and Comcast alleging that the ISPs were liable for contributory and vicarious copyright infringement and for violating the Digital Millennium Copyright Act (DMCA). The plaintiffs sought damages and injunctive relief that would require At the ISPs to adopt a reasonable repeat infringer policy and block users from accessing certain infringing websites. However, on September 16, the plaintiffs settled all three lawsuits brought against Verizon, AT&T, and Comcast.

DC Circuit Hears Oral Arguments in Green v. DOJ: On September 12, oral arguments were heard in Matthew Green v. Department of Justice (DOJ), a pre-enforcement action brought by the Electronic Frontier Foundation (EFF) on behalf of various putative plaintiffs challenging the constitutionality of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Appealing a district court’s 2021 denial of its motion for preliminary injunction, EFF argued that a narrower construction of section 1201 of the DMCA should be adopted so that plaintiffs can distribute decryption tools that can circumvent digital locks protecting access to copyrighted works. Surprisingly, the DOJ’s attorney told the three-judge panel that one of the activities at issue, Green’s publication of a book containing instructions and circumvention code, would not violate the DMCA because it is not being marketed or sold as a circumvention method. However, the DOJ confirmed that another plaintiff’s activity surrounding the sale of a program to circumvent technology that restricts access to digital videos does violate the statute. The DOJ ultimately recommended that EFF’s appeal of the injunction denial be denied, and the case be sent back to the district court, where Green’s claims should be dismissed.

Industry Activities

DCA Issues New Piracy Report, Finds That 12% of Ads on Pirate Sites Involve Malware: On September 15, the Digital Citizen’s Alliance (DCA) released a report titled Piracy to Ads to Ransomware: How Illicit Actors Use Digital Ads on Piracy Sites to Profit by Harming Internet Users. The report revealed that piracy operators, through the lure of offering “free content,” engage in a lucrative business with advertisers for malware to engage with pirate website users, collectively earning up to $120 million a year.

MLC Issues Royalties For Matched Historical Uses: On September 14, the Mechanical Licensing Collective (MLC) announced that it has distributed the first set of matched historical royalties that were transferred from Google Play totaling nearly $1.5 million. The royalties represent the first set of matched royalty distributions for uses that occurred between 2013 and 2017.

Getty Images Prohibits Upload and Sale of AI Generated Images to Its Platform: According to reports, Getty Images banned the upload and sale of illustrations generated using artificial intelligence (AI) art tools due to concerns about the legal ambiguities surrounding AI-generated content. Getty Images CEO Craig Peters said, “There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata, and those individuals contained within the imagery.” Given these concerns, Peters said that selling AI artwork or illustrations could potentially put users of Getty Images at legal risk. “We are being proactive to the benefit of our customers,” he added.

RIAA Releases Positive Mid-Year 2022 Music Revenue Report: On September 21, the Recording Industry Association of America (RIAA) released its 2022 Mid-Year Music Revenue Report. According to the report, “U.S. recorded music revenues rose 9% to $7.7 billion at estimated retail value” during the first half of 2022, building on the growth experienced in 2021. In addition, “streaming revenues from paid subscriptions, ad-supported services, and other formats grew 10% to $6.5 billion during this period. The number of paid subscriptions grew to a record high of 90 million.” In a blog by RIAA CEO Mitch Glazier, he stated, “We are pleased to release strong U.S. recorded music revenue figures…These results reflect the incredible creative and commercial partnerships artists and labels have forged that have powered another extremely successful half year.”

Amazon Changes e-Book Return Policy Resulting in Breakthrough for Authors: According to a September 22 statement by the Authors Guild (AG), Amazon is changing its policy regarding e-Book returns following ongoing discussions with AG. The new policy will allow readers to return e-books online within seven days of purchase, regardless of the amount read. The new policy will replace the current protocol, which restricts returns to purchases where no more than 10 percent of the book has been read. This change will go into effect by the end of 2022.

Look Forward To And Save the Date For…

Closing Plenary Sessions of USCO Technical Measures Consultations: On October 4 from 11 a.m. to 1 p.m. ET and 2-4 p.m. ET, the U.S. Copyright Office will hold two closing plenary sessions to conclude its Technical Measures Consultations. The meetings will be on Tuesday, October 4 and will offer a discussion of “preliminary findings and emerging themes.” Both of the sessions are open to the public. More information is available on the webinar registration page.

Deadlines for Submitting Written Comments to USTR for Notorious Markets List: The deadline for submitting written comments to the U.S. Trade Representative for its 2022 Notorious Markets List is midnight on October 7, 2022. The deadline for submission of rebuttal comments and other information that USTR should consider is due by midnight on October 21, 2022.

Andy Warhol Foundation v. Goldsmith Oral Arguments: On October 12 at 10 a.m. ET, the U.S. Supreme Court will hear oral arguments in the case Andy Warhol Foundation v. Goldsmith. The question presented before the court 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).” The oral arguments will be open to the public and will be livestreamed on the Court’s website. More information is available on the hearings calendars and list on the Court’s website.

Deadline for Submitting Public Comments to ITA on AI Export Issues: On October 17, comments to the International Trade Administration (ITA) are due in response to its notice regarding international AI policies, regulations, and other measures that may impact U.S. exports of AI technologies.

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