Policy Blog Entries by Rashmi Rangnath

The 18th session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded last week. The most substantive discussions centered around: 1) a treaty for limitations and exceptions to copyright to facilitate access to works by the blind, visually impaired, and other reading disabled and 2) a proposal to consider possible norms for limitations and exceptions to copyright. I have written about some of these discussions in my previous post.

In addition, the Committee also discussed proposed treaties for protection of broadcasting organizations and audiovisual performers. Discussions concerning the broadcasting treaty during this session mirrored that of the last session of the SCCR which Sherwin has reported here.

Compliance with international treaty obligations has often been used as a justification to erode user rights granted by copyright law, the most famous example being the enactment of the DMCA. So when international organizations embark upon the business of treaty making, we in the public interest community pay attention. One such organization, the World Intellectual Property Organization (WIPO) is discussing several copyright issues in its ongoing 18th session. The session started yesterday with the election of the Chair and the adoption of the agenda. Up for discussion this time are two positive issues: limitations and exceptions to copyright; and a treaty for the blind, visually impaired, and other reading disabled.

It’s that time of year again: time to nominate individuals for our annual IP3 awards. As you may know, each year, Public Knowledge selects three individuals to receive the IP3 Award. These winners are people who have advanced the public interest in each of the three “IPs:” Intellectual Property, Internet Protocol, and Information Policy. Previous IP3 winners have included everyone from EFF lawyer Fred von Lohmann and Virginia Congressman Rick Boucher to the band OK Go and Gnarls Barkley member DJ Danger Mouse. Be sure to nominate your picks by June 22nd and look out for list of winners in October.

To submit a nomination for the IP3 Awards, email your picks to IP3nominees@publicknowledge.org.

Access to information is a fundamental human right. It allows individuals to effectively participate in social, political, and cultural life. Many international treaties oblige countries to secure this right for all individuals including those with disabilities. However, as I noted in my previous post, many national copyright laws, including US copyright law, place limitations on access to information by the blind. A move to address this issue is underway at the World Intellectual Property Organization (WIPO), which may consider an international treaty that would require countries to remove certain copyright restrictions that prevent access. The Copyright Office, which is part of the U.S. delegation to WIPO, had invited public comments on this issue. The comments filed with the Copyright Office are available here.

This past week the Copyright Office held public hearings in Washington D.C. and Palo Alto, California, as part of its fourth section 1201 rule making proceeding. The Digital Millennium Copyright Act (DMCA) requires the Copyright Office to conduct these proceedings once every three years to exempt from the DMCAs prohibition on circumvention of technological protection measures (TPMs) those lawful uses that are adversely affected. I attended the last two days of the D.C. hearings and came away not only with a renewed understanding of how the DMCA is killing consumer rights especially fair use but also how much content owners are afraid of fair use. The hearing also reaffirmed something we have said always: the DMCA is used more to lock out competition than to protect copyrighted works. Here are some of the arguments that stood out:

The fair use exemption for documentary filmmakers and vidders:

The most forceful advocates for fair use were Prof.

What does access to information mean to you?: the ability to read your newspaper – physical or online – every day?; the ability to go to a book store and buy your favorite author’s book?; the ability to read professional publications to advance your career? Most of us rely on these sources and more to keep ourselves informed and participate in society. But for the blind and the visually impaired access to information is not easy. Works have to be converted to special formats to enable access. Because copyrights are implicated during the process, copyright law provides certain exceptions enabling the creation of accessible formats.

Are these laws sufficient to allow the blind to read anything they want to? Is the market responding to their needs? The Copyright Office is asking for public comments on these and other questions.

We at Public Knowledge along with many others in the public interest community have always said that content owners have abused DRM to harm consumers. So when the FTC announced its decision to hold a hearing on the issue, we expected that at least some consumer protection measures would finally emerge. Our expectations might have been too high, because towards the end of the hearing it seemed like the agency might not do much in this area. The hearing was held in Seattle, went from 8:30 in the morning till about 5 in the evening, and the FTC heard from a number of experts about both the benefit and the harm from DRM, as well as what could be done to address the harm. A consensus seemed to emerge that a notice of DRM to consumers would be a way to address some consumer harm. Before I talk about how a notice might solve these concerns, let me discuss what was said about the benefit or harm from DRM.

Public Knowledge recently filed comments with the Federal Trade Commission (FTC) highlighting the adverse impact of the use of DRM technologies on consumers. Our comment focused on three areas: frustration of consumer expectations, constraining consumer’s rights under copyright law, and the use of DRM for anti-competitive purposes.

In view of incidents such as the Sony Rootkit scandal and the Spore incident where DRM was installed on consumers’ computer without their knowledge and used to subvert their control, we are suggesting that the FTC put in place a standardized labeling scheme.

We are also hopeful that the agency will recommend further changes to the anti-circumvention provisions of the DMCA so that its harmful effects on consumers will be mitigated. The FTC plans to hold hearings on the issue in Seattle on March 25, 2009. The event is free to the public and will be webcast.

Artists and record labels who have been agitating for parity with songwriters took a major step forward this past Wednesday when House Judiciary Committee Chairman John Conyers introduced H.R. 848 the “Performance Rights Act”. The bill would require terrestrial broadcasters to obtain a license from holders of copyright in sound recordings whenever they transmit music. The bill would also require 50% of these licensing fees to be paid directly to recording artists, regardless of the terms of their contract with record labels.

While this is a good first step, the bill leaves a lot to be desired by way of achieving parity between the treatment of terrestrial broadcasters, satellite broadcasters, and webcasters.

By way of background, until 1995 copyright law did not provide a general public performance right to owners of copyright in sound recordings i.e record labels and artists.

Anyone who has used a Creative Commons license and likes the flexibility of use it allows owners of a copyright to offer to users should be interested in understanding the terms of the cc licenses better. Creative Commons is conducting a study to shine the light on one such term - “noncommercial”. The hope is to use what’s learned from the survey responses to explain how use of the term might benefit or harm artist’s interests and even improve the licenses that incorporate the term. The Creative Commons team’s questionnaire has to be completed by this Sunday (December 14). If you are an artist or an author, please take some time to answer the questionnaire and help Creative Commons make their licenses even more useful.