Who would have thought that closed captioning could become the next big copyright fight? Yesterday Public Knowledge filed reply comments in an FCC proceeding implementing new video closed captioning rules under the 21st Century Communications and Video Accessibility Act (“CVAA”). Other commenters in the proceeding argued that copyright protections prevent video programming distributors from adding or improving captions to videos that don’t meet the CVAA’s requirements. PK stepped in to point out that even if captioning infringes copyright (which is unlikely), copyright, like any other private right, is subject to constitutional laws and regulations. Copyright does not trump a captioning law any more than real property rights trump the Americans with Disabilities Act.

Copyright is a personal monopoly on an original writing, song, piece of art, or a group of any of those, for 70 years after the death of the creator (or 95 years if the creator was under corporate contract—a Disney cartoonist, for example).

Generally, copyright prevents others from being able to show, copy, perform, modify, or distribute the original work without the owner’s permission. Copyright allows creators to charge more for their work, or determine how they want their works to be used.

But there are limitations on the scope and application of copyright. Without these limitations, it would be nearly impossible to share, resell, lend, or even talk about creative works. Not every unauthorized use of a copyrighted work is an unlawful use: you don’t need an author’s permission, for instance, to resell a book or lend it to a friend.

Public Knowledge’s Position

The good folks over at American University are hosting the Global Congress on Intellectual Property and the Public Interest next week. The Congress will bring together scholars, policymakers, and policy advocates to discuss how positive copyright policies can be constructed. The purpose of the event is to come up with policy recommendations that would allow copyright to serve the interests of artists and the general public and not just a few established industries. The plenary session of the Congress is open to the public and folks at American University welcome your participation. Here’s more information about the Congress:

Today, Public Knowledge, the Special Libraries Association and Internet NZ told the Office of the United States Trade Representative (USTR) that an IP chapter in a truly “21st century trade agreement” should reflect the rights and interests of the wide variety of stakeholders affected by copyright. To demonstrate how this can be done, we submitted to the USTR our own discussion draft of a copyright chapter to be included in the proposed Transpacific Partnership Agreement (TPPA) and a letter explaining the draft. In contrast to the U.S. proposed draft, recently leaked on the Internet, we believe that this draft represents a middle-ground position that begins closer to a position that respects the interests of the many different stakeholders that will be affected.

Today, we filed two sets of comments with the Office of the United States Trade Representative (USTR). The first related to issues the USTR should consider in the context of signing the Anti-Counterfeiting Trade Agreement (ACTA) and the second related to the Special 301 review process. In both comments we suggest that the USTR should adopt a new approach as it engages with other countries on trade and intellectual property issues. This approach should view U.S. trade interests holistically, acknowledging that whole industries that contribute to U.S. trade rely on copyright limitations and exceptions and accounting for these interests.

Almost all of us accept the proposition that copyright protection encourages creativity. But how much of this protection is appropriate? How long should it last? What sources of data can we look to to answer these questions? In the copyright context data about these and many other questions is sorely lacking and law and policy is made in its absence. For instance, in 1998 Congress extended copyright term from life of the author plus 50 years to life of the author plus 70 years based on assertions of certain rights holders (page 4) that longer terms would provide them with greater incentives to create. Yet, there was no evaluation of the effect this long term would have on many creative communities that use pre-existing works. Many, including PK, posit that these communities are adversely impacted by long terms. 

There’s an absolutely ridiculous story making the rounds—apparently the NAB and the RIAA have come to an agreement whereby the NAB will support broadcasters paying performance royalties, in exchange for the RIAA supporting a legal requirement that cell phones, mp3 players, and the like have FM receivers built in.

New Labour, the FCC, and G.K. Chesterton are known for third ways. But when it comes to “copy ownership,” there’s no such thing. The mostly-awesome Copyright Office 1201 report wishes there was, however.

This week, Public Knowledge asked the Supreme Court to reverse a decision that Costco was infringing copyright merely by selling genuine Omega watches without the watchmaker’s permission.

The brief, which was joined by the Electronic Frontier Foundation, the American Free Trade Association, the American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association, can be found here.