Fair Use

If you haven’t read about it, the New York Times reported yesterday that: Microsoft May Build a Copyright Cop Into Every Zune. Essentially, the large content provider would withhold their content from a distributor unless the distributor put in effective measures to prevent against piracy. We’re not talking about DRM here, we’re talking about filtering software, whether it resides on the playback device like a Zune or iPod, or in the software on a syncing computer that stores the consumers’ library of music and movies like the Zune or iTunes software. This software would troll your library checking for content that was somehow infringing or unauthorized. It may even be spyware that could report back to someone about the contents of your media library.

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The House and Senate both introduced new legislation to allow for greater use of so-called “orphan works” — books, music, photos, movies or other works whose owners can’t be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.

Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.

The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table — S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) — go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.

These Bills are being considered in there respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.

NOTE: My original blog post on this topic stated that the Tennessee state legislature was on the verge of passing SB 3974, a copyright industry-supported higher ed filtering bill. As discussed below, SB 3974 has been replaced with a different (and weaker) version. I regret the error.

OK. Hopefully you all realized that S. 4108, the APRIL Act of 2008, was a joke. After all, there were a few excesses in there that would indicate how ludicrous the bill is.

On March 19, I was invited to a symposium at Penn Law entitled “Copyright and the Internet: Solutions for a Digital World.” The panel before mine was dedicated to reconciling copyright and the first amendment in the areas of filtering, takedown notices, and fair use.

The panel discussion was fascinating, and covered more ground than I can do justice to here. What I want to focus on was a particular point addressed by Jannifer Pariser, Senior Vice President of Sony BMG’s Litigation and Anti-Piracy department.

Hollywood for years has had a fascination with spies. Some are action spies, like the various incarnations of Bond, James Bond, or cerebral spies like Alec Guinness’ masterfully subtle George Smiley. All sorts of people have played TV spies, from Robert Culp and Bill Cosby to Patrick McGoohan, Robert Goulet and the fabulous Lady Diana Rigg and Patrick Macnee.

There have been spies who watch and listen to us without our knowledge. Gene Hackman had a creepy turn as the telephone eavesdropper (technically not a spy, although he spied) in “The Conversation” in 1974. Ten years ago Will Smith’s “Enemy of the State” played off of the then-paranoid “fantasy”, now a reality, of the all-hearing National Security Agency (NSA). The current crop of Bourne films shows a Central Intelligence Agency (CIA) with the technical capability to listen and see anything and anyone at any time.

The WIPO Standing Committee on Copyright and Related Rights ended its 16th session today, agreeing upon a set of conclusions that have yet to be published by the WIPO Secretariat.

In sum, though, the broadcast treaty remains on the agenda for future WIPO meetings. Also, the delegations agreed to work on limitations and exceptions in the future, but not necessarily towards a treaty.

The last day of the 16th meeting of WIPO’s copyright committee has just begun. As we listen to a presentation on WIPO’s arbitration and mediation center, we’ve been handed a set of draft conclusions for the meeting.

There’s still some discussion, including NGO comments on the broadcast treaty, to come, but here’s the draft conclusions, which will be discussed towards the end of the day.

STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS

Sixteenth Session, March 10 to 12, 2008-03-12

DRAFT CONCLUSIONS

Protection of audiovisual performances

The outcome of the deliberations in the course of the sixteenth session of the SCCR will be reported to the General Assembly.

• The Delegations who took the floor expressed their willingness to take up further discussions on the substance, with the aim of finding a way forward. Some Delegations stressed the importance of finding a

Last month, Public Knowledge submitted comments to the European Commission in response to this communication on online creative content. The Commission was asking for input about a variety of topics, including making DRM interoperable, creating licenses that would work across national boundaries within the EU, and how to deal with online piracy.

PK’s comments focused on just two of the 11 separate questions put for the by the Commission, about potential enforcement mechanisms against online infringement. Those questions were:

10) Do you consider the Memorandum of Understanding, recently adopted in France, as an example to followed?

11) Do you consider that applying filtering measures would be an effective way to prevent online copyright infringements?

The bulk of the time today was taken up discussing proposed work on limitations and exceptions. IP Watch has one good account of events; KEI has another.

Basically, Chile, alongside Brazil, Nicaragua, and Uruguay, proposed a work plan for work on limitations and exceptions to copyright and related rights. That proposal is available here.

It proposes that WIPO facilitate an exchange of information on different cuntries’ limitations and exceptions, with the idea of finding common ground for an eventual treaty that will incorporate basic, minimum limitations and exceptions for users to use copyrighted works.