Limitations and exceptions April 7, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentAre getting a lot of attention lately. This is the phrase, used primarily in international copyright discussions and negotiations, to refer to the many compulsory licenses, declarations that an apparently infringing act will not be considered infringement, and restrictions on when a copyright can be claimed that make copyright material usable, to a degree, by the rest of us. Without limitations and exceptions, the exclusive rights granted by copyright would frustrate copyright’s fundamental purpose to encourage progress and creativity. It is one thing to guarantee a financial incentive for intellectual creation, but if that creation cannot be used by others, innovation grinds to a halt.
That is why so much of the Copyright Act is dedicated to exceptions to the exclusive rights. In the Government Printing Office edition, over one-third of the text is dedicated to sections 107 through 122, which incorporate most, but not all, of the limitations and exceptions.
In international treaties, the limitations and exceptions to copyright are supposed to be subject to a “three-step test” which has its origin in the Berne Convention, initial adopted by many countries (but not the US) in 1886. The US joined Berne in 1988 and oversaw its incorporation into international trade law in 1994. As it now stands, the three step reads like this:
Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (Art. 9(2) of Berne and Art. 13 in the TRIPs Agreement)
It is an interesting question whether some of the exceptions in the US Copyright Act violate this three step test – does fair use apply only to special cases, for instance, or conflict with normal exploitation of a work? The recent emphasis our courts have placed on transformative use as the sine qua non of fair use may be a direct reaction to this three part test.
So far, only one provision of the US Copyright Act has been found to violate the TRIPs three step test – the section 110(5)(B) exemption for businesses that allows installed TV sets and radios to “publicly perform” copyrighted works for patrons of those establishments. As interesting as that case is, the discussion of how fair use fits into this framework is even more interesting and important. A recent blog post by William Patry on this subject arguing that fair use does not violate the three step test is a great primer about this discussion.
Other attention to limitations and exceptions include this discussion of a proposal made to the World Intellectual Property Organization for a formal discussion and agreement about limitations and exceptions, something the US says it is not ready for. Closer to home, of course, is the recently released report by the Section 108 Study Group, proposing changes in the US copyright exception that permits library preservation work and interlibrary loan.
Most exacting, from my point of view, is this full-day conference being held at Duke Law School this Saturday on the topic of “Copyright Limitations and Exceptions: from access to research to transformative use.” There will be an exciting group of scholars from the US and European here to discuss the various issues and problems, with a focus on practical strategies to encourage creative uses of digital content. I hope any readers who are close to the North Carolina Research Triangle will consider attending this conference, and that those who cannot will look for podcasts, which are often posted by the Center for the Study of the Public Domain.
Turnitin and hold your nose March 27, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Technologies , 1 comment so farI have been very neglectful of posting for the past two weeks, mostly due to the pressures of other work, but the attention paid to the recent court decision involving the online plagiarism detection service Turnitin has finally provoke me enough.
Turnitin is a web-based service that compares submitted papers to vast database of essays available on the web and it is own proprietary database. It offers instructors a report on how likely it is that the given paper is plagiarized. Four high school students from
One aspect of the decision worth mentioning is its discussion of the claim that Turnitin infringes copyright because it adds a copy of every paper to its database as soon as the paper is submitted so it can be compared to later submissions. The plaintiffs tried to prevent this by indicating their lack of consent to have their work copied in this way on the papers they submitted, but the court found that the click-through contract they were obligated to agree to in order to submit in the first place took precedence. More on that in a moment. On the copyright issue, the court found that the company had a valid fair use defense regarding their storage and use of student work, even if the contract giving them permission had failed (which it did not).
I have been torn about the fair use analysis the court used in this case. I have a hard time justifying to myself the business model Turnitin use, although my doubts are likely bound up with broader concerns about this kind of attempt to use technology to force people to behave with integrity. But, to my mind, Turnitin’s business model is as dependant on infringement as is Grokster. The district court disagreed, finding that Turnitin made a transformative use of the works it archived for later comparision. What strikes me most about this decision is the way “transformative use” has become a talisman, invoked whenever the court wants to find fair use. The copyright statute seems to indicate pretty clearly that even non-transformative uses can be fair use, but courts are now so enamored with the notion of transformation that they are now finding it even in unlikely situations because it has become the sine qua non of fair use. This is both good and bad for higher education; some educational uses of copyrighted works seem to be purely iterative, not transformative, and fair use in those cases seems increasingly hard to argue. On the other, the more the concept of transformative use is expanded, the better it will be for educational; some of those uses that don’t seem transformative to me may well seem so to our courts.
The other, more troubling aspect of the Turnitin decision was the court’s attitude to the click-wrap license. The plaintiff students had no choice but to click through the license; they faced a zero if they didn’t and there was no way to communicate with Turnitin until they had accepted the license. Nevertheless, they tried to make their objection to the term that allowed Turnitin to copy and save their work as soon as possible; they included a notice with their paper that said they did not consent. Tough luck, said the court; you agreed to the license and you have to live with it. This strict enforcement of a “take it or leave it” license even when the party on whom it is imposed objects in a timely way seems to make a mockery of the notion of a contract as a bargain that may be “unconscionable” if there is no meaningful chance to negotiate.
If we need further confirmation that the court was aiming at a particular result and disregarding a reasoned discuss of the law, there was its astonishing dismissal of the plaintiff’s argument that, as minors, contracts they entered into are voidable. The court recognized that this was the usual rule in contract law, but said that the plaintiffs could not avail themselves of it because they had accepted the “benefits” of the contract. What benefit had they accepted, I wondered. Standing to sue, the court replied, the right to bring the case to challenge the contract itself. By this logic, of course, no contract could ever be challenged on the basis of “infancy.” Such absurd and circular reasoning can only serve, as Bill Patry says, to increase the cynicism so many people feel toward our courts.
Copyright Reform Suggestions, part 2 March 14, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use, Uncategorized , add a commentThey are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.
As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.
Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.
All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.
Desperate ploy, or copyright coup? November 19, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farIn the digital age, it is hard to imagine that personal photocopying still poses much of a worry for copyright owners. Isn’t the real problem, after all, the ability to make perfect copies and to share them instantly with thousands of others? Traditional photocopying poses neither of these dangers, and personal copying is a long settled fair use, isn’t it?
Not, apparently, for Access Copyright, the Canadian copyright licensing agency that, like its US counterpart the Copyright Clearance Center, collects and distributes permission fees for various uses of copyrighted material. Access Copyright has recently filed a lawsuit seeking 10 million dollars – the largest damages award ever sought for copyright infringement in Canada – from the office supply chain Staples. Their claim is that Staples should be liable for infringing copying done by customers on equipment provided by the stores. There is a news report on the suit from the Canadian Press here, a negative assessment from P2Pnet here, and a comment from a Canadian professor of IP and technology law here.
To prove secondary liability on the part of Staples, Access Copyright will have to convince a court that Staples should be held responsible for copying done by its customers. As Professor Geist points out, that may be a difficult hurdle to clear. In Canada, as in the US, liability for those who merely supply the equipment to make copies is rare; the US provides statutory protection for libraries in such cases and the Canadian Supreme Court has established a similar “presumption” in favor of Canadian libraries. Explaining why that presumption should not apply to Staples will be a challenge for this lawsuit.
But the issue that should really worry us, the issue that makes this a radial attempt to change the terms of the copyright bargain rather than merely a desperate ploy to protect a new source of revenue as traditional sources dry up, is that Access Copyright will have to show that the personal copying done by customers is direct infringement of copyright. Only if that is true can Staples be held secondarily liable for providing the means for that infringement. But personal copying has been almost universally believed to be fair use (or, in Canada, “fair dealing”). Students have made single copies of journal articles and book chapters for their own study for as long as photocopies have existed, and consumers have made personal copies of TV shows with their own VCRs with the blessing of the US Supreme Court. So what has changed?
The clue is in the fact that this suit was brought by a licensing agency, not by publishers or authors. What we are seeing here is a new assertion that personal copying was never legal, only tolerated by copyright owners until they could create a mechanism to collect payments. The same digital technologies that have allowed so much infringement also now allow content owners to efficiently offer licenses and collect payments for individual uses that could never have supported a market before. Although it is still more efficient to sue the alleged contributory infringer instead of the consumer who is the direct infringer, this saber rattling by a licensing agency should tell us quite clearly that content owners intend to move toward a pay-per-use model. If such suits are successful, every consumer-made copy logged at a store or even at a library photocopier could be subject to small payments, which would be administered through an online licensing agency.
At a recent conference in Washington, DC, Cary Sherman, the President of the Recording Industry Association of American, refused to acknowledge that personal copying of a music CD for listening on an individual MP3 player was fair use. Instead he said that this likely was infringement, but that the industry had agreed internally not to pursue such cases. The Canadian lawsuit suggests that, if a precedent can be set regarding the much less contested area of personal photocopying, any such forbearance around consumer copying will quickly become a thing of the past.
A big footprint September 20, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentThe PDF of the full report is available here.
The study, which was done by consultants from Capital Trade, a firm specializing in consulting and analysis of international trade, identifies “core industries” that “derive a significant amount of their current business from the demand generated by fair use and the Internet.” It is hard to argue that search engines, for example, have fair use at the center of their business. Other sectors, like consumer electronics, certainly are dependent on fair use, but one could argue that both purchased content and “pirated” content reduce the share of that industry that is dependent on fair use. Education, in this report, is also apparently identified as a core industry, since it depends heavily on the non-copyrightability of facts as well as other fair use freedoms. Other non-core sectors are also examined when their businesses “facilitate the output of the fair use core.” The identification of these industries and the measures used to evaluate their economic impact, are based on the WIPO recommendations for studying the role of knowledge industries in the world economy.
