PTO/NTIA online transactions

Online Transactions

Moderator: Ann Chaitovitz, Attorney‐Advisor for Copyright, Office of Policy and International Affairs, USPTO

Comments generally agreed that online markets should be left to private markets. What role if any for the government.

Panelists:

Roy Kaufman, Copyright Clearance Center

We focus primarily on text, dragged by users into other media. Our markets tend to be corporate, publisher to publisher and academic.

Prof. Brandon Butler, American University, Washington College of Law

Library Copyright Alliance: 3 major library associations representing 100,000 libraries around the world.

Q: what do each of you see as key obstacles to developing robust, comprehensive online licensing environment, and can the gov’t help?

(I guess we’re not going to talk about how gov’t can help by maintaining a large space in which licensing is not required?)

Kaufman: key obstacles are that it’s very hard to develop robust databases, taxonomies for licensing.  What is a library?  Different rights, different media, different markets, different norms. Can be brought together, because within each market there are many solutions. Gov’t can encourage and foster collaboration across media and sectors.

Meredith Jacob, Creative Commons

Sheer volume of creative works is an obstacle. Many people who create don’t think about registration/licensing at all.  Hard to explain why you should do that (especially if your intent is not to strike it rich).  Creators’ intent varies. Almost everyone who is a “user” is also a creator as CC sees. Having a user/creator divide is a problem.

What gov’t can do: Gov’t can not reinforce systems that assume that all creators want the same thing.  Don’t necessarily want remuneration. Don’t assume that all transactions should be licensed.

John Lapham, Getty Images: it’s easier than ever to license. Don’t demonize the right to be properly compensated. The obstacle is that we publicly shame people for wanting to be compensated and say that being seen ought to be enough. What gov’t can do: keep up by trying to develop small claims process that recognizes digital economy/new needs. Likewise, not being overly in love with status quo is critical. DMCA was implemented when we were worried about survival of internet, but now we know that it’s possible to make a good living as a search engine.

Butler: not much to do for libraries in terms of facilitating licensing. Libraries are doing wherever they can and see it as appropriate. ARL members spend $1.4 billion on content, of which $850 million collectively is spent on licensing, or 60%. We’re licensing like crazy.  Not really seeing a lot of barriers to finding people willing to take our money. What should gov’t do?  Licensing terms are trumping copyright’s default rules—sign away first sale and fair use rights. Libraries get these huge portfolios of licenses, but huge thickets of rights they often aren’t qualified to or capable of parsing when it comes down to deciding what uses are ok. Gov’t could ensure that default user’s rights in copyright act can’t be licensed away, at least for libraries that need those rights for their basic jobs.

Q: talk about UK Copyright Hub: what can the US learn?

Kaufman: a way for users/creators coming out of UK copyright review. Improvements in licensing info were possible. Similar efforts in the EU.  US should be doing the same thing.

Q: how do libraries see the relationship between online licensing and fair use?

Butler: Fair use is extremely important to libraries, and licensing does not and should not undermine fair use, especially in transformative contexts. In theory, more and better licensing therefore shouldn’t threaten us, but the other side doesn’t see it that way.  CCC is suing some of our members based on a misunderstanding of fair use, where they assert that the existence of a license should force fair use to shrink. Another example: text and data mining—this is a transformative fair use, even when done for money.  But CCC says they’re working on a market for text/data mining, in Europe where there’s not as clear an exception. That’s a terrifying prospect. We don’t think anything that comes out of this process should be seen or portrayed as taking away from fair use, but it’s a fear we have.  (Bravo!)

Kaufman: misleading to say we’re suing your members, but off topic.  Someone said this morning licensing doesn’t substitute for fair use (that would be me).  He’s ok with that, but we should have efficient online mechanisms and should not shy away out of fear of effects on fair use.

Q: Getty recently reached a deal with Pinterest. Tell us about that arrangement.

Lapham: Don’t think gov’t can help with that.  Tech companies like Getty can work with partners in the private sector to make more and better content available. Pinterest: a healthy percentage of their content belonged to us. Rather than having a slapfight, focused on losing metadata/attribution. Instead, reattach attribution and provide royalties.  Opportunity for more arrangements like that so that creators can create and still be compensated for use on social media sites.

Q: reattach metadata; was there also a payment for past uses?

Lapham: the arrangement works by using our image database of 10s of millions of ours and other companies’ pictures; we can match that against the website. Using image recognition tech, we can find and reattached metadata, and charge fees per image per month.

Jacobs: Creative Commons are valuable because they don’t require renewal/maintenance of longterm engagement with the process. That is useful for creators who can set it and forget it.

Kaufman: Linked Content Coalition should be watched.  CC is also useful because it’s human and machine reasonable.  Digital Object Identifier used in science publishing. Orchid: a researcher ID, but can ID researchers as authors.  Each one has a purpose; a lot have open APIs.  First step: gather them all up and decide how they play with each other in this acronym soup.

Jacobs: public domain content and content created through federally funded research needs to be in these databases so you can find content that is public domain or open licensed or CC licensed so there’s no division there.

Lapham: Hargreaves report in UK—could be useful to work with gov’t in creating image registries/databases, whether orphan works or otherwise. Don’t wait for gov’t to do it. Instead, partnership where we can provide services to meet objectives for orphan works or otherwise.

Butler: on how not to do it—Jonathan Band and I wrote anarticle about issues with collecting societies around the world. See problems of corruption, transparency, inefficiency—learn from those mistakes and work for accountability.

RT: What can the US learn from Canadian legislative reform and Canadian universities’ responses to Access Copyright?

Butler: we can learn a lot.  Canada, Australia, and some other countries who have had comprehensive licensing systems are looking to us and whether they should be turning more for facilitating educational uses to fair use, or even to CCC on a piecemeal rate instead of paying statutory/blanket licenses.

Allan Adler, AAP: All this talk about prohibiting waivers of fair use or other rights—we don’t want gov’t to engage in paternalistic policies; people wouldn’t know where that would end. You can waive almost any right, including First Amendment right to speech if you work for the gov’t (uh, does not follow, but ok).  Better and easier to pay for license than relying on fair use. (Well, yeah, if the copyright owners get the gov’t to hand them that right; apparently only some kinds of rights definitions are paternalist.)  Biggest stories of year are implementation of ACA and NSA’s activities—these are related to gov’t databases, so aren’t we worried about that esp. when we are talking about tracking online transactions?

Lapham: allow for private sector solutions to some of the big issues.

Butler: shares some of those concerns, especially about NSA. Private collection of info is a great tool for the gov’t, so any time anyone has a big database that is a concern for us. Any effort to create central database of what people are reading should raise non-copyright concerns.

Kaufman: We have fair use, exceptions, limitations—but the whole point is to get users what they want the best way they can; sometimes that’s rights information. Don’t demonize us for doing that.

John Morris, Associate Administrator and Director of Internet Policy, NTIA

Importance of collaboration v. talking past one another.

Shira Perlmutter, Chief Policy Officer and Director for International Affairs, USPTO

Committed to finding sweet spot for copyright and internet policy. Need continued collaboration from all stakeholders.  There will be hard work ahead. We haven’t chosen easy issues. If positive tone of discussion today and willingness to engage constructively continue, I’m optimistic about progress.  Soon will announce further public outreach on these topics. Plan is for roundtables around the country in the coming months.