Wednesday, August 04, 2021

IPSC Panel 5 – Copyright, Distribution, and Access

Jacob Victor, Copyright’s Law of Dissemination: trying to disaggregate dissemination from use of a work in new creativity/e.g., transformative fair use. Focus: liability exceptions and regulatory regimes that facilitate large scale distribution of works by direct distributors or via platforms that enable or enhance public consumption/enjoyment of those works. Statutory carveouts: broadcast radio of sound recordings; publication for print disabled, §108 library exceptions. Judicial: Google Books/utility expanding fair use; Sony v. Universal safe harbor; first sale; operating outside ©’s exclusive rights (Aereo) [largely failed]; admin state—compulsory licenses, recording device levy; other: ASCAP/BMI consent decree; DMCA safe harbors; Section 1201 exceptions.

Trends and patterns: whether a use is compensated or uncompensated. Starting w/uncompensated radio broadcast for sound recordings/OSP safe harbor; compulsory fee for §114 uses; ASCAP/BMI consent decrees—one question is whether the license will actually be paid per the statute or whether it will backstop private negotiations. Digital TV: operating outside © failed, and Aereo also failed to get a §119 compulsory cable license.

Conventional wisdom: Incoherent mess; regimes generally unrelated to each other, primarily products of industry lobbying, little meaningful institutional design, anachronistic like jukebox compulsory licensing fees. Political economy is helpful, but if we look at actual operation, there are subtle patterns of latent normativity. (1) Dealing with transaction cost problems (though thinks that’s likely overstated); (2) ©’s inherent distributional inefficiencies; (3) market power barriers to innovation in dissemination—removing bottlenecks based on market power; (4) non-efficiency considerations—libraries, disability rights, distributive justice. (2)-(4) are all within the conventional incentives/access tradeoff lens.

Not claiming it’s fully coherent, but it’s not just a sui generis response to a single industry’s market failure. Frame can help diagnose problems with current system like complexity, inconsistency (lack of a terrestrial broadcast sound recording performance right), failure to keep up with tech change (Aereo maybe should have been eligible for a cable-like compulsory license), poor institutional design (Music Modernization Act tweaks but does not fundamentally change complex system).

Sheff: why is coherence an aim? If we are pursuing goals that conflict, we might have to pick which is more important in a given context.

A: Because there’s already a pull for coherence; we can make it better by being more explicit

Lisa Macklem: consider how courts often land on wrong analogies for new tech. Also purpose as a consideration in finding infringement.

A: Fair use has been a good example of courts moving beyond static statutory language for new tech, but they may defer to Congress when Congress didn’t imagine what happened. 

Bita Amani and Mark Swartz, Cultivating Copyright Custodians for the Digital Age: Law, Libraries, and the Public Interest in Lending

Pandemic + important Canadian SCt case on education and © motivated this discussion of rapid acceleration of library efforts and ability to offer digital materials. Pandemic: students who had ordered books weren’t able to get them; some were overseas. There was pushback to coordinated call for libraries to use exceptions and limitations, but these were important for users—emergency access through Internet Archive and HathiTrust; fair dealing scans for patrons; generally able to meet info needs more or less.

CCH decision, 2004: fair dealing is a user right; only if a library doesn’t make out fair dealing does it need the library exemption. Fair dealing test: needs an allowable purpose; if allowable, consider purpose, character, amount, nature of work, available alternatives, and effect of dealing on the work.

Canadian fair dealing: preservation isn’t listed as a fair dealing purpose, but library exception allows maintenance or management copying for the permanent collection. Underutilized because of risk tolerances. Exception doesn’t apply where an appropriate copy is commercially available in medium/quality appropriate for the relevant purposes (but that limit doesn’t apply if the copying is for record keeping purposes, insurance/police investigations, or for restoration). But the law does apply to at-risk rare or unpublished originals, or for change to an alternative format if the original (or tech required to use the original) is obsolete or is becoming obsolete—and need to use something via the internet may qualify for this exception.

Libraries need not rely exclusively on this exception for their patrons because fair dealing is available too. Format-shifting is important, but libraries have now transitioned to licensing born-digital items and bundled deals dominated by large publishers. This is the oncoming crisis. Libraries should own eBooks so they don’t risk losing access or control over the information they can provide to patrons.

Contracts should not be permitted to override exceptions and limitations. NY and MD have new laws: publishers who offer ebooks to public have to offer licenses to libraries on reasonable terms. UK campaign to investigate academic ebook market is a similar push. Amazon is changing its tune, and may sell to libraries soon. But we need changes to Canadian law to ensure that contracts can’t override fair dealing and TPMs can’t be used to prevent fair dealing. Libraries also have to assert format-shifting and controlled digital lending rights. Explore digital exhaustion for libraries. Libraries have to assert roles as custodians of information and providers of access.

Linford: Physical space limited what libraries could keep in their holdings in the past; how does that bear on these changes?

Swartz: these are different problems. The physical space problem has solutions for academic libraries: offsite storage, collection management to ensure it represents needs of users. But the library owns that content and is able to exercise user rights/exhaustion/first sale. The digital world has switched to the library as temporary waystation not under its control, paying yearly to offer the same materials.

Amani: pandemic illustrates the problem: they were unable to get publishers to respond to give patrons access to materials that the library physically had but could not get into patrons’ hands physically. 

Kylie Pappalardo, Copyright licensing and distribution in Australia’s screen industries

Pop. Approx. 26 million; until 2015, mostly free to air TV, two public service broadcasters, three commercial channels, one cable subscription service. So what is available to the Australian public? Significant overlap in availability of top films (blockbusters) 2010-2015 in Australia and US, but also significant numbers that are only available in one place or another, especially in 2017, where 40% of whole were available to both. By 2021, there were more films overall and more convergence. Many gaps in the long tail in the US, not just in Australia—all time box office films, almost half not available in the US. There’s not much overlap in the repertoires of the three different streaming services (Netflix, Prime Video, one other)—true in the US too even with many more providers.

Contrast to music: near complete overlap in US/Australia availability, and also more significant overlap in Tidal, Spotify, and Deezer coverage (main Aus. services).

Research agenda: why isn’t screen content as widely available as music? Could it be? Can costs/logistics of screen production and distribution which are connected by complicated contracts be reconciled with public goal of broad, affordable, and sustained availability? Can we reimagine a copyright system that is more distributively equitable and efficient?

Macklem: regulations of mandated local content may also make a difference—and tax credits for production in the country have made a difference in Canada.

A: In Australia, there are quotas on free-to-air content but not on streaming services; there are tax credits; leads to complicated questions about how to count something as Australian—is the Marvel film that films on the coast really an Australian film? 

D.R. Jones, Under the Umbrella: Assessing Recent Court Decisions that Promote Public Access to the Law

The key principle: law must be available, and people need access to it. Before Fed Register and CFR, people didn’t always know the law. Two cases went to SCt before it was known that the provision at issue didn’t exist. Making available but only in a place that’s difficult to access is not enough. Recent cases: GA v. PRO; ASTM v. PRO (DC Cir.), and Int’l Code Council v. UpCodes (SDNY).

GA v. PRO: SCt focused on authorship: creation by officials means not authored by © claimant. Doesn’t cover all situations. What about model codes/standards drafted by private organizations then adopted into law? UpCodes said GA v. PRO didn’t apply because of the limited authorship test used by the SCt, but there are other ways to support the principle of access to the law. Thorough decision: access to law prevails over interests of © holder; posting the law as law is allowed.

Risks: almost back to where we were before the Fed. Reg. Issues finding standards in print and online. State case: P lost a counterclaim b/c no one could find the standard; Indiana SCt discusses in 2017 difficulties in accessing a standard.

Linford: then how should we subsidize the creation of law?

A: Access to law is the key value here (so, some other way).

 Liam Sunner, How the European Union’s obligation to include and incorporate human rights as part of its external relations and trade of intellectual property, implies the inclusion of the Convention on the Rights of Persons with Disabilities within this obligation 

EU initiative to mainstream consideration of human rights in “all areas of its external action without exception.” But the EU doesn’t necessarily have much power to back up its commitments. Marrakesh Treaty: can be traced to Art. 30(3) Convention on Rights of Persons with Disabilities, which requires parties to ensure that IP rights aren’t unreasonable or discriminatory barriers to access to cultural materials by persons w/disabilities. Marrakesh identifies a clear human rights violation and provides explicit mechanisms for addressing it. In human rights terms, addresses disability rights, right to education, right to participate in cultural life. CRPD defines education very broadly.

CJEU asked: does Marrakesh fall w/in common commercial policy? Have to examine both treaty purpose and treaty content to see if it’s an EU competence. Concluded that access was not within common commercial policy so EU didn’t have exclusive competence to enter into the treaty for the countries.

EU has had direct impact on IP chapters and copyright exceptions/limitations in trade agreements.

Felix Wu: what is the ultimate practical significance of whether these treaties/conventions are incorporated into EU law? Given the member states we have, what would change? Is there a realistic prospect that member states wouldn’t sign?

A: depends on the member states. In practice, there could be political constraints on accepting human rights constraints from treaties, or practical limits.

Wu: are your arguments limited to access for disability purposes or do they extend to access rights generally?

A: the latter—Marrakesh is an example.

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