Category Archives: Education

Copyright Law Rejected in EU Vote

A controversial bill in the EU seeking a rewrite of Europe’s copyright laws giving creators more power to restrict how their content is distributed has been rejected by lawmakers.  The vote was 318 against the legislation, known as The Copyright Directive, while 278 voted in favor, and 31 abstained, taking the reforms back to the drawing board.

The reforms to the law had two elements deemed particularly controversial by critics, Article 11 and Article 13.

Article 11, also called “link tax,” would force internet giants such as YouTube, Google, and Facebook to pay for using news snippets from publishers on their platforms.

Perhaps most contested is Article 13, which would require companies to monitor all content uploaded online to their platform to check it for copyright infringement. Critics said this could lead to the removal of internet memes, which often use copyrighted images.

The New York Times has a comprehensive article about the bill here.

 

General Data Protection Regulation Form

The General Data Protection Regulation, GDPR,  that goes into effect on May 25, 2018 will require companies that do business in the EU to provide a form to the companies that they are dealing with.  This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Here is a form that you can use to facilitate this process.

General Data Protection Regulation Explained

There is some confusion over the GDPR, the General Data Protection Regulation,  that goes into effect on May 25, 2018. This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Nancy Wolff, DMLA Counsel, has written a comprehensive explanation of the regulation that you can read here.

Importance of Net Neutrality

Net neutrality means that internet service providers should enable access to all content and applications regardless of the source, without favoring or blocking particular products or websites.  Seems simple, right?  Why has it become such a major political issue?

The Senate voted today to pass a measure that would repeal changes to net neutrality rules that were recently adopted by the Republican-controlled Federal Communications Commission. Chances are that the House won’t approve this repeal.

Why is Net Neutrality so Important?  In an article written by Tiffany Li,  an attorney and resident fellow at Yale Law School’s Information Project,  a big picture of the impact is presented.

 

GDPR Explained

by Nancy Wolff, DMLA Counsel

You may have noticed an increase in urgent messages from companies updating their privacy policies in anticipation of the upcoming deadline to become GDPR compliant. “GDPR” refers to a new European Union law – the General Data Protection Regulation that goes into effect on May 25, 2018. This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Privacy is becoming more and more of a global issue, and the E.U. is leading the way in attempting to protect personal data. The policies behind the GDPR aim to increase transparency, in terms of both what personal data is collected and how it may be used, and the accountability of those who maintain and use that personal data. The regulation is complex and extensive and includes steep penalties for those who are not compliant – up to €20,000,000 or 4% of global revenue from the previous year, whichever is greater.

But before you think the solution is to simply exclude all European residents from your client base, or have a panic attack, it is important to recognize that the E.U. “privacy police” are unlikely to expect immediate full compliance or have the operational capacity to scrutinize every business transacting with E.U. residents. Your goal should be to reevaluate your privacy practices to be as compliant as possible given your type of business and your use of personal data.

The stock industry is not a business that primarily engages in personal data collection. The purpose of the industry is to aggregate and license content on behalf of contributors to those who legitimately incorporate it in their publishing, marketing, or other media works. Stock companies should continue to use best practices regarding the security of personal data, obtaining proper consent from those who they send marketing communications, and updating privacy policies to accurately reflect how information is used and how an individual can contact someone in your company about what personal data is collected. (A new sample privacy policy that can be modified to comply with your company’s practices will be provided shortly). There is a common understanding in recent literature published about the GDPR that many industries will be provided a soft launch period, despite the fact that the regulation has been published since 2016.

At its highest level, the GDPR requires any company who collect personal data to maintain it securely, and to provide transparency in what ways it may use the personal data. The definition of “personal data” is quite broad and includes anyinformationthat relates to an identifiable person. See GDPR, Art. 4, Sec. 1. The individuals whose data is collected are called “data subjects.” See GDPR, Art. 4, Sec. 1. Those who collect data are called “controllers.” See GDPR, Art. 4, Sec. 7. Those who process data for controllers are referred to as “processers.” See GDPR, Art. 4, Sec. 8.  Any content library with contributors, distributors, customers and model releases, is a controller and needs to keep its records that contain personal data secure.

The first step toward GDPR compliance is to audit your data practices. Make a list of what personal data you collect and how you use that data. Then, when you update your privacy policy, you can use that list to make sure that you have provided adequate disclosure of how you use the personal data.The regulations require that the notice is not written in legalese but inclear and plain language.In general, you should not collect or retain information that you have no legitimate business purpose to collect.

The privacy notice should address the following to sufficiently inform the data subject:

  • Who is collecting the data?
  • What data is being collected?
  • What is the legal basis for processing the data?
  • Will the data be shared with any third parties?
  • How will the information be used?
  • How long will the data be stored for?
  • What rights does the data subject have?
  • How can the data subject raise a complaint?

Further, if someone from the E.U. requests information about the personal data you collect, you have an obligation to respond to requests within 1 month and may not charge the data subject for responding. You also need to give the E.U. resident the ability to update that information and the ability to remove the information if there is no legitimate reason to maintain that personal data.Additionally,any data breach of personal information must be reported within 72 hours.

Individuals subject to the GDPR can enforce these new rules, as it provides for a private right of action, but there must be some material damage.

In terms of marketing to customers or potential customers in the E.U., the consent rule under the GDPR is an “opt-in” instead of “opt-out” rule. Consent must be very clear and cannot be buried in terms and conditions. There should be a separate check box for marketing and promotions and for accepting terms and conditions.

It is too soon to know how these new regulations will impact the image licensing industry. To some extent all photographs of recognizable people contain personal data. Some have asked whether the new “right to be forgotten” will affect the industry and whether models or subjects could request that images be erased or consent withdrawn. While these regulations have not been officially interpreted yet, this kind of overly broad interpretation would be contrary to the purpose of the regulations – which is to address privacy issues with data collection.

The regulations do acknowledge that there are legitimate business reasons to retain certain personal information. The licensing of editorial as well as commercial images by image libraries serves an important business and newsgathering function and model releases are required to be retained for many business and legal purposes, and are necessary to produce in the event of a claim. Further, the “right to be forgotten” is not absolute and the regulations acknowledge that other rights, such as the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression must be reconciled with this right. These exceptions should insulate the licensing of images and restrict persons from demanding that images be removed.

This article is intended to be a broad overview of this new regulation and not a complete description of the GDPR or any company’s obligations. You are encouraged to seek further advice and there are many websites offering insights. Importantly, the regulations have not been interpreted and we will continue to monitor this topic. The GDPR will be included in the DMLA legal panel at the DMLA Annual meeting in October.

Keep Fighting for Artists’ Rights!

The letters that are being sent are starting to make a difference so don’t stop!

More members of the House Judiciary Committee need to be paying attention to H.R. 3945 – CASE Act!

Keep up the fight by sending a letter each week! The more we send, the closer we’ll be to getting the copyright protection YOU deserve!

You can find your a sample letter and your representative here.  It’s easy.  Just do it!

SUPPORT NEEDED FOR CASE ACT!!

I’m sure that you’re aware we been working for the last few years with a group of other associations on what is now the CASE Act (HR#3945) the SMALL CLAIMS TRIBUNAL BILL, a bill by Representatives Hakeem Jeffries (D-NY), Tom Marino (R-PA), Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA). The bill is ready for write-up and we are now awaiting a date for that to happen based on a couple of issues still being worked out, but it looks like it could be as early as next week.

It has come to our attention that so far only about 2200 letters have been received by the Copyright Alliance platform which is less than 5 letters per member of Congress–barely even noticeable. We have been told by the players on the Hill that the passage of this bill will come down to grassroots support and this is a very poor showing. They need to see that we are behind this important bill for creators!

We need every member and their photographers and their adult children, friends and neighbors to send letters to their representatives!

I am asking you to send out a plea to your staff and photographers to help us get this bill passed by contacting their representatives. It is really easy. There are letters ready for them to use here. If we fail and small claims doesn’t make it through this year, it will be very difficult to get it passed in subsequent years. THIS IS OUR CHANCE! Please help all creators protect their copyrights!

Thanks so much for your help!

2018 DMLA Conference Help Wanted

DMLA Conference 2018 Los AngelesDear DMLA Members,

Throughout the years you have been participating in our annual conference as an attendee. This year we are in Los Angeles and as part of the change in locale, I would also like to open to all of  you to the opportunity to participate in the programming for the conference.
Los Angeles is on the Pacific Rim, a city of creativity that is the epicenter of entertainment, music, motion and still and the producers of much of the content for the US and beyond, this opens up many topics for panels and speakers.  What would like to talk about?  What issues do you think are important for this year’s meeting?
We are just beginning our Program Committee’s work and could use a few more volunteers too.
I look forward to working with you all to bring your passion and ideas to our conference October 21-23, 2018.
Please reach out to Cathy Aron at cathy@digitalmedialicensing.org as soon as possible with your suggestions.
All the best,
Ophelia Chong, Stock Pot Images
DMLA Program Chair

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

Read the entire story here.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.” TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos. Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail. Clients pay $500 per month for these services.

The District Court held that the searching, archiving, and watching functions offered by TVEyes constituted fair use, but that the downloading and e-mailing functions did not. Fox only challenged the “watch” function (and its ancillary functions like downloading, archiving, and sharing), but not the search function.

At the outset of its opinion, the Court of Appeals noted the similarities between this case and Authors Guild v. Google, Inc., in which the court held that mass copying of books for purposes of limited text searching was fair use, but it explained that Authors Guild “test[ed] the boundaries of fair use,” and that TVEyes “has exceeded those bounds.” In sum, the court held that TVEyes’ re-distribution of copyrighted content was only modestly transformative under the first fair use factor, but that other fair use factors outweighed any transformative purpose. Despite myriad recent case law holding that transformative use is the most important fair use factor, the TVEyes court seemed to hearken back to a slightly earlier era of fair use and reiterated that the fourth factor – market harm – is “the single most important element.”

The court held that TVEyes’ copying could be considered transformative in that “it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.” Similar to the Sony “Betamax” case, the court noted that TVEyes’ watch function was also akin to time- and place-shifting, and “certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency,” and so was “at least somewhat transformative.” However, the transformative character of the use was not enough to outweigh the commercial nature of the services offered because TVEyes “essentially republishes that content unaltered from its original form, with no ‘new expression, meaning or message.’”

The court found the second factor – the nature of the copyrighted works – inconsequential, but placed significant weight on the third factor, which analyses the amount of the copyrighted works made available to the public. This factor weighed in favor of Fox because, unlike in Authors Guild where Google Books made available only snippets, “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear,” and given the brevity of most news reports, at very least copied and distributed “the entirety of the message conveyed by Fox to authorized viewers of the original” content.

Turning to the fourth factor, the Second Circuit agreed with Fox that “TVEyes undercuts Fox’s ability to profit from licensing searchable access to its copyrighted content to third parties.” Consumers were clearly willing to pay for such a service, and TVEyes therefore “deprives Fox of revenue that properly belongs to the copyright holder,” effectively usurping the market for Fox to offer similar aggregation, searching, and licensing services for its own content. This usurpation, combined with the amount of content offered and the modest transformativeness overshadowed by TVEyes’ commercial use of Fox’s content, defeated TVEyes’ fair use defense. The court remanded with instruction to the District Court to amend its permanent injunction accordingly.

Judge Kaplan of the Southern District of New York, sitting by designation, filed a separate concurring opinion to express his disagreement with the majority’s finding that TVEyes’ uses were at all transformative. He opined that the “somewhat transformative” designation was irrelevant given that the other fair use factors outweighed the transformative use, and that issuing such dicta would serve only to confuse the already complicated question of what constitutes transformative purpose. Nonetheless, Judge Kaplan expressed his own views on why TVEyes’ use of Fox’s content was not transformative, including that the mere “enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers” was not transformative because TVEyes simply repackaged and delivered the original content with no news aesthetics, insights, or understandings.

The Second Circuit’s decision is significant in that it further defines the outer boundaries of fair use by providing a concrete example of what falls outside the doctrine, which is helpful given the arguably expansive implications of the Authors Guild decision, and by distinguishing a facially similar service from the Google Books project it deemed fair use in that case. It also signals a potential shift in focus back to the “market harm” factor of fair use, and away from a strict focus on transformative purpose, but at the same time adds to the growing sense of confusion about what may be considered transformative, or in this case, “somewhat transformative.”

Cowan, DeBaets, Abrahams & Sheppard LLP drafted an amicus brief in this case on behalf of American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, National Press Photographers Association, and Professional Photographers of America, in support of Fox News Network.