Category Archives: Advocacy

DMLA Legal Update

by Nancy Wolff, DMLA Legal Counsel

On April 8, 2019 I participated in a Copyright Office roundtable on behalf of DMLA  regarding the Copyright Office’s preparation of a Section 512 report, which relates to immunity Internet Service Providers may be entitled to under the Digital Millennium Copyright Act if they comply with various provisions. The roundtable was intended to update the study’s record from 2017 and to review the law, especially the caselaw, that has changed in the intervening years. There were a few cases that looked at whether an ISP would lose the safe harbor immunity based on failure to adopt  a policy for repeat infringers, and further cases that have required actual notice of each URL that contains infringing material, eliminating or narrowing statutory language that includes notice based on facts or circumstances that would make one aware of the infringing activity (known as “red flag” knowledge”).

Participants were divided into four panels, three on domestic issues and one on international developments. Representatives from the Copyright Office asked direct questions on each of the four panels. The last panel on international developments  included comments the new EU directives that appear to require ISPs to take more responsibility in policing for infringements. At the end of the sessions there was an open mike.

Copyright Office representatives included Regan Smith, General Counsel, Brad Greenberg, Counsel for Policy & International Affairs, Kevin Amer, Deputy GC, Kimberley Isbell, Senior Counsel for Policy and International Affairs, and Maria Strong, Deputy Director of Policy and International Affairs.

Representatives from the content community including the Copyright Alliance, RIAA, MPAA, Authors Guild AAP, RIAA, NPPA and a few individual creators were in attendance. For the content side representatives of Google, Facebook and Etsy among others were there.  DMLA is a member of the Copyright alliance, whose staff prepared helpful summaries of the relevant cases that have been decided since the last panel

The themes discussed were similar to three years ago. The content industry saw no change in the burden of the notice and take down regime, and many were choosing to give up. The message was that cases have construed the statutory language in such a way that here is little incentive for ISP’s to cooperate in reducing infringing content. The content community was hoping that trends in the EU may spill over and help in the US.  Conversely, the IPS community believed that the statute and court cases struck the right balance.  The next step is for the Copyright Office to prepare a report to Congress. Whether Congress has an appetite to change Section 512 is another question.

Ninth Circuit Addresses Outstanding Copyright Issues in VHT, Inc v Zillow Group

The Ninth Circuit recently addressed a number of outstanding copyright issues between Zillow, the popular apartment hunting website, and VHT a provider of real estate photographers’ photos, and VHT, although it left the question of whether database registrations offer statutory damages for each image, or if all the images in one application are limited to one award of statutory damages.  Read the article here

United States Copyright Office Updated Draft of Compendium

The U.S. Copyright Office has released a public draft of an updated Compendium of U.S. Copyright Office Practices, Third Edition. On April 10, at 2 p.m. ET, the Office will hold a webinar to review the proposed revisions. The draft as well as the webinar can be accessed here. The updates reflect “changes to the Office’s practices and procedures, as well as recent changes in the law,” including the 2017 Star Athletica decision, the Fourth Estate case, and various rulemakings and proposals. Comments are due by May 14. More information is available here.

CEPIC Statement on Works of Visual Arts in the Public Domain

CEPIC expresses its extreme disappointment at the EU copyright Directive as we see that last minute compromises were reached that will directly hurt CEPIC members specialised in fine art, history and vintage photography. Some of these libraries are attached to cultural institutions and contribute to their financing – this not only by “selling postcards” as the agreed compromise text implies.

Indeed, the provisions related to works of visual arts in the public domain were agreed behind closed doors, following no impact assessment and no consultation with the various sectors that will be affected.

With no evidence as to the advantage to the larger public, the  compromise provisions will directly hurt the legitimate interests of small private businesses who support cultural heritage and in some European countries the cultural sector institutions who have invested millions in the digitization of  photography and contribute, avoiding tax-payer cost, to the preservation and distribution of cultural heritage and its promotion to the wider public. This provision is discriminatory to photographers working for cultural institutions, and in some cases it discriminates against the interests of those cultural institutions themselves who rely on income generation derived from licensing works of visual arts in their collections. In the long run the larger public will suffer from a lack of investment in digitization, indexation and proper documentation of cultural heritage material.

We regret that these provisions were introduced without proper assessment and that the private heritage sector was used as a “pawn” in a larger negotiation. As a result we see that the EU copyright directive will penalise rather than promote large parts of the visual sector.

We ask for Chapter 3 Art. 10 b) and Recital 30 a) to be removed.


Executive Director (Tel. Mobile + 49 177 2332 514) CEPIC Center of the Picture Industry, Tel. Berlin + 49 30 889 101 60, www.cepic.org/contact

Judge strikes down ‘data trespass’ laws as unconstitutional

In a big win for NPPA (National Press Photographer’s Association), after years of litigation, a federal judge struck down a Wyoming law that unconstitutionally banned photography in certain circumstances in Wyoming. They were represented by Public Justice in this case, but Mickey H. Osterreicher, Esq. and Alicia Wagner Calzada, PLLC dedicated many hours to this effort.
NPPA is member of the coalition of Visual Artists group along with DMLA.

Hearing for CASE Act: Capitol Hill, September 27th

The House Judiciary Committee has scheduled a hearing on the Copyright Alternative in Small-Claims Enforcement (CASE) Act on Thursday, September 27th at 2:00pmET (Room 2141 in the Rayburn House Office Building).

Rayburn House Office Building Address45 Independence Ave SW, Washington, DC 20515/
Nearest Metro Stop: Capitol South on Blue/Orange/Silver Lines Nearest Train StationUnion Station

Expected witnesses are as follows:

  • Ms. Jenna Close, P2 Photography
  • Mr. Keith Kupferschmid, Copyright Alliance
  • Mr. Matthew Schruers, Computer and Communications Industry Association
  • Mr. David Trust, Professional Photographers of America
  • TBD, Internet Association

DMLA encourages members to show their support of the CASE Act by joining with other visual creator organizations on Capitol Hill in show of unity for the proposed small claims tribunal before the House Judiciary Committee.  The Copyright Alliance will be passing out T-shirts to all in support of our cause.

We will be posting more information as it becomes available, but if you are in the area, please plan to show your support!

 

 

Copyright Office Fee Increase Survey

Dear DMLA Members and Friends of DMLA:

The U.S. Copyright Office has released a Notice of Proposed Rulemaking announcing fee increases for copyright registration and other services. The proposed fee increases are based on a Study Report released by the U.S. Copyright office. Fee increases for services will be implemented as the U.S. Copyright Office moves forward with their plans for IT modernization.

Visual creators’ professional organizations and advocates are concerned about how these fee increases will affect visual creators, licensing agents, and related professionals. We will be submitting a Comment Letter to the U.S. Copyright Office about the proposed fee increases. We have created a survey to gather information and feedback from creators who will be impacted by registration fee increases. We will be submitting the survey results to the Copyright Office. The survey is completely anonymous.

We need your help by taking 15 minutes for a short survey. The survey is anonymous and all responses are confidential. We will use this data to support our response to proposed changes in U.S. copyright registration.

The survey will close at midnight on September 7, 2018.

 2018 Copyright Office Proposed Registration Fee Increase survey LINK https://www.surveymonkey.com/r/GGV59XY

Survey link for social media https://www.surveymonkey.com/r/WY67XHK

Please pass this along to other artists, photographers, and related professionals you know and urge them to take the survey, too!

Sincerely,

The Coalition of Visual Artists:

American Photographic Artists

American Society of Media Photographers

Digital Media Licensing Association

Graphic Artists Guild

National Press Photographers Association

North American Nature Photography Association

Professional Photographers of America

PLUS Coalition

American Society for Collective Rights Licensing

Eugene Mopsik

Shaftel & Schmelzer

EU Directive on Copyright in the Digital Single Market

Sylvie Fodor, CEPIC Executive Director, shares their views on the Copyright DSM Directive and the European Parliament’s vote against it.

CEPIC has been working for years with other European institutions on this issue to help protect copyright against online piracy.  Copyright is an issue abroad as well as here in the United States and the works of photographers seems to fall through the gap.  Protecting the rights of creators is an ongoing problem that DMLA also continues to put incredible efforts towards to help find a solution.

You can read the entire article here.

 

CEPIC clarification on the Copyright DSM Directive

It is still time to reach a balanced solution for a fair value sharing in a digital environment

On O5 July 2018 the European Parliament voted against the negotiation proposed by the Legal Affairs Committee, adopted on 20 June 2018, for the EU Copyright Directive proposal.  CEPIC regrets this rejection following four years of tireless work with EU institutions but will continue to work towards a balanced solution for a fair online marketplace for the creative sector and against online piracy.

Giving a free pass to platforms to override copyright kills creativity. Copyright is not against freedom of expression and innovation but, to the contrary creativity is the best nexus of cultural diversity and freedom of expression.

Images online

CEPIC represents hundreds of picture agencies and hundreds of thousands of photographers. CEPIC’s members have been digitizing visual content from the advent of the Internet. They license the resulting digital asset for all kinds of commercial uses, to newspapers, magazines, advertising, broadcasters, off and on-line, etc.

Images are widely shared online via search engines, social media and other aggregators and have highly contributed to make the Internet the vibrant and engaging place we enjoy today.

However, we have seen, over the last decade how heavy weight social media platforms (online content sharing service providers), which have built their success upon the posting and sharing of unlicensed images hide behind safe harbour provisions to avoid fairly compensating rights holders  for the use of their content and shift the liability onto the individual user. These platforms have contributed to fuel the internet with unlicensed content and deprive copyright holders of a stream of revenue.

What is referred as the “value gap” for most copyright material such as music and videos is more accurately called a “value block” for images as there is currently no opportunity for image providers to participate in any type of revenue scheme online. The situation of image providers is exacerbated by the practice of intermediaries distributing user up-loaded content by facilitating “framing”, or embedding.

According to CEPIC members 85% of images shared online by visual search systems are unlawful copies. Once uploaded or framed legitimately on a website, an image will be shared thousands of times leading, according to CEPIC members, to an economic harm of a couple of thousands euros per image. This free “availability” of images has been one major factor leading to decreasing value of images and to the demise of an entire sector.

Copyright online

CEPIC therefore welcomed the provisions in the proposed Copyright Directive which promotes effective licensing agreements between platforms and right holders with the possible, but non-mandatory implementation of effective technologies. It should be stressed that the draft Directive has gone through a long-detailed review of two years and has led to a positive vote of the Legal Affairs Committee on 20 June 2018, taking into account the conclusions of four other Committees.

We therefore regret the fact that MEPs have been targeted by a coordinated campaign of misinformation against the text of article 13 proposed by the JURI Committee, in a scale rarely seen before and in a clear attempt to obstruct the progress of the legislation that is vital for the protection of copyright online. Valid decisions cannot be based on scaremongering and mass intimidation. Clearly this situation calls for clarification.

If the Directive is approved, it will provide a better functioning online marketplace which will aim to:

–          Reinforce the position of right holders to negotiate licensing agreements and be remunerated for the online exploitation of their content on sharing platforms;

–          Fix the value gap by sharing the revenues to creators from the use of their content in online platforms;

–          Create a level playing field in Europe’s Digital Single Market which will stimulate creation of high-quality content;

–          Improve transparency online and give more control to creators by allowing them to determine whether, and under which conditions, their work is used online.

It will NOT:

–            End popular memes, parody or pastiche

Caricatures, parody or pastiche are protected by an optional exception – under Article 5(3)(k) of the 2001 InfoSoc Directive, allowing reproduction and communication of such content to the public and guaranteeing the authors’ freedom of expression.

Therefore, Article 13 of the proposed Copyright Directive will not affect the application of this exception. It only creates an obligation at the level of online platforms and not on their users who will be able to access and post their content.

The proposed Copyright Directive only adds the possibility for authors of memes or parodic content to tackle over-removal by online platforms through the mandatory redress mechanism included in the proposal which means that in case parodic content is removed, the creators of this content will be able to contest the removal and ask the content to be published based on the parody exception in place.

–            Filter the Internet. The proposal does not impose mandatory up-load filters and censorship in the internet.

In fact, the European Data Protection Supervisor has concluded, in its formal comments on the text of Article 13 proposed by JURI report 29.06.2018, that the balance of fundamental rights is preserved by Article 13, considering that the text requires Member States to ensure:

o   that any measure to be put in place must be “proportionate”;

o   the balance between fundamental rights of users and rightholders is preserved and;

o   that no general monitoring obligation of information transmitted or stored is imposed.

The proposal is not targeting users and their capacity to upload content in the internet. It targets large platforms, which have become major sources of access to copyright-protected content to collaborate with rightsholders. These platforms are required to put in place “effective and proportionate measures…in collaboration with the right-holders” to allow the functioning of agreements reached on the use of copyright-protected content, or to prevent the availability of unauthorised content if right-holders prefer not to have their content available on such platforms.

In fact, platforms, such as YouTube already use content ID technology to identify copyright protected content which allows authors to be paid when their content is used online. Other platforms, large and small, resort to third party technology to implement a “Take Down and Stay Down” service. We simply ask that this is standard across all online content sharing service providers.

–          Add an additional burden and barrier of entry on start-ups and other small businesses:

o  Firstly, the directive only targets platforms “with large amounts of user up-loaded content”

o  Secondly, the measures implemented are requested to be “proportionate”

We are facing a crucial time for the future of the creative industry as the Copyright Reform is being voted on. Copyright laws need to be modernised in order to protect the livelihoods of creators.

We will stay mobilized to start negotiating in order to lift all uncertainties left by the overwhelming misinformation campaign orchestrated by those opposed to the Copyright Directive and provide all information for a fair and informed vote on September 12th, 2018.

 

About CEPIC
CEPIC is a European not-for-profit trade association in the field of image rights. CEPIC was founded in 1993 to present a unified voice to advise and lobby on new legislation emerging from Brussels. It was registered as an EEIG (Economic European Interest Group) in Paris in 1999. As the Centre of the Picture Industry, CEPIC brings together nearly 600 picture agencies and photo libraries in 20 countries across Europe, both within and outside the European Union. It has affiliates in North America and Asia. It has among its membership the larger global players such as Getty or Reuters. Through its membership, CEPIC represents more than 250.000 authors in direct licensing.

For more information contact:
Sylvie Fodor
Executive Director
s.fodor@cepic.org
+ 49 177 2332 514
www.cepic.org

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.