Tag Archives: mass digitization

DMLA Legal Update: Copyright Office News & New York State Right of Publicity Bill

2015 has already been a busy year for the U.S. Copyright Office. They have been publishing policy reports, issuing Notices of Inquiry (“NOI”), conducting various studies, and participating in congressional hearings about copyright law reform.

The Copyright Office recently released a 234-page report entitled “Orphan Works and Mass Digitization,” followed by an NOI seeking comments about a potential extended collective licensing pilot program to facilitate the digitization of collections of books, photographs, and other materials for nonprofit education and research purposes. The Office is also in the process of conducting a study about the extent to which the Copyright Act’s bundle of exclusive rights satisfies the requirement under the WIPO treaties that member countries recognize copyright holders’ “making available” and “communication to the public” rights.

In addition to these activities there is currently a discussion draft of proposed legislation pertaining to the Copyright Office circulating in the House of Representatives, and the Office has issued an NOI specifically concerning the legal challenges facing visual artists and the licensing industry.

Proposed Legislation for Copyright Office Reform

Earlier this month House representatives Judy Chu and Tom Marino released a discussion draft of the Copyright Office for the Digital Economy Act (“CODE” Act). This Act comes after more than a year of Congressional hearings on the status of U.S. copyright law. It would establish the Copyright Office as an independent agency with its director appointed by the President. It would further bring the Copyright Office into the 21st Century vis-à-vis reforms to the registration process and the deposit requirement. The purpose of these reforms would be to facilitate a streamlined registration process, as well as establish a meaningful public record of copyrights. You can read the final version of the discussion draft here, and a section-by-section overview of the bill’s key points here.

DMLA supports this bill and looks forward to the continued discussions about the proposals.

Copyright Office Visual Works Notice of Inquiry

In April the Copyright Office issued an NOI calling for comments about the challenges to monetizing and licensing, registering, and enforcing copyrights in visual works such as photographs, illustrations and graphic artworks. This NOI is a critical opportunity for DMLA and our members to voice the concerns of content creators and the licensing industry over the current state of copyright law in the U.S. DMLA is drafting a response that will focus on the legal and practical barriers faced by copyright holders and licensors and reiterate support for the proposed Copyright Small Claims Court, address issues with notice and take-downs and the difficulty in the registration system.

The response to this NOI is due July 23, 2015. DMLA is working in collaboration with other visual artists associations in preparing a response to this NOI. Individual members are encouraged to provide a response as well. For more information visit the Copyright Office webpage dedicated to this NOI.

New York Right of Publicity Bill

Early this month legislation that would amend New York’s right of publicity statute to retroactively extend rights to deceased personalities was introduced as companion bills in the State Assembly and Senate. Similar legislation was introduced several years ago by the Strasberg Estate, which owns Marilyn Monroe’s publicity rights. That bill was defeated with the help of a coalition of rights holders associations who principally voiced concern over the lack of an expressive works exemption. The language of the bill was vague and would encourage litigation and interfere with image licensing. The DMLA, MPAA, New York State Broadcasters Association, New York News Publishers Association, and several others coordinated a letter writing campaign to voice the concerns of rights holders in the film, publishing, broadcasting, and licensing industries. We are happy to report that the bills were not put to vote before the end of the legislative session on Friday, June 26th. This does not necessarily mean the fight is over, however, and it is likely that similar legislation will come up during future legislative sessions. We will keep an eye on any new efforts to introduce a retroactive right of publicity bill.

Copyright Office Requests Public Comment on Mass Digitization Pilot Program

The U.S. Copyright Office has published a Federal Register notice requesting written comments to assist it in developing draft legislation that would establish a legal framework for certain mass digitization activities. For the past several years, the Office has been exploring ways to facilitate and support mass digitization projects serving the public interest while appropriately balancing the interests and concerns of copyright owners. In its recently issued Orphan Works and Mass Digitization Report, the Office proposed the creation of a limited “pilot program” that would allow certain types of mass digitization projects to be authorized through a system known as extended collective licensing (ECL). The ECL pilot program recommended by the Office would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rightsholder and user representatives.

Because the success of such a system depends on the voluntary involvement of both copyright owners and users, the Office is inviting public comment on several issues concerning the scope and operation of the pilot program. The Office will then seek to facilitate further discussion through stakeholder meetings and, if necessary, additional requests for written comment. Based on this input, the Office will draft a formal legislative proposal for Congress’s consideration.

The Notice of Inquiry is available here. Written comments are due on or before August 10, 2015.

DMLA via our counsel, Nancy Wolff, is working on comments representing our association.  We are also working with our Ad Hoc Association Group so that our comments are aligned and that we speak as a united industry.  Please feel free to send your input to Nancy at NWolff@cdas.com

Copyright Office: Notice of Public Roundtables and Request for Additional Comments

The Copyright Office will host public roundtable discussions and seeks further comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. The meetings and comments will provide an opportunity for interested parties to address new legal developments as well as issues raised by comments provided in response to the Office’s previous Notice of Inquiry.

The public roundtables will take place on March 10-11, 2014, in the Copyright Office Hearing Room, LM-408 of the Madison Building, Library of Congress, 101 Independence Ave. SE, Washington, D.C. 20559. The roundtable discussions will be held from 9:00 a.m. to 5:00 p.m. on both days.

The schedule for the roundtables, which includes the dates and times for specific topics, is set forth below. As shown in the schedule, the roundtables have been divided into nine distinct sessions. If you are interested in participating in one or more of the roundtable sessions, please complete and submit the participation form no later than February 24, 2014.

Due to space constraints, the Office cannot guarantee that it will be able to accommodate every request. To maximize the number of viewpoints presented, the Office will accept only one representative per entity as a participant in a particular session (but an entity may request to have different representatives in different sessions).

The Office also will provide members of the public with the opportunity to observe the hearings. Note, however, that space is limited due to the size of the hearing room. The Office will admit observers on a first come, first serve basis.  To allow for a diverse audience, we ask that entities limit any observers to one per session.

The Office is making arrangements to transcribe the proceedings and will post the transcripts on the Office website. Additionally, the Office is seeking further public comments on orphan works issues, including those to be discussed at the public roundtables. A comment form will be posted on this site no later than March 12, 2014.  Comments must be submitted no later than April 14, 2014.

Sessions and hearing schedule

The public roundtable discussions will be divided into nine sessions addressing distinct topics. Below is the schedule and information as to which topics will be discussed at particular sessions.

TIME

DAY ONE (MARCH 10, 2014)

9:00 – 10:15 Session 1: The need for legislation in light of recent legal and technological developments
10:15 – 10:30 Break
10:30 –  11:45 Session 2: Defining a good faith “reasonably diligent search” standard
11:45 – 12:45 Lunch
12:45 – 2:00 Session 3: The role of private and public registries
2:00 – 2:15 Break
2:15 –  3:30 Session 4: The types of works subject to any orphan works legislation, including issues related specifically to photographs
3:30 – 3:45 Break
3:45 – 5:00 Session 5: The types of users and uses subject to any orphan works legislation

 

TIME

DAY TWO (MARCH 11, 2014)

9:00 – 10:15 Session 6: Remedies and procedures regarding orphan works
10:15 – 10:30 Break
10:30 –  11:45 Session 7: Mass digitization, generally
11:45 – 1:00 Lunch
1:00 –  2:15 Session 8: Extended collective licensing and mass digitization
2:15– 2:30 Break
2:30 –  5:00 Session 9: The structure and mechanics of a possible extended collective licensing system in the United States

Background

The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.

Nancy Wolff, PACA Counsel, will represent PACA at all sessions.