For some time, the House Judiciary Committee has been exploring how to update U.S. Copyright Law and the Copyright Office to meet current needs of the digital age. House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.) have released the first policy proposal to come out of the Committee’s review of U.S. Copyright law.
The plan is to release policy proposals periodically to get feedback on “select, individual issue areas within the larger copyright system that are in need of reform where there is a potential for consensus.” It’s a starting point for discussion and from there legislation will be drafted.
Grant the Copyright Office autonomy with respect to the Library of Congress,
The Copyright Office will have autonomy over its budget and technology needs,
The Register will now be nominated by the President through the consent process with a 10-year term limit, then can then be re-nominated,
New positions will be added including Chief Economist, Chief Technologist, and a Deputy Register,
The Copyright Office should add a combination of permanent and ad-hoc advisory committees with members reflecting a wide range of views. Permanent committees should be created to focus on, but not limited to, the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to
libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be limited and the ability of individuals to serve on more than one committee should be limited.
The Copyright Office will maintain an up-to-date digital, searchable database of all copyrighted works and associated copyright ownership information,
That database should include additional metadata for a fee and be made available for a fee,
The office should be authorized to build up reserve accounts and offer other “fee-for-service” options to create revenue to be used for modernization,
A pilot project should be created to increase the federal registration of copyrights,
The Copyright Office should host a small claims system to handle low-value infringement cases as well as bad faith Section 512 notices.
You can read the full proposal at the link above.
This first proposal is some ideas (not legislation, not law) and they’re looking for feedback through written comments from interested stakeholders by January 31, 2017. Those comments will be shared with Committee members and be made public after the comment period ends.
You can submit your thoughts through mail at:
2138 Rayburn House Office Bldg
Washington, DC 20515
The Librarian of Congress has adopted new exemptions for the Digital Millennium Copyright Act (DMCA). The DMCA has prohibitions against circumvention of technology measures.
The decision was part of a public process and evaluated from feedback through that. There was nearly 40,000 written comments and heard testimony from sixty-three witnesses over seven days of public hearings.
Based on all of that, the Register of Copyrights suggested exemptions for twenty-two types of uses and the Librarian adopted them in full. Yeah read the full exemptions (and some of the rejected ones) online.
The rule is effective October 28, 2015.
The decisions affect everyone and some are interesting particularly for us geeks.
One of the exemptions has to do with works distributed electronically for use with “assistive technologies for person who are blind, visually impaired or have print disabilities.” There’s some folks working on comic readers for the blind, and this absolutely impacts that cottage industry.
Also mentioned are video games whose server support has been discontinued, and issue that affects more and more video game fans out there. It’s specifically mentioned this is for “individual play by gamers” and as for preservation of the games by libraries, archives, and museums. It also extends to the console code to help in that preservation.
Overall, a victory for consumers from the draconian and abused DMCA.
I’ve been seeing scare tactics going around various comic artists over the past couple of days concerning an “update” to US Copyright law as a new act, and the reintroduction of legislation known as the Orphan Works Act. According to the misinformed postings (the original posting has been taken down, I am looking for another example) and on a YouTube video, the legislation would:
The Next Great Copyright Act” would replace all existing copyright law.
It would void our Constitutional right to the exclusive control of our work.
It would “privilege” the public’s right to use our work.
It would “pressure” you to register your work with commercial registries.
It would “orphan” unregistered work.
It would make orphaned work available for commercial infringement by “good faith” infringers.
It would allow others to alter your work and copyright these “derivative works” in their own names.
It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.
Well, I’m here to dump so cold hard truth in front of you. The above? That’s all bullshit, not true at all. Not even close.
The first sign to me that the above was crap was the fact the post references that this is a law before Congress, but has you contact the US Copyright Office, instead of Congress. The video referenced admits there’s actually no legislation before Congress, there’s no text to actually see. The Copyright Office is doing their job, writing a report, and they are asking for input from individuals. There is no legislation, this is akin to a brainstorming project. This happens every day in government, there’s nothing unusual here and also nothing to get whipped up about. Reports go nowhere every day.
Here are the facts.
On June 4, 2015 the United States Copyright Officereleased a report on orphan works and mass digitization. The report:
…documents the legal and business challenges faced by good faith users who seek to use orphan works and/or engage in mass digitization projects. It provides a series of legislative recommendations that offer users a way forward out of gridlock, but also take into account the legitimate concerns and exclusive rights of authors and other copyright owners.
The report also:
With respect to orphan works, the Report provides draft legislation that draws upon the Shawn Bentley Orphan Works Act passed by the Senate seven years ago, albeit with some updates and changes that reflect intervening developments and public discussions.
You can read the full report here. Before getting riled up, actually read the report and see for yourself what it does. The report looks at the 2006 and 2008 Orphan Works proposed legislation (I’ll get to that in a bit). It also discusses Fair Use, Google Books litigation, and various experiences with the issues of copyright around the world. The executive summary sums it all up nicely:
As the Supreme Court reaffirmed in 2012, facilitating the dissemination of creative expression is an important means of fulfilling the constitutional mandate to “promote the Progress of Science” through the copyright system. This Report addresses two circumstances in which the accomplishment of that goal may be hindered under the current law due to practical obstacles preventing good faith actors from securing permission to make productive uses of copyrighted works. First, with respect to orphan works, referred to as “perhaps the single greatest impediment to creating new works,” a user’s ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner. Second, in the case of mass digitization – which involves making reproductions of many works, as well as possible efforts to make the works publicly accessible – obtaining permission is essentially impossible, not necessarily because of a lack of identifying information or the inability to contact the copyright owner, but because of the sheer number of individual permissions required.
The short version? Some times it’s hard to get a hold of the copyright holder, and some times there’s a hell of a lot of people that need to be contacted.
The report has SUGGESTIONS for legislation. On page 8 those are:
Permit the Register of Copyrights to authorize CMOs meeting specified criteria to issue licenses on behalf of both members and non-members of the organization to allow the use of copyrighted works implicated by the creation or operation of a digital collection;
Apply only to the three categories of works noted above, with possible additional limitations based on works’ commercial availability or date of publication;
Give copyright owners the right to limit the grant of licenses with respect to their works or to opt out of the system entirely;
Permit the licensed works to be used only for nonprofit educational or research purposes and without any purpose of direct or indirect commercial advantage;
Establish eligibility requirements for a CMO seeking ECL authorization, including evidence demonstrating its level of representation among authors in the relevant field, the consent of its membership to the ECL proposal, and its adherence to standards of transparency, accountability, and good governance;
Provide for the negotiation of license rates and terms between the CMO and a prospective user, subject to a dispute resolution process;
Require the parties to negotiate terms obligating the user, as a condition of its license, to implement and maintain reasonable digital security measures controlling access to the relevant works;
Require the CMO to collect and distribute royalties to rightsholders within a specified period and to conduct diligent searches for non-members for whom it has collected payments;
Provide for the disposition of royalties remaining unclaimed after a specified period;
Include a provision expressly preserving the ability of users to assert fair use in connection with mass digitization projects; and
Sunset five years after the legislation’s effective date
The three categories of work mention are: 1) literary works; 2) pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works; and 3) photographs. A CMO is a “collective management organization” which would represent copyright holders in those three categories. Copyright holders would be able to opt-out of it as noted in bullet point three.
The short version. There’d be one group you could go to so that one can figure out who owns what copyright, get permission, and pay whatever fees. Anyone can opt-out of it. It would also be a pilot program, not some permanent thing.
Unlike what the video says, and has been claimed, there is no forcing anyone to participate in some program, and there’s no loss of your copyright unless you register everything and anything. Things remain the same, you can control your own copyright, or you can opt-in to the CMO, under the suggestions made in this report. Keep in mind. THERE IS NO LEGISLATION CURRENTLY BEFORE CONGRESS.
What is the 2008 Shawn Bently Act S.2913, aka the Orphan Works Act? The legislation was last introduced by Sen. Patrick Leahy (a staunch supporter of the MPAA and Hollywood) and died when it moved to the House. This is the summary:
Limits the remedies in a civil action brought for infringement of copyright in an orphan work, notwithstanding specified provisions and subject to exceptions, if the infringer meets certain requirements, including proving that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate and identify the copyright owner before using the work, but was unable to locate and identify the owner; and (2) the infringing use of the work provided attribution to the owner of the copyright, if known. Requires a search to include methods that are reasonable and appropriate given the circumstances, including in some circumstances: (1) Copyright Office records that are not available through the Internet; and (2) resources for which a charge or subscription is imposed.
Limits monetary compensation to reasonable compensation for the use of the infringed work. Prohibits such compensation if the infringer is a nonprofit educational institution, museum, library, or archive, or a public broadcasting entity and if the infringer proves that: (1) the infringement is performed without any purpose of commercial advantage and is primarily educational, religious, or charitable in nature;and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement. Allows injunctive relief to prevent or restrain infringement, subject to exception and limitation.
Directs the Register of Copyrights to: (1) undertake a process to certify that databases are available that facilitate searching for pictorial, graphic, and sculptural works protected by copyright; (2) report to the House and Senate judiciary committees on the implementation and effects of certain amendments made by this Act, including any recommendations for legislative changes; and (3) report to those committees on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.
Really in the end. The initial video and posts that started this response are hyperbolic and dangerous in the lack of facts and misrepresentation of the truth. The fact they have been shared thousands of times and the video watched almost 40,000 times is sad in that it uses scare tactics devoid of reality, and misrepresents how government works. The lack of the basic understanding about the legislative process by many is apparent, and appalling.
Below is a refresher of the basics, but the lesson here is, before you get worked up about legislation, do some research and come up with your own conclusion. Don’t take others at their word. Knowledge is power.
Update: For those interested in the issue and want to learn more about the actual problems with the Copyright Office’s proposal, TechDirt has a nice breakdown that shows the general issues. It also reiterates what I wrote above that this does not actually change copyright law as stated by others, and it is not legislation before Congress, etc.
Update 2: Surviving Creativity has a great podcast on the subject that includes folks who work in the comic industry and one is a lawyer.
The weekend has come and gone. We’re still not recovered from San Diego Comic-Con, and Otakon is coming up this weekend! While you start off the week, here’s some news and reviews from around the web you might have missed.
Filmed at NYU School of Law on September 23, this panel asks whether copyright has lost one of its principle functions: to protect authors and original ideas. In the digital age, does copyright have a purpose beyond protecting corporations from illegal copying and file sharing? The panel featured:
In 2011 I stood against the the Stop Online Piracy Act (SOPA) and its sister legislation the Protect Intellectual Property Act (PIPA) partially because the legislation was poorly thought out, partially because the current Digital Millennium Copyright Act (DMCA) system is flawed and broken, and partially because the legislation would be used to stifle criticism. The site Escher Girls is currently a prime example of how DMCA/copyright claims, can be used in a negative way.
The DMCA was signed into legislation in 1998 by then President Clinton, the legislation was flawed then, and remains so. One of the most glaring is the lack of real penalties for making false claims (though there is threat of perjury). Part of the legislation lays out the process by which take down notices take place. Websites/web services/web platforms are given protection from prosecution if they remove material that is claimed to be offending and violating copyright. This is why Google doesn’t get in trouble, but takes down material when asked. In this situation, the web platform involved is Tumblr. Google also releases handy information on how many, and by whom and for what, requests are made.
Randy Queen is the artist of Darkchylde, one of the many characters and series to spring from Image Comics in the 1990s. The character generally was depicted in the unrealistic/distorted poses, a style some like, and others not so much. Enter Escher Girls, a blog dedicated to showing this off and critiquing the art. That critiquing part is important. According to a post on the Escher Girls website, they received a DMCA take down notice to remove their posts critical of Queen’s work. Escher Girls has also been contacted by other sites that had the same thing done. They later updated their post that Queen had also allegedly requested a DMCA take down of the article about Queen’s use of DMCA take downs. Tumblr didn’t give in to that request. Other websites that are more positive about Queen have images still up.
Here’s a screen cap of the notification from Tumblr.
Queen then went so far as to send an email to the site threatening legal action if they “didn’t put a stop to all of this,” and claiming the site was defaming him by saying “he was using the DMCA to stamp out criticism of his artwork.”
Here’s the text of that email:
Dear Eschergirls and Kim,
I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer.
Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today.
At this point, I will ask you to please move along, as no good will come of this.
Additionally, instead of taking shots at art someone did 18 years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time and energy on creating your own characters and comics which you can make your own personal sacrifices to bring to the world.
A search for #darkchylde on Tumblr shows two things. The first is, there’s still numerous positive posts about his art still up on the web platform. The second is, that the action has backfired on him, quickly catching first leading to massive criticism about his action.
Here’s where Queen’s actions really fail. Escher Girls was criticizing his work under Fair Use. Fair Use is “is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship”
This is the actual language from the Copyright Act of 1976:
17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Escher Girls used a snippet of the work, and was used as criticism. Pretty clearly falling into Fair Use. As TechDirt points out Queen needs to familiarize himself more with copyirght law. In his email he states:
…publicly challenges my right to protect the perception of my IP.
Unfortunately there is no right to protect perception of your IP. Perception is how an individual views your IP. Even if the initial take down didn’t fall under Fair Use, the then discussion of the art, or the follow up emails have nothing to do with DMCA. That’d fall into thought police, and we as individuals are afforded the right to free speech (though that is limited in some extreme cases).
We’ve had some DMCA issues in the past as a site. Scribd currently employs a flawed system that catches previews sent to us by publishers. We had the lawyers of a major company send a DMCA take down for a video their publicist sent us to post, and had it taken down on YouTube. We’ve seen another blog make a claim for a video they didn’t own also sent out by a publicist. The current system is broken, and this is just another example that reform needs to happen.
The last time there was a mention of Queen on this website was 2011, and that was for a solicit for Darkchylde trade. All Randy Queen has done with all of this is up his profile… in a negative way.
Update: Queen has since issued a statement apologizing for his actions. You can read it below.
Just wanted to clear up a few things that happened this past week. I have been having a very hard time in my personal life with the loss of my mother and my marriage having fallen apart and found myself in a very vulnerable and fragile state of mind. There were posts on the web criticizing my artwork that were brought to my attention and added to my stress. I reacted without thinking it through, but have now stopped, realizing my response was the wrong one to take. I am doing my best, each day, to get myself back on my feet and getting my life in a better place and realize now that I have just try to move on and get back to my art, the thing I find the most joy in these days. I want to thank those professionals, friends and family who have been giving me their support, understanding and love.
We wish Queen the best and that things get better for him.
We previously brought you the story of creator Skottie Young who took to Twitter to vent about his art being sold without his permission on clothing and other items through the website RedBubble. We reached out to RedBubble and received a response over the weekend. Through email, we learned about 20,000 works per month are removed. Some of this is in direct response to DMCA notices and some will be as a result of the pro-active polices, cited below, that the company takes.
RedBubble CEO Martin Hosking wrote us with the below info, which is similar to what we discussed years ago when we talked to them about the same subject:
First thing is once we were aware of the Skottie issue this morning we immediately took action. We do this under our normal processes. They may be more extensive than people realise and go beyond the strict requirements of the DMCA. I highlight this below.
You know this, but so it is in one place: Redbubble is a community built on respect, recognition and appreciation of original artists. We take matters of intellectual property extremely seriously. We value originality and creativity, and we strongly oppose infringement of copyright, trademark, publicity rights, or any other intellectual property rights.
I’d like to clarify that Redbubble does not itself manufacture, sell or distribute the products on its Web site. Rather, Redbubble is the host of an online marketplace. Regardless, it is absolutely Redbubble’s policy and practice to respect intellectual property rights of others and to provide reasonable assistance to rights holders in this regards.
As you have written on in the past, in an effort to strike a balance between the rights of rights owners to prevent infringing uses of their intellectual property and the rights of visual artists to make non-infringing, and/or fair uses of related content, Redbubble has implemented a fairly extensive set of copyright, trademark and DMCA procedures, which are set forth at : http://support.redbubble.com/kb/top20/copyright-trademark-and-dmca.
Central to these procedures is our Notice and Takedown process, modeled after the one set out in the Digital Millennium Copyright Act (DMCA). Submitting a takedown notice is a fairly straightforward process, and once we receive the information required under the DMCA, we act expeditiously (typically within 24 hours) to remove any listing that a bona fide rights owner or licensee identifies as infringing. This takedown is always subject to our counter notification process, which gives sellers affected by takedowns the opportunity to establish their right to sell the material at issue. More detail about the take down and counter notice process can be found at the following URL: http://support.redbubble.com/kb/top20/redbubble-ippublicity-rights-policy#report
Although we’re not required by law, we take further proactive efforts on many occasions and work closely with numerous content owners, brands and individual artists to minimize instances of third party infringement of intellectual property rights via the Redbubble marketplace. We also immediately remove any user who is identified as a repeat infringer, per our policies.
Again, I want to emphasize, Redbubble takes matters of alleged IP infringement very seriously and we do not take lightly any suggestion (not that you have made this) that we have any other stance on this issue.
It’s good to see RedBubble take this issue seriously. This is an issue that’s beyond them, and one of the nature of the internet itself. With everybody able to quickly share, re-use, and re-post, this debate has raged for years, and I expect to continue for years to come.