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Texas Passes Revenge Porn Bill

revenge porn bill passedTexans who post nude or sexually explicit pictures on-line to hurt another individual, usually an ex-spouse or ex-partner, would be subject to civil and criminal penalties under a revenge porn bill unanimously accepted on Tuesday by the Senate.

“This bill gets at a very disturbing Internet trend, the posting of nude or sexually explicit images without the consent of the affected person and with the intent to harm,” Garcia said. “In many instances, the images are posted by an ex-partner seeking revenge or to cause harm, and indeed this does cause immediate and irreversible harm.”

She noted, once an image is posted online, it is extremely hard to take down. “This is a very intimate violation of a person’s privacy and no different than the trauma caused by sexual violence, harassment or abuse,” the senator said. “More often than not, the victim is a woman.”
Civil and criminal penalties could be assessed under the bill against not only the perpetrator, but also the owner of the website that publishes the images.

All women senators joined as co-authors of the legislation. “This is an important piece of legislation for the women of Texas,” asserted Sen. Joan Huffman, R-Houston. The measure now goes to the House.… Read the rest

Department of Commerce releases report on Copyright Policy

The industries that rely on copyright are today an integral part of the U.S. economy, accounting for millions of jobs and contributing billions of dollars to the G.D.P. Moreover, the creative content they produce contributes to the development of the broader Internet economy, spurring the creation and adoption of innovative distribution technologies. Not only do these industries make important economic contributions, they are at the core of our cultural expression and heritage. It is no exaggeration to say that U.S. music, movies, television shows, computer software, games, writings and works of art have changed the world. Copyright Policy, Creativity, and Innovation in the Digital Economy.

Today, the Department of Commerce Internet Policy Task Force released its anticipated Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy. The Internet Policy Task Force (IPTF) is a coalition of Department of Commerce bureaus launched in 2010 “to identify leading public policy and operational challenges in the digital economy.” Along with intellectual property issues, the IPTF has assessed issues relating to consumer data privacy, cybersecurity practices, and the global free flow of information.”

The purpose of the Green Paper is to review the development of copyright policy as it has responded to new technologies in recent decades, assess the current challenges facing copyright law, and provide a set of recommendations to address some of those challenges. The IPTF was aided by the input of a wide range of stakeholders as it drafted the Green Paper, who participated through roundtable discussions, public meetings, and a public commenting process.

Secretary of Commerce Penny Pritzker opens the report noting not only the economic contributions of copyright — accounting for over five million US jobs and a significant percentage of GDP — but also the noneconomic benefits.

America’s writers, musicians, filmmakers, photographers, sculptors and other creators make up the lifeblood of our culture, build new stores of knowledge, and shape how we see ourselves—and how the world sees us as well. Their influence extends beyond our borders; our copyrighted works weave a compelling narrative of the opportunity and possibility of America, and continue to be at the forefront of the global creative marketplace. We must continue to nurture such extraordinary creative resources.

As the IPTF points out in the forward, “Copyright law has always adapted to technological changes,” but the most recent changes — including digital media and the global Internet — have perhaps been the most profound. Meaningful protection requires enforcement of rights, though there is no single solution to those challenges. This is the backdrop that has motivated the report. The IPTF says that “It is time to assess whether the current balance of rights, exceptions and responsibilities — crafted, for the most part, before the rapid advances in computing and networking of the past two decades — is still working for creators, rights holders, service providers, and consumers.”

The IPTF issues a number of recommendations that it divides into three broad categories:

1)“Updating the balance of rights and exceptions.”

  • Congress should “better rationalize the public performance right for sound recordings.” According to the Task Force, this entails extending the right to cover broadcasting and taking the impact on creators and rights holders into account if it reassesses ratesetting procedures for different types of digital music services.
  • Soliciting public comment on remix and digital first sale issues.
  • Supporting the Copyright Office’s work on Section 108, orphan works, and mass digitization issues.

2)“Assessing and improving enforcement tools to combat online infringement and promote the growth of legitimate services while preserving the essential functioning of the Internet.”

  • Repeating the call for Congress to standardize criminal penalties for streaming with those of reproduction and distribution.
  • Soliciting public comment regarding statutory damages for individual file-sharers and for secondary liability for large-scale online infringement
  • Establishing multi-stakeholder dialogue on effectiveness of DMCA notice and takedown system
  • Supporting the Copyright Office’s improvement of its database on registered agents under the DMCA and its examination on possible copyright small claims procedures.
  • Encouraging development of private sector cooperative initiatives to address online infringement
  • Enhancing public education and outreach for consumers about copyright law and legitimate online services

3)“Realizing the potential of the Internet as a legitimate marketplace for copyrighted works and as a vehicle for streamlining licensing.”

  • Providing input to Congress in any review of music licensing, particularly mechanical licensing for musical compositions
  • Supporting the Copyright Office’s improvement of its registration and recordation systems, including support of provisions for enhancing incentives to use those systems
  • Soliciting public comment on the appropriate role of government in improving online licensing.

The Green Paper traces the early stages of copyright and the Internet, paying particular attention to the US government’s role in facilitating that development — the 1995 Intellectual Property Working Group report Intellectual Property and the National Information Infrastructure laid the ground work for the first wave of copyright policy in the digital age and, in many ways, serves as a blueprint for this Green Paper. The IPTF also calls attention to the current review of the Copyright Act by the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet, making the release of the Green Paper ever more timely.

The Green Paper covers a lot of territory. Among the highlights:

  • The “making available” right, required by the 1996 WIPO Internet Treaties, was not implemented in the U.S. because Congress considered the right to be covered by the existing statutory language. Since then, however, courts have been split as to whether the distribution right incorporated the concept of “making available.” The IPTF attempts to rehabilitate Congress’s earlier view by pointing out more recent academic scholarship that better establishes the “making available” right in U.S. law.
  • A “new challenge” faces the meaning of the public performance right — specifically, the Second Circuit’s recent interpretation of the right in WNET v. Aereo. The IPTF writes that the result of this and similar cases might affect the “viability and scope of new licensed business models such as online video subscription services,” and Congress may need to step in if courts continue to undermine a meaningful public performance right.
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Copyright Matters: Copyright Conversations with the United Kingdom

The following was written by Mark DesMeules of American Continental Group

On Monday, the U.S. Copyright Office hosted a Copyright Matters program titled Copyright Conversations with the United Kingdom: A View from Across the PondThe program featured a dialogue between Maria Pallante, Register of Copyrights, and John Alty, Chief Executive Officer and Comptroller General at the Intellectual Property Office (IPO) of the United Kingdom. The conversation also included several senior Copyright Office officials, UK IPO Director of International Policy Neil Feinson, and Deputy Director of International Policy Adam Williams. The officials discussed the copyright policy issues that are currently being faced by both countries, including: orphan works, extended collective licensing, small claims, and recent efforts in both countries to modernize their copyright legal systems for the digital age. The event was well attended with a number of individuals from both policy and industry.

John Alty emphasized a rapid shift to digital in the UK, noting the increasingly digital shift seen in UK publishing firms. With the transformation, however, comes the issue of digital licensing — a matter where the general sentiment is that the system is inefficient and expensive for “small value – large volume” hauls. The issue of increasing the efficiency of collective licensing is one that the UK is hoping to address. The private sector has taking the lead on this initiative. An industry group in the UK that includes actors from all sides of copyright has launched the CopyrightHub, a website that provides users with a jargon-free map for navigating and acquiring licenses for copyrighted goods. The hub was first suggested in the influential Hargreaves Review of Intellectual Property and Growth that was released in 2011, where Cardiff University Professor Ian Hargreaves recommended the creation of a digital copyright exchange.

Since the release of the Hargreaves Review, Alty’s office has been in listening mode, taking in comments from stakeholders. Key issues that have been raised amongst copyright holders and users include the need to access copyright more easily in a controlled environment and how to address orphan works. The CopyrightHub covers the former, and the recently passed Enterprise and Regulatory Reform Act addresses the latter. The Act, which achieved royal ascent in the UK in April, opens up orphan works for use by third parties, provided they have conducted a diligent, but unsuccessful search for the owner. Photographers in the country have expressed anger over the new provision.

Alty said that while online infringement continues to be an issue, UK research is showing that piracy rates have stabilized. The hope is to see a downward trend, which is being facilitated by a copyright alert system and the creation of an intellectual property crime unit in London that focuses on serious infringement (peer-to-peer downloading both domestically and internationally). The IPO has also been working on bringing small claims to justice, with a big picture focus on ensuring a well functioning copyright system. Working with the EU in its examination of copyright has been a priority of the UK as well, especially as debate intensifies around issues of copyright. The UK will put out its own framework for EU copyright later this year; the IPO is currently soliciting comments on its pending framework. Alty stated further that the UK looks forward to working with U.S. industry and officials on the matter.

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Orphan Works, Droit D’Auteur, Where to Sue in Copyright Cases

Snippets from issue 1, 2013 volume of The Copyright & New Media Law Newsletter:

Publishing and distributing content in today’s environment means working within a variety of models. An article or a series of articles published in a newsletter or website may become a mini e-book, the basis for a webinar or online course, or part of an online subscription-based database. These various models of monetizing content presume one thing—that ownership of the original content is clearly established when that original or first version of the content is written.

– Editorial by Lesley Ellen Harris

Orphan Works:

Because museums operate as stewards of collections with a mission and responsibility—on the one hand to educate and communicate with their public and, on the other hand, to care for their collections—museums hold a unique perspective on rights issues. One of the most significant legal issues facing the contemporary museum is the orphaned works issue.  The issue of orphaned works, that is, works determined to likely still be in copyright where the copyright owner cannot be identified or found, is not new.  Historically museums have been involved in determining provenance or attribution of works of art.

– Orphan Works from the Museum Perspective by Rina Elster Pantalony

French Copyright Law:

The French Intellectual Property Code not only expressly provides for the possibility to transfer moral rights on the death of the author (moral rights can be transferred only because of death), but also provides for the perpetuity of moral rights. The combination of this perpetual nature with the possibility of transferring a moral right only in case of death, offers a crucial tool to maintain control over the use of a work beyond the duration of patrimonial rights. As an example, the French courts (Paris Court of First Instance, September 12 2001) found that the moral rights over the works of famous author Victor Hugo had been transferred to his heirs up until today even thought the famous writer died in 1885.

– Copyright in France: The French System of “Droit D’Auteur” by by Jean-François Bretonnière and Thomas Defaux

Where to Sue for Copyright Infringement:

Personal jurisdiction is the court’s power over the parties in a case and is generally limited to a geographical area, such as a state.  More broadly, jurisdiction is the right or authority of a court to hear and decide a case.  Not every court has the right or authority to decide a particular legal dispute.  For example, a small claims court does not have the authority to decide a copyright case.  Only federal courts have that authority.  Personal jurisdiction is therefore the right or authority of the court to make a ruling that is enforceable against a specific party.  There are two kinds of personal jurisdiction: specific jurisdiction and general jurisdiction.

– Where to Sue in Copyright Infringement Cases by Tonya Gisselberg

Previous contents of The Copyright & New Media Law Newsletter.

If you subscribe to the Copyright Community in 2013 you will have access to this issue and all issues of the Newsletter from 2009-2013. Choose the electronic subscription for $199 for 2013.

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Copyright for Publishers

Copyright for Publishers

Publishing in today’s environment means working within a variety of models. These models may entail the use of original content and may use republished, repurposed, adapted and recycled content. What does this mean in terms of copyright law? Since content is a key common denominator across models, publishers need to understand how copyright law protects that content. Key copyright issues include the nature of protected content; ownership of content; how that content is legally protected and what rights protect it; how to license and assignment content in order to monetize it and monitoring unauthorized uses of content. Proper copyright knowledge will ensure that you have maximum protection in the one constant in your various publishing models.

Three important copyright issues for publishers are:

  • ownership of content
  • using third party content
  • protecting publications

The issues affect both print and electronic publishers of all sorts of content.

Copyright Ownership

In copyright, the ownership rule seems straightforward: an author is the first owner of copyright in her work. However, in an employment situation, the employer owns the copyright in her employee’s work. A consultant on the other hand owns the copyright in her writings unless there is a written agreement stating otherwise. Written agreements can change the ownership of copyright materials; licenses can provide permission to use materials that you do not own.

Third Party Content

Third party content is content in which you do not own the rights. Some typical examples of third party works included in publications are: images, diagrams, tables, charts, and photographs. When using third party content, it is always best to begin with the presumption that the content is protected by copyright. Online content and images found through search engines like Google Images are often protected by copyright.

Protecting Publications

Using a copyright symbol and including copyright information (plus a link to obtain permission to use your online publications) is one of the simplest ways to start protecting your content. Watermarking, digital rights management, and license agreements may all be helpful as well.

More info at Member profile: Harris has the answers on copyright laws

See Copyright for Publishers session at SIPA on 5 June 2013

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