What's Happening in Copyright Law

1. What’s happening in copyright law. Andy Sellars  Cyberlaw Clinic, Berkman Center for Internet & Society Harvard Law School AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society AMIA November 20, 2015

2. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

3. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries

4. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries CC BY Keith Reifsnyder

5. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries • American Royalties Too Act (S.977, H.R. 1881) • Breaking Down Barriers to Innovation Act (S.990, H.R. 1883) • Copyright and Marriage Equality Act (S.23, H.R. 238) • Fair Play Fair Pay Act (H.R. 1733) • GO PACK Act (H.R. 3496) • Songwriter Equity Act (S.662, H.R. 1283) • Unlocking Technology Act (H.R. 1587) • You Own Devices Act (H.R. 862)

6. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries • American Royalties Too Act (S.977, H.R. 1881) • Breaking Down Barriers to Innovation Act (S.990, H.R. 1883) • Copyright and Marriage Equality Act (S.23, H.R. 238) • Fair Play Fair Pay Act (H.R. 1733) • GO PACK Act (H.R. 3496) • Songwriter Equity Act (S.662, H.R. 1283) • Unlocking Technology Act (H.R. 1587) • You Own Devices Act (H.R. 862)

7. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries • American Royalties Too Act (S.977, H.R. 1881) • “Droite de suite” in the United States • Breaking Down Barriers to Innovation Act (S.990, H.R. 1883) • DMCA anticircumvention reform • Copyright and Marriage Equality Act (S.23, H.R. 238) • Nationwide recognition of same-sex couples for copyright transfer termination provisions. • Fair Play Fair Pay Act (H.R. 1733) • Public performance rights in sound recordings • GO PACK Act (H.R. 3496) • Allow for licensing of TV broadcasts in uncovered Wisconsin counties • Songwriter Equity Act (S.662, H.R. 1283) • Adjusts the royalty rates calculation for digital audio transmissions • Unlocking Technology Act (H.R. 1587) • DMCA anticircumvention reform • You Own Devices Act (H.R. 862) • Reinforces power to transfer software components of devices when transferring device to someone else.

8. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries • [0%] American Royalties Too Act (S.977, H.R. 1881) • “Droite de suite” in the United States • [1%] Breaking Down Barriers to Innovation Act (S.990, H.R. 1883) • DMCA anticircumvention reform • [0%] Copyright and Marriage Equality Act (S.23, H.R. 238) • Nationwide recognition of same-sex couples for copyright transfer termination provisions. • [3%] Fair Play Fair Pay Act (H.R. 1733) • Public performance rights in sound recordings • [1%] GO PACK Act (H.R. 3496) • Allow for licensing of TV broadcasts in uncovered Wisconsin counties • [0%] Songwriter Equity Act (S.662, H.R. 1283) • Adjusts the royalty rates calculation for digital audio transmissions • [0%] Unlocking Technology Act (H.R. 1587) • DMCA anticircumvention reform • [1%] You Own Devices Act (H.R. 862) • Reinforces power to transfer software components of devices when transferring device to someone else.

12. •Reproduction •Distribution •Derivative works •Public performance (not SR) •Public display •Digital audio transmission (SR only) •Moral rights in ﬁne art •Termination of transfer •Legal defense of technological protection measures •Anti-bootlegging rights •Pre-release copying protection •Fraudulent © notice protection AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

13. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society •Reproduction •Distribution •Derivative works •Public performance (not SR) •Public display •Digital audio transmission (SR only) •Moral rights in ﬁne art •Termination of transfer •Legal defense of technological protection measures •Anti-bootlegging rights •Pre-release copying protection •Fraudulent © notice protection

14. Prohibits the circumvention of technological measures to access a copyright-protected work, and the provision of tools or devices that circumvent measures to access a work or control copying/performance/distribution/etc. applies even if you are doing so to make an otherwise lawful use of the work. Anticircumvention Law AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

15. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Statutory Limits First sale doctrine Fair use Limited Reproduction by libraries and archives (The “Section 108” defense) Public performance and display in… face-to-face teaching, certain distance learning situations religious services (very limited) performance for charity “home use” exception for radio readaloud for visually impaired playing records in a record shop Secondary cable retransmission (with fee) Recordings of “covers” of others’ musical compositions (with fee) Transient/archival copies made during use of a computer program Pictorial representations of architectural works

16. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Statutory Limits First sale doctrine Fair use Limited Reproduction by libraries and archives (The “Section 108” defense) Public performance and display in… face-to-face teaching, certain distance learning situations religious services (very limited) performance for charity “home use” exception for radio readaloud for visually impaired playing records in a record shop Secondary cable retransmission (with fee) Recordings of “covers” of others’ musical compositions (with fee) Transient/archival copies made during use of a computer program Pictorial representations of architectural works X

17. Specific exceptions Reverse engineering for interop Encryption research Security testing Nonproﬁt libraries, archives, and educational institutions Law enforcement and intelligence Leniency for disabling access to minors Disabling access to personal identifying information Anticircumvention Law AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

18. Good news Bad news Public libraries, public archives, and educational institutions can circumvent controls to gain access to a work in order to evaluate whether to acquire a copy Extremely narrow; copies must not be retained longer than necessary and may not be used for any other purpose; and can only do so if not reasonably available elsewhere Specific exceptions Reverse engineering for interop Encryption research Security testing Nonproﬁt libraries, archives, and educational institutions Law enforcement and intelligence Leniency for disabling access to minors Disabling access to personal identifying information Anticircumvention Law AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

20. 1. By college and university faculty and students, for purposes of criticism and comment. 2. K-12 educators, for educational purposes. 3. Students and faculty of MOOCs, for criticism and comment. 4. Educators and learners at libraries, museums, and nonprofit organizations, for educational purposes. 5. Circumvention by e-book authors, for purposes of including in multimedia e- books. 6. By filmmakers, for inclusion in film. 7. Extraction of video for sole purpose of extracting clips to include in noncommercial videos that do not otherwise infringe. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

21. 1. By college and university faculty and students, for educational purposes. 2. K-12 educators and students, for educational purposes, so long as students only use screen-capture technology. 3. Students and faculty of MOOCs accredited by nonprofit academic institutions, for criticism and comment, as long as they disseminate a copyright policy and apply their own TPMs over the transmission. 4. Educators and learners at libraries, museums, and nonprofit organizations, for the purpose of media literacy programs in face-to-face environments only. 5. Circumvention by e-book authors, for purposes of including in multimedia e-books when done for film analysis 6. By filmmakers, for inclusion in documentary films only. 7. Extraction of video for sole purpose of extracting clips to include in noncommercial videos that do not otherwise infringe. In each case, only if captured using screen-capture technology, unless they believe that this will not be enough to produce the level of quality needed AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society

26. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Congress | Courts | Commentators | Countries TPP

29. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society “Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed – splintering a movie into many different “works,” even in the absence of an independent ﬁxation. Simply put, as Google claimed, it ‘makes Swiss cheese of copyrights.’ […] Untangling the complex, difﬁcult- to-access, and often phantom chain of title to tens, hundreds, or even thousands of copyrights is a task that could tie the distribution chain in knots.” Garcia v. Google (9th Cir. 2015) (en banc)

30. AMIA 2015 – What’s happening in © HLS Cyberlaw Clinic Berkman Center for Internet & Society Case 2:12-cv-08315-MWF-VBK Document 13 Filed 10/17/12 Page 7 of 21 Page ID #:200

What's Happening in Copyright Law

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