Turns Out That Brexit Means Rotting Pigs' Heads, And Losing An EU Copyright Exception

from the taking-the-orphans-hostage-again dept

Surprising no one who understands anything about international trade, the UK's departure from the EU -- Brexit -- is proving to be disastrous for its economy. Among the latest victims are Scottish fishermen, who are no longer able to sell their catches to EU customers, and the UK meat industry, which has tons of rotting pigs' heads on its hands. And it turns out that Brexit will be making copyright worse too.

It concerns the slightly obscure area of what are traditionally called "orphan works", although "hostage works" would be a better description. Whatever you call them, they are the millions of older works that are out of print and have no obvious owners, and which remain locked away because of copyright. This has led to various proposals around the world to liberate them, while still protecting the copyright holders if they later appear and assert ownership. One of these proposals became the 2012 EU Directive "on certain permitted uses of orphan works". It created a new copyright exception to allow cultural institutions to digitize written, cinematic or audio-visual works, and sound recordings, and to display them on their Web sites, for non-commercial use only. As Techdirt noted at the time, the Directive was pretty feeble. But even that tiny copyright exception has been taken away in the UK, following Brexit:

The EU orphan works exception will no longer apply to UK-based institutions and will be repealed from UK law from 1 January 2021.

UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before 1 January 2021.

Now, in order to use orphan works in the UK, people must pay a recurring license fee based on the number of works involved. As a result, the British Library has started withdrawing material that it had previously digitized under the EU orphan works directive:

As many of you know, back in 2015 the British Library, working closely with partners at Jisc's Journal Archives platform and with copyright holders, digitised and made freely available the entire run of Spare Rib magazines. We are delighted that this resource, documenting a vibrant and important period of women's activism in the UK, has been so well used by researchers and those interested in the Women's Liberation Movement.

It is therefore with considerable regret that we are confirming that the resource, as a result of the UK leaving the European Union, will no longer be available following the end of the transition period. The decision to close down the Spare Rib resource once the UK leaves the EU was made on the basis of the copyright status of the digitised magazine, which relies heavily on the EU orphan works directive.

Brexit was sold on the basis that it would make things better in the UK. And yet the change to copyright brought about by Brexit turns out to make things worse for scholars and the general public. It seems that pigs' heads are not the only thing rotting thanks to Brexit.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: brexit, copyright, eu, orphan works, uk

Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution

from the some-good-things dept

Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.

Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.

Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.

Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.

The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

PRE-1923 RECORDINGS.—In the case of a sound recording first published before January 1, 1923, the transition period described in subparagraph (A)(i)(II) shall end on December 31 of the year that is 3 years after the date of enactment of this section.

1923 - 1946 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1923, and ending on December 31, 1946, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 5 years after the last day of the period described in paragraph (A)(i)(I).

1947-1956 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1947, and ending December 31, 1956, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 15 years after the last day of the period described in subparagraph (A)(i)(I).

The really key part here is that first batch. Those are works where they should already be in the public domain under US law, as pre-1923 works are deemed to be in the public domain under federal law. But, since state laws have gone on much longer, we've locked up tons of important early US sound recordings, especially a ton of early jazz recordings that almost no one can hear. Under this law, those works will come into the public domain three years after the law is in place. Some will argue (reasonably!) that this is already too long, and you'd be right (also, that it's weird to give those very old works a new right just for a three year period). But it's better than having to wait until 2067 for them to be freed up entirely.

Now there's a second important idea put into this new bill -- which is a very, very, very light touch "orphan works" proposal. For decades now, plenty of people in the copyright space have fretted over what to do with the orphan works issue. This is an issue created by our own stupid copyright policies, in which, because the law no longer requires registration, there are billions of works where it is unclear who holds the copyright on those works, or even if there's any copyright at all. It's been a problem for many years that can seriously impact our ability to preserve historical culture, among other things.

Of course, every time Congress (and the Copyright Office) suggested proposals to deal with this issue (even bad suggestions and really bad suggestions), some copyright holders (mainly photographers) would freak out, and misleadingly claim that orphan works laws were designed to strip them of their copyright.

So, this new amended bill creates a very minor tiptoe towards an orphan works concept, just with sound recordings and only for "certain noncommercial uses of sound recordings that are not being commercially exploited." This is way, way, way too limited, but it's a start. Under the rules, someone engaged in non-commercial use (and boy, I can't wait to see the litigation fights over what counts as commercial v. non-commercial use...), has to make a "good faith, reasonable search" to see if a work is being commercially exploited. Following that, they have to file a notice with the Copyright Office announcing their intention to use the sound recording, allowing a 90 day period for someone to object. If there are no objections then, the work may be used in such non-commercial projects. This is extremely limited (way too much so), but hopefully will be useful to sites like the Internet Archive and various libraries. It would be nice if it went much further, but considering that no attempt to deal with orphan works has ever gone anywhere, this seems like at least a tiny step in the right direction. At the very least, hopefully it can be used to show that the world doesn't collapse when there is a way to make use of orphan works when the copyright holder cannot be found.

Filed Under: classics act, copyright, federalization, orphan works, performance right, pre-1972 sound recordings, public domain, sound recordings

Australia's Copyright Agency Keeps $11 Million Meant For Authors, Uses It To Fight Introduction Of Fair Use

from the not-very-fair dept

Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

Australia's government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] "future fund" to fight changes to the law.

Specifically, the monies come from payments made by educational establishments in order to use orphan works. That's a major change of the agency's policy that was not disclosed to the Australian government's Productivity Commission that oversees this area:

[The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of "orphan works" who can't be traced.

An examination of accounts shows that in a change not disclosed to the commission or to its members in annual reports, since 2013 it has been channelling that income into a fund set up to campaign against changes to the copyright law.

Between 2013 and 2016 the fund amassed [$11 million].

In other words, schools and universities have effectively been paying to lobby against changes to Australian copyright laws that would be very much in the interest of themselves, the public, and writers, who could use copyright materials more freely under a fair use system. According to the Sydney Morning Herald article, the top three executives at Australia's Copyright Agency are all paid around $200,000 a year to come up with these kinds of ideas. It would be interesting to know whether Australian authors consider that $600,000 well spent.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: australia, collection society, copyright, fair use, lobbying, orphan works

House Judiciary Committee Hears Concerns From Silicon Valley About Copyright Law

from the now-what? dept

Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they're calling they're "Copyright Review Listening Tour" for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between "Silicon Valley" vs. "Hollywood" -- and that what's good for one is bad for the other.

Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY
That whole line of argument is ridiculous and counterproductive -- as a few of the panelists at yesterday's hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it "promote the progress." But it's frequently not copyright that's doing that job -- it's the technology innovations.

Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY
And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:

1. Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual "infringement" and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages "in the next decade," but asked for ideas on ways to "bend" the system in a more reasonable way. The panelists made a few suggestions -- including a personal use exemption and a "good faith" defense for sites (and users, I guess) where they don't believe what they're doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove "bad faith" to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
2. Fair use is important and shouldn't be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one "Hollywood" person on the panel, CreativeFuture's Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that's not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made "less dangerous" for people to embrace it. That was really encouraging.
3. The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what's really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we've seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
4. The DMCA's 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own -- because of copyright law -- is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 -- such that you couldn't use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
5. Orphan works are a problem and the Copyright Office's solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem -- and they're concerned that the most recent suggestion from the Copyright Office (which requires "registration" to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner -- but that plan died when photographers freaked out after misreading the proposal. The Internet Archive's Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of "formalities" in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored -- but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
6. Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it's hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don't like that the Library of Congress actually takes into account things like what's good for the public...). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn't fix anything -- it would just create more "chaos" and leave us with two dysfunctional organizations, rather than one.

There were some other points made, but overall, it was surprisingly encouraging in that most of the hearing didn't focus on red herrings and the usual boring talking points in copyright debates, but rather really did focus in on specific key issues. And, most surprising of all was that many of the Congressional Reps who were there not only seemed really engaged and mostly on point concerning the issues raised, but actually seemed open to looking at real legislative proposals on these issues. Of course, going from there to actually getting proposals before Congress is still going to take a Herculean effort -- because almost all of the good proposals listed above would almost immediately be fought hard by the big Hollywood studio lobbyists, who still seem to think of this as a zero sum game -- where any improvement to fair use is an attack on them, or any attempt to make sure the DMCA isn't abused is somehow a direct assault on the film business.

The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It's worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn't want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle's return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress's docket, it seems important to remind them that, in many ways, the TPP can bind Congress's hands in addressing many of the problems brought up at the hearing.

Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works

Digital Orphans: The Massive Cultural Black Hole On Our Horizon

from the wake-up dept

Imagine you are a researcher in 2050, researching the history of the Black Lives Matter movement. But you've stumbled across a problem: almost every Tweet, post, video or photograph with the hashtag #BlackLivesMatter that you want to use in your work is an orphan work (i.e., works whose owners are impossible to track down, but are still covered by copyright). You'd like to ask permission but all you've got to go on are usernames from defunct accounts. Where do you go from here?

Last week, the Copyright Office accepted responses to its Report on Orphan Works and Mass Digitization. (Full disclosure, I represented the Internet Archive in this proceeding, but all views here are my own). But that Report has no answers for our hypothetical researcher; it doesn't once mention or consider the question of what we are going to do about the billions of orphan works that are being "born digital" every day.

Instead, the Copyright Office proposes to "solve" the orphan works problem with legislation that would impose substantial burdens on users that would only work for one or two works at any given time. And because that system is so onerous, the Report also proposes a separate licensing regime to support so-called "mass digitization," while simultaneously admitting that this regime would not really be appropriate for orphans (because there's no one left to claim the licensing fees). These proposals have been resoundingly criticized for many valid reasons.

Another reason to add to the pile is that it is exclusively focused on analog orphans -- books, photographs and other materials in physical formats gathering dust in small local library collections or arcane institutional collections. These materials are culturally important, and scholars have shown that many have fallen into a 20th-Century digital black hole. But the black hole that could engulf digital orphans is poised to be ultramassive in comparison.

Each day, billions of photos are uploaded to platforms like Instagram, Facebook, Snapchat, Flickr and What's App. Similarly, 400 hours of video per minute are uploaded to YouTube alone. While some professionals use these platforms commercially to exploit their creative work, the vast majority of today's copyright owners probably don't even know what copyright is. They are simply documenting and sharing their lives. Look, for example, to the rise in popularity of social video sharing services such as SocialCam, Vid.me, Periscope, and Meerkat.

Most of the content online today is created by amateurs. Much of it is also created anonymously or pseudonymously, with no real name attached to the account. And the vast majority of users of these platforms are under 35. To make matters worse, as new services become popular, users will inevitably move on, leaving their accounts inactive. What will become of the photos, blog posts, videos and other content that is posted online every day -- much of it being created by teenagers with no interest or expectation of commercial exploitation -- that will be left behind on these platforms? Copyright law will protect those works for 70 years after these prolific teenagers die.

We are looking down the barrel of a serious crisis in terms of society's ability to access much of the culture that is being produced and shared online today. As many of these born-digital works become separated from their owners, perhaps because users move on to newer and cooler platforms, or because the users never wanted their real identity associated with this stuff in the first place, we will soon have billions upon billions of digital orphans on our hands. If those orphans survive the various indignities that await them -- host platforms going under, being deleted for more server space -- we are going to need a way to think about digital orphans. They clearly will not need to be digitized so the Copyright Office's mass digitization proposal would not apply. However, the public deserves access to the cultural heritage being amassed on digital platforms.

It might be easy to dismiss these concerns, to say that there's little social value in much of the content being created by amateurs. But I suspect researchers and historians of the future will beg to differ.

New technologies have already allowed us to develop whole new systems of communication that have no non-digital equivalent, no physical record: hashtags, emoji, reaction .gifs, LoLcats, just to name a few. Remember the Occupy Movement? And the "we are the 99%" meme? People often told their personal economic stories by holding up a handwritten sign in a photograph that would be posted to Twitter or Tumblr. Any understanding of the consequences of the economic collapse of the late 2000s would be incomplete without this digital context.

The means for creating extremely rich records of our daily lives are everywhere. People are voluntarily and enthusiastically documenting big events and small moments. Technology platforms are now places of record, although they are not necessarily designed as such. Our very way of knowing about ourselves as a society will be shaped by the sorts of access we will have to these digital records, not only of major political events like elections, but also of everyday life.

We need to start thinking about these digital orphans today, before we have a culture crisis on our hands. Perhaps this should be our call to rethink the broken policies that created the orphan works problem in the first place: extremely long terms and lack of formalities. Perhaps we could pass legislation that would establish a safe harbor for those who rely in good faith on rights information available in the Copyright Office's registration database. Perhaps fair use will evolve to allow full public access to orphans.

Of course any solution will also have to manage the significant privacy issues that will pervade these works as well, but that's a problem for another article. But anything as burdensome as the Copyright Office's current proposal will be woefully inadequate to handle the staggering numbers of born-digital orphans in the future.

Lila Bailey is a copyright attorney practicing in the Bay Area. She also teaches Internet Law at Berkeley Law.

Filed Under: copyright, history, orphan works, research, social media

Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan

from the orphan-works-are-your-fault,-don't-blame-us dept

A few weeks ago, we wrote about the big ruling by Judge George King in a district court in California that Warner/Chappell does not hold a valid copyright in the song "Happy Birthday." The press ran with the story, with nearly all of the coverage falsely stating that the judge had declared Happy Birthday to be in the public domain. As we noted in our post, however, that was not the case. While the plaintiffs had urged just such a finding, Judge King noted that there were issues related to this that a jury would need to answer, and he would not go that far. Instead, he merely stated that Warner did not hold a valid copyright. Many people assume that this is good enough. The likelihood of some third party magically showing up after all of these years and not just claiming the copyright, but having enough evidence to prove it seems very slim. Glenn Fleishman has done a nice job writing up a detailed explanation of this copyright mess for Fast Company, in which he notes the "uncertainty is maddening."

It's worse than that. As we noted in our original post, technically, this makes "Happy Birthday" an orphan work -- i.e., a work where the exact copyright status or owner is "unknown." Orphan works have been a big problem that the Copyright Office has been studying for some time. However, the solution proposed by the Copyright Office is ridiculous, and the case of Happy Birthday should demonstrate pretty simply why the proposal is broken.

The plan says that anyone who wants to make use of an orphaned work would have to meet six criteria to avoid possible liability:

Users must: (1) if sued for infringement, prove to the court by a preponderance of the evidence that they performed a good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began; (2) file a Notice of Use with the Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under the circumstances; (4) include a to-be-determined "orphan works" symbol with any public distribution, display, or performance of the work; (5) assert eligibility for such limitations in the initial pleading in any civil action involving the infringed work; and (6) state with particularity the basis for eligibility for the limitations during initial discovery disclosures.

Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.

But -- and here's the important point -- all of the "professional" situations where the song was used would almost certainly have to go through this process. Films that used the song wouldn't be able to get "errors and omissions" (E&O) insurance without first proving they made it through this process (and you need E&O insurance to ever get a movie released). Restaurants that wanted to sing Happy Birthday rather than their made up song would need to do the same thing. And they'd all likely have to hire lawyers in order to properly document the "search" and to file the notice with the Copyright Office. And very few people are going to want to go through that process. It may be slightly better than paying thousands of dollars to Warner/Chappell, but not much.

How is this solution possibly a "good compromise" on the issue of orphan works? How does adding such a burden, just so someone can sing Happy Birthday, possibly make sense?

Once again, the "problem" of orphan works is a self-made problem, created by copyright laws that automatically grant copyright to all new fixed works, rather than requiring registration in the first place. If it required registration, there would be some sort of record and paper trail of who owned the copyright and when it was valid. But in a world where everything gets copyright protection, we get a world with millions upon millions of orphaned works -- and if anyone who ever wanted to do anything with it had to go through the convoluted mess just to do something like sing Happy Birthday, the "answer" is no answer at all. It's just making a bad problem worse.

The way to fix orphan works is not to increase the burden, it's to fix a broken copyright system, and to require registration in the first place.

Bonus content: This doesn't fit directly into this post about orphan works, but this video by Vi Hart about the copyright on Happy Birthday is totally worth watching, presenting the issue from the perspective of someone knowledgeable about music theory, rather than copyright law, and showing yet another way in which the idea that Happy Birthday ever deserved copyright is a ridiculous idea.

Filed Under: copyright, copyright office, happy birthday, orphan works, public domain

Judge Says Warner Chappell Doesn't Hold The Copyright On Happy Birthday (But Not That It's Public Domain)

from the well,-that's-a-pickle-then dept

Boom. And we thought the ridiculous monkey selfie story would be the big copyright story of the week, and yet not even 24 hours later, Judge George King in the central district of California ruled that Warner Chappell "does not have a valid copyright" in the song Happy Birthday. This is a case we've been following for some time -- actually since before the lawsuit was filed (in 2013) back to some research in 2008 showing that Happy Birthday was almost certainly in the public domain -- and that music publishing giant Warner Chappell was likely fraudulently making somewhere around $2 million a year claiming royalties on the song.

A couple months ago, the plaintiffs dropped something of a bombshell in the case, with more evidence that the song was definitively in the public domain. Warner tried to tap dance around this, and believe it or not, the judge actually rejected the evidence as conclusive. But it still determined, through other means, that Warner/Chappell's copyright claim is a load of bunk. One thing is important though: it did not declare the song to be in the public domain. It just said that Warner/Chappell does not have a valid copyright on it -- which technically means that the song is an orphan work. Conceivably, if the Copyright Office gets its way that might mean you'd still need to tell the Copyright Office every time you intended to use the work (this is ridiculous, but we'll discuss that below).

If you've followed the case for any amount of time, you'd know that it shows what a complete mess copyright law can be and this ruling is no exception in driving home that point. The court first notes the distinction between the melody (which was first created sometime around 1893) and the lyrics which likely came about a decade or so later, but the copyright on Happy Birthday wasn't filed until 1935. This was (sort of) okay at the time, due to the mix of common law copyright and federal copyright laws (it wasn't until the 1976 Act that the US -- mostly -- tossed out common law copyright).

The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co

And then... the whole thing is just a mess, because no one's quite sure what was actually registered or even who gave what rights to whom. There are a whole lot of open questions.

The registration application for E51990 stated that it was an “Application for Copyright for Republished Musical Composition with New Copyright Matter.” ... In other words, E51990 was a derivative work.... The title of the musical composition was listed as “Happy Birthday to You.” ... The author of the new copyright material was “Preston Ware Orem, employed for hire by Clayton F. Summy Co.” (Id.) In one blank space, the application prompted the claimant to “[s]tate exactly on what new matter copyright is claimed . . . .” (Id.) For E51990, the response read: “Arrangement as easy piano solo, with text.” (Id.)

Defendants contend that this registration entitles them to a presumption of validity. We disagree. Even assuming that the lyrics were printed in the deposit copy for E51990, it is unclear whether those lyrics were being registered, and therefore it is unclear whether the Copyright Office determined the validity of Summy Co.’s alleged interest in the lyrics in 1935. The “new matter” that the registration purported to cover was a piano arrangement—a derivative version of another melody. Defendants argue that since the arrangement was registered “with text,” that meant that the Happy Birthday lyrics were part of the new matter being registered alongside the arrangement. But the registration clearly listed “Preston Ware Orem” as the author of the new matter. To our knowledge, no one has ever contended that Orem wrote the Happy Birthday lyrics. Defendants even admit in their pleadings that Orem did not do so.... Therefore, the registration is flawed in any event. If, as Defendants assert, the new matter being registered included the lyrics, then, contrary to the registration certificate, Mr. Orem could not have been the author of the new matter. Conversely, if Mr. Orem were the author of the new matter, then the lyrics could not have been a part of the registration.

In short, the copyright registration itself was faulty, which turns out to be something of a problem, especially under the 1909 Copyright Act, where you had to be pretty careful in your registration or a work would automatically go into the public domain. But the court's not done yet. Instead it takes a step back and asks who the hell wrote the damn song in the first place? The court notes that it's inconclusive. Patty Hill (one of the two sisters who is credited with creating the melody) claimed to have done so, but only 40 years later, which strikes the court as odd. But there's not enough evidence either way to make a final call. The court notes that determining who actually wrote the lyrics is one point that would need to go to trial, and it won't give a summary judgment on that.

Then it looks at whether or not (assuming Patty Hill did write the lyrics) Hill gave up her rights by publishing the lyrics prior to that copyright registration in 1935. The key point here is the "bombshell" revealed earlier this summer of a 1922 publication of the lyrics, supposedly with the approval of Summy Co., which the plaintiffs claim is proof of an authorized publication without a copyright notice or registration, thus thrusting the work into the public domain. The court, though, says this is not enough.

It is undisputed that, in 1922, Summy Co. did not have any rights to the Happy Birthday lyrics; Defendants claim that the rights to the lyrics were given to Summy Co., at the earliest, in 1934 and 1935. It is also not clear if Summy Co. gave the publisher of The Everyday Song Book permission to publish the Happy Birthday lyrics specifically or just permission to publish Good Morning, of which Summy Co. had been printing and selling copies on the Hill sisters’ behalf at that time. Since the publication of The Everyday Song Book would not be sufficient to entitle Plaintiffs to a directed verdict, Plaintiffs cannot satisfy their initial burden....

So, apparently the bombshell wasn't considered such a bombshell by the court.

Next question: if Patty Hill wrote the song and did not publish it before getting the copyright, did she later abandon the copyright? Here, the court kind of throws its hands in the air, saying that it's not at all clear what even constitutes abandonment under the 1909 Act. A similar debate over whether there was joint ownership of the copyright between Patty and her sister Mildred also is a dead end for the court.

Then we get to the question of whether or not Patty Hill and Jessica Hill (another of Patty and Mildred's sisters) actually transferred any rights they may have held to Summy Co. There was a lawsuit between the Hills and Summy Co back in 1942 over whether or not Summy went beyond its rights in licensing the song, but the actual agreement between the two parties has been lost to history. However, what is in that lawsuit suggests that... the Hills only transferred the melodies to Summy and not the lyrics (remember above the important difference between the two?).

First, and most importantly, an inference that the Second Agreement had something to do with the Happy Birthday lyrics is not supported by any explicit description of the agreement in either the Amended Complaint or the Answer. Both the Hill Foundation and Summy Co. described the agreement as transferring rights in “piano arrangements.”... Obviously, pianos do not sing. Thus, it is not logical to infer that rights to “piano arrangements” would include rights to any lyrics or words as well.

This turns out to be the key in all of this. The court is saying that while the Hills may have transferred the music over to Summy -- it did not transfer the lyrics. And, remember, that's what this copyright case is about. Warner Chappell's tap dancing does not impress the court. The court notes that the only way the 1940s lawsuit makes sense is if the Hills did not license the lyrics to Summy, but just the music.

... an inference that the Second Agreement covered the lyrics is unreasonable because it would be inconsistent with the underlying legal theory behind the lawsuit. If the Second Agreement had covered the Happy Birthday lyrics, that would have meant that in 1934 and 1935 Jessica explicitly granted Summy Co. the right to license the lyrics to others for public performance.... If that were the case, there would have been no reason for the Hill Foundation to accuse Summy Co. of “secretly” entering into deals behind the Hill sisters’ backs with movie and play producers, granting them permission to publically perform Happy Birthday. Moreover, there would have been no reason for Summy Co. not to point out in its Answer that it had acquired the public performance rights to the lyrics from Jessica under the Second Agreement, since that fact would have given the company a strong defense to the accusation that what they were doing was somehow a "secret" or was otherwise unlawful.

Then there's the fact that, to settle the 1942 lawsuit the Hills and Summy entered into a new agreement. Warner again claims this proves that the copyright on the lyrics belonged to Summy, but the court says no way:

This argument fails as well. Unlike the First and Second Agreement, we have a copy of the Third Agreement in the record. The Third Agreement was entered into in 1944 to resolve the Hill-Summy lawsuit.... Nowhere in the agreement is there any discussion of the Happy Birthday lyrics; nor is there any suggestion that the Hill sisters transferred their common law rights in the Happy Birthday lyrics to Summy Co.

And thus, the grand finale:

Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.

In light of the foregoing, Defendants’ Motion is DENIED and Plaintiffs’ Motion is GRANTED as set forth above. Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.

Note that this technically does not say that the song is in the public domain -- just that the Hills never gave the copyright to Summy and thus Sumnmy's (and now Warner/Chappell's) claim on the copyright is invalid. However, the likelihood of finding someone else with a legitimate claim to the copyright is basically nil. But, technically, this makes it an orphan work because there is at least the potential that someone could magically show up with evidence that someone else has the copyright on the lyrics. This is incredibly unlikely, so all of the people claiming that the song is now in the public domain are probably right effectively. However, technically it could very much be argued that Happy Birthday is now an orphan work, and that this highlights the insanity of orphan works in our system. Also, it's entirely possible that if the issue ever did go to trial, a court would declare the work in the public domain. But, until then...

Of course, there will be an inevitable appeal, so this is hardly over yet. But the idea that Happy Birthday is locked up by a copyright held by Warner/Chappell is likely gone like that last slice of birthday cake. It's possible that an appeals court will overturn -- but there are so many other reasons why Warner's claim is questionable that even then it's hard to see how Warner/Chappell comes out of this with a valid copyright.

Filed Under: copyright, happy birthday, lyrics, melody, orphan works, public domain
Companies: warner chappell, warner music

More Experts Realizing That The TPP Is A Horrible And Dangerous Deal On Copyright

from the fix-it,-ustr dept

While the last round of TPP negotiations didn't lead to a deal, and some are questioning whether the agreement has effectively "stalled out," there's still plenty to be concerned about, and the TPP still has a decent chance of moving forward in the near future. David Post, who has studied copyright law and related issues for many years, has a fascinating article up discussing "some pretty nasty" aspects for copyright law, which are "lurking" in "a dark corner" of the agreement. He focuses on the issue of orphan works, which are works where the owner can't be found. As we've discussed in the past, the entire "problem" of orphan works is really a problem created by the automatic application of copyright, rather than requiring registration ("formalities.") By automatically having copyright cover everything, there is no way to easily track down many copyright holders for the purpose of licensing. The Copyright Office has been struggling for years on how to deal with this issue (never apparently willing to explore the issue of returning to a registration requirement). However, as we noted earlier this year, under the current draft of the TPP, the Copyright Office's own proposal on orphan works would not be allowed.

Post digs deeper on that issue, and highlights why the TPP would kill any realistic reform to deal with orphan works:

It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. [I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.] Any provision of U.S. law that eliminated “pre-established damage” or “additional damages” for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability.

And, as he notes, this is actually a really big deal, even as some pretend that orphan works are just a small problem:

And if you’re still wondering “Is this really such a big deal?,” multiply it all by 10 million (or more). Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no? Well, the Google Books project foundered largely because of the orphan works problem. Even Google is not willing to take on $100 billion or so of potential exposure to infringement claims, and its attempts to reach a settlement that would have waived the rights of “orphan works” copyright holders to get statutory damages was unavailing — on the grounds that no court can approve a settlement waiving the statutory rights of persons who are not only not present in the courtroom to weigh in on the settlement, but who haven’t even been notified — because, of course, nobody knows who they are — that there is a settlement.

And yet, through a few choice phrases in the TPP, we may end up stuck with the orphan works problem... forever. That doesn't seem like a good policy decision, and it's not even one that the USTR will discuss publicly since the agreement is still "secret."

Filed Under: copyright, copyright office, david post, orphan works, tpp, ustr

US Copyright Office's Proposal On Orphan Works Wouldn't Be Allowed If TPP Is Ratified

from the such-a-mess dept

We've been pointing out for ages that, contrary to what some claim, one of the biggest problems with including things like copyright and patents in international trade agreements like the TPP and TTIP is that it effectively binds Congress' hands, by blocking them from fixing problems associated with those laws. We've highlighted in the past, for example, how the currently leaked draft of the TPP's intellectual property section would require copyright terms to be at least life plus 70 years, which goes directly against what even the Copyright Office's boss, Maria Pallante, has been arguing for, in terms of (finally) reducing copyright terms for the first time, ever.

Here's yet another example. We already wrote about the Copyright Office's (somewhat problematic) proposal on "orphan works" (a problem that is actually caused by moving away from a "formalities" system that requires registration). However, as Jamie Love at KEI points out, the Copyright Office's own proposed legislation, would flat out contradict the language currently found in the leaked TPP intellectual property chapter.

Specifically, the so-called "orphan works" legislation being pushed by the Copyright Office would limit remedies, including possible compensation or injunctive relief, in certain specific instances for those who make use of "orphaned" works. Yet, the TPP requires that signatories offer monetary damages and injunctive relief to anyone whose work is infringed.

Thus, the Copyright Office's own proposed regulations wouldn't be allowed if the US signs the TPP or would lead to the risk that the US would face challenges either under the WTO or a corporate sovereignty (ISDS) tribunal for failing to adhere to the rules that it agreed to in that trade agreement.

Defenders of the TPP and TTIP insist that neither will change US copyright law as it stands today, but we keep finding examples of where it would bar changes that even the Copyright Office is advocating for. The Copyright Office is supposed to be working closely with the USTR on these agreements, but this raises some serious questions about whether the left hand has any idea what the right hand is doing.

Filed Under: copyright, orphan works, tpp

Only The Copyright Office Would 'Fix' The Problem Of Orphan Works By Doubling Down On The Problem Itself

from the missing-the-point dept

For many, many years, we've been discussing the "problem" of "orphan works" under copyright law. These are works that are not available any more, and where it simply is not possible to find the copyright holder to seek out a license. Of course, this problem is almost entirely self-created. It's the result of a forced switch from a system that required registration to get a copyright, to one where everything is automatically covered by copyright. Combine that with ever-expanding copyright terms and you have a recipe for a world in which the vast majority of works become "orphaned" while just a tiny few have any legitimate reason to remain under copyright protection. Millions of books, millions of photographs and hundreds of thousands of films are now considered orphaned works -- unable to be either used or licensed -- with many simply fading away. In fact, some have reasonably advocated that we should be referring to them as hostage works rather than orphaned works. These works haven't been "abandoned." They need to be freed, not given adoptive parents.

In the past, attempts at legislating a solution to the problem with these hostage works have fallen flat, often after facing significant pushback from authors and photographers who spin ridiculous stories about how orphan works legislation is really about legalizing the "stealing" (of course) of their works. Of course, that's never actually the case. Pretty much all attempts at dealing with orphan/hostage works involve requiring significant attempts at locating copyright holders.

Either way, the US Copyright Office has released a giant report on what to do about "orphan works," which is an interesting read, even if the Copyright Office still can't bring itself to admit that the "problem" of these hostage works has to do almost exclusively with two legal changes it has long supported: getting rid of formalities (registration) and extending copyright terms. Instead, it acts as if such hostage works are a problem wholly unrelated to all of that -- and in need of new policies to "fix" the problem that the old legal changes created, rather than rolling back those bad policies.

The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users to "register" their use of orphaned works with the copyright office:

In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements;

Think about that for a second. Rather than fix the actual problem by requiring registration by the copyright holder, the Copyright Office is recommending, instead, that the user have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together:

The Office believes that the principal advantage of a Notice of Use requirement is that copyright owners can use it to become aware that their work is considered orphaned and more easily respond to users. As noted above, the goal of any orphan works provision should be to unite owners and users.

Um, you know what would be even better at that stated purpose? Requiring the copyright holder to register in the first place so that there would be no such thing as an "orphaned" work and any user could much more easily find the copyright holder in question. But that's not even remotely considered in this report.

And the really amazing thing is that any time people bring up the idea of requiring registration/formalities for copyright holders, they are always dismissed out of hand as "too burdensome" for copyright holders. Yet, here, when requiring the same damn thing for those wishing to use hostage works, the Copyright Office dismisses the concern out of hand because it also provides some other ways around it.

The other bizarre thing about the report is that it seems to be dripping with contempt for fair use. The report, rightly, notes that there have been a few recent important court rulings -- such as the Hathitrust and Google book scanning cases -- that have recognized that fair use is often a perfectly reasonable tool for dealing with some of the issues raised by hostage works. However, the report basically says "Sure, but that could change."

The Copyright Office notes that the judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.

In response to this, the Association of Research Libraries points out that the Copyright Office is not just wrong, but it's overthinking things:

The Copyright Office’s denigration of fair use as a solution to the orphan works problem is disappointing. What the Copyright Office fails to acknowledge in its analysis of recent fair use jurisprudence is that fair use is a fairly predictable doctrine. As Professor Pamela Samuelson noted in a 2009 article entitled, Unbundling Fair Uses, “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” The Copyright Office’s suggestion that because fair use is flexible and fact-specific it is insufficient to address orphan works, is also misleading. By analogy, while the Copyright law does not have an explicit limitation or exception for the use of VCRs or DVRs, specific legislation to ensure that recording using such devices is lawful is not necessary because it is widely understood that such activity is fair use.

The ARL also points out yet another example of the Copyright Office treating the symptom rather than the disease by making the problem worse. That is, while the Copyright Office insists that fair use is too much work to use as a defense, it ignores the fact that its own "solution" for orphan works is a tremendous amount of work for users:

Furthermore, the Copyright Office suggests that even where fair use may be a defense, “many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” The Copyright Office fails to recognize that its proposed burdensome legislation that requires extremely time and resource intensive searches as well as notice of use requirements, could also cause users to forego the use of the work. Additionally, where legislation appears overly complicated, while institutions and corporations may make use of it, individual users may find compliance difficult.

In short, rather than fix the basic problem that created orphan/hostage works in the first place with the obvious solution of going back to a system that requires formalities (registration), the Copyright Office, instead, thinks the best solution is to put a huge burden on the public. This is not how the law is supposed to work. Copyright, as designated in the Constitution, is supposed to "promote the progress" by providing the public with greater access to works. Yet, once again, we see the Copyright Office focused on putting greater burdens on the public, rather than working on making works more available and accessible.

Filed Under: copyright, copyright office, fair use, formalities, hostage works, orphan works, registration