ArtsWatch: Copyright Law Influx

Change and efforts to adapt influence new permissions to hack, first sale, and orphan works
October 29, 2012 -- 7:47 am PDT
By Philip Merrill /

In recent news ...

Copyright Office Updates List Of Permitted Content Security Hacks
On Oct. 26 the Federal Register published the new final rule listing classes of works that can be legally hacked for specific uses until the list's successor goes into effect in approximately three years. Writing on behalf of the Librarian of Congress, Register of Copyrights Maria Pallante digested the copious comments for and against each exception and produced the revised statutory language embodying what is now the fifth set of changes to Section 1201 of copyright law. When the Digital Millennium Copyright Act became law in 1998, it provided for this triennial review process exempting favored classes of works from prohibition against tampering with or circumventing content security meant to control access. This year's iteration contains enough fine detail to keep university lawyers busy parsing how it applies to research, library preservation activities, film class criticism, support for the disabled, and more. In addition to input from the Copyright Office and consumer activists, this year's five exemptions arrived with technologically sophisticated contributions from the Department of Commerce's National Telecommunications and Information Administration. The final results provide a timely snapshot of hacks that have demonstrated their social usefulness and draw many interesting fine lines, including hacks that apply to smart phones but not tablets or to DVDs but not Blu-ray discs, and the exemption for captioning for the deaf that applies only to research and development.

Resale Rights And A New Activist Initiative
Arguments had been scheduled for today before the U.S. Supreme Court in the case of Kirtsaeng v. Wiley, a significant test of the first sale doctrine brought by John Wiley & Sons against a reseller who sourced favorably priced textbooks from Thailand. This focus of attention likely contributed to the Oct. 23 launch of the Owners' Rights Initiative, a new coalition promoting first sale that includes the American Library Association and the Computer and Communications Industry Association. The group adopted the slogan "You bought it, you own it!" and would like to see fewer restrictions placed on resale and donations, even for digital works. Separately, the Copyright Office extended its comment period to Dec. 5 regarding the question of whether a resale royalty right should apply to original visual works, notably including fine art that can dramatically increase in value.

Copyright Office Seeks Fresh Input On Orphan Works
The Copyright Office requested comments by Jan. 4 for a fresh inquiry into orphan works, as published in the Federal Register on Oct. 22. Orphan works legislation came very close to passage by Congress in 2008, so there is a lot of good groundwork on this topic and a new approach could yield economic and cultural benefits. The problem is posed by traditional copyright doctrine in the modern digital age. Since creators control the distribution of their work, are people who want to reproduce that work out of luck if they cannot find the creator? This question was given fresh urgency by the Google Books library scanning project, and the Copyright Office seeks information on the "current state of play" as well as the pressing context of mass digitization. Arguably, the more immediate context is provided by the European Commission's new Orphan Works Directive, which was finalized with approval by the European Council on Oct. 4 and will help noncommercial institutions pursue mass digitization programs.

Dutch Court Holds ISP Liable For Failing To Take Swift Antipiracy Action
An Oct. 24 ruling by the Court of the Hague in the Netherlands gave antipiracy organization BREIN Foundation a major win over Internet service provider XS Networks for delaying its antipiracy response against former customer SumoTorrent. XS chose to wait for a court order, but gradually conceded it would provide BREIN with some information, by which time SumoTorrent yanked its business and found hosting in the Ukraine. The court held the file-sharing site's infringement was so obvious the ISP should have immediately provided BREIN with the customer's personal information and taken the site offline. XS Networks was held liable for copyright owners' damages and legal costs.

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

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