What's Happening in Copyright Law

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



Congress | Courts | Commentators | Countries



CC BY Keith Reifsnyder



• 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)



• 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)


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.


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)


• [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







• [3%] Fair Play Fair Pay Act (H.R. 1733)• Public performance rights in sound recordings











• [3%] Fair Play Fair Pay Act (H.R. 1733)• Public performance rights in sound recordings









• DMCA anticircumvention reform• [0%] Copyright and Marriage Equality Act (S.23, H.R. 238)


• [3%] Fair Play Fair Pay Act (H.R. 1733) • Public performance rights in sound recordings



• [0%] Unlocking Technology Act (H.R. 1587)• DMCA anticircumvention reform



•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



•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

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



Statutory LimitsFirst sale doctrineFair useLimited Reproduction by libraries and archives (The “Section 108” defense)Public performance and display in…

face-to-face teaching, certain distance learning situationsreligious services(very limited) performance for charity“home use” exception for radioreadaloud 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 programPictorial representations of architectural works


Statutory LimitsFirst sale doctrineFair useLimited Reproduction by libraries and archives (The “Section 108” defense)Public performance and display in…

face-to-face teaching, certain distance learning situationsreligious services(very limited) performance for charity“home use” exception for radioreadaloud 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 programPictorial representations of architectural worksX

Specific exceptionsReverse 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



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 exceptionsReverse 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




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.


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












TPP






“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)


Case 2:12-cv-08315-MWF-VBK Document 13 Filed 10/17/12 Page 7 of 21 Page ID #:200






Historical perspective…