IPSC Panel 5 – Copyright, Distribution, and Access

Jacob Victor, Copyright’s
Law of Dissemination: trying to disaggregate dissemination from use of a work in
new creativity/e.g., transformative fair use. Focus: liability exceptions and
regulatory regimes that facilitate large scale distribution of works by direct
distributors or via platforms that enable or enhance public
consumption/enjoyment of those works. Statutory carveouts: broadcast radio of
sound recordings; publication for print disabled, §108 library exceptions.
Judicial: Google Books/utility expanding fair use; Sony v. Universal safe
harbor; first sale; operating outside ©’s exclusive rights (Aereo) [largely
failed]; admin state—compulsory licenses, recording device levy; other: ASCAP/BMI
consent decree; DMCA safe harbors; Section 1201 exceptions.

Trends and patterns:
whether a use is compensated or uncompensated. Starting w/uncompensated radio
broadcast for sound recordings/OSP safe harbor; compulsory fee for §114 uses;
ASCAP/BMI consent decrees—one question is whether the license will actually be
paid per the statute or whether it will backstop private negotiations. Digital
TV: operating outside © failed, and Aereo also failed to get a §119 compulsory
cable license.

Conventional wisdom:
Incoherent mess; regimes generally unrelated to each other, primarily products
of industry lobbying, little meaningful institutional design, anachronistic
like jukebox compulsory licensing fees. Political economy is helpful, but if we
look at actual operation, there are subtle patterns of latent normativity. (1)
Dealing with transaction cost problems (though thinks that’s likely
overstated); (2) ©’s inherent distributional inefficiencies; (3) market power
barriers to innovation in dissemination—removing bottlenecks based on market
power; (4) non-efficiency considerations—libraries, disability rights,
distributive justice. (2)-(4) are all within the conventional incentives/access
tradeoff lens.

Not claiming it’s fully
coherent, but it’s not just a sui generis response to a single industry’s
market failure. Frame can help diagnose problems with current system like
complexity, inconsistency (lack of a terrestrial broadcast sound recording
performance right), failure to keep up with tech change (Aereo maybe should have
been eligible for a cable-like compulsory license), poor institutional design
(Music Modernization Act tweaks but does not fundamentally change complex
system).

Sheff: why is coherence an
aim? If we are pursuing goals that conflict, we might have to pick which is
more important in a given context.

A: Because there’s already
a pull for coherence; we can make it better by being more explicit

Lisa Macklem: consider how
courts often land on wrong analogies for new tech. Also purpose as a consideration
in finding infringement.

A: Fair use has been a
good example of courts moving beyond static statutory language for new tech,
but they may defer to Congress when Congress didn’t imagine what happened.
 

Bita Amani and Mark
Swartz, Cultivating Copyright Custodians for the Digital Age: Law, Libraries,
and the Public Interest in Lending

Pandemic + important Canadian
SCt case on education and © motivated this discussion of rapid acceleration of
library efforts and ability to offer digital materials. Pandemic: students who
had ordered books weren’t able to get them; some were overseas. There was
pushback to coordinated call for libraries to use exceptions and limitations,
but these were important for users—emergency access through Internet Archive
and HathiTrust; fair dealing scans for patrons; generally able to meet info
needs more or less.

CCH decision, 2004: fair
dealing is a user right; only if a library doesn’t make out fair dealing does
it need the library exemption. Fair dealing test: needs an allowable purpose;
if allowable, consider purpose, character, amount, nature of work, available
alternatives, and effect of dealing on the work.

Canadian fair dealing: preservation
isn’t listed as a fair dealing purpose, but library exception allows
maintenance or management copying for the permanent collection. Underutilized
because of risk tolerances. Exception doesn’t apply where an appropriate copy
is commercially available in medium/quality appropriate for the relevant
purposes (but that limit doesn’t apply if the copying is for record keeping
purposes, insurance/police investigations, or for restoration). But the law
does apply to at-risk rare or unpublished originals, or for change to an
alternative format if the original (or tech required to use the original) is
obsolete or is becoming obsolete—and need to use something via the internet may
qualify for this exception.

Libraries need not rely
exclusively on this exception for their patrons because fair dealing is
available too. Format-shifting is important, but libraries have now
transitioned to licensing born-digital items and bundled deals dominated by
large publishers. This is the oncoming crisis. Libraries should own eBooks so
they don’t risk losing access or control over the information they can provide
to patrons.

Contracts should not be
permitted to override exceptions and limitations. NY and MD have new laws:
publishers who offer ebooks to public have to offer licenses to libraries on
reasonable terms. UK campaign to investigate academic ebook market is a similar
push. Amazon is changing its tune, and may sell to libraries soon. But we need
changes to Canadian law to ensure that contracts can’t override fair dealing
and TPMs can’t be used to prevent fair dealing. Libraries also have to assert
format-shifting and controlled digital lending rights. Explore digital
exhaustion for libraries. Libraries have to assert roles as custodians of
information and providers of access.

Linford: Physical space
limited what libraries could keep in their holdings in the past; how does that
bear on these changes?

Swartz: these are
different problems. The physical space problem has solutions for academic libraries:
offsite storage, collection management to ensure it represents needs of users.
But the library owns that content and is able to exercise user
rights/exhaustion/first sale. The digital world has switched to the library as
temporary waystation not under its control, paying yearly to offer the same
materials.

Amani: pandemic illustrates
the problem: they were unable to get publishers to respond to give patrons
access to materials that the library physically had but could not get into
patrons’ hands physically.
 

Kylie Pappalardo,
Copyright licensing and distribution in Australia’s screen industries

Pop. Approx. 26 million;
until 2015, mostly free to air TV, two public service broadcasters, three
commercial channels, one cable subscription service. So what is available to
the Australian public? Significant overlap in availability of top films
(blockbusters) 2010-2015 in Australia and US, but also significant numbers that
are only available in one place or another, especially in 2017, where 40% of
whole were available to both. By 2021, there were more films overall and more
convergence. Many gaps in the long tail in the US, not just in Australia—all time
box office films, almost half not available in the US. There’s not much overlap
in the repertoires of the three different streaming services (Netflix, Prime
Video, one other)—true in the US too even with many more providers.

Contrast to music: near complete
overlap in US/Australia availability, and also more significant overlap in
Tidal, Spotify, and Deezer coverage (main Aus. services).

Research agenda: why isn’t
screen content as widely available as music? Could it be? Can costs/logistics
of screen production and distribution which are connected by complicated contracts
be reconciled with public goal of broad, affordable, and sustained availability?
Can we reimagine a copyright system that is more distributively equitable and
efficient?

Macklem: regulations of
mandated local content may also make a difference—and tax credits for
production in the country have made a difference in Canada.

A: In Australia, there are
quotas on free-to-air content but not on streaming services; there are tax
credits; leads to complicated questions about how to count something as
Australian—is the Marvel film that films on the coast really an Australian
film?
 

D.R. Jones, Under the
Umbrella: Assessing Recent Court Decisions that Promote Public Access to the
Law

The key principle: law
must be available, and people need access to it. Before Fed Register and CFR,
people didn’t always know the law. Two cases went to SCt before it was known
that the provision at issue didn’t exist. Making available but only in a place
that’s difficult to access is not enough. Recent cases: GA v. PRO; ASTM v. PRO
(DC Cir.), and Int’l Code Council v. UpCodes (SDNY).

GA v. PRO: SCt focused on
authorship: creation by officials means not authored by © claimant. Doesn’t
cover all situations. What about model codes/standards drafted by private
organizations then adopted into law? UpCodes said GA v. PRO didn’t apply because
of the limited authorship test used by the SCt, but there are other ways to
support the principle of access to the law. Thorough decision: access to law
prevails over interests of © holder; posting the law as law is allowed.

Risks: almost back to
where we were before the Fed. Reg. Issues finding standards in print and
online. State case: P lost a counterclaim b/c no one could find the standard;
Indiana SCt discusses in 2017 difficulties in accessing a standard.

Linford: then how should
we subsidize the creation of law?

A: Access to law is the
key value here (so, some other way).

 Liam Sunner, How the
European Union’s obligation to include and incorporate human rights as part of
its external relations and trade of intellectual property, implies the
inclusion of the Convention on the Rights of Persons with Disabilities within
this obligation 

EU initiative to
mainstream consideration of human rights in “all areas of its external action
without exception.” But the EU doesn’t necessarily have much power to back up
its commitments. Marrakesh Treaty: can be traced to Art. 30(3) Convention on
Rights of Persons with Disabilities, which requires parties to ensure that IP
rights aren’t unreasonable or discriminatory barriers to access to cultural
materials by persons w/disabilities. Marrakesh identifies a clear human rights
violation and provides explicit mechanisms for addressing it. In human rights
terms, addresses disability rights, right to education, right to participate in
cultural life. CRPD defines education very broadly.

CJEU asked: does Marrakesh
fall w/in common commercial policy? Have to examine both treaty purpose and
treaty content to see if it’s an EU competence. Concluded that access was not
within common commercial policy so EU didn’t have exclusive competence to enter
into the treaty for the countries.

EU has had direct impact
on IP chapters and copyright exceptions/limitations in trade agreements.

Felix Wu: what is the
ultimate practical significance of whether these treaties/conventions are incorporated
into EU law? Given the member states we have, what would change? Is there a
realistic prospect that member states wouldn’t sign?

A: depends on the member
states. In practice, there could be political constraints on accepting human
rights constraints from treaties, or practical limits.

Wu: are your arguments
limited to access for disability purposes or do they extend to access rights
generally?

A: the latter—Marrakesh is
an example.

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