Copyright Office Requests Public Comment on Mass Digitization Pilot Program

The U.S. Copyright Office has published a Federal Register notice requesting written comments to assist it in developing draft legislation that would establish a legal framework for certain mass digitization activities. For the past several years, the Office has been exploring ways to facilitate and support mass digitization projects serving the public interest while appropriately balancing the interests and concerns of copyright owners. In its recently issued Orphan Works and Mass Digitization Report, the Office proposed the creation of a limited “pilot program” that would allow certain types of mass digitization projects to be authorized through a system known as extended collective licensing (ECL). The ECL pilot program recommended by the Office would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rightsholder and user representatives.

Because the success of such a system depends on the voluntary involvement of both copyright owners and users, the Office is inviting public comment on several issues concerning the scope and operation of the pilot program. The Office will then seek to facilitate further discussion through stakeholder meetings and, if necessary, additional requests for written comment. Based on this input, the Office will draft a formal legislative proposal for Congress’s consideration.

The Notice of Inquiry is available here. Written comments are due on or before August 10, 2015.

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Proceed with Caution: Copyright Office Releases Report on Orphan Works and Mass Digitization

The U.S. Copyright Office today released Orphan Works and Mass Digitization: A Report of the Register of Copyrights. The Report documents the legal and business challenges faced by good faith users who seek to use orphan works and/or engage in mass digitization projects. It provides a series of legislative recommendations that offer users a way forward out of gridlock, but also take into account the legitimate concerns and exclusive rights of authors and other copyright owners.

The Copyright Office has long held the view, which it reiterates in the Report, that too many valuable projects are forestalled because users can neither locate the rightsholders nor protect themselves or their licensees from ongoing exposure to liability. Similarly, recent litigation has highlighted a gap in the law regarding how to fully facilitate mass digitization projects that are in the public’s interest without undermining the rights of copyright owners, including the right to be fairly compensated.

With respect to orphan works, the Report provides draft legislation that draws upon the Shawn Bentley Orphan Works Act passed by the Senate seven years ago, albeit with some updates and changes that reflect intervening developments and public discussions.

With respect to mass digitization, the Report recommends a more incremental approach that would allow the United States to gain experience with an extended collective licensing framework that is in use or under consideration elsewhere in the world. The Office suggests a “pilot program” that would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rightsholder and user representatives. To assist it in developing appropriate legislation, the Office is issuing a Notice of Inquiry contemporaneously with the Report, inviting public comment on various issues concerning the scope and administration of such a program.

The full report is available at www.copyright.gov/orphan.

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Photography Rules in National Parks

Red Rocks Dusk - Copyright Carolyn E. Wright

Check out this great article by Mattie Schuler at Backpacker.com on the rules for photography in the National Parks, with quotes from Photo Attorney, Carolyn E. Wright.

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Drone Photography and the Law

Edgewood Aerial - Copyright Carolyn E. Wright

Photographers and videographers are discovering an exciting way to shoot via drones. But be sure that you understand the laws related to this new area before taking off.  First, check Photo Attorney’s article on flying drones at Lynda.com.  Then see Forbes’ report on media use of photos taken from drones.

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Everything You Need to Know About eCO Registration* (*but were afraid to ask)

Leslie BurnsJoin Photo Attorney®, Leslie Burns, for the APA | SD presentation: “Everything You Need to Know About eCO Registration* (*but were afraid to ask)” on Thursday, May 14th, 2015, from 7:00 – 8:30 pm (doors open at 6:30 pm) at the Riverdale Studios, 6314 Riverdale Street, San Diego, CA 92120. Leslie will walk you, step-by-step, through the process to register your copyrights using the eCO system. Learn more and register on the APA | SD website.

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U.S. Copyright Office Publishes Index of Fair Use Decisions in Support of U.S. Intellectual Property Enforcement Coordinator

Calla Lilly - Copyright Carolyn E. Wright

Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office’s Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions. The Index was undertaken in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement prepared by the U.S. Intellectual Property Enforcement Coordinator within the Executive Office of the President.

Although not a substitute for legal advice, the Index is searchable by court and subject matter and provides a helpful starting point for those wishing to better understand how the federal courts have applied the fair use doctrine to particular categories of works or types of use, for example, music, internet/digitization, or parody.

“The doctrine of fair use has been an essential aspect of our copyright law for nearly 175 years,” said Pallante, “but it has too often been a mystery to good-faith users who seek more detail about its application. It has been a pleasure coordinating this practical and important resource with the U.S. Intellectual Property Coordinator’s office.”

“The doctrine of fair use is a vital aspect of U.S. copyright law,” said Danny Marti, the U.S. Intellectual Property Enforcement Coordinator at the White House, “and it is applied regularly in our daily life. I commend Register Pallante and the Copyright Office for producing this important resource—a resource that not only helps to make the doctrine more accessible, but also serves to re-emphasize the significance of this right as part of our culture. Indeed, it is the combination of a strong copyright system with a right of fair use that encourages creativity, promotes innovation and respects our freedom of speech and expression.”

The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, Internet/digitization, parody).

The Fair Use Index may be accessed on the Copyright Office’s website at http://copyright.gov/fair-use/index.html or via the U.S. Intellectual Property Enforcement Coordinator’s website at http://www.whitehouse.gov/omb/intellectualproperty.

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Register of Copyrights to Testify at April 29 House Judiciary Committee Hearing on Copyright Review

Register of Copyrights Maria A. Pallante will testify before the House Judiciary Committee onWednesday, April 29, 2015, at 10:00 a.m. (ET), in a hearing entitled “The Register’s Perspective on Copyright Review.” The Register, who was the first witness in the congressional review process in 2013, returns as the 100th witness and will share the recommendations of the Copyright Office on possible amendments to the law and discuss recent policy initiatives. She will also respond to questions regarding modernization of the Copyright Office.

The Register’s testimony will be webcast on the House Judiciary Committee’s website athttp://judiciary.house.gov/index.cfm/2015/4/hearing-the-register-s-perspective-on-copyright-review.

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Copyright Office Issues a Notice of Inquiry on Photographs, Graphic Artworks, and Illustrations

Black bird - Copyright Carolyn E Wright

The U.S. Copyright Office has published a Federal Register notice requesting written comments on how certain visual works, particularly photographs, graphic artworks, and illustrations, are monetized, enforced, and registered under the Copyright Act. The Office is specifically interested in the current marketplace for these visual works, as well as observations regarding the real or potential obstacles that these authors and, as applicable, their licensees or other representatives face when navigating the digital landscape.

Photographers, graphic artists, and illustrators have expressed a growing list of concerns in recent years when speaking to both the Copyright Office and Members of Congress. This Notice of Inquiry thus builds upon our longstanding policy interest in these types of visual works, including the Copyright Office’s studies in a number of areas such as small claims, the making available right, resale royalties, registration, recordation, and the interoperability of records. As always, the Office is interested in the perspectives of copyright owners as well as users of these creative works. This is a general inquiry that will likely lead to additional specific inquiries.

The Notice of Inquiry is available at http://copyright.gov/policy/visualworks/. Written comments are due on or before July 23, 2015, and reply comments are due on or before August 24, 2015.

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Musician’s Photo Release is a Rights Grab

Trainor Release

Meghan Trainor, the popular singer of “All About That Bass,” and her management company, Atom Factory Music, LLC, reportedly are making photographers and videographers sign a Release to get a photo credential at Trainor’s concerts.

The Release restricts your taking photos to the first three songs and video recording to the first 90 seconds of the first three songs of the performance. “Photographs” and “Videos” are defined as all of your shots or video taken during that time.

Unfortunately, by signing the Release, you exclusively give Trainor the copyrights to your Photographs and Videos and are not entitled to any payments, regardless of how Trainor may later use your Photographs or Videos. At least Trainor and Atom Factory grant you a license to use the Photographs and Videos for the publication or network that initially requested your photo credential. You must get Atom Factory’s approval for any other uses of the Photographs or Videos.

The lesson? Read before you sign. If you sign, abide by the terms of the agreement. If you don’t agree to the terms, then don’t sign. Walk away and spend your time and talents on better things.

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