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Highlights of the 2013 Copyright Society Annual Meeting

Highlights from the first days sessions at the annual meeting of the Copyright Society of the USA, Bolton Landing, NY June 10, 2013.

Maria Pallante, Register of Copyrights gave an update on activities at the Copyright Office.

  • Cell phone unlocking requirements will be continued, likely by reinstating recently expired exemption in the DMCA, although present DMCA exemption is not as effective as consumers think.
  • Hearings regarding review and potential update of copyright law will begin in the fall, areas of interest are: (1) scope of exclusive rights; (2) updating exceptions and limitations; (3) first sale; (4) formalities; (5) orphan works; (6) mass digitization; (7) updating enforcement provisions; (8) review DMCA; (9) statutory damages; (10) small copyright claims; (11) educational use; (12) litigation reform; (13) a few other issues on a slide she went through too fast for me.
  • Copyright Office Budget is 2/3 fees, 1/3 appropriations, Maria feels gov’t should pay, entire copyright system should not be funded by copyright owners because various stakeholder benefit, fees would increase tremendously; reserve fund is important.
  • Copyright Office is reorganizing, adding senior positions:  Director of Repositories; Director of Information and Education.
  • Copyright Office is studying and making recommendations for updating Copyright Office technology and databases.
  • Copyright Office Compendium III is coming.
  • Copyright Office staff training lunches with market participants will be open to the publics
  • Podcasting Nimmer 50th anniversary events, hoping to podcast more events, video will be up on Copyright Office site in 2 weeks
  • Maria’s comments on the utility of reviewing the Copyright Act are available on the Copyright Office website:  www.copyright.gov

There was a panel discussion on authorship and fixation, focusing on Chapman Kelley v. Chicago Park District (landscaping is not copyrightable)

  • Hillel Parness of Robins Kaplan moderated, Chapman Kelley was on the panel, with Rob Kasunic of the Copyright Office, June Besek and Martin Schaefer
  • Courts ruled against Kelley holding that he did not have a copyright in his landscape design, district court held that wildflower works were not original because natural; court of appeals said not fixed because perishable  Hillel did a nice job using Monty Python and the Holy Grail to set the scene, clearly fair use and the highlight of the day;
  • Discussion of the bowl of food case
  • What about ice sculpture?  Clearly perishable, subject to copyright?
  • Books written by computer?  The Policeman’s Beard
  • Monkey takes a photograph, copyrightable? Does the author have to be human?
  • Chapman Kelley offered the following.  He is a painter. Wildflower works started as a way to make a larger painting than could be done on canvass.  Live material v. dead material was an issue at trial.  He paints on canvas with natural pigments, those degrade over time, so do all paints. Effect of decision on artists is that it has become a damper, artists feel this a limit on art.
  • June Besek gave a historic overview of fixation and authorship issues.
  • Rob Kasunic – courts are struggling with these issues, legislation not entirely clear, offered a number of works for consideration of issues of fixation and originality, would gardens be published or unpublished?
  • Martin Schaefer – fixation typically not required in Europe, works of garden art specifically included in some countries, Russia for example, but not France or Italy, in Germany, moral rights applied to garden works.

Bob Clarida gave his annual update of last year’s copyright highlights.  With respect to substantial similarity he discussed Blehm v. Jacobs and Harney v. Sony Pictures, both discussed and illustrated in Substantial Similarity in Copyright Law.

Making the Digital Deal, panel featuring Lisa Weiss, Stephen Dallas (Warner Chappell), Steve Englund, Elizabeth Moody (YouTube), Alexis Shapiro (The Orchard) focusing on key deal points in digital licenses

  • Scope of grant of rights – defining authorized devices can be complicated, sublicensing rights to have use on third party sites, content owners still trying to limit rights granted to what is actually necessary, service like the Orchard needs to navigate both sides, threshold question is what exactly is the licensee doing and how may that foreseeably change, music publishers reluctant to give “all rights necessary”, service should know the rights it needs, don’t want to have to renegotiate every time service evolves, MDY v. Blizzard re: cheats, condition must go to one of the exclusive rights or involve payment, everything else is a covenant which only give rise to damages for breach
  • Scope of content commitment – licensees want to know they’re getting as much content as competitors, limited exclusives short of most favored nations, if you want all content you have to promise to actively distribute all
  • Holdback and takedown – negotiate takedown when licensor loses rights or if third party claims licensor does not have rights, need time frames for takedown, YouTube allows licensors to block user video
  • Representations, warranties and indemnities – aggregator indemnifies licensed services, gets similar warranties and indemnities from its licensors, for startups can cap liability on indemnity but carve out crucial indemnities from cap, indemnity only as good as indemnitor
  • Data reporting and sharing – seeking uniformity of reporting and maintenance of data, aggregate v. personally identifiable information, U.S. v. international, inconsistent reporting requirements is a problem
  • Transcode – right to change into different formats
  • Window – grant a right for a limited “window” of time
  • Provide for what happens to digital files at the end of the term

There is no lobster dinner this year to the disappointment of many.  Joe Salvo, President CUSA, took the blame and apologized.  Barry Slotnick offered to bean him in the annual softball game.

 

 

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