Fair Use, Broadcast Protections Global Copyright Priorities This Year

By Dugie Standeford for Intellectual Property Watch.

While antipiracy initiatives and updated broadcasting protections remain dominant themes for government and industry this year, 2007 also could usher in an expansion of user rights as well, according to sources.

In the United States and perhaps worldwide, the focus appears to be on fair use or fair dealing, said DowLohnes intellectual property attorney James Burger. Outside the US, it is taking the form of legislation clarifying or expanding private use of copyrighted material, he said, while internally, “the personal use issue is more likely to find its challenge in the judicial system.”

Private Copying

Last year, several countries either enacted copyright reform or began the process of considering it. These efforts often involved lengthy – and noisy – debates on issues such as time- or space-shifting of audiovisual and musical works, digital rights management (DRM) systems, and other matters related to users’ rights.

Despite opposition from copyright groups seeking to tie time- and format-shifting to levies on DVDs, CDs and other media, Australia late last year approved legislation that, among other things, legitimises consumer use of iPods and other devices (IPW, Copyright Policy, 17 November 2006). Implementation of the measure, which aligns national law with the Australia-United States Free Trade Agreement, could be difficult due to its complexity, experts said.

In December, an independent study of Britain’s intellectual property framework called for creation of a private copyright exception to allow consumers to move content to different platforms (IPW, Copyright Policy, 8 December 2006). The government’s reaction to the report’s recommendations remains to be seen.

Canada also is eyeing changes to its copyright regime this year. In December, Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, said that introduction of a copyright reform bill appears imminent. In Canada as elsewhere, he wrote, there is a “growing awareness of the limits of fair dealing/fair use, particularly with respect to time/place/device shifting.” Consumers take for granted their right to record a television show or copy a CD for their iPod, he said, but under current Canadian law, such activities “are at least in a legal grey zone.”

France last year adopted the European Union Copyright Directive into national law (IPW, European Policy, 16 May 2006). The measure on the rights of authors and related rights in the information society is unique in requiring owners of devices covered by proprietary DRM systems to provide access to information essential to enable interoperability. The law creates a government body, not yet established, tasked with resolving DRM disclosure requests.

The EU Copyright Directive harmonising certain aspects of copyright and related rights in the information society allows member states to set rules for private copying if they deem it necessary, and sets three conditions any private copying exception must meet.

Even when such copying complies with the three-step test, however, several “hot” issues remain unresolved, Francisco Javier Cabrera Blasquez wrote in a European Audiovisual Observatory report on recent developments in DRM [pdf]. These include the “right” number of copies consumers should be allowed to make of copyrighted material; what kind of personal copying should be allowed; and the relationship between DRM and the public domain.

A particularly thorny question is the relationship between fair compensation for rightsholders and the application of technical protection measures, (intended to prevent acts prohibited by a copyright owner such as unauthorised copying) Blasquez said. A European Commission plan to reform copyright levies on hard media to take into account the increased use of DRM systems foundered last month; its future is uncertain (IPW, Subscribers, 16 January 2007).

The Commission’s Internal Market Directorate is in the process of reviewing Community copyright and related rights law. In a report to the Commission last November, the Institute of Information Law, University of Amsterdam, offered provisional recommendations on copyright limitations and said it will address the issue further early this year in a study on the Information Society Directive [pdf].

US: Digital Freedom and Orphan Works

The adjournment of the 109th Congress in December killed, at least temporarily, a flurry of legislation described by Public Knowledge (PK) President Gigi Sohn as a “sustained assault on the freedom of consumers to legally enjoy, create and distribute music and video, and on the freedom of manufacturers to innovate in response to consumer demands.”

It is not clear yet whether the new Congress now in session will undertake copyright reform. US lawmakers “have many more burning issues to deal with” than copyright, Burger said. However, a PK spokesman said the issue of “orphan works” – copyrighted content whose authors cannot be located – could be revisited.

In addition, Senator Diane Feinstein, a California Democrat, on 12 January reintroduced the Platform Equity and Remedies for Rights Holders in Music Act of 2007 which, according to PK, would require digital radio broadcasters to build in technology to prevent listeners from recording audio off the air. The so-called “audio flag” issue follows years of argument over the “broadcast flag,” which would have outlawed digital TV receivers lacking copy protection.

In October, PK joined the Consumer Electronics Association, Computer Professionals for Social Responsibility, the New America Foundation, the Media Access Project and others in a “Digital Freedom” campaign. It aims to defend “the rights of artists, innovators, creators and consumers to use technology without fear of unreasonable government restrictions or costly lawsuits.”

One such case involves May 2006 litigation by the recording industry against XM Satellite Radio. Labels claim XM’s digital distribution service makes music available without proper authorisation. On 19 January, the US District Court for the Southern District of New York rejected XM’s request to dismiss the suit, which now continues.

The personal use issue could see court action following the US Copyright Office’s decision to deny an exemption from Digital Millennium Copyright Act provisions barring circumvention of technical protections to permit space-shifting of copyrighted content, Burger said.

The ruling found that “reproduction of content onto new devices is an infringement of the exclusive reproduction rights unless some exemption of defence is available,” and in the “absence of any persuasive legal authority for the proposition that making copies of a work onto any device of the user’s choosing is a non-infringing use, there is no basis for recommending an exemption to the prohibition on circumvention.”

The decision “may give encouragement to content owners to pursue equipment manufacturers that permit space-shifting for personal use,” Burger said.

WIPO Broadcasting Treaty

On the international front, the World Intellectual Property Organization (WIPO) hopes this year to continue its studies of various copyright areas, including exceptions and limitations, Deputy Director General Michael Keplinger told Intellectual Property Watch.

Negotiations will continue this year on a WIPO proposal to update broadcasters’ and cablecasters’ rights. The Standing Committee on Copyright and Related Rights met from 17 to 19 January but failed to resolve key remaining issues including what exclusive rights to give broadcasters, how to protect their use of technical protection measures, and what to do about signals transmitted over the Internet (IPW, WIPO, 23 January 2007).

Other WIPO treaty initiatives related to copyright are unlikely this year because the broadcast treaty remains in play, Keplinger said. The committee will meet once more for five days in June to try to reach agreement before the September WIPO General Assembly decides whether to allow a diplomatic conference on the treaty in November 2007. A new chair’s draft on the treaty is due by 1 May.

Enforcement

WIPO will host the Third Global Congress on Combating Counterfeiting and Piracy on 30-31 January, which Keplinger said is aimed at helping developing countries and others tackle the problems.

A controversial European Commission proposal to require member states to criminalize all intentional infringements on a commercial scale is moving through the European Parliament but appears to be languishing in the Council (IPW, Subscribers, 16 January 2007). The IP Rights Enforcement Directive 2 (IPRED2) has garnered strong opposition from some nations and well as from consumer and digital rights groups (IPW, European Policy, 11 July 2006).

The International Federation for the Phonographic Industry announced in January that it will not only expand its assault against alleged digital piracy but will pressure “gatekeeper” Internet services providers to take greater responsibility for what occurs on their networks.

Movie studios also are focussed on ISPs. “Our principal priority for 2007 is to work to secure closer co-operation with ISPs to promote legal offers on the Internet to provide film fans with the greatest possible choice,” said a spokeswoman for the Motion Picture Association of America.

Internet piracy is the biggest copyright issue Asian industry faces this year, according to Alban Kang, managing partner of Alban Tay Mahtani & de Silva, Singapore. “The Internet is such a vast and growing medium in Asia” that it is sparking “major concerns” about illegal downloading and software piracy. New technologies related to digital music are having an impact in Asia as well. For instance, Asia’s music industry is battling ringtone copying, Kang said.

Other Issues

WIPO has several other copyright-related items on its plate this year, according to Keplinger. Under discussion is the possible establishment of collective management organisations to help artists in developing nations and emerging economies profit from their works. In particular, he said, WIPO will be examining whether the Caribbean model already in existence can work in Africa. Keplinger also hopes to continue working with regional bureaus on training for development goals, particularly those related to implementation of WIPO Internet treaties.

Other EU copyright activities in the pipeline this year include a proposal on collective cross-border management of copyright and related rights for legitimate online music services, now under scrutiny in the European Parliament, and an expected communication on how to foster cross-border delivery of digital content. The latter is due mid-year or in the third quarter, a Commission spokesman said.

Britain’s recording industry began lobbying last year to extend EU copyright protection to 95 years. The proposal met with a cool reception from the Gowers review [pdf], which urged the European Commission to retain the existing 50-year term of protection for sound recordings and performers’ rights. It is unclear whether the Commission, which is said to be mulling revisions to its copyright duration directive, will act this year.

Driven in part by France’s new copyright measure and consumer unrest over incompatible devices and music tracks, interoperability of devices, platforms and DRM systems has come under increasing government scrutiny in Europe, James Bouras, special counsel to Victor Co. of Japan, said last month at the Digital Hollywood Europe conference in London. In response, content companies are scrambling to craft interoperability standards to avoid regulation. He predicted “persistent consumer insurgency” if the issues go unresolved.

Dugie Standeford may be reached at info@ip-watch.ch.