Who Will be Next Register of Copyrights?

So, who will be the next Register of Copyrights in the USA? This is an extremely important job and always a critically important appointment, and especially so at this time.

The last three Registers have been highly respected and each is credited with remarkable accomplishments.

They were:

1. Ralph Oman, Register 1985-1993 (above)
2. Barbara Ringer, Acting Register 1993-1994
3. Marybeth Peters, Register 1994-2010 (above)

Ralph Oman was very instrumental in bringing the USA into the Berne Convention after 102 years of notable absence and playing a key role in bringing copyright law into the trade realm in a reasoned and reasonable way at the time. 

Barbara Ringer, who acted for a year, had previously as Register presided over the monumental 1976 revision to the US Copyright, which brought the USA into the modern world of copyright and primed it for Berne ratification a few years later in 1988.

Marybeth Peters, amongst many other accomplishments,  saw the evolution of the Copyright Office into the internet age, presided over much needed modernization of systems, implemented the rule making process in the DMCA. played a key role in the TEACH Act of 2002,  got the Copyright Royalty Board up and running, and steered a balanced path for the office through various thus far unsuccessful attempts to politicize it, polarize it, swallow it into the Department of Commerce, and generally take away its vitally necessary independence. 

All three of these giants were very expert in their field and highly respected by all stakeholders. They were true bastions of balance.

Against this background, read Jamie Love's predictably frank and unsurprising assessment of the current short list, as he sees it, which is not necessarily how I would see it.

Whoever gets this appointment has immense responsibility and should be up to challenge of meeting the standards set by the offices' outstanding recent predecessors as Register.

HK

Some Thoughts on the Google Book Settlement Hearing of February 18, 2010

I’ve said very little about the Google Book Settlement (“GBS”) to date because it is so complex and because is raises so many unanswerable questions. Moreover, at this stage I have no committed convictions on it. In fact, I’m really genuinely agnostic about it.

On the one hand, I love the idea of great celestial digital library in the cloud that will include virtually all useful books, including "orphans", will last forever and provide the greatest possible accessibility at the lowest possible cost while fairly compensating current rights owners. On the other hand, I wonder whether this grand vision is entirely legal under the relevant current domestic and international legal regimes. I’m skeptical about using the class action process of a single country, wherein a handful of brilliant and well intentioned individuals can take upon themselves the mandate arguably to unilaterally, effectively and fundamentally change copyright law in the major English speaking jurisdictions of the world, with French books published in Quebec being included. Moreover, I have serious questions about a settlement that will sweep in Canadian authors and publishers but will deny Canadian users most of the bells, whistles, benefits and access to the resulting library.

There are big questions here that won’t go away easily. Judge Denny Chin is a District Court Judge in the Southern District of New York who has been nominated to the fabled Second Circuit Court of Appeals to replace Judge Sotomayor who was recently appointed to the US Supreme Court. He will have to rule on many complex questions following a fairness hearing today February 18, 2010 dealing with the Amended Settlement Agreement (“ASA”). Judge Chin has dealt with many high profile cases, including that of Bernie Madoff, who he sentenced to a longer than life term of 150 years in jail, leaving no doubt that life means life.

For starters, here is the partial list of documents that Judge Chin will have to consider, most of which were only recently filed. There have, of course, been many more filed before this ASA hearing was set down and for the first hearing.

Here are some of the general questions that various stakeholders have for Judge Chin, followed by some Canadian based questions that he may not have to answer but Canadians need to consider:

General:

1. Is this an appropriate use of the class action process, especially in view of the many prestigious groups, corporations and individuals who have objected to the ASA? In other words, to what extent does the class involved adequately represent affected authors and publishers, not to mention countless other stakeholders, including librarians and scholars?

2. Can a class action settlement go well beyond the original pleadings and, effectively, change the law both for the past and for the future in a way that would otherwise be impossible at this point in time if it were to be attempted in Congress and/or through a treaty?

3. Given the extraordinary complexity of the settlement documentation and the relatively short notice period, can affected authors, publishers and other stakeholders realistically come to informed conclusions?

4. Is it appropriate to use class action litigation to arguably transform the normally “exclusive rights” basis of copyright law, which requires explicit permission, into an opt-out regime, where permission will be given unless specifically refused in writing? The deadline for total “opting out” was January 28, 2010. Google argues that even those who didn't opt out by January 28, 2010 will have plenty of opportunities to exercise control over their works down the line for many purposes - but this will still require further “opt out” or other action.

5. Would the Settlement, if approved, put the United States into contravention of international law with respect to such basic concepts as those of national treatment, mandatory exclusive rights, and the three step test? None other than the Hon. Marybeth Peters, U.S. Register of Copyrights raised the national treatment issue in her testimony to the House Judiciary Committee.

6. What will be the antitrust implications of the ASA, given the dominant or monopoly position that Google will have with respect to several markets that it is creating by virtue of this Settlement, i.e. access to orphan works, and, above all the sole portal to search engine access to the database of tens of millions of books (the great “Library to Last Forever”, as Sergey Brin himself calls it)?

7. What are the implications of views such as this by prominent US IP antitrust lawyer Gary Reback?

8. What are the extraterritorial implications of this agreement, which requires authors of books published in Australia, Canada (including French language books) and the UK (the “foreign publishing countries”) to have opted out by January 28, 2010 or be bound by it? It also covers books published in these countries, even for the countless authors who are not citizens or residents of these foreign publishing countries or the USA. Unlike United States works, there is no requirement for the foreign works to have been registered in the US Copyright Office. Given the practice of simultaneous or near simultaneous publication of countless English language books in the foreign publishing countries, Google will acquire an enormous number of books in their database that would not fit into the necessarily tighter definition of a US work, which requires publication and registration in the USA. Moreover, many French books published in Quebec but originating from anywhere in the world including France would be included.

9. What about the countless past agreements signed between authors and publishers that were silent or at best ambiguous about electronic rights?

10. What about the privacy rights of potential users?

Here are some Canadian-focussed questions, which Judge Chin will not likely answer but others may eventually have to face:

1. Why has the Government of Canada apparently been uninvolved and uninterested in the GBS? There has been no public consultation that I am aware of. France and Germany have become engaged at the official level. On the other hand, Canadian officials who would normally be involved in an issue such as this haven’t been.

2. Where are the several prominent Canadian trade associations and collectives that should have provided some useful specific advice and potentially some representation for Canadian authors, publishers, librarians etc. on these issues?

3. What are the implications of the Google Partner Program, which appears to allow publishers to feed into Google’s database for very extended access the books of many authors, who may have been and still may be unaware of the Program?

4. Why is this shaping up to be a battle between scholarly and other individual authors. ranging from the most obscure to J. K. Rowling herself on the one hand and big corporate publishers on the other? I note that the Canadian Publishers’ Council and the Association of Canadian Publishers (which together represent the big multinational and major Canadian publishers) are recommending approval of the Settlement at the same time that they attempting to intervene to fight “flexible fair dealing” and push back on the CCH v. LSUC decision in the Access Copyright K-12 case currently before the Canadian Federal Court of Appeal. On the other hand, many independent Canadian authors and the Canadian Association of University Teachers (“CAUT”) are opposing the GBS. Naturally, the database will be far more important for innovation and research purposes with respect to scholarly works than, for example, light romance novels (no offence to the fan fiction crowd).

5. Although vast numbers of Canadian published books by thousands of Canadian authors will be drawn into this settlement, most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database. This is because Google is necessarily putting up something of a firewall around this database since, even though there may be some extraterritorial aspects to the settlement, the Settlement not surprisingly purports not to affect activities implicating copyright rights in foreign countries outside of the USA.

6. Canadians may wish to read, if nothing else, the submissions of Google itself and the US Department of Justice (which supports the basic goals of the ASA but reiterates that it is still “a bridge too far” and should not be approved as is). Canadians will also want to read the few but important submissions from Canada. As well, there are “must read” submissions from Pam Samuelson and many notable advocacy groups on all sides, and corporate interests, including Microsoft and AT&T.

There is no doubt that Judge Chin will have his hands full with this case, and they eyes of the entire copyright world will be focussed on him. If this case were ever to go to trial, it would likely be a vastly more complex copyright case than anything ever heard anywhere before. Whatever happens after today will most certainly not be a routine rubber stamp judicial approval of a class action settlement.

Judge Chin's ruling will have profound public policy implications not only in the USA but potentially also everywhere else. Whatever Judge Chin decides, he will be expected to provide ample reasons. Despite, or perhaps indeed because of, the importance, complexity and controversy of this matter, I’m willing to predict that we will see a lengthy and detailed judgment from Judge Chin in a few weeks or a few months at the most.

HK

Thoughts Following the 2009 Fordham Conference

The annual Fordham IP Conference was held at Cambridge, England this year on April 15 and 16, 2009.

The plenary, copyright and trade sessions were interesting, though not as balanced as we have seen in the past. Moreover, there were several prominent absences of those who were expected to participate this year or who have done so frequently in the past. These included Francis Gurry, the new DG of WIPO, Hon. Marybeth Peters, US Register of Copyrights and Prof. Bernt Hugenholtz.

Hugenholtz is a leading European academic and was a consultant to the EC though his Institute for Information Law. Despite his credentials, his authoritative report recommending against sound recording term extension has been summarily discarded in favour of lobbyists’ positions by the same EC that commissioned it. One can read about this sorry episode here in an important posting by the IPKAT, including the report in question and a very trenchant comment from the late Sir Hugh Laddie who opined on August 22, 2008 shortly before his death:

I think it is worth pointing out that this refusal of the Commission to pay proper regard to the result of thoughtful and independent research is more than a blow to academics. What the Commission has done undermines all of us who support the European Union. One of the functions of the Commission is that of proposing legislation which benefits citizens of the Union as a whole. In that respect it is or ought to be part of the democratic fabric of our society. Commissioning work like that carried out by the Institute for Information Law allows the Commission to look beyond the interests of lobby groups and to take into account interests which do not have the time, expertise, organisation or immediate and direct financial interest to put counter views - including the interests of the public at large. What the Commission has done in this case is little less than a denial of its own responsibilities. Perhaps its motto should be "He who pays wins".

(emphasis added)

Speaking of Sir Hugh Laddie, who died of cancer on November 28, 2008, his absence from this conference was palpable and painful. His contribution was irreplaceable. He never hesitated to speak truth to power and did so often at the Fordham conference. When he spoke, he could not be dismissed, not only because of his position but because he had earned his position. When Hugh was only 29, he won the landmark ruling from Lord Denning that gave the world the “Anton Piller order.” This has proven to be one of the most positive and potent weapons that IP owners have ever possessed in their eternal war against infringement. When he later as a treatise writer and a High Court Judge, former High Court Judge and academic said that IP rights were becoming excessive and counterproductive, everyone had to pay attention. The IP world generally and the Fordham conference in particular has lost its leading advocate for balance and reason. He was only 62.

Anyway, back to Fordham @ Cambridge 2009. On the copyright and trade panels, after hearing repeatedly from several of the same USTR, USPTO, EC, IFPI and MPA people, it seems clear that:

• Enforcement is a major priority of the US government (“USG”) and EU. They will press forward on ACTA.
• Multilateralism, policy making and norm setting in long established institutional fora such as WTO and WIPO are currently obsolete. The USA, EU and Japan are engaged in situational diplomacy. Bilateralism and plurilateralism in ad hoc alliances such as ACTA are seen by the USA, the EU and Japan as currently best serving their immediate interests.
• The USA is doing its best to spin its mixed victory over China at the WTO. Meanwhile, it continues to flout a longstanding and unambiguous WTO finding of contravention of the Berne Convention and TRIPs in the “Section 110" matter. It will be recalled that the USA has exempted countless businesses from a requirement to pay many millions in royalties to composers and authors for public performance, as is the case in virtually all other WTO/Berne countries. But somehow still, the USA continues to preach to other countries about “respect” for intellectual property and international obligations.
• Canada was gratuitously mentioned many times as a problem and is clearly being targeted by these usual suspects - but with no apparent evidentiary basis.
• ACTA will cover parallel imports, if the content owners and the USG have their way. When an influential American lobbyist says the potential effect of ACTA on parallel imports would be a “marginal” problem, then you can assume that parallel imports could indeed be a focus of the ACTA efforts. Other comments suggested that the USA would favour the application of ACTA to parallel imports precisely because it would enable international price discrimination.
• If if ACTA is intended to exclude a "de minimis" number of unauthorized copies for personal use on iPods, laptops, cell phones, etc., border officials would presumably be authorized to make inspections to deterime whether that threshold has been crossed. And one can be quite sure that the RIAA's idea of "de minimis" will be quite different from that of millions of internet users. The RIAA is going after Joel Tenenbaum for just seven songs, and was awarded $222,000 for 24 songs in the Jammie Thomas case (under appeal). The RIAA has sued in is strenuously litigaitng against Joe Tenenbaum for just seven songs.
• Intense pressure will be brought on Canada to empower “ex officio” powers for border measures that have previously and properly been entrusted to the judiciary. This is probably one of the main goals of the USG, and could lead to intense anti-competitive abuse, the potential for which has been recently seen with respect to legit generic AIDS drugs being tied up in transit through the Netherlands.
• “Three Strikes” is a huge priority for the content owners and the USG and the content industries and will be a part of ACTA, if they have their way - notwithstanding the rejection of “three strikes” in every Western democratic country that has considered it to date.
• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.
• Canada will likely make it to the top level (or bottom, depending on one’s point of view and sense of humour) of this years’ “Special 301" report - expected momentarily.

On the domestic Canadian front, there was an interesting reference in a presentation by an Australian grad student that confirmed that the Canadian library community is still apparently largely oblivious to the potential implications of the CCH v. LSUC decision, and has given it a “markedly muted reception.” This is hardly news - but interesting to hear from down under. The really interesting question is why there is still so little awareness five years after the fact of the potentially liberating results of that the decision. It’s becoming more and more clear that many Canadian librarians and educational administrators are not being fully and/or independently advised of the real significance of this decision.

BTW, if anyone wishes to pay $1,595 for a one day program (which does include lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

HK