Copyright Office Research Articles

Comments of New Media Rights in the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

Comments of New Media Rights in the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

This Article examines the constitutional implications of legislation to bring pre-1972 sound recordings under federal copyright protection (referred to hereafter as “federalizing legislation”). In particular, we consider whether such an amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. Using the Copyright Office’s approach as a springboard, we consider the issues that would likely arise under any federalizing legislation. These issues, however, have implications far beyond the context of federalizing legislation for pre-1972 sound recordings. Given the proliferation of assets subject to intellectual property laws and the increasing role those assets play in the U.S. economy, the questions addressed in this Article may bear on Congress’ overall ability to amend those laws.

Copyright Office Music Licensing Study: Comments of Professor Peter S. Menell

In conjunction with Congressional review of copyright law in light of technological and other developments that affect the creation, dissemination, and use of copyrighted works, the U.S. Copyright Office announced on March 17, 2014 the initiation of a study to evaluate the effectiveness of existing methods of licensing music. These comments call attention to three areas: (I) establishing robust registries for licensing music; (II) promoting fair and balanced music streaming services; and (III) channeling mash-up creativity into authorized markets through a compulsory license.

Much Ado About Copyright's 'Making Available' Right

This commentary discusses the U.S. Copyright Office's May 5, 2014 hearing on the scope of the Section 106(3) distribution right, including the role of legislative history in interpreting this provision of copyright law. Following hearings before the House Judiciary Subcommittee on Intellectual Property and the Internet on January 14, 2014, Congress asked the Copyright Office to review and assess “the state of U.S. law recognizing and protecting making available and communication to the public rights for copyright holders.”

Copyright Questions and Answers for Information Professionals: From the Columns of Against the Grain

The intricacies of copyright law can be difficult to navigate for even the most knowledgeable of information professionals. While there are many books available to help with this daunting task, few are as much a pleasure to read as Laura Gasaway's Copyright Questions and Answers for Information Professionals. Gasaway has written a column in the periodical Against the Grain for almost fifteen years, in which she answers questions posed by Against the Grain readers. Copyright Questions and Answers is a compilation of those columns. This work is organized into thirteen chapters and an epilogue that cover everything from copyright basics to emerging challenges in copyright. In between, there are chapters on copies for users, permissions, performance, recordings, interlibrary loan, preservation, the Internet, and digitization. Also included are an appendix, “When U.S. Works Pass into the Public Domain” that features easy-to-read chart and an extensive index that gives page and question numbers for each topic. Each chapter begins with a brief overview of the chapter topic as an introduction. Almost any question a librarian could think of pertaining to copyright is covered in this book. Who owns the copyright of a letter, the writer or the recipient? Are emails copyrighted? Or photographs? Is it better to post links to a web page, or can you reproduce it on your own website? Is it enough to obtain permission for use through an email, or do you need it in a hard copy? These are just a few examples of the many questions that Gasaway answers in a clear, accessible style. The work has a “plain language” approach, which is welcome for a subject that can often be confusing and sometimes dull. It is a different format than more traditional books on copyright, such as Copyright Law for Librarians and Educators (ALA Editions; 2012; ISBN: 978-0-8389-1092-4) by Kenneth Crews, because Gasaway is answering questions posed by real-life librarians. For example, in chapter 10, which covers interlibrary loan and document delivery, the following question is asked: “More and more frequently the library is being asked to reproduce a whole journal for document delivery. Is there any reason not to do this?” (p. 190). Gasaway's answer begins, “There certainly are reasons not to reproduce entire journal issues for document delivery. The first question is what is meant by ‘document delivery.’” Gasaway then explains that there are different answers to that question depending on whether the “document delivery” is inside an organization or to an outside entity. An example from chapter 4 on permissions and licensing is, “What are the copyright rules for downloadable books?: (p. 75), and the answer, “It is more likely that the downloading of e-books is governed by a license agreement (contract) rather than just by copyright law. Copyright certainly applies, but a license agreement most likely covers such e-book issues as access, reproduction, distribution, display, and so forth.” Gasaway is well qualified to answer copyright questions, and her credentials are spelled out in the book's foreword. She is the Paul B. Eaton Distinguished Professor of Law at the University of North Carolina–Chapel Hill. She was “co-chair of…a task force appointed by the U.S. Copyright Office to study section 108 of the Copyright Act and suggest needed changes” (p. ix). But as Gasaway explains in the preface, she is more than an expert on copyright law. She is also a librarian. She earned her master's of library science in 1968 and worked in the University of Houston Law Library while going to law school there. Her interest in copyright was sparked by the Williams & Wilkins Company v. United States, which affirmed the right of the National Library of Medicine to provide copies to medical researchers. This alone should endear her and her book to medical librarians. Copyright Questions and Answers for Information Professionals is a valuable reference tool, expertly written by an authority on the subject. I highly recommend it for its thorough coverage of copyright issues and its straightforward answers to copyright questions librarians all have.

Politics and Rulemaking at the Copyright Office

ABSTRACT Studies of rulemaking often conclude that members of the public participate infrequently, while businesses participate actively and are more likely to influence final rules. I analyze a series of five Copyright Office rulemakings spanning the years 2000–2012. In contrast to the existing literature, I find high levels of public participation and a lack of influence by businesses. Instead, legal representation is the key predictor of influence over final rules. I also argue that the existing literature has wrongly theorized about how to measure public participation in rulemaking, thereby mischaracterizing the rulemaking process as undemocratic.

The Impact of E-Readers and E-Books on the Library of Congress and the US Copyright Office

Consumer acceptance of e-readers, tablets, and e-books has been covered extensively by the press. These trends have been a significant business opportunity for some authors, publishers, e-reader or tablet manufacturers, or distributors because a new market has emerged and ‘new’ readers have been attracted to the portability and the price of e-readers and e-books. But there is a ‘dark side of the moon.’ E-readers and e-books have emerged as ‘disruptive technologies,’ resulting in a reduction in the number of book outlets and printed books sold in the United States. In this research paper, we investigate the current and potential impact of e-books on the Library of Congress and the US Copyright Office, including the budgets, staffing, and operations of the Library of Congress and the US Copyright Office, and the need to digitize the vast book collection of the Library of Congress. This paper presents a series of recommendations for both the Library of Congress and the US Copyright Office.

Acts of Gaiety: LGBT Performance and the Politics of Pleasure by Sara Warner (review)

Reviewed by: Acts of Gaiety: LGBT Performance and the Politics of Pleasure by Sara Warner Robin Bernstein Acts of Gaiety: LGBT Performance and the Politics of Pleasure. By Sara Warner. Triangulations: Lesbian/Gay/Queer Theater/Drama/Performance series. Ann Arbor: University of Michigan Press, 2012; pp. 296. Sara Warner’s Acts of Gaiety: LGBT Performance and the Politics of Pleasure is a game-changer. In opposition to queer theorists who insistently characterize lesbian feminism as dour, essentialist, and anti-sex, Warner uses a set of lesbian performances, dating from the 1960s through the early twenty-first century, to expose a lesbian-feminist aesthetic and political strategy that she calls “gaiety.” Warner recovers acts of gaiety—those “embodied practices that are imbued with and generative of affective experiences of joy and jubilation, wishing and longing, felicity and good cheer” (xv)—so as to restore to queer studies a sense of lavender menace and lesbian pleasure. Acts of gaiety, she argues persuasively, have the potential to resist the stultifying effects of both homonormativity and queer negativity (that is, the emphasis within queer theory on negative affects, backward feeling, and a refusal of futurity). In short, Warner recovers past lesbian performances so as to inspire and potentially transform future LGBT activism; in so doing, she deftly places performance studies and theatre history at the center of LGBT studies. Acts of Gaiety will find a place not only in courses on US theatre history and LGBT theatre, but also in courses on queer theory, women’s studies, and LGBT history. The bulk of Warner’s book consists of five case studies of acts of gaiety, the merry mergings of pain and pleasure within ludic performances of resistance. Warner’s first case study, Valerie Solanas’s “scummy acts,” is a knockout. Through deep archival research and interviews with people who knew Solanas, Warner proves definitively that Solanas wrote her famous SCUM Manifesto as a scenario for a performance. This major discovery relocates a foundational feminist and lesbian text from the realm of print to that of orality, of performance. Warner made this discovery because she noticed that Solanas had included a copyright sign on her early printing of the SCUM Manifesto, and reasoned that the symbol might indicate that she had registered the text legally with the US Copyright Office. The symbol had been easily visible to previous scholars, but none before Warner had followed the breadcrumbs. When Warner investigated the copyrights of both the SCUM Manifesto and Solanas’s play Up Your Ass, she proved that the play preceded the manifesto, and that the manifesto was a variation upon the play—rather than vice versa, as scholars had previously presumed. The manifesto was, in fact, a scenario for a “scummy act”—a performance—Warner confirms, revealing through further discoveries that Solanas had submitted it as a playscript for possible production to the Directors’ Theater and Judson Poets’ Theatre. Warner made these discoveries because she did not discount the possibility that Solanas, an anarchist, would seek governmental assistance in protecting her intellectual property. Such counterintuitive, generative insights appear throughout Acts of Gaiety and make the book a continual pleasure to read. Warner also corrects the historical record on many points—decisively proving, for example, that Andy Warhol did not lose the only copy of Solanas’s play Up Your Ass, and that she therefore had other motives for attempting to murder him. Furthermore, Warner produces a respectful and compassionate portrait of a woman often dismissed as a deranged criminal. And most important, Warner shows over and over why Solanas matters. For example, she documents that Solanas’s stagings of gaiety predated the essentialist productions that are usually identified as the origins of feminist theatre; thus Warner simultaneously redraws the history of feminist theatre, and shows how radical feminism is rooted in theatre. This is Warner’s hallmark: the startling, illuminating double-move that rewrites the history of theatre and, simultaneously, the histories of feminism and lesbianism. The second case study—of early lesbian feminist critiques of marriage—is timely, to say the least. In a moment in which same-sex marriage has come to stand in for justice, activism, and civil rights, Warner reminds us...

Why Am I Studying Neuroscience When I Have a Disease Science Can’t Explain: A Brief Synopsis From My BookLife Insane: My Memoir—Making of the Madman(Case Number: TXu001850659, US Copyright Office, Date: February 2, 2013)

For as long as I can remember; I have been classified by syndrome, typified into clinical diagnoses, and treated as a psychiatric patient. I was born on November 12, 1983 in the hill rolling northern parts of the States. From birth till the mid/late 1980s I had high functioning autism and in the late 1980s till 1990s I had attention deficit hyperactivity disorder. During this period, I was held back in first grade and received remediated 5th-grade schooling; my teachers always flabbergasted as to what I had. Nearing the turn of the century, the diagnosis that I had took a “downturn” as it reads in my medical history, for the worse. Although I started to do considerably better in school, recording excerpts of an encyclopedia and listening to the melody of my voice explain arcane subjects (From my Memoir, “Words and The Infamous Brain.” “Words”: With a Sony MiniDisc player before the advent of MP3s, I recorded my voice to 140 mini discs [MDs] each between 80 and 320min long containing 74 980 definitions, explanations, descriptions, and tales of life. “The Infamous Brain”: a 309-page bibliography with 337 600 words typed, not cut and paste, so as to manually perform memorization. Additionally, an obscure definiendum list with 2306 pages and 311 873 words, which I would read till I passed out from exhaustion. Unfortunately, during a rather episodic depressive moment, in haste, I destroyed more than half of my entire oeuvre [New Years 2006/2007]. All that left are the 35 MD tapes and the documents detailing all the information I recorded and attempted to retain), my consummate mental disposition got “tragically severe” as my psychiatrist at the time described the events of a “disparate” young man. These events climaxed in 2001, when I was hospitalized for over 3 months, missing my 18th birthday, not as a free person, instead spending it with people who talked to walls, inanimate objects, and God—apparently the conversations were not monologic.

U.S. Copyright Office

U.S. Copyright Office

Disciplining the Vernacular: Fair Use, YouTube, and Remixer Agency

Disciplining the Vernacular: Fair Use, YouTube, and Remixer Agency

Intellectual property protection for mask works

Integrated circuits (ICs) are everywhere around us. Watches we wear, television we watch, appliances we use to cook and clean, cars we drive, and computers we compute with, all have ICs in them. IC layout design topographies are a form of intellectual property since they are creations of the human intellect and they require great investments to build. Hence, there is a need for them to be protected like a property that one owns. The IC layout designs are valuable since newer developed layout designs pack more functionality in reduced dimensions with lower materials, power, and space requirements. Masks of layers of an IC capture the design layout and are used to manufacture that IC. Masks can be stolen and used to prepare photomasks for manufacturing similar ICs by those that have no right to that intellectual property. In her column “Pushing Frontiers with the First Lady of Emerging Technologies,” Dr. Satwant Kaur shows us how mask works, which are a particular type of Intellectual Property defined by the Semiconductor Chip Protection Act (SCPA), can be protected as per the US Copyright Office circulars that apply to WTO, European Community, and other countries.

'With Untired Spirits and Formal Constancy': Berne-Compatibility of Formal Declaratory Measures to Enhance Title-Searching

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work. I prefer to call title-searching information “declaratory measures” rather than “formalities” because only “formalities,” in their Berne Convention sense, entail the loss of copyright or the limitation of remedies. The aspirations of the second camp tend toward information rather than confiscation, but many may be concerned that only the threat of the latter will impel provision of the former. The perceived need to give title-searching measures teeth by penalizing authors who fail to declare or to register their claims allows the rhetoric of reformalization to conflate formalities’ two distinct goals. Recognizing that the “good cop” face of formalities tied to title-searching may attract more followers than the “bad cop” function of expropriating authors, some reformalizers may offer the kinder, gentler rationale of reducing search costs in support of declaratory obligations whose non fulfillment will confiscate the copyright. Not all the laments about high transactions costs, however, withstand analysis. For even were authors easily found and negotiations simplified, the real problem for many enthusiasts of formalities is having to transact at all, when in their view the object of the proposed translation should not, or should no longer, be protected in the first place. This paper addresses the Berne Convention’s prohibition on the imposition of “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. In the Berne context, “enjoyment” means the existence and scope of rights; “exercise” means their enforcement. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged. But may a member State impose sanctions or disabilities for failure to supply that information? The first Part of this paper will address conditions on the existence or enforcement of rights. I conclude that “formalities” prerequisite to the initial attachment or persistence of protection, or that limit the scope of minimum rights or the availability of remedies, violate the norms of Berne and subsequent multilateral instruments. By contrast, it may be permissible to condition “Berne ” subject matter, rights, or remedies on compliance with declaratory measures. The “Berne” path, however, risks descending into controversies of characterization, as one contender’s “plus” proves another’s “minimum” norm. The second Part of this paper will consider declaratory measures regarding ownership of rights under copyright. The Berne Convention generally does not cover copyright ownership, and one may urge that conditions on who may enjoy or exercise rights are a matter distinct from disabilities imposed on existence or enforcement in general. Accordingly, sanctions against the failure to provide information pertaining to the transfer of rights should be Berne-compatible. Specifically, I propose making the validity of a transfer of copyright depend on the transferee’s recordation in the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work. The second Part then endeavors to resolve some of the practical problems a mandatory recordation of transfer obligation might engender. These include time limits for recording the transfer, gaps in the title-searching record, and effect on transfers of rights in non-U.S. works when the United States is one of the territories covered by the grant.

Copyright Exceptions for Libraries in the Digital Age: U.S. Copyright Office considers reform of Section 108, highlights of the symposium

Copyright Exceptions for Libraries in the Digital Age: U.S. Copyright Office considers reform of Section 108, highlights of the symposium

Stronger than Kryptonite? Inalienable Profit Sharing Schemes in Copyright Law

Starting in 2013, authors of copyrighted work and their successors will be able to terminate every assignment and license 35 years after execution. These termination rights are inalienable and are expected to have a substantial impact on some industries, and in particular, the music industry. This Article provides an in-depth economic analysis of these inalienable rights. It explores the traditional justifications for the inalienability of termination rights and finds them unconvincing and lacking. Indeed, termination rights seem to be rooted in a romantic perception of a starving, unsophisticated artist, a description that is neither accurate nor justifies inalienability. The effects of termination rights on the incentives to create are analyzed in-depth. It is shown that when competition among buyers of copyrighted work is limited, inalienable termination rights might promote economic efficiency. Those rights allow the creator to sell her work in two steps. Initially, the pre-termination rights are sold when the seller lacks market power, but later, when the value of the work is known, the author can sell her post-termination rights as a monopolist. This can increase the incentives to create. The main costs of this system include the misallocation of risk among the author and her buyers, an end-game problem — the need to control the externalities between the parties as termination approaches, and the problem in reassembling the various rights after termination. The Article makes several suggestions for improving this system including allowing the parties to contract around the rules of termination when it approaches, and forcing the author to grant the transferees compulsory licenses. The analysis suggests that while termination rights might have been economically desirable in the past, nowadays their costs probably outweigh their benefits in major copyright industries. The Article further shows that adopting a similar mandatory resale royalties system in the fine art industry, which is common in foreign jurisdictions and is currently being considered by the U.S. Copyright Office, is undesirable.

Copyright and the World's Most Popular Song

Happy Birthday to You is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became Happy Birthday to You, originally written with different lyrics as Good Morning to All, was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright. Finally, the true story of the song demonstrates that a long, unitary copyright term requires changes in copyright doctrine and administration. With such a term, copyright law needs a doctrine like adverse possession to clear title and protect expectations generated when, as with this song, putative owners do not challenge distribution of unauthorized copies for more than 20 years. And Copyright Office recordkeeping policy, which currently calls for discarding correspondence after 20 years and most registration denials and deposits after five years, must be improved to facilitate resolution of disputes involving older works.Over two hundred unpublished documents found in six archives across the United States have been made available on a website that will serve as an online appendix to this article.

Book Review: Creative License: The Law and Culture of Digital Sampling

Kembrew McLeod and Peter DiCola Creative License: Law and Culture of Digital Sampling. Durham, NC: Duke University Press, 2011. 325 pp.Due to Copyright Term Extension Act of 1998 (CTEA), United States is one of sixty-seven nations to protect copyright for author's life plus seventy years-the longest term ever-or for ninety-five years for works anonymous or made for hire. Still, any causal relationship between term of protection and proliferation of original works of authorship (the U.S. Copyright Office label) has never been established, even though positive correlation may be evident, for example, in rising number of book titles (more than 347,000 in 2011, according to market research firm Bowker).1McLeod and DiCola's well-crafted book, which examines intersections of with copyright law, explains why causal relationship simply may not exist.Digital sampling, or using snippets of existing recordings in new recordings, is subject of this elegant book, whose authors have succeeded in creating a richer text- collage of words that both describes and enacts technique of (p. 18). If digital sampling is phenomenon in U.S. music (or recording) industry, then it should evoke keen interest in students of not only copyright but also contemporary American musicology.The book is based on interviews of more than one hundred stakeholders of recording industry, including musicians who have sampled or been sampled (including Saul Williams), music executives and lawyers (including Mia Garlick), clearance professionals (including Pat Shanahan), public interest group representatives (including Brian Zisk), music historians (including Greg Tate), musicologists (including Joanna Demers), journalists (including JeffChang), and law professors (including Lawrence Lessig). A sublime chapter titled The Sample Clearance System: How It Works (and How It Breaks Down) describes business of clearing samples, including types of negotiation, structure and terms of sample licenses, musician may navigate system, benefits of licensing, expenses in sample clearance, relationships, timing difficulties and bureaucracies in sample clearances, and obstacles to mash-ups such as gatekeepers and distributors. In following chapter, authors analyze implications of those issues for creativity, including superb commentary on licensing costs.The authors find that clearly, the sample licensing and collage-based forms of creativity are in conflict (p. 17), and they state their goal is to figure out how to properly fix sample clearance system (p. …

Reply Comment of International Documentary Association et al., In the Matter of Orphan Works and Mass Digitization, No. 2012-12

Comment submitted to U.S. Copyright Office in response to Notice of Inquiry on behalf of a coalition of documentary and independent film organizations. The commenters elaborate on the proposed orphan works solution that they support, and clarify the effect they believe the solution will have on stakeholders throughout the copyright system. The commenters observe support among a wide range of stakeholders for the Copyright Office’s 2005 approach, and remain convinced that this approach — a diligent search requirement before use, a limitation on remedies beyond reasonable compensation for rightsholders who later resurface, exceptions for non-commercial uses in some circumstances, and a savings clause that preserves fair use — is the optimal solution for the United States. In the commenters' view, this approach is the most likely to help users make valuable uses of orphan works, enhance the market for licensed works, and reduce the number of orphan works going forward.

The Next Great Copyright Act

Tonight my topic is the next great copyright act, but before I speak about the future, I would like to talk a little about the past, including the role of the Copyright Office in past revision activities. In my remarks, I will address the need for comprehensive review and revision of U.S. copyright law, identify the most significant issues, and suggest a framework by which Congress should weigh the public interest, which includes the interests of authors. I will also address the necessary evolution of the Copyright Office itself. Those of you who have been to our offices in Washington know that we have a conference room featuring portraits of the former Registers of Copyright dating back to 1897.1 When guests are seated at our table, the former Registers preside on high, wearing a variety of expressions and overseeing complex conversations about copyright law in the digital age. Sometimes I think they would be startled by the discussions we have, but then again it might all sound familiar.

Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

Amidst the waves of cutting-edge technological innovation affecting access to music, the eyes and ears of the music industry, library associations, policy makers and others are focused on a legislative decision made some four decades ago. Specifically, these parties are staking out their positions on the possibility of extending federal copyright protection to pre-1972 sound recordings. Those sound recordings are currently protected by a patchwork of state laws, which will not be preempted by federal copyright until 2067, when all pre-1972 sound recordings will enter the public domain. The U.S. Copyright Office recently issued a report recommending that federal law be amended to bring pre-1972 sound recordings under federal copyright protection in the near future. The Office’s proposal would result in a shorter term of protection for some recordings, and effect other changes in the rights and responsibilities of right holders and users of pre-1972 sound recordings. This article examines the constitutional implications of such a change. In particular, we consider whether, in the face of a challenge that might be brought by affected stakeholders, such a legislative amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution.