Moderator: Ann Chaitovitz, Attorney‐Advisor for
Copyright, Office of Policy and International Affairs, USPTO
Comments generally agreed that online markets should be left
to private markets. What role if any for the government.
Panelists:
Roy Kaufman, Copyright Clearance Center
We focus primarily on text, dragged by users into other
media. Our markets tend to be corporate, publisher to publisher and academic.
Prof. Brandon Butler, American University, Washington
College of Law
Library Copyright Alliance: 3 major library associations
representing 100,000 libraries around the world.
Q: what do each of you see as key obstacles to developing
robust, comprehensive online licensing environment, and can the gov’t help?
(I guess we’re not going to talk about how gov’t can help by
maintaining a large space in which licensing is not required?)
Kaufman: key obstacles are that it’s very hard to develop
robust databases, taxonomies for licensing.
What is a library? Different
rights, different media, different markets, different norms. Can be brought
together, because within each market there are many solutions. Gov’t can
encourage and foster collaboration across media and sectors.
Meredith Jacob, Creative Commons
Sheer volume of creative works is an obstacle. Many people
who create don’t think about registration/licensing at all. Hard to explain why you should do that
(especially if your intent is not to strike it rich). Creators’ intent varies. Almost everyone who
is a “user” is also a creator as CC sees. Having a user/creator divide is a
problem.
What gov’t can do: Gov’t can not reinforce systems that assume that all creators want the same
thing. Don’t necessarily want
remuneration. Don’t assume that all transactions should be licensed.
John Lapham, Getty Images: it’s easier than ever to license.
Don’t demonize the right to be properly compensated. The obstacle is that we
publicly shame people for wanting to be compensated and say that being seen
ought to be enough. What gov’t can do: keep up by trying to develop small
claims process that recognizes digital economy/new needs. Likewise, not being
overly in love with status quo is critical. DMCA was implemented when we were
worried about survival of internet, but now we know that it’s possible to make
a good living as a search engine.
Butler: not much to do for libraries in terms of facilitating
licensing. Libraries are doing wherever they can and see it as appropriate. ARL
members spend $1.4 billion on content, of which $850 million collectively is
spent on licensing, or 60%. We’re licensing like crazy. Not really seeing a lot of barriers to
finding people willing to take our money. What should gov’t do? Licensing terms are trumping copyright’s
default rules—sign away first sale and fair use rights. Libraries get these
huge portfolios of licenses, but huge thickets of rights they often aren’t
qualified to or capable of parsing when it comes down to deciding what uses are
ok. Gov’t could ensure that default user’s rights in copyright act can’t be
licensed away, at least for libraries that need those rights for their basic
jobs.
Q: talk about UK Copyright Hub: what can the US learn?
Kaufman: a way for users/creators coming out of UK copyright
review. Improvements in licensing info were possible. Similar efforts in the
EU. US should be doing the same thing.
Q: how do libraries see the relationship between online
licensing and fair use?
Butler: Fair use is extremely important to libraries, and
licensing does not and should not undermine fair use, especially in
transformative contexts. In theory, more and better licensing therefore shouldn’t
threaten us, but the other side doesn’t see it that way. CCC is suing some of our members based on a
misunderstanding of fair use, where they assert that the existence of a license
should force fair use to shrink. Another example: text and data mining—this is
a transformative fair use, even when done for money. But CCC says they’re working on a market for
text/data mining, in Europe where there’s not as clear an exception. That’s a
terrifying prospect. We don’t think anything that comes out of this process
should be seen or portrayed as taking away from fair use, but it’s a fear we
have. (Bravo!)
Kaufman: misleading to say we’re suing your members, but off
topic. Someone said this morning
licensing doesn’t substitute for fair use (that would be me). He’s ok with that, but we should have
efficient online mechanisms and should not shy away out of fear of effects on
fair use.
Q: Getty recently reached a deal with Pinterest. Tell us
about that arrangement.
Lapham: Don’t think gov’t can help with that. Tech companies like Getty can work with partners
in the private sector to make more and better content available. Pinterest: a
healthy percentage of their content belonged to us. Rather than having a
slapfight, focused on losing metadata/attribution. Instead, reattach
attribution and provide royalties.
Opportunity for more arrangements like that so that creators can create
and still be compensated for use on social media sites.
Q: reattach metadata; was there also a payment for past
uses?
Lapham: the arrangement works by using our image database of
10s of millions of ours and other companies’ pictures; we can match that
against the website. Using image recognition tech, we can find and reattached
metadata, and charge fees per image per month.
Jacobs: Creative Commons are valuable because they don’t
require renewal/maintenance of longterm engagement with the process. That is
useful for creators who can set it and forget it.
Kaufman: Linked Content Coalition should be watched. CC is also useful because it’s human and
machine reasonable. Digital Object Identifier
used in science publishing. Orchid: a researcher ID, but can ID researchers as
authors. Each one has a purpose; a lot
have open APIs. First step: gather them
all up and decide how they play with each other in this acronym soup.
Jacobs: public domain content and content created through
federally funded research needs to be in these databases so you can find
content that is public domain or open licensed or CC licensed so there’s no
division there.
Lapham: Hargreaves report in UK—could be useful to work with
gov’t in creating image registries/databases, whether orphan works or otherwise.
Don’t wait for gov’t to do it. Instead, partnership where we can provide
services to meet objectives for orphan works or otherwise.
Butler: on how not to do it—Jonathan Band and I wrote anarticle about issues with collecting societies around the world. See problems
of corruption, transparency, inefficiency—learn from those mistakes and work
for accountability.
RT: What can the US learn from Canadian legislative reform
and Canadian universities’ responses to Access Copyright?
Butler: we can learn a lot.
Canada, Australia, and some other countries who have had comprehensive
licensing systems are looking to us and whether they should be turning more for
facilitating educational uses to fair use, or even to CCC on a piecemeal rate
instead of paying statutory/blanket licenses.
Allan Adler, AAP: All this talk about prohibiting waivers of
fair use or other rights—we don’t want gov’t to engage in paternalistic
policies; people wouldn’t know where that would end. You can waive almost any
right, including First Amendment right to speech if you work for the gov’t (uh,
does not follow, but ok). Better and
easier to pay for license than relying on fair use. (Well, yeah, if the
copyright owners get the gov’t to hand them that right; apparently only some
kinds of rights definitions are paternalist.)
Biggest stories of year are implementation of ACA and NSA’s activities—these
are related to gov’t databases, so aren’t we worried about that esp. when we
are talking about tracking online transactions?
Lapham: allow for private sector solutions to some of the
big issues.
Butler: shares some of those concerns, especially about NSA.
Private collection of info is a great tool for the gov’t, so any time anyone has a big database that is a
concern for us. Any effort to create central database of what people are
reading should raise non-copyright concerns.
Kaufman: We have fair use, exceptions, limitations—but the
whole point is to get users what they want the best way they can; sometimes
that’s rights information. Don’t demonize us for doing that.
John Morris, Associate Administrator and Director of
Internet Policy, NTIA
Importance of collaboration v. talking past one another.
Shira Perlmutter, Chief Policy Officer and Director for
International Affairs, USPTO
Committed to finding sweet spot for copyright and internet
policy. Need continued collaboration from all stakeholders. There will be hard work ahead. We haven’t
chosen easy issues. If positive tone of discussion today and willingness to
engage constructively continue, I’m optimistic about progress. Soon will announce further public outreach on
these topics. Plan is for roundtables around the country in the coming months.
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