Intellectual Property & Digital Entertainment Donald R. Simon, J.D./LL.M.

Digital Entertainment Unit 6

Outcomes An overview of the key governmental/industry players in shaping content protection. An overview of the key governmental/industry players in shaping content protection. An enhanced understanding of how those players interact with one another. An enhanced understanding of how those players interact with one another. How to do business when laws are unclear. How to do business when laws are unclear.

Digital Entertainment

Copyright’s Major Players: Copyright’s Major Players: Congress Congress CR Office (Library of Congress) CR Office (Library of Congress) Courts Courts Executive Branch Executive Branch Various industry trade organizations Various industry trade organizations Various media companies Various media companies Artists/Authors/Musicians Artists/Authors/Musicians

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Congress Congress Everything flows from Art. I, §8, cl. 8 of the Constitution. Everything flows from Art. I, §8, cl. 8 of the Constitution. Under Art. I, Congress has ultimate power to shape and control our nation’s CR law. Under Art. I, Congress has ultimate power to shape and control our nation’s CR law. Passes statutes and amends current law. Passes statutes and amends current law.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: CR Office (Library of Congress) CR Office (Library of Congress) Administers CR law. Administers CR law. Claims to CR are registered and where documents relating to CR may be recorded. Claims to CR are registered and where documents relating to CR may be recorded. Advises Congress on anticipated changes in U.S. CR law. Advises Congress on anticipated changes in U.S. CR law.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: CR Office (Library of Congress) CR Office (Library of Congress) Analyzes and assists in drafting CR legislation and legislative reports. Analyzes and assists in drafting CR legislation and legislative reports. Works with the executive branch’s Dept. of State, the U.S. Trade Representative’s Office, and the Dept. of Commerce in providing expertise in negotiations for international IP treaties and trade agreements. Works with the executive branch’s Dept. of State, the U.S. Trade Representative’s Office, and the Dept. of Commerce in providing expertise in negotiations for international IP treaties and trade agreements.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Courts Courts Interpret CR law. Interpret CR law. Can “make” new CR law in the form of case law. Can “make” new CR law in the form of case law. Some case law later becomes codified by statute. Some case law later becomes codified by statute.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Executive Branch Executive Branch Dept. of State, the Dept. of Commerce, and the Office of the U.S. Trade Representative negotiate with foreign countries to improve the CR protection afforded U.S. authors, either in bilateral CR treaties or trade agreements or in multilateral efforts. Dept. of State, the Dept. of Commerce, and the Office of the U.S. Trade Representative negotiate with foreign countries to improve the CR protection afforded U.S. authors, either in bilateral CR treaties or trade agreements or in multilateral efforts.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Industry Trade Organizations (MPAA) Industry Trade Organizations (MPAA) Non-profit trade organization. Non-profit trade organization. Administers the film ratings system. Administers the film ratings system. Fights against sharing CRed works via peer-to-peer file-sharing networks. Fights against sharing CRed works via peer-to-peer file-sharing networks. Lobby Congress for tougher CR laws. Lobby Congress for tougher CR laws. Submit amicus briefs in CR court cases. Submit amicus briefs in CR court cases.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Industry Trade Organizations (RIAA) Industry Trade Organizations (RIAA) Non-profit trade organization. Non-profit trade organization. High profile Lawsuits against college students and parents of file-sharing children. High profile Lawsuits against college students and parents of file-sharing children. Lobby Congress for tougher CR laws. Lobby Congress for tougher CR laws. Submit amicus briefs in CR court cases. Submit amicus briefs in CR court cases.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Industry Trade Organizations (PROs) Industry Trade Organizations (PROs) Performing rights organizations. Performing rights organizations. ASCAP, BMI, and SESAC. ASCAP, BMI, and SESAC. Work with music publishers to acquire performance royalties for songwriters. Work with music publishers to acquire performance royalties for songwriters.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Various Media Companies Various Media Companies Music publishers, record labels, motion picture companies, etc. Music publishers, record labels, motion picture companies, etc. Work separately and with one another to create, license, distribute, and sell CRed material. Work separately and with one another to create, license, distribute, and sell CRed material.

Digital Entertainment Copyright’s Major Players: Copyright’s Major Players: Artists/Authors/Musicians Artists/Authors/Musicians Create, license, distribute, and sell CRed material. Create, license, distribute, and sell CRed material. Join industry trade organizations. Join industry trade organizations. Call for changes in CR law. Call for changes in CR law.

Digital Entertainment When the Law is Unclear When the Law is Unclear

Digital Entertainment When the Law is Unclear: When the Law is Unclear: We see time and time again where our nation’s IP laws lag behind technological innovation. We see time and time again where our nation’s IP laws lag behind technological innovation. Law lags 15-to-20 years behind changes in technology. Law lags 15-to-20 years behind changes in technology. Still have rely on the current law— even if it doesn’t quite fit the new situation. Still have rely on the current law— even if it doesn’t quite fit the new situation.

Digital Entertainment Orphan Works: Orphan Works: Recall that CR protection attaches at the moment of creation. Recall that CR protection attaches at the moment of creation. The registration of a CR is optional. The registration of a CR is optional. The elimination of registration also eliminated a central recording location to track and identify CR- holders. The elimination of registration also eliminated a central recording location to track and identify CR- holders.

Digital Entertainment Orphan Works: Orphan Works: Consequently, potential users of CRed works, e.g., filmmakers or biographers, must assume that many works they might use are CRed. Consequently, potential users of CRed works, e.g., filmmakers or biographers, must assume that many works they might use are CRed.

Digital Entertainment Orphan Works: Orphan Works: Where the planned use would not be otherwise permitted by law (e.g., by fair use), they must themselves individually investigate the CR status of each work they plan to use. Where the planned use would not be otherwise permitted by law (e.g., by fair use), they must themselves individually investigate the CR status of each work they plan to use. The owner of a CRed work cannot be identified and located by someone who wishes to make use of the work. The owner of a CRed work cannot be identified and located by someone who wishes to make use of the work.

Digital Entertainment Orphan Works: Orphan Works: Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty. Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty.

Digital Entertainment Orphan Works: Orphan Works: The user cannot reduce the risk of CR liability for such use, because there is always a possibility, however remote, that a CR owner could bring an infringement action after that use has begun. The user cannot reduce the risk of CR liability for such use, because there is always a possibility, however remote, that a CR owner could bring an infringement action after that use has begun.

Digital Entertainment Orphan Works: Orphan Works: Many users of CR works have indicated that the risk of liability for CR infringement is enough to prompt them not to make use of the work. Many users of CR works have indicated that the risk of liability for CR infringement is enough to prompt them not to make use of the work.

Digital Entertainment Orphan Works: Orphan Works: Common obstacles to identifying and locating a CR owner: Common obstacles to identifying and locating a CR owner: 1.inadequate information on the work; 2.inadequate information about ownership because of a change of ownership or a change in circumstances of the owner; 3.limitations of existing CR ownership information sources; and 4.difficulties researching CR information.

Digital Entertainment Orphan Works: Orphan Works: Proposed solutions: Proposed solutions: 1.Clear standards for determining which works are covered, whether users used “reasonable efforts” to locate owners, and what actions need be taken. 2.CR Office should maintain an online, searchable directory for users to identify proposed uses and for authors to search for uses of their works.

Digital Entertainment Orphan Works: Orphan Works: Proposed solutions: Proposed solutions: 3.Users who follow procedures will automatically be immune from suit if subsequently contacted by a CR owner-- provided they cease further use.

Digital Entertainment Orphan Works: Orphan Works: Proposed solutions: Proposed solutions: Two House Bills have been introduced to solve the problem and both have died. Two House Bills have been introduced to solve the problem and both have died. One Bill, called “The Public Domain Enhancement Act,” would have levied a $1 tax charged 50 years after the date of first publication and every 10 years thereafter until the end of the CR term. One Bill, called “The Public Domain Enhancement Act,” would have levied a $1 tax charged 50 years after the date of first publication and every 10 years thereafter until the end of the CR term.

Digital Entertainment Orphan Works: Orphan Works: Proposed solutions: Proposed solutions: Failure to pay the CR renewal fee on or before the due date or within a grace period would allow the work to lapse into the public domain. Failure to pay the CR renewal fee on or before the due date or within a grace period would allow the work to lapse into the public domain.

Digital Entertainment Orphan Works: Orphan Works: Cost-Benefit Analysis: Cost-Benefit Analysis: Balance the benefits of using material in a project against the risks that a CR owner may see the project, identify the materials, and assert their legal claims. Balance the benefits of using material in a project against the risks that a CR owner may see the project, identify the materials, and assert their legal claims. Undertaking this analysis must be advanced with caution and with careful documentation. Undertaking this analysis must be advanced with caution and with careful documentation.

Digital Entertainment Orphan Works: Orphan Works: Cost-Benefit Analysis: Cost-Benefit Analysis: A CR owner may still hold rights to the material and may still bring a legal action based on CR infringement. A CR owner may still hold rights to the material and may still bring a legal action based on CR infringement. Good faith efforts to find the owner can be helpful, but are not necessarily protection from legal liability. Good faith efforts to find the owner can be helpful, but are not necessarily protection from legal liability.

Assignments Due by the end of Unit 6: Due by the end of Unit 6: Read pp in Copyright’s Highway. Read pp in Copyright’s Highway. “Congressional Aide” Assignment “Congressional Aide” Assignment “ASCAP v. the Government” DT “ASCAP v. the Government” DT

Assignments “Congressional Aide” Assignment: “Congressional Aide” Assignment: Pretend that you are a Congressional Aide for a US Senator who is on a committee on intellectual property. Pretend that you are a Congressional Aide for a US Senator who is on a committee on intellectual property. The Senator needs your help to come up with something for the committee. The Senator needs your help to come up with something for the committee. Click the icon under “Assignment” in Unit 6 to find out what the Senator needs. Click the icon under “Assignment” in Unit 6 to find out what the Senator needs.

Assignments “Congressional Aide” Assignment: “Congressional Aide” Assignment: 2-4 pages double-spaced. 2-4 pages double-spaced. Viewpoint and purpose should be clearly established and sustained. Viewpoint and purpose should be clearly established and sustained. Assignment should have correct grammar, punctuation, etc. Assignment should have correct grammar, punctuation, etc. Writing should be well ordered, logical and unified, as well as original. Writing should be well ordered, logical and unified, as well as original.

Assignments “Congressional Aide” Assignment: “Congressional Aide” Assignment: Your work should display superior content, organization, style, and mechanics. Your work should display superior content, organization, style, and mechanics. Appropriate citation style should be followed. Appropriate citation style should be followed. Submit your outline to the Dropbox by the end of Unit 6. Submit your outline to the Dropbox by the end of Unit 6.

Assignments “ASCAP v. the Government” DT: “ASCAP v. the Government” DT: Copyright’s Highway pp details a progression of an issue – how to handle piano rolls and protect the people who create the music. Copyright’s Highway pp details a progression of an issue – how to handle piano rolls and protect the people who create the music. This issue moves from the publisher to the legislature, the courts and ultimately results in the formation of ASCAP. This issue moves from the publisher to the legislature, the courts and ultimately results in the formation of ASCAP.

Assignments “ASCAP v. the Government” DT: “ASCAP v. the Government” DT: Do you think this progression of events went the way it “should have”? Do you think this progression of events went the way it “should have”? Was the formation of a new agency inevitable or should any branch of government along the way taken some other action to curtail it? Was the formation of a new agency inevitable or should any branch of government along the way taken some other action to curtail it?

Outcomes An overview of the key governmental/industry players in shaping content protection. An overview of the key governmental/industry players in shaping content protection. An enhanced understanding of how those players interact with one another. An enhanced understanding of how those players interact with one another. How to do business when laws are unclear. How to do business when laws are unclear.

Outcomes Questions?

Have a Great Week!