Posts Tagged: "U.S. Copyright Office"

On June 30, the U.S. Copyright Office officially published a report titled Copyright Protections for Press Publishers, which explores existing frameworks in nations around the world providing additional rights under copyright law for news publishers, and includes recommendations regarding similar changes that could be effected under U.S. law. The Copyright Office’s study concludes that, while the news publishing industry is facing significant problems in obtaining adequate funding during the Internet era, those problems are not due to any current shortcomings in the state of U.S. copyright law.

A bipartisan group of senators on Friday sent a letter to Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, expressing their concern about a letter sent by the Digital Licensee Coordinator (DLC) to the Office requesting that any obligation of DLC member companies to make retroactive royalty payments to copyright owners as a result of an imminent decision be delayed. The letter clearly stated that the senators are opposed to any concessions to DLC companies that would extend the timeline for payments to songwriters.

Following a denial of rehearing en banc by the U.S. Court of Appeals for the Fifth Circuit in February, publishing company Canada Hockey L.L.C., doing business as Epic Sports, and Michael Bynum, a sportswriter and editor, have now filed a petition for writ of certiorari with the U.S. Supreme Court in their appeal of a copyright case against both Texas A&M University and a pair of school officials. The petition claims the Fifth Circuit’s decision leaves copyright holders “at the mercy of state infringers.” In their petition, the plaintiffs argue that the Fifth Circuit’s ruling affirming the Southern District of Texas’ dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of Bynum’s manuscript on the nearly 100-year history of the famed “12th Man” tradition at Texas A&M erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment. The Texas ruling followed the U.S. Supreme Court’s March 2020 decision in Allen v. Cooper, which declared that Congress’ abrogation of state sovereign immunity under the Copyright Remedy Clarification Act was unconstitutional.

On June 2, Dr. Stephen Thaler filed a complaint in the U.S. District Court in Washington, D.C. naming as defendants both the United States Copyright Office (USCO) and Shira Perlmutter, in her official capacity as Register of Copyrights and Director of the USCO. The complaint marks the start of a new phase of Thaler’s attempts at obtaining a copyright registration for “A Recent Entrance to Paradise,” an AI-generated work that is the output of Thaler’s AI system known as Creativity Machine. Thaler is requesting the district court issue an order that would require the USCO to set aside the Review Board’s decision and reinstate the application for registration of the work. Thaler is also seeking an award of reasonable attorneys’ fees and costs. The case is Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564) (June 2, 2022).

It is once again World IP Day, on which the global intellectual property (IP) community celebrates IP and innovation, as well as the day that the Convention establishing the World Intellectual Property Organization (WIPO) came into force (April 26, 1970). World IP Day was first observed in 2000 in an effort by WIPO to raise awareness of the importance IP plays in fostering innovation and creativity. This year, WIPO has chosen to focus on the theme of “IP and Youth: Innovating for a Better Future,” spotlighting young entrepreneurs and innovators across the globe. There’s a youth video competition, a World IP Day Youth Gallery, and dozens of events taking place worldwide throughout the week.

In January of this year, Senator Thom Tillis (R-NC) sent a letter to Matthew Wiener, Acting Chairman of the Administrative Conference of the United States (ACUS), and Todd Rubin, ACUS Counsel for Congressional Affairs, asking that the ACUS “conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” But Wiener replied to Tillis’ letter on March 7, indicating that ACUS “has neither the expertise nor resources to conduct” such a study. Instead, Wiener suggested asking an entity better positioned to undertake the task, such as the National Academy of Public Administration (NAPA), which Tillis wrote to today.

Last week, the U.S. Copyright Office issued a pair of final rules to establish various procedures governing proceedings at the Copyright Claims Board (CCB), a small copyright claims tribunal within the Copyright Office. The CCB was implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act enacted under a larger omnibus bill on COVID-19 issues in December 2020. The rules establish procedures for designating service agents for receiving notices of initiated proceedings at the CCB, as well as opt-out procedures for libraries, archives and any claimants who are notified of class action litigation filed in U.S. district court covering their own copyright claim.

On February 21, Houston, Texas-based professional photographer Jim Olive filed a reply brief with the U.S. Supreme Court in defense of its petition for writ of certiorari asking the nation’s highest court to grant an appeal in Olive’s copyright infringement suit against the University of Houston System. This case is one of two separate suits seeking to hold Texas public universities accountable for copyright infringement; while sovereign immunity defenses have staved off liability thus far, a recent Takings Clause decision by the Supreme Court has created a path forward for these and other IP owners looking to hold state entities accountable for their IP infringements.

On February 24, 2022, the U.S. Supreme Court vacated the Ninth Circuit’s ruling in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20–915 (Feb. 24, 2022). The Court held that a copyright registration applicant, if unaware of legal inaccuracies in a copyright application, does not submit those inaccuracies “knowingly” for purposes of Section 411(b)(2), and as such, does not lose the protections of the Copyright Act’s safe harbor for registrations with inaccuracies. Undoubtedly, the decision is a win for authors that, during the copyright application process, unwittingly submit inaccurate information to the U.S. Copyright Office (e.g., because they did not understand the law, and/or were not assisted by competent copyright counsel). That said, the decision does not do away with the risks associated with honest mistakes in U.S. Copyright Office filings, and authors should take care to mitigate such risks.

In an opinion letter dated February 14, 2022, the Review Board of the United States Copyright Office (Review Board) affirmed a decision of the U.S. Copyright Office (USCO) denying registration of a two-dimensional artwork generated by Creativity Machine, an artificial intelligence (AI) algorithm created by Dr. Stephen Thaler. Established by regulation in 1995, the Review Board is responsible for hearing final administrative appeals following two opportunities for a claimant to appeal copyright registration refusals. Thaler filed an application to register the computer-generated work, “A Recent Entrance to Paradise,” on November 3, 2018. On the application, Thaler listed Creativity Machine as the author of the work and indicated himself to be the claimant, with a transfer statement explaining he acquired ownership of the work because of his “ownership of the machine.”

Publishers scored a win yesterday in the U.S. District Court for the District of Maryland when the court granted their request for a preliminary injunction enjoining enforcement of the Maryland Act, which essentially calls for compulsory licensing of electronic literary works to libraries on “reasonable terms”. The law went into effect on January 1, 2022. The lawsuit was brought by the Association of American Publishers (AAP) against the state of Maryland and charged that the Maryland Act was preempted by the U.S. Copyright Act. The Maryland Act requires publishers to 1) offer to license copyrighted electronic literary products, such as eBooks and digital audiobooks, to public libraries, and (2) to ensure the terms of such licenses are fair. The goal was to avoid up-charging and stringent licensing restrictions on libraries.

North Carolina Republican Senator Thom Tillis has raised the possibility of a combined patent, trademark and copyright office so as to improve the federal government’s approach to all aspects of intellectual property. On January 26, the Senator sent a letter to the Chairman and Counsel for the Administrative Conference of the United States (ACUS) to undertake a study into whether there should be a unified, independent Intellectual Property Office. The Administrative Conference is an independent agency that makes procedural recommendations to the federal government. Tillis’ request is premised upon his view that currently there is a fractured approach to intellectual property in our federal government, with multiple IP functions spread across different agencies, leading to conflicting policy agendas and unnecessary bureaucracy. Tillis is the Ranking Member of the Senate’s Judiciary Committee’s subcommittee on Intellectual Property.

On January 13, the U.S. Court of Appeals for the Federal Circuit (CAFC) will hear oral argument in SAS Institute, Inc. v. World Programming, Ltd., a copyright infringement suit with far-reaching consequences for American creativity. SAS is a North Carolina-based software company, well known for its highly successful analytics software. World Programming, Ltd (WPL) is a British software company that, by its own admission, set out to “clone” SAS’s creative and popular software. The litigation that followed has been lengthy and stretched from North Carolina to the U.K. and back. While WPL largely prevailed in its home court, the litigation in North Carolina resulted in a verdict that WPL engaged in fraud and unfair and deceptive trade practices. The litigation in North Carolina did not decide the copyright infringement issues, so SAS was forced to file a separate suit, this time in Texas. But the judge in that case made a critical error, which is now on appeal.

A recent recommendation by the U.S. Copyright Office allowing for the bypassing of technological protection measures (TPMs) in medical devices for purposes of repair, maintenance and service has been adopted and immediately put into effect. This is bad news for patient safety. At a time when we’re loudly and publicly debating the relative merits of the Build Back Better Act, the U.S. Copyright Office’s announcement, deep inside the Federal Register and written in very user unfriendly dense government jargon, landed not with a bang, but with a whimper. On purpose. Hiding in plain sight. This terrible ruling offered without a comment period or any other appeals mechanism, will have a profoundly negative impact on America’s public health.