The United States-Mexico-Canada Agreement, which will take effect after being passed into law and signed by each country, is intended to replace the North American Free Trade Agreement, and includes a wide range of provisions. With respect to intellectual property, two notable provisions are Canada's agreement to increase the term of protection for both copyrights and "biologics" -- new pharmaceuticals derived from biological sources.
Today the Supreme Court agreed to hear a case concerning how costs are awarded under the Copyright Act. The Copyright Act provides that a court “in its discretion may allow the recovery of full costs” to a prevailing party under 17 U.S.C. § 505. Currently, there is a circuit split over what costs are recoverable. The U.S. Courts of Appeals for the Eighth and Eleventh Circuits have held that the Copyright Act’s allowance of “full costs” is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821. On the other hand, the U.S. Court of Appeals for the Ninth Circuit has held that the Copyright Act also authorizes non-taxable costs.
The case is Rimini Street Inc. v. Oracle USA Inc., 17-1625, out of the Ninth Circuit.
The European Parliament has approved some proposed amendments to EU copyright law. The proposals must now pass a final step before becoming law. The stated intention of the amendments is to bring Europe’s copyright protection in line with how content is being created and used in the internet age. The text of the law is not yet finalized, and the vote on the finalized text will not occur until January 2019. However, speculation has only just begun as to what effect the proposed laws will have on the freedom of the internet. Of the 24 Articles proposed in the new Directive, 2 have received attention as being especially controversial: Article 11 and Article 13.
Article 11 proposes to grant the same rights to news media publishers as is currently provided to authors, performers, film producers, and broadcasting organizations. Some commentators believe this amendment will discourage some aspects of the exchange of news articles, such as “link previews” that show a snippet of the linked article to a reader. These commentators believe this will, in turn, limit access to information and boost “fake news.”
Article 13 proposes to increase copyright liability for popular websites that host user-submitted content. The current law places most of the responsibility for avoiding copyright infringement on the user who submits the content; but the proposed amendment redirects much of this liability to the hosting website. Commentators who criticize this proposed amendment include internet luminaries who argue the new law will stifle the freedom of information on the internet. These commentators believe that if the big internet companies who post user-submitted content are also required to police that content more closely, then that policing will necessarily be overbroad; and the result will be the muffling of the freedom of speech and creativity on the internet.
It is difficult to predict what effect the laws will have on the free flow of information and creativity on the internet. This unpredictability is especially true because the laws themselves are not yet finalized. So, between now and January 2019, the proposals are ripe for debate; and maybe the proposed laws are ripe for revision.
An original work of authorship is accorded copyright protection when the work is fixed in a tangible medium of expression (17 U.S.C. §102). However, a copyright owner cannot sue for infringement of the copyrighted work until either 1) “registration has been made” of the work to the Copyright Office, or 2) the work is refused registration by the Copyright Office and the required deposit, application, and fee have been delivered to the Copyright Office in proper form (17 U.S.C. §411).
The phrase “registration has been made” has been interpreted differently by different federal appeals courts. Some courts have ruled the phrase means that the application has been accepted and registered by the Copyright Office. Other courts have ruled the phrase means that a properly filed application for copyright has been received by the Copyright Office. These other courts find support in their interpretation from other statutes where the same phrase is understood to mean properly applying for registration. Supporters of both interpretations point to part 2) of the statute for support of their respective interpretation.
This conflict among federal appeals courts has been recognized in the highest courts, and now the Supreme Court has agreed to settle the dispute in the case, Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, et al. Does the phrase “copyright registration being made” require only a properly filed application to be received by the Copyright Office? Or does that phrase require an action to be taken by the Copyright Office—either acceptance or refusal—in response to receipt of a properly filed application? The Supreme Court will soon answer that question.
Public Domain Day, January 1 in the U.S., marks the end of term of copyright protection for all copyrights expiring within the year. For the last 20 years, however, Public Domain Day in the U.S. has been largely uneventful, as there has been an effective freeze on copyright expiration since 1998. January 1, 2019 will be the first Public Domain Day since then that copyrighted works see their expiration and transition into the public domain in the U.S.
David Zindel has filed a lawsuit in the Central District of California against Fox, director Guillermo Del Toro, and others, for copyright infringement of a play penned by his father in 1969 titled Let Me Hear You Whisper, regarding the recent movieThe Shape of Water . Spoilers follow the break.
Recognizing that it was taking an unusual step, the Court of Appeals for the Ninth Circuit deliberatley broke from Sixth Circuit precedent in VMG Salsoul, LLC v. Madonna Louise Ciccone when it determined that the 0.23 second sample of horns which was copied from an earlier song titled "Love Break" was de minimis, and therefore, did not constitute copyright infringement.
Google has won a major victory in its ten-year legal fight with authors over its Google Library Project, which digitizes and indexes millions of copyrighted books for an online library without consent from the copyright owner. Since 2004, as part of the Google Library Project, Google has scanned, rendered machine-readable, and indexed more than 20 million books, which includes both public domain and copyrighted works, for its Google Books search engine. The search engine allows users to search words or terms that yields a list of all books in the database in which those words or terms appear, as well as the number of times the word or term appears in each book. The search also provides a brief description of each book which gives some basic additional information, such as a list of the words and terms that appear with most frequency in the book. Users are also allowed a limited viewing of the text of the book to see “snippets” of text containing the searched-for terms. The search sometimes provides links to buy the book online and identifies libraries where the book can be located.
The United States Patent and Trademark Office (USPTO) has declared that copyrighted materials are crucial to the Patent System and should not be threatened as copyright infringement. These remarks come in at an opportune time as the USPTO sought to intervene in a copyright infringement suit against Defendant McDonnell Boehnen Hubert & Berghoff LLP, whose patent prosecution attorneys have been sued by Plaintiff Publishers for using their copyrighted material in patent applications.
An entertaining case emerged at the United States Copyright Office recently in regards to a "selfie" taken by a crested black macaque in Indonesia in 2011. British wildlife photographer David J. Slater was on a mission to Indonesia to raise awareness on endangered species via wildlife photography. While attempting to take an ideal picture of the endangered crested black macaques in their habitat, a female macaque grabbed Slater’s camera and proceeded to take some selfies of herself. One of the images was a highly animated and grinning selfie, which became an instant viral hit.