Tag Archives: Copyright (c) 2013 by Christina D. Frangiosa All Rights Reserved.

Index of Articles in 2013

Well, 2013 turned out to be a very busy year (on a personal level, so there aren’t as many articles posted here during the year!), and 2014 promises to be very interesting. Given the public debates about copyright reform, we will probably be covering copyright law more than previously. However, the 1976 version of the Copyright Act took over two decades to finalize (“In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a ‘good 1950 copyright law.'” from March 20, 2013 Speech By Maria Pallante), so I do not expect that all of the issues raised about digital publication and distribution (among others) will be resolved overnight.

We expect to see more proposals on the trademark side as well, although it’s likely that members of Congress may avoid controversial issues this year. As a result, it is hard to predict whether we expect to see any revisions to the COICA/PIPA/SOPA drafts (relating to counterfeiting by predatory foreign websites), given that these proposals each had their own challenges in public debate.

I look forward to your comments in the coming year, and wish you all the best in your own practices! Continue reading

New Copyright Proposal Addresses Performance Rights

According to the BNA, Rep. Melvin L. Watt (D-NC) introduced the Free Market Royalty Act (H.R. 3219) on September 30, 2013.  See “Rep. Melvin Watt Introduces Bill to Create Performance Right for Recording Artists,” BNA’s Patent, Trademark & Copyright Journal – Daily Update, No. 191 (Oct. 2, 2013).  Rep. Watt stated that this bill provides “a ‘performance right’ that will obligate AM/FM radio stations to compensate performers for the use of their music just as cable, satellite and internet radio are obligated to do.”  Press Release, “Congressman Watt’s Statement on the Introduction of H.R. 3219, the Free Market Royalty Act,” October 1, 2013.  (Note that the index of Rep. Watt’s press releases indicates that this was issued on October 1.  The release itself shows no date.  Congress.gov indicates it was introduced on September 30, and has already been referred to the House Committee on the Judiciary.)

Rep. Watt explains that under current law, when an AM or FM station plays a song, the composer and the publisher both receive royalties and the performer does not.  Press Release.  This bill proposes to level that playing field, and put compensation for music broadcasting on par with international counterparts.  Id.
As of this writing, there are no co-sponsors to the bill.  The text of the bill has not been received by the Library of Congress to post on its website, which states instead:

Continue reading

IPEC Victoria Espinel Steps Down

Intellectual Property Enforcement Coordinator, Victoria Espinel, has stepped down from her position, effective Friday, August 9, 2013. Andrew Ramonas, “White House IP Chief Victoria Espinel Steps Down,” Corporate Counsel, Aug. 13, 2013. Until a new IPEC is officially named, Howard Shelanski, administrator of the U.S. Office of Information and Regulatory Affairs, will act as Interim IPEC. Id.

According to Corporate Counsel, “Congress created the intellectual property enforcement coordinator post in the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (text), and the Senate confirmed Espinel as the coordinator in December 2009. She previously was an IP law professor at George Mason University School of Law and the first assistant U.S. trade representative for intellectual property and innovation.” Id. Continue reading

USPTO Extends Deadline for Voluntary Best Practices Study

The USPTO recently requested comment from the public on the topic of “processes, data metrics, and methodologies that could be used to assess the effectiveness of cooperative agreements and other voluntary initiatives to reduce intellectual property infringement that occurs on-line—such as copyright piracy and trademark counterfeiting.” See Prior Blog Post, White House Releases Second Joint Strategic Plan for IP Enforcement (June 20, 2013). The original deadline for comment was July 22, 2013.

On July 17, 2013, the USPTO extended the deadline until August 21, 2013.

Interested parties should respond to the current regulation (Fed. Reg. No. 2013-17166, see explanation in “Voluntary Best Practices Study; Extension of Comment Period“) and include the information itemized in the original request (Fed. Reg. No. 2013-37210).

Online Piracy and Counterfeiting: Ad Networks Adopt New “Best Practices Guidelines”

On July 15, 2013, the US Intellectual Property Enforcement Coordinator (IPEC), Victoria Espinel, announced the adoption of best practices for online advertising, with an aim to reduce the influx of counterfeiting or pirating conduct. The IPEC explained that these practices are aimed at “reducing the flow of ad revenue to operators of sites engaged in significant piracy and counterfeiting.” Victoria Espinel, “Coming Together to Combat Online Piracy and Counterfeiting,” Office of Management and Budget (July 15, 2013). The participants in this program – at least at the outset, are 24/7 Media, AOL, Conde Nast, Google, Microsoft, SpotXchange and Yahoo! Id.   While supporting and encouraging initiatives like this, the IPEC also cautioned that these activities be undertaken in the context of other interests in the Internet marketplace:

“It is critical that such efforts be undertaken in a manner that is consistent with all applicable laws and with the Administration’s broader Internet policy principles emphasizing privacy, free speech, fair process, and competition. We encourage the companies participating to continue to work with all interested stakeholders, including creators, rightholders, and public interest groups, to ensure that their practices are transparent and fully consistent with the democratic values that have helped the Internet to flourish. We also encourage other participants in the online advertising space to consider adopting voluntary initiatives that protect ad networks, publishers, advertisers, creators, rightholders, and above all, consumers.”

Id. The IPEC’s blog post includes links to the public statements made by AOL, Google, Microsoft and Yahoo! about these best practices. A copy of the best practices themselves can be found here.

Earlier Online Advertising Initiatives

In March 2012, the IPEC announced another best practices initiative: IPEC, “Advertisers and Advertising Agencies Address Online Infringement Through Best Practices,” Spotlight at 3 (Mar. 2012). Specifically, the American Association of Advertisers (“4As”) and the Association of National Advertisers (“ANA”) strongly encouraged their members to take affirmative steps to prevent U.S. advertisers from placing their ads on predatory foreign websites (“PFWs”) – those websites based outside U.S. borders that target U.S. consumers and offer predominantly counterfeit products or pirated content. Press Release, “ANA, 4As Release Statement of Best Practices Addressing Online Piracy and Counterfeiting” (undated); Member Bulletin, “Media Matters: Statement of Best Practices to Address Online Piracy and Counterfeiting,” (June 1, 2012).

These affirmative steps include, for example, insertion of language in ad placement contracts that requires ad networks and other intermediaries involved in U.S.-originated advertising campaigns to take commercially reasonable measures to prevent ads from appearing on PFWs.  Member Bulletin (June 1, 2012). Other steps include requiring intermediaries involved in the serving of an advertisement to respond expeditiously to complaints by rights holders or advertisers and to provide remediation to advertisers whose ads have been misplaced on PFWs. Id.

Conclusions

The problem of online counterfeiting and piracy undertaken by PFWs causes serious damage to the U.S. economy and U.S. businesses. See, e.g., StopFakes.com, “Top 10 Ways to Protect Yourself From Counterfeiting and Piracy” (undated). Every initiative aimed at reducing the impact of these activities is welcome, assuming that other rights (such as First Amendment, privacy, competition and fundamental due process) are not sacrificed. Hopefully, we will see more initiatives from other key players in the Internet ecosystem that are not only aimed at reducing online piracy and counterfeiting, but also at effectively eliminating the incentive for PFWs to capitalize on U.S. intellectual property rights. By eliminating the incentive, perhaps the “cost” to offer pirated content and counterfeited goods will simply be too high, and these entities will choose to no longer offer them.