Intellectual Property

  • OTW Legal Files Amicus Brief in Garcia v. Google

    By Claudia Rebaza on Neděle, 20 April 2014 - 5:41 odpoledne
    Message type:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    In our continuing effort to protect against online censorship that would harm fans, last week, the OTW filed an amicus brief in the case of Garcia v. Google. The case involves the scope and application of the safe harbor provisions of the DMCA and section 230 of the Communications Decency Act, which together prevent content hosts -- like YouTube, the AO3, and many others -- from being liable for what their users post.

    This case is partly a classic example of "bad facts make bad law," since the plaintiff -- an actress tricked into taking part in the film Innocence of Muslims -- has good reason to want the film taken down. But in response to her request, the court not only applied a tortured interpretation of copyright law (an issue addressed in many other briefs filed with the court at the same time), but also ignored important anti-censorship "safe harbor" laws.

    The court forced Google to not only to take the film down, but also to ensure that it is never re-posted. In so ruling, the court ignored the provisions that protect content hosts from having to "police" what their users post. These safe harbors exist to prevent online censorship, and they are important to fans. Just about every site that hosts fan content depends on them. Just imagine if every allegedly infringing or defamatory fanwork led to a lawsuit, or if fan sites were required to monitor their archives to make sure no one ever posted objectionable material: many of the sites fans rely on wouldn't be able to afford to operate. That's the sort of thing these laws are designed to prevent.

    For that reason, the OTW, along with Floor64 (the operator of TechDirt), filed a brief asking the court to reconsider its decision with an eye to the fact that although the decision may create a good factual result in this particular case, it makes terrible law that will harm freedom of expression on the Internet. As Techdirt explained in its post about the brief, "There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions."

    For those interested in reading more, you can find this latest brief on our Legal Advocacy page along with past filings.

  • OTW Fannews: Copyright threats and benefits

    By Claudia Rebaza on Sobota, 19 April 2014 - 6:58 odpoledne
    Message type:

    Banner by Erin of a shield bearing the logos of several digital rights organizations.

    • The Asahi Shimbum detailed fan concerns about the TPP. "Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations. Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it. Under current Japanese copyright law, authorities take action only after the copyright holder, such as the artist of the original work or publisher, lodges a formal complaint."
    • India's Business Standard wrote about book piracy and its turn to crossover fiction. "By the 2000s, piracy had changed across all kinds of language publishing in India. In 2003, Harry Potter's publishers successfully sued Uttam Ghosh, preventing him from introducing a character called Jhontu in a sub-series where Harry Potter goes to Calcutta, a work of fan fiction if there ever was one...Book pirates in China had stayed ahead of the curve, by passing off a weird little book called Harry Potter and Bao Zoulong as a new Potter sequel. In this version, Harry Potter became a leading character in a translation of The Hobbit, with an explanatory paragraph to tell the reader how Harry Potter was turned into a hobbit one day while taking a bath."
    • The Wire explored the origin of The Office Time Machine. Creator Joe Sabia "wasn't really a fan of the show" but created it to "advocate for copyright reform and highlight the importance of fair use in protecting creators and their art."
    • Yet fair uses of content can be beneficial to creators. The Toronto Star discussed how music companies made more money from fan videos than official videos. “A lot of that is due to consumers putting more and more repertoire and new versions up there, but also it’s YouTube getting better at advertising" as now more than 50 countries are part of video ad monetization. "'It’s a massive growth area. We’re very excited about the creativity of consumers using our repertoire and creating their own versions of our videos,' said Francis Keeling, the global head of digital business for Universal Music Group."

    What copyright developments have you seen relating to fandom? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • The Future of Fanworks Legal Q&A - Post 4

    By Claudia Rebaza on Pondělí, 24 March 2014 - 5:14 odpoledne
    Message type:

    Banner by James of 2 red jets heading up in a grey sky towards an OTW logo

    Welcome to the final Q&A post with copyright specialists on "The Future of Fanworks." Today's responses are from Dr. Sonia Katyal.

    Don't forget to join us for our final Milestone Month chat on March 29th!


    1) What do you remember as your first encounter with fanworks or issues surrounding fanworks?

    I believe my first encounter with fanworks must have come through learning about slash fan fiction for an article I was writing on gender and copyright, called Performance, Property, and the Slashing of Gender in Fan Fiction. At the time, I thought that slash was one of the most imaginative, liberatory, and revolutionary modes of honoring male characters in major texts – and the fact that it largely began through the relationship between Kirk and Spock – underscored precisely how culturally transformative slash can become.

    2) Since that first encounter, have there been any notable changes you’ve seen regarding fandom and fanworks? Are there any things that have endured, or that you think may never change?

    One major change, to me, is the way in which content owners have crystallized their control over copyright—tolerating some areas, but cracking down on others. In the beginning, copyright owners seemed to object to broad forms of fan fiction; yet today, we see more and more examples of ‘tolerated uses,’ whereby content owners will not object if the site is clearly noncommercial or labeled with disclaimers. On the other hand, they may continue to object if the content on a web site includes video or other forms of copyrighted images, and if the content is overtly pornographic or sexual. So while content owners now realize that it’s a good thing to allow fans to express themselves, they still often draw the line when the web sites consist of images or content that they may find disagreeable in some form.

    3) What are some things you’d like to see happen — or not happen — with fanworks in the future?

    I would like to figure out ways to legally recognize the incredible creativity and authorship that fans add to copyrighted works. I would like content owners to limit their claims of copyright control (and ownership) over fan created works; and allow fan created works to flourish under the rubric of fair use.

    4) Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?

    That there is tremendous creativity and brilliance in these works, often far more depth and complexity to the characters than one might ordinarily see in a piece of commercial content. One of the best quotes on this comes from Henry Jenkins, who has written, “...Fan fiction is a way of the culture repairing the damage done in a system where contemporary myths are owned by corporations instead of owned by the folk.”

    5) Do you think the scrutiny from academics, legal practitioners, entertainment industries and the media, have affected the creative freedom of source creators or fan creators? Are there ways in which different online spaces can have rules of engagement that vary based on a person’s particular connection to the community?

    Of course—any internal community, particularly those online—have their own sets of norms and rules that guide the posting and circulation of content. The scrutiny that lawyers and academics have exercised over the world of fandom has both enabled certain kinds of speech, and also suppressed others.

    6) The OTW proposed designating February 15th an International Fanworks Day to celebrate all things fanworks. Anyone can participate by advocating for, creating, or appreciating the wide variety of fanworks available. How would you choose to celebrate the event?

    I would ask all content creators to cease and desist, for a single day, from circulating their own content and/or attacking fan fiction, and instead spotlight the work of their brilliant fans – on their websites, merchandise, and other forms of copyrighted content. Recognizing the value of transformation, it seems, is the greatest form of integrity in copyright.

  • The Future of Fanworks Legal Q&A - Post 3

    By Claudia Rebaza on Neděle, 23 March 2014 - 6:48 odpoledne
    Message type:

    Banner by James of 2 red jets heading up in a grey sky towards an OTW logo

    Welcome to the third of our Milestone Month events! Today we continue with the third of four posts with copyright specialists on "The Future of Fanworks." Today's responses are from Dr. Peter Jaszi.


    1) What do you remember as your first encounter with fanworks or issues surrounding fanworks?

    I’m probably of the wrong generation (or too much of a slow learner) to answer this question usefully. In honesty, I should admit that my first real exposure to fanworks was through the legal controversies about them.

    2) Since that first encounter, have there been any notable changes you’ve seen regarding fandom and fanworks? Are there any things that have endured, or that you think may never change?

    I first learned about fan works at a conference I organized in 1991 (with Martha Woodmansee) around the topic of The Construction of Authorship. One of the standout papers was entitled “Common Properties of Pleasure: Texts in Nineteenth Century Women's Clubs,” by Anne Ruggles Gere (now at the University of Michigan). When it was read, the discussion pointed out the similarities between the textual practices Gere describes and the emergent world of fan fiction. Gere’s thought-provoking essay is collected in a 1994 volume published by Duke.

    3) What are some things you’d like to see happen — or not happen — with fanworks in the future?

    Probably the most significant development I’ve noted is the convergence of text-based fan writing and new technology, which has given us vidding. I got a chance to learn a bit more about this aspect of the field when I worked on the 2008 Code of Best Practices in Fair Use for On-line Video.

    4) Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?

    The most important point is that although they are “derivative works” in enormous amounts of legal definition, they are not merely “derivative” in the common understanding of that term. Rather, they are new takes on existing subject matter, and their creators contribute enormous amounts of value added.

    5) Do you think the scrutiny from academics, legal practitioners, entertainment industries and the media, have affected the creative freedom of source creators or fan creators? Are there ways in which different online spaces can have rules of engagement that vary based on a person’s particular connection to the community?

    I certainly hope so, at least where the consequences of legal scrutiny are concerned. Creators of fan works should know that much, if not always all, of what they do fits comfortably within the range of follow-on creative practices sanctioned under the venerable copyright doctrine of “fair use."

    6) The OTW proposed designating February 15th an International Fanworks Day to celebrate all things fanworks. Anyone can participate by advocating for, creating, or appreciating the wide variety of fanworks available. How would you choose to celebrate the event?

    It would be great to organize a virtual discussion between creators in the U.S. and elsewhere. Here, they have the enormous advantage of the fair use doctrine — but others are not so fortunate. But there is a movement afoot in Europe to create a new copyright exception for non-commercial transformative works that would be useful if not ideal. Perhaps a forum of the kind I’m proposing could be the venue for a discussion of how creators could get behind this law reform initiative.

  • The Future of Fanworks Legal Q&A - Post 2

    By Claudia Rebaza on Sobota, 22 March 2014 - 9:20 odpoledne
    Message type:

    Banner by James of 2 red jets heading up in a grey sky towards an OTW logo

    Welcome to the third of our Milestone Month events! Today we continue with the second of four posts with copyright specialists on "The Future of Fanworks." Today's responses are from Susan Hall.


    1) What do you remember as your first encounter with fanworks or issues surrounding fanworks?

    This is something I need to split between recognising fanworks (and the issues surrounding them) as a distinct category and creating fanworks myself. The first came very much earlier than the second. I don’t believe I encountered my first ’zine until the late 80s or early 90s (it was Blakes 7, Blake/Avon slash and a friend handed it to me - in an honest-to-goodness brown envelope - for me to read on a train to Scotland, without bothering to mention any of the salient points, such as its being both quite explicit and quite meta - it being about Blake & Avon both encountering slash fiction and deciding on the spot to re-enact it.)

    From a very early age, though, I’d been creating fanworks in the sense of add-ons to things I’d read, stories I told myself before going to sleep at night, poems and so forth. The works I built on included Hiawatha, Swallows and Amazons, Sherlock Holmes, The Crystal Gryphon and the Seventh Swan (Nicholas Stuart Gray), the latter being something I’d got out of the library which had made a tremendous impression on me.

    Once I reached adolescence, it became something which I increasingly set down on paper - my parents bought me my first typewriter for my eleventh birthday - and shared (and swapped) with friends. I went to an all girls’ selective school and so far as I could tell we were all fannish; that was the era of Starsky and Hutch but there were a lot of other fan enthusiasms, including for Star Trek and Doctor Who as well as football, rugby and cricket.

    Teachers, too, frequently taught English literature by asking us to write missing scenes or scenes from another character’s perspective; although these were not expressed as being fanworks, they were forms of fan creativity.

    However, I was not aware of organised fandom or of fanworks under that name even at university, and though I did a law degree and subsequently a masters with a specific emphasis on intellectual property, issues of legality of fanworks did not arise then, either. I began being involved in online fandom first by participating in the Lord Peter Wimsey yahoogroup and then with Harry Potter for GrownUps, also on Yahoo.

    2) Since that first encounter, have there been any notable changes you’ve seen regarding fandom and fanworks? Are there any things that have endured, or that you think may never change?

    Massive changes have included the move to online means of sharing fanworks, the creation of AO3, the much greater acceptance by TPTB that fanworks exist (not always a positive thing, as the excruciating attempt by Caitlin Moran to force the stars of Sherlock to read explicit slash aloud shows), a much more coherent position being taken on legalities of fanworks.

    Things that seem never likely to change are fan feuds, splitting, bickering and online meltdowns, including flame-wars and the more disturbing extremes such as the Ms Scribe and Victoria Bitter affairs.

    3) What are some things you’d like to see happen — or not happen — with fanworks in the future?

    I’d like a much wider acceptance that there is a sound basis for their legality as fanworks both under US and EU law. However, one development I hope can be fended off are the various efforts to monetise and regularise fanworks.

    4) Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?

    I think it’s important to stress that the simplistic "all fanworks are theft" line peddled by the likes of Anne Rice and Lee Goldberg is, and always has been, completely unsupported in law, even in the more restrictive legal systems of the EU. Furthermore, there are a lot of myths about alleged cases with have been brought and alleged rulings against fanworks, most of which do not stand up to scrutiny.

    A report recently commissioned by the EU into the use made to date by European countries of the exceptions in favour of "parody, caricature or pastiche" introduced by the Copyright Directive of 2001 or equivalent local exceptions was unable to find any EU cases where successful legal action had been brought against fanworks by rightsholders.

    This is not to deny possible chilling effects on fanworks by take down notices (eg YouTube) as occurred with Newport State of Mind (based upon Empire State of Mind, a hit song by the American rapper Jay-Z). The music video parody, written by M J Delaney and performed by Alex Warren and Terema Wainwright, achieved great success when posted on YouTube last year, but resulted in take down action by the right owners to have it removed from the internet.

    Sources to recommend on this are studies commissioned by the UK Intellectual Property office which found no evidence of harm to the economic interests of authors with respect to music video parodies and also the Hargreaves Report making Copyright recommendations to the UK Government.

    Hargreaves Report

    “The Government should firmly resist over-regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract” (p. 51 Review of Intellectual Property and Growth).

    Generally speaking, the creators of fanworks tend to have a very significant overlap with completist collectors of the original source material, the sort of people who attend midnight showings of the Hobbit on the day it opens and then subsequent repeat viewings and then buy the Blu-Ray. Also, I have several times myself bought or watched original material in order better to appreciate fanworks of it, and am aware of numerous other people doing so.

    5) Do you think the scrutiny from academics, legal practitioners, entertainment industries and the media, have affected the creative freedom of source creators or fan creators? Are there ways in which different online spaces can have rules of engagement that vary based on a person’s particular connection to the community?

    There’s a kind of awareness which was very much not the norm in the early days when I became involved in fandom (back to the slash zines in brown envelopes).

    One area of serious concern which has not received the attention which perhaps it should is the privatisation or enclosure of folk works, historical or mythological figures or works which are out of copyright (for example, Mulan, Robin Hood, the Jungle Books, Pooh Bear) by the growing use of trade marks. Although trade marks should only restrict commercial uses of intellectual property, the danger by way of using trade mark law as a way of deterring ISPs from hosting fanworks in future is a danger which should not be overlooked.

    A perennial area of annoyance is also the misuse of fan material by "semi-pro" fans, for example the storm relating to the publisher of a "behind the scenes" guide to Torchwood who made use of a significant body of on-line reviews, totalling almost 20% of the book as published. While fans create in a gift economy, the use of such materials in a business or quasi business setting tends to rankle, especially given a perceived gendered division between those who create the works and those who reuse and repackage them.

    6) The OTW proposed designating February 15th an International Fanworks Day to celebrate all things fanworks. Anyone can participate by advocating for, creating, or appreciating the wide variety of fanworks available. How would you choose to celebrate the event?

    I am terrible at remembering international days so it’s probably unlikely I will celebrate, though if I were to do so it would be by having an extended reccs post.

  • The Future of Fanworks Legal Q&A - Post 1

    By Claudia Rebaza on Pátek, 21 March 2014 - 10:17 odpoledne
    Message type:

    Banner by James of 2 red jets heading up in a grey sky towards an OTW logo

    Welcome to the third of our Milestone Month events! Today begins the first of four posts with copyright specialists on "The Future of Fanworks." First up are responses from Dr. Chip Stewart.


    1) What do you remember as your first encounter with fanworks or issues surrounding fanworks?

    Harry Potter, between the release of the fourth and fifth books, so probably 2003. I remember following news and rumors on Mugglenet and HP-Lexicon and being referred to some of the wilder fan fiction stories.

    2) Since that first encounter, have there been any notable changes you’ve seen regarding fandom and fanworks? Are there any things that have endured, or that you think may never change?

    I've been more of an observer than a reader, so beyond noticing the mainstream appeal of some works — Fifty Shades of Grey, of course — I can't say I notice much difference. I have been surprised by the pervasiveness of the sexuality, but I don't think that's just fan fiction, I think that's the Internet in general providing a home for things to be published that would've been kept quieter before.

    The biggest shocker to me, and this is a bit off-topic, is the baseball slash fic, which I found out about in an article by Emma Span when she was at Baseball Prospectus.

    Also, watching the relationship between JK Rowling and fans online was quite interesting and perhaps illustrative of the dynamic going forward. Rowling seemed to be a huge fan of the online communities following her, as long as they stayed online and not for actual sale. When the Lexicon was about to become a book, her turn was in a sense confusing (considering her past support for the site) but also not surprising because of the commercial nature.

    That was a huge moment. If Rowling tolerates the fan community and allows publishing of the Lexicon without pushing her copyright claims, that would've been a huge step to making fan works more culturally (and perhaps legally) acceptable.

    3) What are some things you’d like to see happen — or not happen — with fanworks in the future?

    I'd love to see a good circuit court decision on a copyright case dealing specifically with fan fiction to provide some guidance, ideally one open to a finding of transformativeness and recognizing the lack of harm in noncommercial works by fans. The cases out there now — such as "The Wind Done Gone" case (Suntrust v. Houghton Mifflin, 11th Cir., 2001) are more about unauthorized sequels or parodies rather than fan works.

    The read-write culture is only going to continue to grow, and the expectation of each generation to come is going to be, "I can use that to make new things from my favorite characters and stories." The Web gives a home for these works to find a public audience. But we don't have clear guidance that this is OK — so it will all be done under the specter of infringement suits, DMCA takedowns, and/or prosecutions. That's not good for creativity or culture.

    4) Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?

    To make the case that these are transformative works and that read-write culture is valuable, even if you don't quite get it, the books I'd suggest are "Remix" by Lawrence Lessig and "Cognitive Surplus" by Clay Shirky. The example I'd cite is Stephenie Meyer's support (or at least non-opposition) to the work that ultimately became "Fifty Shades of Grey" initially based on her characters.

    5) Do you think the scrutiny from academics, legal practitioners, entertainment industries and the media, have affected the creative freedom of source creators or fan creators? Are there ways in which different online spaces can have rules of engagement that vary based on a person’s particular connection to the community?

    I would like to think that academics and the legal community, particularly that portion that spends a good bit of time online, would be vigorously supporting and defending creators of fan works as both core expressive conduct under the First Amendment and as transformational fair use under copyright law. Regrettably, I think the chatter from the entertainment industry and the legislators they prop up seems to drown out advocacy efforts. I don't see a legislative avenue that will be helpful to fans anytime soon, and it may get worse before it gets better.

    So the options for fans are either (a) the courts, which I discussed above, hoping to find that great-facts case that a fair-use-friendly judge will use to stand as a defense for other fan works, and/or (b) having the communities police themselves through the culture they create in their online spaces. As for rules of engagement, I think making those clear on the sites (particularly in the terms and conditions) would be helpful. But overall, the key is promoting noncommercial uses that don't threaten or harm the character or world the original author has created — or, if a work is going to do this, having a point beyond titillation or snark to help the criticism/commentary argument for fair use. I think we'd want to build a defense stronger than parody to protect fan works in the future because an homage or a new work isn't really a parody of the original, and courts would recognize that.

    6) The OTW proposed designating February 15th an International Fanworks Day to celebrate all things fanworks. Anyone can participate by advocating for, creating, or appreciating the wide variety of fanworks available. How would you choose to celebrate the event?

    Give to those who are going to fight the fight. EFF would be my organization of choice.

  • OTW Fannews: Discussing fandom

    By Claudia Rebaza on Pátek, 21 March 2014 - 1:29dop.
    Message type:

    Banner by Erin of a message form with the OTW logo on a megaphone and a form saying 'You:Discussing Fan: Fandom' with a send button next to 'OTWFannews'

    • Not Another Teen Wolf podcast posted about their interview with OTW legal staffer Heidi Tandy. Among other things "We learn about the Organisation for Transformative Works and the basic legality behind being a fan creator. We also reminisce about the early days of the internet, when there was a lot of scaremongering surrounding fanfiction in terms of copyright. Why was AO3 started – what was the initial gameplan? Why did a resource like AO3 become necessary?”
    • Although the NATW podcast chat spent only a bit of time on copyright, Copyrightuser.org posted the video ‘Copyright & Creativity’ to make "copyright compelling to creators and average Internet users, trying to demonstrate that it is not just a set of rules but an interesting world worth exploring. To this end, we approached leading copyright experts and sent them a short questionnaire about the relationship between copyright, creativity and technology, with the idea of writing an accessible script based on their answers." The site is "an independent online resource aimed at making UK Copyright Law accessible to creators and members of the public. The goal is to provide answers to the most pressing concerns creators have about copyright, helping them understand their rights."
    • Heidi Tandy and recent OTW academic chat panelist, Anne Jamison, were at South by Southwest discussing fanworks. The importance of internet platforms in allowing non-celebrities to develop their own fandom took a different tack on creativity. When asked, "What is the secret sauce to creating good content?" BuzzFeed’s EVP of Video, Ze Frank replied that content "must represent a part of your individual identity better than you can talk about it. Second, your content needs to be an emotional gift, and should make your audience feel a certain way. And third, your content should provide a social role of information. Frank continued by explaining that your content should prove an argument that people have been having all along or play a part in real world conversation."
    • Joystick ran an article exploring the fandom of Twitch Plays Pokemon. "Taylor started doing Internet research in the 1990s, and turned to video games in 1999. Her studies resulted in books such as Play Between Worlds and Raising the Stakes, which explore virtual worlds, MMOs and e-sports. Those examinations bear relevance to Twitch Plays Pokemon, as the same elements of extended narratives and player curation could be found in the earlier days of EverQuest."

    What stories have you come across about storytelling platforms? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • The Trans-Pacific Partnership and Copyright

    By Claudia Rebaza on Neděle, 16 March 2014 - 5:02 odpoledne
    Message type:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    Recently there has been renewed discussion about SOPA in fan circles, which the OTW has written about a number of times. Thanks to activism on the part of Internet users and the participation of various large, well known online sites, the legislation was shelved back in 2012.

    However, while SOPA itself has not returned, some of the concepts behind SOPA re-appear like the heads on the Hydra, usually in connection to other actions by the U.S. government which may affect some, if not all, of the U.S.'s Copyright Act. Recent concerns seem to be connected to the Trans-Pacific Partnership (TPP) talks and who President Obama has nominated to join the team of U.S. negotiators.

    Although the TPP contents have not been publicly released, there have been leaks about its content which is opposed by digital rights watchers. As our friends at the EFF state:

    "TPP's completion becomes ever more tenuous as resistance to its corporate-driven policies continue to dissolve political support for the deal. Yet Obama's nomination of Holleyman suggests that his administration has no intention of removing the draconian copyright policies out of TPP no matter how unpopular or contentious they may be. It also reflects the greater issue at hand—the White House is choosing to heed the demands of Hollywood and other corporate giants and ignore the interests of users."

    U.S. fans who are concerned about preserving their rights should contact their representatives in Congress to oppose Trade Promotion Authority. This creates special rules that empower the White House to negotiate and sign trade agreements without Congressional oversight, which also denies citizens the ability to influence or block those decisions as was done with SOPA and PIPA.

    A concern about the repeated appearance of SOPA scare notices is that fans who spend time and energy on false alarms may overlook or decide to skip responding when events and issues truly need their voices. If you are asked to circulate information about copyright matters or legal action affecting fans, please check first with a trusted resource such as The Electronic Frontier Foundation, Public Knowledge, the Center for Democracy & Technology, or the OTW first. If there is legislation or legal activity threatening fans' rights, you can be sure that one or more of these organizations will be actively trying to reach you with information about action you can take.

    We also note that a number of large corporations, such as Google and Yahoo (who own tumblr) also have their own stake in preserving the status quo concerning Fair Use, the Digital Millennium Copyright Act and the current term of years of copyright ownership. They were active in the fight against SOPA in January of 2012, when the bill was stopped, and if the House and Senate again try to change the laws that they have built their businesses around, we expect that they will again lobby against it and inform their users about the issues.

    If you have questions about legal matters related to fanworks and fan activities, you can always send a message to the OTW's legal team. We are advocates for and about fandom, and we will protect fans' rights to be creative and share their creativity noncommercially, and work to stop or overturn any laws that would block fans from doing so. You can also subscribe to OTW News through the platform of your choice to stay informed.

  • Chinese copyright law and its relation to fandom

    By Claudia Rebaza on Úterý, 11 March 2014 - 7:28 odpoledne
    Message type:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    Given the international scope of fandoms, it is often important to understand how copyright law and its relation to fan labor varies from country to country. Our Communications staffer, John Bayard discussed this topic with Michael Mao, an Intellectual Property attorney at Allbright Law offices in Shanghai. In this post they cover the basics of Chinese copyright law and how it differs from the US, as well as a look at fandom activity in the country.


    Copyright protection in China

    The Copyright Law (1990, revised 2001 and 2010) and The Provisions on Implementing International Copyright Treaties and The Berne convention are the basic copyright laws of the People’s Republic of China. Chinese copyright law provides for full copyright protection for works of literature, art, natural sciences, social sciences, engineering, and technology, among other fields, created in any of the following forms: written works, oral works, musical works, dramatic works, choreographic works, and acrobatic works; works of the fine arts and architectural works; photographic works; cinematographic works; engineering design drawings, product design drawings, maps, sketches, and other pictorial and graphic works; computer software; and other works as provided by relevant laws and administrative regulations.

    In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication. Protected rights now include the exclusive right to copy, publish, rent, perform and alter a given work. Most of these rights can be exercised by others with permission. However as with U.S. copyright law, no permission or remuneration is required for certain types of uses, including private use for study, research, or amusement; quoting or publishing the work by the media for general circulation; or translating or copying the work in limited quantities for use in teaching or government.

    Unlike the U.S., China is consistent with the International Berne Convention by recognizing what are known as "moral rights" in addition to economic rights. Moral rights are the right of authorship, preventing alteration to the original work, and upholding the integrity of the full original work. Unlike economic rights, moral rights do not expire and instead last forever.

    The addition of moral rights can limit fans in creating derivative works since the author of the original work can object to any distortion or modification of the work. For example, Article 20 of China's copyright law provides unlimited term of protection of the rights of the authorship, alteration, and integrity of the author. These rights are retroactive and apply to all copyright works made before the passing of the current law.

    In this case if a fan wants to write a fan fiction which alters character traits or story elements of the original, this would not be allowed without the author's express support since any changes or additions to a story or character is an alteration from the original. Since virtually all fan labor is an alteration from the original, this in fact prohibits any type of fan labor since it could hurt the integrity of the author. Further, the fact that the protection is forever would mean that even if the original work is in the public domain, no alterations could be made without express support from the original creator. China and other countries that have similar moral rights laws can therefore, in application of such laws, prohibit virtually all forms of fan labor since it would potentially create an alteration or hurt the integrity of the work.

    While the notion of a transformative work exists in China, the notion of a transformative work under the legal doctrine of fair use does not apply. While many countries recognize elements of fair use, only the United States and Israel fully recognize the concept of fair use. Other regimes, such as the U.K. and Canada, recognize similar, but more limited, rights of "fair dealing." In China, however, outside of educational uses, fair use concepts are fairly limited.

    Fandom activity in China

    As with other elements of Intellectual Property, copyright piracy is a major concern in China so even though the notion of fair use is limited under Chinese law, authors are often unable to stop people from copying and/or creating derivative works from their creations.

    Fanfiction known as 同人小说 (tongren xiaoshuo), is found in virtually every fandom and China is no exception. In the last decade or so, there has been a rapid increase in China of entertainment including film, music, but above all television. Greater access to foreign entertainment has in many ways spurred on the growth of both fandom and fanfiction writing in China.

    Larger fandoms and more fanfiction have resulted in several websites and forums devoted solely to Asian fandoms. While there are some found on Chinese sites such as ReadNovel, Chinese censorship laws have forced many such sites to be based in other countries. One such site found in the US is Asian Fan Fiction, which offers thousands of stories. Internet censorship laws discourage many sites that could be considered "provocative" and this often includes many fan fiction sites. This is one major reason why many Chinese oriented fan sites such as Asian Fan Fiction, are actually based in the US or in other countries. Many are written in multiple languages and cover fandoms from multiple countries including mainland China, Korea, Japan and Singapore. Numerous Chinese dramas such as New Shanghai Bund are often the inspiration for these works.

    With the popularity for these shows, and China's history of copyright violations and infringement of western media, there has been increased pressure on content owners to air shows in China, before they are shown in their home countries.

    While it is still too early to determine what sort of impact growing fandom and fanfiction will have on Chinese law and, in particular, copyright law, it is important to note that fanfiction is allowing many Chinese to express themselves. Internet Censorship is a major concern in China today and fanfiction has allowed many Chinese to express views and ideas which they might not be able to do in a more formal setting. While some types of fanfiction, namely slashfics, are generally not allowed, many writers get around such restrictions by inserting random Chinese characters into their works to confuse search filters.

    Greater copyright protection in China may prove to be a double edged sword. While foreign copyright holders would welcome increased protection for their output, such copyright protection could be used to limit the sites that support fandom and fan labor.

  • OTW Legal Submits Comments to European Commission

    By Claudia Rebaza on Úterý, 4 March 2014 - 12:56dop.
    Message type:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    In January, the OTW posted about efforts in the European Union to influence copyright reform. In addition to encouraging fans to make their voices heard, OTW's Legal Committee also began preparing comments.

    Our Legal Committee has registered the OTW in the European Union's Transparency Register and has now filed a submission to the European Commission in response to its call for comments concerning possible EU copyright reform.

    The OTW discussed the problems that arise for members of the public from the fact that most limitations and exceptions provided in the EU copyright directives are optional for the Member States. We also argued for exemptions and greater flexibility in regulations that would enable fans to create works more freely.

    "There is a great need for an exemption that would protect transformative works, particularly noncommercial, transformative works. Either a flexible exemption of broader scope that covered transformative uses or a specific exemption for noncommercial, transformative works could provide the necessary certainty for internet-based communities of authors and audiences...Making this type of exception mandatory furthers the interests of both users and future creators, and at the same time helps to foster expressions of culture within the EU. This scenario, in turn, complies with the integration clauses of the Treaty on the Functioning of the European Union (TFEU), particularly arts. 12, 167(4) and 169(2), which mandate the EU to take into account cultural aspects and consumer protection in EU legislation."

    OTW Legal concluded that "protection for noncommercial transformative works would avoid the difficulties posed by inevitably futile attempts at pervasive licensing, and would allow commercial industries to focus on wholesale copying and unauthorized, illegitimate commercial uses that compete for revenue."

Stránky

Subscribe to Intellectual Property