Legal Advocacy

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

    By Claudia Rebaza on Lunedì, 24 March 2014 - 5:14pm
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    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 Domenica, 23 March 2014 - 6:48pm
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    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 Sabato, 22 March 2014 - 9:20pm
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    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 Venerdì, 21 March 2014 - 10:17pm
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    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.

  • The Trans-Pacific Partnership and Copyright

    By Claudia Rebaza on Domenica, 16 March 2014 - 5:02pm
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    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.

  • OTW Legal Submits Comments to European Commission

    By Claudia Rebaza on Martedì, 4 March 2014 - 12:56am
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    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."

  • Discussing the Future of Fanworks in March

    By Claudia Rebaza on Domenica, 23 February 2014 - 6:27pm
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    Banner by caitie celebrating Fanlore's 500,000th edit

    As we mentioned during our milestone weekend, today we're announcing four events that will continue our focus on fanworks while celebrating the OTW's project milestones. Starting on March 8, each Saturday next month we will be featuring a discussion on "The Future of Fanworks" with a variety of special guests.

    March 8: Live chat with fan studies scholars on "The future of fanworks" from 1600-1800 UTC (What time is that in my timezone?)

    READ THE TRANSCRIPT

    March 16: Live chat with fans on "The future of fanworks" from 0100 - 0300 UTC (What time is that in my timezone?)

    • Moderator: Jintian, OTW Communications staffer
    • Guest: cereta
    • Guest: yhlee
    • Guest: yifu

    READ THE TRANSCRIPT

    March 21-24: Q&A posts with copyright practitioners and scholars on "The future of fanworks."

    March 29: Live chat with entertainment industry representatives on "The future of fanworks" from 1500 to 1700 UTC (What time is that in my timezone?)

    READ THE TRANSCRIPT.

    Each chat will be held in our Public Discussion chatroom. Links to the chats will be posted shortly before the events. Although we have done our best to vary the chat times to accommodate fans in all timezones, the scheduling is ultimately dependent on guest availability. For anyone who can't join a chat live we expect to post transcripts of the events within 48 hours.

    We would also like your input! We will be giving all panelists a set of 6 common questions as we believe it will be interesting to bring out different (or common) perspectives on the topics among the various groups. You can submit as many questions as you'd like but as we have limited time we can't guarantee any particular question will be included. We'll be looking for questions that are broadly applicable to all groups and are a good representation of "The future of fanworks" topic.

    We will be collecting questions until 23:59 UTC on March 1. You can either post your questions here or submit them through our Communications form (just mention they're for the chats).

  • OTW Files Amicus Brief in DISH v. ABC

    By Claudia Rebaza on Mercoledì, 29 January 2014 - 7:16pm
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    On January 24, 2014, the OTW filed an amicus brief on behalf of DISH Network in the case of DISH v. ABC. This case, currently before the U.S. Court of Appeals for the Second Circuit, concerns DISH's "Hopper" DVR, which allows DISH subscribers to temporarily record primetime TV shows and then watch them, commercial free, for eight days. Although the U.S. Supreme Court declared more than 30 years ago that recording television for the purpose of "time-shifting" constitutes copyright fair use, ABC is attempting to shut down the Hopper by accusing both DISH and its users of copyright infringement.

    The OTW's brief, filed jointly with the Electronic Frontier Foundation and Public Knowledge , argues among other things that copying for the purpose of fair use itself constitutes fair use, and that therefore when users instruct the Hopper to record television for the purpose of time-shifting, no one is infringing.

    Although this case seems to be only about time-shifting, it has broader implications. Fans rely on people and companies who make the tools they use to create fanworks, which the OTW sees as fair use. For example, vidders must copy and process original material in order to make transformative vids. The OTW thus defends the rights of those who make those tools as well as fanwork creators. An important safeguard when considering fair use is the requirement that copyright infringement can't happen without a "volitional act." This requirement appropriately focuses the analysis on the maker of the copy. The focus on the fan creator thus allows for consideration of whether the copying constitutes fair use.

  • Naomi Novik at House Judiciary Hearing

    By Claudia Rebaza on Lunedì, 27 January 2014 - 5:46pm
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    Banner by Diane with the outlines of a man and woman speaking with word bubbles, one of which has the OTW logo and the other which says 'OTW Announcement'

    At 2 PM EST on January 28, former OTW board member Naomi Novik will be one of the witnesses in a hearing on The Scope of Fair Use. This hearing is being convened by the U.S. Subcommittee on Courts, Intellectual Property and the Internet (a Subcommittee of the House Committee on the Judiciary).

    The purpose of her appearance is to inform members of Congress about what fan creators do, and the importance and significance of fandom -- including culturally, educationally, and creatively. As the comments compiled by our Legal Committee for the NTIA/PTO demonstrated, remixes and fanworks are made by everyday people with things they have to say. The OTW wants to ensure that legislators understand this and also have an idea of the size of the fannish community and the value of its activities.

    This appearance follows the OTW's participation earlier this month in raising awareness about copyright issues and is part of the OTW's Legal Advocacy project to represent fans' interests in legal and government discussions about copyright's effects.

    Edited 28 January to add: Prepared statement by Naomi Novik

  • Copyright Week: Getting Copyright Right

    By Claudia Rebaza on Sabato, 18 January 2014 - 5:07pm
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    Copyright logo set on a yellow pixelated background

    The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the conclusion today coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.

    A free and open Internet is essential to infrastructure, fostering speech, activism, new creativity and new business models for artists, authors, musicians and other creators. It must never be collateral damage in the copyright wars. All ideas and creations build upon each other and allow for both new creations and new ways of thinking. An open internet which fosters such communication allows for the expansion of ideas and culture.

    Copyright has a valid purpose in that fostering of creativity. It encourages artists, writers, etc. to develop new and original ideas which can then be experienced by others. It serves as a way to recognize individuals for their creative achievements. However, copyright should never be so restrictive as to limit creativity and stifle growth. The free sharing of ideas and thoughts in many ways should be used to create new works from new creators who can then obtain copyrights for those works.

    This balance between the rights of the creator and user have become more complex in our modern times as a free and open internet allow users to become creators through the creation of transformative works which derive from an original creation. Copyright should always encourage more creativity, not limit it. An open internet should also encourage creativity. Creativity in many ways drives both individuals and societies towards a better future through new ideas and inventions. We build upon old creations to make new creations and an open and free internet culture is crucial for this to happen.

    The OTW has taken various steps to "get copyright right" on behalf of fans:

    1) Via the Copyright Office, we have secured DMCA exemptions for fan creators so that video makers can use parts of their source in their works without being liable for copyright infringement.

    2) We have joined legal arguments that address encroachment on fair uses of copyrighted works.

    3) We have represented fans on academic and government panels that address existing or proposed legislation.

    4) We have submitted comments to governmental bodies that oversee and propose copyright regulations.

    5) We alert fans to new developments in cases that pertain to fair use, even if we are not participants, and we remain available to individual fans who have questions about fair use of materials.

    This week is one of many opportunities to "get copyright right" through interactions between fans and lawmakers, as well as informing the larger public about concepts such as fair use and the public domain. The OTW and other organizations taking part in Copyright Week want to help facilitate those interactions and spread greater awareness of laws surrounding the use of creative works.

Pagine

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