Legal Advocacy

  • 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.

  • Copyright Week: Fair Use

    By Claudia Rebaza on Venerdì, 17 January 2014 - 5:18pm
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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 week's conclusion on Saturday the 18th 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.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on Fair Use. The OTW was founded on the idea that fanworks are creative and transformative, and therefore are protected by Fair Use under US law. For that reason our Legal Advocacy project has been proactive in protecting and defending fanworks from commercial exploitation and legal challenge.

    In the United States, Fair Use is a part of the Copyright Act, which lists four factors the courts can look to in determining whether a work is Fair Use; they include (1) the purpose and character of the use (commercial nature, educational purposes, etc.); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Courts have addressed these issues many times over the years, and many recent cases involving Fair Use have expanded the types of works that can take advantage of Fair Use protections. Only last year, the Southern District of New York found that Google Books' database of complete scans of fiction and nonfiction books was a transformative work, and Fair Use, because it “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

    This holding is in line with the OTW's longstanding view of transformative works and Fair Use, as our reading of U.S. law is that fan fiction and often other types of fanworks advance the progress of the arts (and sometimes sciences too), while respecting the rightsholders' ownership and ability to make commercial use of their intellectual property. Fair Use principles permit fans to create a wide range of transformative works without first seeking permission from rightsholders--including fanfic, fanart, vids, games, cosplay, fan films, ballets and stage plays. Noncommercial transformative works are generally permitted by Fair Use, but a lot of works within the Fair Use sphere are not also defined as transformative works.

    The OTW's various projects all feature the amazing works that can be created and shared under the umbrella of Fair Use, whether remembered in Fanlore, preserved by Open Doors, archived on the AO3, explored in Transformative Works and Cultures, or featured in our Test Suite of Fair Use Vids.

    Copyright Week is an important event for discussing how these laws and regulations impact citizens, but it's also an important opportunity for you to make your voice heard. You can help by:

    1) Visiting the Copyright Week site and signing on to endorse the principles being expressed by the OTW and other organizations.

    2) On that page you will find links to posts made by other groups that support a larger public domain, broader fair use, and open access. You can support the OTW or other groups working on your behalf.

    3) Retweeting, reblogging, or linking to posts about the issues being discussed during Copyright Week.

  • Copyright Week: Open Access

    By Claudia Rebaza on Mercoledì, 15 January 2014 - 7:24pm
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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 week's conclusion on Saturday the 18th 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.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on Open Access. Different entities define Open Access differently, but among its core principles is that the results of publicly funded research should be made publicly available, for free, online and in usable form. Open Access doesn't necessarily mean that everything in the world should have to be available for free--and the OTW supports the ability of fans to decide who should see their work and how their work can be used. But the OTW also believes that platforms should exist on which scholarly material is available and easily usable and quotable at no cost.

    The OTW has walked the walk of this philosophy for five years with its publication Transformative Works and Cultures (TWC). Its editors and volunteers offer their services for free, as do all the OTW's staff, and they are committed to ensuring that the journal's content can be accessed by all. As TWC editor Karen Hellekson has written, the academics who have tried to move away from paywalled sites for academic research and print publications have found many barriers in their way.

    "When I fill out forms, surveys, and index submission forms related to TWC and its practices, it becomes clear how strongly the print model affects every aspect of what is considered the norm for publishing. I skip entire sections: I don’t know the number of subscriptions because we don’t use a subscription model. I can’t estimate readership because many of the user accounts are obviously spam accounts, and plenty of readers never create a user ID. We don’t offer different levels of access to different people. We don’t have office expenses because we don’t have an office, instead using freeware OJS to shepherd copy through the publication process. I can’t estimate readership for an essay because our copyright permits the author, or anyone else, to repost, which bleeds off readers and thus they aren’t counted by the software. We have no income from reprint or author fees because we don’t charge those fees. All the questions meant to assess readership and subscriptions are, with an open access model, nearly impossible to estimate. Ironically, the traditional journal-publishing world seeks to maximize impact by minimizing access, even though study after study has shown that people are far more likely to read and cite publications available in full online."

    This week marks a year since the death of Aaron Swartz, an activist committed to the principles of Open Access. At the time, the OTW's Fanhackers editor, Nele Noppe, wrote a post about why fans should be concerned about this issue, and how the about-to-launch Fanhackers project represented the OTW's commitment to this issue on behalf of fans and academics.

    "[W]e're launching a new project to expand our efforts toward making research truly useful and relevant beyond the borders and acafannish audience of TWC. We'll experiment with concrete ways to make research on fans more accessible and usable, encourage researchers to publish their work in an open way (no easy task when the closed print model carries prestige, which in turn can be used toward promotion and tenure), and give any support we can to other projects that share those goals.

    In 2008, Aaron Swartz articulated the feelings of many when he wrote in his "Guerilla Open Access Manifesto" that keeping academic research behind pay walls is "a private theft of public culture" that should be resisted by all means necessary, especially by the researchers who can actually access all those locked papers. We call on all academics whose research is relevant for fans to make sure that their results can actually reach the people who need information."


    For more about this week of action, visit the Copyright Week site, where links are being collected to various posts, whitepapers etc., and users and organizations are encouraged to endorse the principles. Participating organizations include Public Knowledge, Creative Commons, library associations, Ownership Rights Initiative, iFixit, and Wikimedia among others.

  • Copyright Week: Building a Robust Public Domain

    By Claudia Rebaza on Martedì, 14 January 2014 - 5:56pm
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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 week’s conclusion on Saturday the 18th 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.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on the importance of building and maintaining a robust public domain. A robust public domain is important for allowing public access to information and material, and also for promoting creativity.

    The term public domain means different things to different people, but it generally refers to works that are free to use and copy because they aren't protected by copyright exclusivity. This includes works that don't fall within the scope of copyright protection--for example, copyright doesn't protect ideas, only expressions--and it it includes works that were once protected by copyright, but whose copyright protection has expired. There are many famous examples of works that are in the public domain. Shakespeare’s works, Beethoven’s symphonies, and many silent films are all in the public domain. The expansion of the public domain is important because it allows for free access to a greater amount of works and information which can then be used to create new works. The OTW is a strong supporter of people's right to create new works based on old ones--and the public domain is an important piece of that.

    The public domain is itself threatened as countries extend copyright duration and the scope of copyright protection. In the United States, copyright expiration is very complicated, and depends on considerations like when a work was created, where the work was first published, and when (and if) the creator died. U.S. Copyright on new works lasts for 70 years after the death of the creator. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. This long term is the result of decades of legislative lengthening of copyright: The very first U.S. copyrights lasted only 14 years with the ability to renew the copyright for another 14 years.

    According to Bernt Hugenholtz and Lucie Guibault*, the public domain is under pressure from the "commodification of information" as items of information that previously had little or no economic value have acquired independent economic value in the information age, such as factual data, personal data, genetic information, and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. While there has been good news in regards to public domain with the recent Sherlock Holmes decision, the public domain is still threatened and should be protected.

    There are numerous important works which are in the public domain and have current remakes or remixes. One example is the TV show Sleepy Hollow, which is based on Washington Irving’s 1820 short story, as was the 1999 Tim Burton film of the same name. Washington Irving's own story may have been based on or inspired by Germanic folktales like The Wild Huntsman. Many of Disney's famous works were also based on folktales, and these have not only been used by numerous creators, but Disney itself has remixed a number of them in their TV series Once Upon a Time. The works of Shakespeare have been utilized many times, in many ways, including the play by Tom Stoppard, which in turn has its own fanworks.

    Cultures across the globe have been enriched by the use of their heritage as displayed through the medium of stories, religion and lore. New versions of characters and tales appear regularly and are able to garner new readers, watchers and creators.

    The OTW also supports the creation of transformative derivative works as fair use--a topic we'll be discussing in a future Copyright Week post. But broad Fair Use privileges are not a substitute for a robust public domain. Over time, works and characters become part of the public consciousness and should be uinambiguously free, not only for noncommercial transformative use, but also for copying and commercial use. A robust public domain permits people to have access to consume and create based on works they might not otherwise be able to afford, and allows people to create without having to wonder whether their creations are fair use.

    *Guibault, Lucy; & Bernt Hugenholtz (2006). The future of the public domain: identifying the commons in information law. Kluwer Law International.


    For more about this week of action, visit the Copyright Week site where links are being collected to various posts, whitepapers etc., and users and organizations are encouraged to endorse the principles. Participating organizations include Public Knowledge, Creative Commons, library associations, Ownership Rights Initiative, iFixit, Wikimedia, Your Anon News, and SPARC among others.

  • Tell the EU that you want copyright reform!

    By Claudia Rebaza on Martedì, 7 January 2014 - 7:40pm
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    As many fans know from personal experience, copyright laws and their enforcement can be problematic when it comes to either serving creators or the public well. Currently, some groups in the European Union are looking for public input when it comes to their own experiences with copyright.

    These organizations, such as The Open Knowledge Foundation, are encouraging members of the public to fill out a questionnaire. With these responses they are hoping to begin action on copyright reform.

    "If the Commission gets lots of replies from citizens and NGOs, it must acknowledge that there is high interest in this topic. Only the Commission can start legislative initiatives on the European level, so we need to convince them that copyright reform is necessary."

    A variety of public input is needed to make clear how many ways that copyright can affect individuals on a personal level:

    "Many of us are involved in creative projects that are restricted by the current copyright regime. By sharing your personal issues with copyright in the consultation, you are giving the Commission insight into the wide variety of creative and innovative projects that are affected by copyright, not just those of big business."

    The questionnaire has a total of 80 questions but there is a guide available that will allow people to focus on issues close to their own experiences. Additional organizations are also encouraged to submit replies, but since the organizers are looking for a wide variety of input, interested fans in the EU are encouraged to participate.

  • Free Sherlock! Implications of Summary Judgment in Sherlock Holmes Case

    By Claudia Rebaza on Sabato, 28 December 2013 - 4:19am
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    On December 26, 2013, a U.S. Federal Court issued a ruling about copyright protection in Sherlock Holmes and the Sherlock Holmes stories. The court held that all elements of the Holmes canon that were first introduced before 1923 -- including the characters of Holmes and Watson -- are in the public domain.

    As background: In most of the world, copyright protection has expired in all of Arthur Conan Doyle's Sherlock Holmes canon. This means that in most of the world, Sherlock Holmes, and all of Conan Doyle's stories, are in the public domain and anyone can use them without getting permission. But in the United States, thanks to the Sonny Bono Copyright Extension Act, the last ten Sherlock Holmes stories -- those that were first published after 1923 -- are still protected by copyright. Those copyrights are owned by a company called The Conan Doyle Estate, Ltd. (the "CDE.") The CDE has licensed that copyright to a number of creators who have made recent adaptations of Sherlock Holmes, including Warner Brothers (for the Downey films), CBS-TV (for Elementary), and WGBH (the U.S. distributor of BBC Sherlock). It has also sent "cease and desist" letters to others who have sought to make commercial adaptations of the Canon -- and those letters haven't necessarily distinguished between adaptations of the works still in copyright and those on whom copyright has expired.

    One of those "cease and desist" letters went to Leslie Klinger, a Holmes expert and the author of The New Annotated Sherlock Holmes, who together with author Laurie R. King was preparing to publish an anthology of stories inspired by the Holmes Canon. Klinger fired back, bringing a lawsuit against the CDE, seeking declaratory judgment and claiming the copyright had expired on all of the story elements that Klinger and King wanted to include in the anthology.

    Now, the court has issued a ruling in Klinger's case. The Court’s ruling states, in brief, that all characters and story elements first introduced before 1923 -- including the characters of Holmes and Watson -- are in the public domain, and creators are free to use them without licensing them from the Conan Doyle Estate. The Court cautioned that copyright law still protects elements that appear exclusively in the ten post-1922 stories by Conan Doyle (those that remain in copyright). The CDE has stated that it's considering appealing the ruling, so it's possible that the ruling isn't the final judicial word on this matter.

    In the meantime, what does this ruling mean for U.S. fans of Sherlock Holmes? The case is a victory for Klinger and great news for those who want to commercialize Holmes adaptations, but its impact on fans is, largely, an indirect one. Fans have always relied on fair use principles to support the creation of fanworks. That's still true for most fanworks related to Holmes--copyright not only still protects the post-1923 works, but also (obviously) the sources for many Holmes fandoms, such as the Warner Brothers Holmes, Elementary, and BBC Sherlock. But the fact that the original-recipe Holmes and Watson are in the public domain is still good for fandom: Since most of the traits of Holmes and Watson, and most of the stories, were introduced before 1923, fan creators will seldom have to wonder whether their Doyle Canon fanworks are fair use. And beyond that, it means that the CDE will have a harder time trying to charge licensing fees to commercial adapters of Holmes and Watson. This makes it easier for commercial adaptations to flourish, so in the future, that may mean more Holmes fandoms to draw from!

    The case also has broader implications for U.S. copyright in serialized works. Many now-famous characters were introduced in series that started in the early 20th century, but continued for decades or more after then. This ruling establishes the principle that all of those characters have the public domain more quickly than some had originally thought: once copyright protection expires in the works where those characters were thoroughly introduced, those characters enter the public domain--even if some works featuring those characters (and any new facts about them introduced in the new works) remain protected. This is true not only for Holmes, but also a number of other characters introduced early in the 20th century, such as G.K. Chesterton's Father Brown, Edgar Rice Burroughs' Tarzan, and Agatha Christie's Hercule Poirot...and, notably, Disney's Mickey Mouse.

    For more on this case, and to get a copy of the court's full ruling, see http://free-sherlock.com/.

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