v31#5 Questions & Answers — Copyright Column

by | Dec 20, 2019 | 0 comments

Column Editor:  Laura N. Gasaway  (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599;  Phone: 919-962-2295; Fax: 919-962-1193) www.unc.edu/~unclng/gasaway.htm

QUESTION:  A publisher asks about blockchain and whether it could be used to reduce uncertainty about who authored a work and the date it was produced.

ANSWER:  Blockchain is the technology behind cryptocurrency such as Bitcoin.  It is an open ledger of information that can be used to record and track transactions, which are exchanged and verified on a peer-to-peer network.  The significance of distributed ledger technology is that it ensures the integrity of the ledger by crowdsourcing oversight and thus removes the need for a central authority.

There may be an opportunity to use blockchain to solve the determination of authorship and production date if it is built on the sustainability of copyright registration information.  Some have argued that use of blockchain could actually reduce the number of people needed to maintain archives. Blockchain may actually have more application for trademark and patent law, because of the greater flexibility in copyright law.  For example, registration is not required to claim rights in a copyrighted work as opposed to a patent. In order sue for copyright infringement; however, one must register the copyright, so registration is still very important.

An updated blockchain secured and distributed may provide assistance in recording rights that are created in original works of authorship.  It has the potential to reduce costs by speeding up registration processes and for clearing rights. Some even argue that it may have the potential to replace the current copyright system currently in use at the U.S. Copyright Office.  At present, blockchain’s use in copyright is merely in the discussion stage. Proponents say that as the technology becomes mainstream, developers will have to collaborate to develop standards and interoperability protocols. The European Union Intellectual Property Office and the U.S. Congress currently are looking into the capabilities of blockchain.

QUESTION:  A high school librarian asks whether it is permissible to use a student’s picture from a previous presentation.

ANSWER:  To answer this question requires further analysis of the question.  By picture, does the librarian mean photograph of the student or a photograph that the student used in a presentation?  I will assume that the presentation is for a course that meets the requirements of section 110(1) of the Copyright Act (in a nonprofit educational institution, in a classroom, with students and teachers present at the same place as a part of instruction).  

If it is a photograph of the student who delivered the first presentation, then answer is easy.  It is the photographer rather than the student who owns the copyright, absent a transfer of rights.  Because of privacy concerns, however, the student should be asked about using his or her image in a later presentation unless the school has students and parents agree to a blanket permission to use their photographs.  

Assuming that the second presentation is also for a class, reusing another type of photograph from the first student’s presentation is also covered by section 110(1) that allows the use of photographs in a nonprofit educational institution, in a classroom etc., as a part of instruction.  If the first presentation contained original photographs taken by the student, it would be polite to seek permission to reuse the photo. Regardless of who took the photograph, if the presentation is posted on the web, permission to use it should be obtained unless the image is in the public domain.

QUESTION:  Audible announced that it would create the Audible Captions program to transcribe a book’s audio in order to create a text to run along with the audio.  A reading teacher asks why publishers are objecting to this since the purpose is to help children “who are not reading to engage through listening.”

ANSWER:  The Association of American Publishers (AAP) filed suit against Audible on August 23, 2019, to halt Audible’s plan to implement the Audible Captions program.  Although it did not join the suit, the Authors Guild later issued a letter supporting the AAP suit.

Publishers claim that their contracts with Audible are limited to voice recording and playback.  They believe that including captions violates their rights of reproduction, distribution and display.  Audible posits that it is too soon to file suit since the program had not yet been introduced to the public.  Despite this, on August 28 Audible stipulated to the court that it would not introduce the Audible Captions program to the works from a group of major publishers until the copyright and licensing issues raised in the suit are resolved.  It will go forward with the program for Audible and Amazon original works and for works in the public domain, however.

QUESTION:  A children’s librarian asks about the recent copyright litigation involving the song “Baby Shark.”

ANSWER:  The “Baby Shark” song is quite popular with toddlers but is very irritating to others of us.  It became popular based on a 2016 posting on YouTube that has millions of views. The origins of the song itself are somewhat unclear, but a musician, Johnny Only, sued Pinkfong in South Korea this summer claiming copyright infringement of his “Baby Shark” song that he published on YouTube in 2011.

There is an argument that the tune was a campfire folk song in the United States for many years before “Baby Shark.”  SmartStudy, the company behind the Pinkfong brand, claims that the tune is in the public domain.  In order to succeed in the suit, Johnny Only will have to prove that the second song is substantially to “Baby Shark” and that he created the work that is not in the public domain.  The issue will be decided in South Korean courts, so it bears watching. 

QUESTION:  A publisher asks when the modernization of the U.S. Copyright Office will be completed.

ANSWER:  That is an excellent question.  Recently, Thom Tillis, a U.S. Senator from North Carolina who is chair of the Senate Judiciary’s Intellectual Property Subcommittee, wrote to the Copyright Office questioning the slow progress of modernizing the public recordation and registration system and implementing a new Copyright Enterprise System.  It is slated to be completed in 2023, which Senator Tillis said was too long.

Senator Tillis says that information technology experts indicate that the modernized registration system could be implemented in 8-12 weeks.  A new system would speed the registration process from the current 1-7 months for electronically submitted claims and 1-18 months for claims received via email.  The times are longer for both if correspondence is required. A new system would provide “real-time data and what needs to be tweaked within weeks, not months or years.”

According to Register of Copyrights, Karyn Temple, the Copyright Office has dedicated 25 employees to reduce the average pendency times by 40% within the last two years and to eliminate the backlog of workable claims.  The Office believes that long-term planning for IT and other infrastructure upgrades could be improved if Congress gave the Copyright Office authority to use unobligated fee balances from previous budget cycles.

This is a crucial issue for both copyright industries and for users of copyrighted works.  Copyright is extremely important not only to copyright producers but also to society. According to Senator Tillis, copyright industries contribute $1.3 trillion to the U.S. gross domestic product and represent almost 7% of the entire economy.  These industries employ about 5.7 million American workers with average salaries of almost $100,000 annually.

The Tillis letter may be found at:  https://www.tillis.senate.gov/2019/7/senator-tillis-it-s-time-for-congress-to-modernize-the-united-states-copyright-office.  

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