RE: Copyright Concerns With Public Access Language in U.S. Innovation and Competition Act – Section 2527(b)

“We write to express our serious concerns about Section 2527(b) of the United States Innovation and Competition Act of 2021 (“USICA,” S. 1260). Instead of supporting American innovation and competitiveness, this provision—which addresses public access requirements for certain copyrighted works that discuss federally funded research—would undermine copyright protection and weaken American intellectual property exports, ultimately impeding the commercialization of research and stifling American competitiveness. We understand that this language remained in the Senate-passed USICA last year largely because of procedural challenges with amending the bill following its introduction. We were grateful that this language was not included in the House’s America COMPETES Act 2022 (“COMPETES,” H.R. 4521), and we urge you to ensure that Section 2527(b) of USICA is not included in the final legislation following a conference on these two bills….”

How Smart is the SMART Copyright Act? – Diff

“During March 2022, United States Senators Patrick Leahy and Thom Tillis introduced the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (SMART Copyright Act). The bill is deceptively simple. It would require the Library of Congress to mandate that online platforms use certain “technical measures” (i.e., automated systems) to identify infringing content. Its simplicity masks its dangers, however. For that reason, though the Wikimedia Foundation agrees that technical measures to identify potentially infringing works can be useful in some circumstances, we sent a letter (reproduced below) on 19th April 2022 to the bill’s sponsors letting them know that we oppose it. 

Under the SMART Copyright Act, the Foundation and Wikimedia communities could be forced to accommodate and implement technical tools to identify and manage copyrighted content that may not be right for Wikimedia projects. This requirement could force the Foundation to change its existing copyright review process, even though the current process is working very well. …

While we fully agree that tools can be a helpful aid in identifying infringement, they should not be considered as a fix for all enforcement problems. There are two main reasons for this:

Technical tools are not good at determining when a work was “fairly used” or when a work has entered the public domain. This flaw leads to inappropriate censorship. Even YouTube’s Content ID identifies numerous false positives for infringement, and fails to catch a significant amount of problematic content. We worry that such tools would do far worse than the Wikipedia non-free content policy enforced by users.
Technical tools are often developed and owned by one company, and are not open source or freely available. If specific tools are mandated by the copyright office, this would make it difficult for smaller companies and nonprofits to use them without becoming overly reliant on those companies….”

Research and research-enabling services must be excluded from requirements of the Digital Services Act – The Guild

“The Guild of European Research-Intensive Universities joins a coalition of organisations representing Europe’s universities and other organisations enabling, funding and performing research to issue an urgent call to exclude not-for-profit research and research-enabling services from the obligations of the Digital Services Act.

The Guild shares a deep concern that universities are likely to be affected by the proposed Digital Services Act. The use of digital repositories, archives and libraries by researchers, and the accessing of digital content by students and researchers alike, must continue to be unfettered. This is essential for academic freedom, and the public interest. The Guild shares a concern with other European organisations representing universities and other organisations, that the Digital Services Act would impose significant additional costs and administrative burdens on universities. It is therefore essential that the Digital Services Act exempts public research (and all those services supporting it), as well as the impact and public outreach stemming from publicly funded research and education, from its obligations….”

Maryland Gives Up on Its Library E-book Law

“Maryland’s library e-book law is effectively dead. In a court filing this week, Maryland Attorney General Brian E. Frosh said the state would present no new evidence in a legal challenge filed by the Association of American Publishers, allowing the court’s recently issued preliminary injunction blocking the law to stand, and paving the way for it to be converted into a permanent injunction. …

First introduced in January 2021, the Maryland law required any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license the content to public libraries “on reasonable terms” that would enable library users to have access. The bill passed the Maryland General Assembly unanimously on March 10, and went into effect on January 1, 2022.

The law emerged after a decade of tension in the digital library market, with libraries long complaining of unsustainable, non-negotiated high prices and restrictions. More specifically, however, the law emerged as a direct response to Macmillan’s (since abandoned) 2019 embargo on frontlist e-book titles, which prompted numerous appeals to both federal and state legislators to protect basic access to digital works in libraries. …”

[Open letter Chuck Schumer and Nancy Pelosi on the OA provisions of USICA]

“On behalf of these 12 national and regional library, publishing, funding, research and advocacy organizations, we urge you to protect the provision ensuring that taxpayers are guaranteed timely, free access to the results of publicly-funded research (Section 2527) in the U.S. Innovation and Competition Act (S.1260) during conference negotiations between the House and Senate….

Despite the success of the open access database for COVID-related research, the majority of taxpayer-funded research outputs are still locked behind publisher paywalls or inaccessible in proprietary databases, stifling the broad dissemination of knowledge and our ability to innovate for the public good. The language on public access in Section 2527 of S.1260 is a crucial step towards making taxpayer-funded research readily available and fully usable by scientists and the public alike. We were pleased to see the Senate support the language on public access when it passed S. 1260 and urge you to maintain this language in the final bill….”

Public Access Language in the U.S. Innovation & Competition Act (USICA) – SPARC

“The House and Senate are currently considering a key legislative package aimed at bolstering America’s science and technology investments. The Senate bill, called the U.S. Innovation & Competition Act (USICA), includes language that supports providing public access to taxpayer-funded research results. 

Section 2527 of USICA would codify the current policy established by President Obama’s 2013 White House Memorandum on Increasing Public Access to Federally Funded Scientific Research by “directing federal agencies funding more than $100 million annually in research and development expenditures to provide for free online public access to federally-funded research no later than 12 months after publication in peer-reviewed journals, preferably sooner.” 

This language signals Congress’ continued support for making taxpayer-funded research readily available and fully usable by scientists and the public alike. SPARC supports maintaining this provision, even as we continue to advocate for a zero-embargo national open access policy. 

Current Status: On March 28th, the Senate cleared a procedural hurdle to begin the conference process with the House. The House is expected to officially call for a House-Senate Conference Committee to work out differences between the two bills in the coming days….”

Basically Everyone Tells Senators Tillis & Leahy That The SMART Copyright Act Is An Incredibly Dumb Copyright Act

We’ve already detailed why the latest bill from Senators Thom Tillis and Pat Leahy, the SMART Copyright Act, is dangerous to the future of the internet. You can read that earlier article, but the short summary is that it would deputize the Copyright Office every three years to arbitrarily bless certain “technological measures” that websites, that host 3rd party content, would need to use. The not so hidden agenda here, pushed by Hollywood basically since the internet came on their radar, is that the Copyright Office will say that any site hosting user uploaded content will need to purchase an upload filter to scan each upload to make sure it doesn’t include any of Hollywood’s content.

That upload filters routinely block perfectly legal speech is not the concern of Hollywood — or, apparently, of Tillis or Leahy (they just want to keep Hollywood happy).

Anyway, we already noted how Creative Commons responded angrily to Tillis’ office implying that Creative Commons supported the bill when it absolutely does not. But lots of other organizations are making it known that this bill would be a disaster for the open internet. A wide range of civil society groups, trade organizations, companies, and academics recently sent a letter explaining the many problems of the bill:

First, the proposed amendments to § 512(i) break the careful balance between innovation and copyright protection struck by the DMCA. For example, they significantly lessen service provider and user clarity and certainty in present and future technical measures that are employed to maintain a safe harbor for service and innovation. Rather than build confidence in the use of technical measures or incentivize further collaborative solutions, these changes would inject uncertainty into a law that has proven foundational and has supported creators, rightsholders, consumers, and online service providers of all kinds. The Copyright Office has recognized that in the decades since the passage of the DMCA, no “standard technical measures” (STMs) have emerged. Far from demonstrating an underlying flaw in the DMCA as the legislation appears to assume, this lack of standard technical measures is largely because the constructive uses of the Internet and the technologies and media involved have become so diverse. Identifying anything as “standard” under the new proposal, and avoiding technical conflicts between measures so identified, will become more, not less, difficult.

Second, the new § 514 would result in endless triennial litigation cycles through the creation of an entirely separate—and potentially unconstitutional—category of government-mandated “designated technical measures.” Section 514 gives the Copyright Office1 authority far beyond its competence and expertise to identify and mandate such measures, transforming it into an Internet regulator with responsibility for overseeing an elaborate, multi-agency bureaucratic process that would recur every three years. To avoid costly litigation and potentially extensive statutory damages, service providers would be effectively compelled to devote significant resources into implementing such measures, only to find themselves continuously exposed to renewed obligations each time new measures are designated. Such direct and heavy-handed governmental involvement in the creation of technical mandates for private industry conflicts with traditional U.S. standards policy.

This proposal would also put an agency with no engineering or other relevant expertise in charge of how digital products are designed, irrespective of whether copyright infringement is actually occurring. Additionally, the Copyright Office does not have the expertise to evaluate complex technical issues such as cybersecurity and competition.3 The legislation would put the government in the position of picking winners and losers in the market for content recognition technologies, which risks corruption and capture from specific businesses and vendors pitching their own products.4 The potentially overlapping and burdensome technical requirements designated through this process would ultimately harm users — risking their privacy and security, undermining the stability of services they rely on, and limiting choice and access to information.

Finally, digital services are already constantly fine-tuning their efforts to combat infringement online in response to the evolving tactics of commercial infringers, and they have done so with notable success.5 The legislation thus is not only unnecessary, but would freeze these efforts and stifle the ability of online services to get ahead of emerging challenges — locking collaboration into a triennial regulatory cycle and discouraging the private sector from making critical investments outside of these cycles. Within months of the designation of a technical measure, sophisticated infringers would find workarounds, while service providers would be on an endless cycle of “designated technical measure” rulemakings. Measures designated in one cycle could be rescinded in the next, creating uncertainty and constant churn.

Also a separate letter was sent from a whole bunch of internet companies (not in the “big tech” category), such as Patreon, Etsy, Cloudflare, Pinterest, and Reddit, explaining just how damaging this bill would be.

Changing the DMCA could easily make our work too expensive, difficult, or risky. But the SMART Act would do just that. For example, the bill would authorize the Copyright Office to mandate copyright upload filters. It would create ambiguous legal terms, like “relevant service providers,” that we would have to wade through during drawn-out lawsuits few of us could afford. It would generate a complex maze of “standard” and “designated” technical measures that apply to different companies in different ways—we would have to figure out which ones we had to adopt and if we got it wrong we would be back in court. This is all setting aside any actual copyright infringement, because the bill would allow large rightsholders to sue us just over whether we were using the right technologies.

Finally, it is not just about our businesses. Many of us know, first-hand, how improper copyright takedowns force our user’s non-infringing posts offline. Over-reliance on technology promises to exacerbate those concerns, stripping your constituents of expressive, creative, and economic opportunities. With stakes this high, we hope you will reconsider the SMART Act and instead focus on pro-innovation proposals that can expand opportunities for us and our users.

The Internet Archive has also made it clear just how dangerous this bill would be:

This bill and its supporters do not represent the public’s interest in fair copyright policy and a robust and accessible public domain. That is a shame, because much good could be done if policymakers would put the public’s interest first. For example, the Copyright Office—which holds records of every copyright ever registered, including all those works which have passed into the public domain—could help catalogue the public domain and prevent it from being swept up by today’s already-overzealous automated filtering technologies (an idea inspired by this white paper from Paul Keller and Felix Reda). Instead, the public domain continues to be treated as acceptable collateral damage in the quest to impose ever-greater restrictions on free expression online.

This bill is extremely harmful. So far, all signs suggest that Tillis and Leahy don’t care about that at all. But the people who use the internet every day should care about it — and should care about the cavalier attitude these senators have towards the internet, all because Hollywood supports them and hates the open internet.

LIBRARY COPYRIGHT ALLIANCE OPPOSITION TO SMART COPYRIGHT ACT S. 3880

“The Library Copyright Alliance (LCA) strongly opposes enactment of the SMART Copyright Act of 2022, S. 3880, introduced by Chairman Leahy and Ranking Member Tillis. Before addressing the specific problems with the legislation, including the burdens it would place on libraries and free expression, LCA explains that S. 3880 is both unnecessary and premature….”

Why the snippet tax of the EU Copyright Directive is pointless and doomed to fail – Walled Culture

“The EU Directive on Copyright in the Digital Single Market contains two spectacularly bad ideas. One is the upload filter of Article 17, which will wreak havoc not just on creativity in the EU, but also on freedom of speech there, as algorithms block perfectly legal material. The other concerns the “snippet tax” of Article 15, more formally known as ancillary copyright..

Just as the impetus for the upload filter came from the music and film industries, so the lobbying for Article 15 came from newspaper publishers. The logic behind their demand, such as it was, seemed to be that Google was making money from ads on its pages that had some links to newspaper sites. That ignored two inconvenient facts. First, that Google’s dedicated news site, Google News, had precisely zero ads on its pages. And secondly, the pages on the main Google search engine that did have ads, had many other search hits alongside links to newspapers. And those links to newspaper sites send a considerable flow of traffic, that publishers have repeatedly shown they are desperate to have….”

Authors Alliance Opposes the SMART Copyright Act of 2022 | Authors Alliance

“Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. …”

CC Australia’s response to the exposure draft of the Access Reform Bill | by Elliott Bledsoe | Creative Commons: We Like to Share | Mar, 2022 | Medium

“On Friday 25 February the Creative Commons Australia Chapter (CC Australia) made a submission to the Australian Government Department of Infrastructure, Transport, Regional Development and Communications in response to their consultation on the exposure draft of the Copyright Amendment (Access Reform) Bill 2021 and a review of the technological protection measures (TPMs) exceptions in the Copyright Regulations 2017….

In the submission, CC Australia expresses its support for the proposed reforms as they harmonise with CC’s vision and mission. There are strong public interest arguments to support activating orphan works and supporting equitable access to cultural collections (and it aligns with CC’s Open GLAM Program). Permitting quotation of copyright material in a range of noncommercial scenarios will help make research available to the research community and the public quicker. And further facilitating online education and encouraging flexibility in the delivery of government services are both worthwhile endeavours….”

Publishing Giants Are Fighting Libraries on E-Books – Sludge

“According to a recent survey by the library group ReadersFirst, e-book prices for libraries have tripled over the past nine years, with publishers charging between $20 and $65 for an e-book copy that libraries cannot own permanently. For popular e-books, libraries pay $55 for a copy that expires after two years, or $550 for a copy for 20 years, compared with the about $15 that a consumer would pay, according to the American Library Association (ALA).

The Maryland law passed 130 to 0 in the General Assembly and 47-0 in the Maryland Senate, and took effect on the first day of this year. Last month, however, a federal judge issued a preliminary injunction, siding with AAP’s argument in their lawsuit that the law interferes with federal copyright law. The Maryland attorney general will defend the state’s law, a stance applauded by the ALA. …

As it fights against these bills, the AAP and its affiliated groups, backed by massive corporations, have far more money and resources to apply to their legal work, and have spent far more on lobbying efforts and political contributions. …”

The ratchet: even demonstrably ineffectual and unnecessary copyright laws are never repealed – Walled Culture

“nd here is what the European Commission’s own evaluation found:

The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases….”

The report also wrote that the “empirical evidence, at this stage, casts doubts” on the need for a special copyright for a thriving database industry. So you might think that the obvious, rational thing to do would be to repeal an ineffectual, unneeded monopoly. Instead, the report noted that repealing the directive “would probably lead to considerable resistance by the EU database industry.” In other words, purely because the copyright industry would whine about it, the European Commission’s report recommended leaving in place a law that by its own research was shown to be pointless.

 

This is a perfect example of the copyright ratchet: the fact that copyright always gets longer, stronger, and broader, and that once passed, copyright laws are never weakened or repealed. It’s one of the reasons why copyright is such a disaster today. Its laws were framed for the analogue world, and the copyright industry refuses to countenance updating them to make them fit for the digital world. Indeed, as the upload filters in the EU’s horribly-misnamed Directive on Copyright in the Digital Single Market show, new laws are actively making things worse.”

New transparency bills would force teachers to post instructional materials – The Washington Post

“…Lawmakers in at least 17 state capitols and Congress are pushing legislation that would require schools to post all instructional materials online. Their goal, at least in part, is to enable parents who distrust their children’s schools to carefully examine teaching materials — enabling protests or, in some cases, giving people fodder to opt their children out. That includes materials on race and racial equity but also any other topic that might spark disagreement….”

Simplicity, flexibility, equity – IFLA submits comments on South Africa’s Copyright Amendment Bill – IFLA

“IFLA has responded to a call for comments on the South African Copyright Amendment Bill, highlighting the need to reject proposals that will have a chilling effect on the work of libraries, and deepen divisions in terms of access to education, knowledge and culture.”