Last Updated on April 5, 2021, 1:52 pm ET
Several weeks ago, the United States Patent and Trademark Office (USPTO) hosted a copyright seminar at its Global Intellectual Property Academy for two dozen intellectual property officials primarily from countries in Latin America, Asia, and Africa. While the first several days involved an “overview” of copyright and mostly time with United States government officials, September 22 was labeled “Industry Day.” The speaker list revealed a very heavy focus on rightholders, in several cases the panels did not have any voices advocating for the importance of consumers and the role of limitations and exceptions in copyright law.
Although I appreciated the opportunity to have participated on a panel on issues related to publishing, I was disappointed to learn that USPTO planned such a highly unbalanced lineup of speakers, overall. By hosting a day almost exclusively comprised of copyright maximalists, USPTO provides its audience, intellectual property officials in other countries, only one side of the story.
Balance is critical in a functional copyright system to ensure that user rights are protected. In addition to the numerous specific limitations and exceptionsin copyright law, the United States has a strong “safety valve” in its copyright system: fair use. This flexible doctrine accommodates new technologies and circumstances. It ensures that Congress does not need to pass new legislation each time a new limitation or exception is needed. Fair use, of course, is not limited to consumers of copyrighted goods and is essential to rightholders as well. Rightholders have successfully relied on the right of fair use in litigation, even though they often complain about consumers who rely on this doctrine. The U.S. Government also relies on fair use; the Patent and Trademark Office itself relies on it in the patent examination process and for photocopying materials. Despite the importance of fair use and other limitations and exceptions, the panels appeared to be heavily skewed only toward discussing the rights of rightholders. Absent from these panels were voices like documentary filmmakers, remix artists, consumer groups and others who would provide different perspectives from the traditional content industry and give the audience a more balanced view of the United States copyright system.
On my own panel, the other speakers included Allan Adler of the Association of American Publishers (AAP), Ryan Fox of the Authors Guild, and Michael Healy of the Copyright Clearance Center (CCC). All of these groups strongly advocate for greater rights of rightholders and have been involved in recent cases opposing fair use (such as Authors Guild v. HathiTrust or the Georgia State E-Reserves Case), as parties to the case, as amici, or by funding the litigation (or some combination).
These USPTO seminars would benefit from a more diverse groups of speakers who can provide meaningful balance.
Below is the full list of topics and speakers from “Industry Day”
Overview of Key Issues facing the Music Industry
Part 1: Efficient and fair licensing, collection and distribution of royalties
Tim Dadson, Assistant General Counsel, SoundExchange
Erich Carey, Vice President & Senior Counsel, Litigation at National Music Publishers’ Association (NMPA)
Part 2: Sound recording licensing
Steve Marks, Chief, Digital Business & General Counsel, RIAA
Greg Barnes, General Counsel and Director of Governmental Affairs, Digital Media Association (DiMA)
Overview of Key Issues facing the Audiovisual (Film) Industry
Kevin Rosenbaum, Of Counsel, Mitchell Silberberg & Knupp LLP; Counsel to the International Intellectual Property Alliance (IIPA)
Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company
Paula Karol Pinha, Director of Public Policy, Latin America -Netflix (invited)
Overview of Key Issues facing the Software Industries
Ben Golant, Entertainment Software Association (ESA)
Christian Troncoso, Director of Policy, Business Software Association (BSA) | The Software Alliance
Chris Mohr, Vice President for Intellectual Property and General Counsel, Software and Information Industry Association (SIIA)
Overview of Key Issues facing Photographers and Visual Artists
Joshua J. Kaufman, Chair, Art, Copyright & Licensing Practices, Venable LLP
Tom Kennedy, Executive Director, American Society of Media Photographers (ASMP)
Overview of Key Issues facing the Publishing Industry
Michael Healey, Executive Director, International Relations, Copyright Clearance Center (CCC)
Allan Adler, General Counsel and Vice President for Government Affairs, Association of American Publishers (AAP)
Ryan Fox, Editorial Director, Author’s Guild
Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries