Major publishing houses including HarperCollins and Penguin are suing the non-profit Internet Archive for its National Emergency Library, set up to provide access to books during the COVID-19 shutdown. The Authors Guild has supported the publishers’ copyright action.
[Mehtab Khan] The pandemic has put several pressures on the scope of fair use. Within a matter of weeks, millions of people lost physical access that they normally would have had through libraries and cultural institutions. Fair use was built to be flexible for circumstances like these. But now that users have changed the way that they are accessing copyrighted works, primarily through intermediaries, this has implicated copyright and fair use in novel ways.
On June 16, 2020, President Ramaphosa of the Republic of South Africa referred the Copyright Amendment Bill (“CAB”), which had been awaiting his signature for more than 18 months, back to the Parliament. This action appears motivated at least in part by the U.S. Trade Representative (“USTR”)’s concerns about the CAB’s inclusion of a fair use right. This is the most recent example of apparent ambivalence towards the “exportation” of fair use in U.S. trade policy over the past 25 years—notwithstanding that the Supreme Court has twice held that fair use is a built-in accommodation between the Copyright Act and the First Amendment.
Last week, South African President Cyril Ramaphosa returned the Copyright Amendment Bill and the Performers' Protection Amendment Bill back to Parliament for further consideration. The legislation had been passed by the National Assembly and sent to the President to be signed into law, but it had generated strong opposition from rightholder groups, including those in the U.S. such as the IIPA.
[Association for Progressive Communications and International Federation of Library Associations and Institutions] ... stakeholders across South Africa have being waiting for many years for the update of the country’s copyright laws. With the last reform having taken place 40 years ago, there is a pressing need to bring laws into the digital age, as well as to address the significant problems around the governance of rightholder organisations set out by the Farlam Commission. The resulting bill achieves many of these goals.
As I explained in my previous blog post, the open-ended fair use clause in the Korean Copyright Act (“KCA”) was introduced in 2011 in the course of implementing the Korea-US FTA (“KORUS”). Yet, this does not mean that KORUS mandates legislation of fair use. Instead, KORUS restricts the scope of fair use. Footnote 11 of KORUS §18.4:1 mentions fair use, but it’s purpose is to make clear that any limitation or exception to the reproduction right to temporary storage is restricted to the controversial three-step test, and even when Korea or the US introduces or maintains fair use, the three-step test prevails... Therefore, it is fair to say that the fair use clause of KORUS is a sort of by-product produced in a way that Korean government blinds dark sides of the overly expansive KORUS protection of copyright in temporary storage.
The United States Trade Representative’s Special 301 Report was published last week with one notable omission. Despite a concerted campaign by the International Intellectual Property Alliance, South Africa was not listed on any of the Report’s “Watch Lists” for its consideration of a sweeping copyright reform bill.
[Paul G. West, Derek Moore, Klaus Beiter and J.A.K. Olivier] Hereto our urgent request for the signing of the Copyright Amendment Bill, as was passed by both Houses and sent to your Office for assent after it was approved on 28 March 2019. We wish to specifically address the significance of the proposed amendments to the South African Copyright Act for access to learning materials in schools and higher education institutions in South Africa. The proposed “fair use” provision and specific exceptions for additional educational uses are not only compatible with international copyright law (the Berne Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and so on). They also pass the three-step test of international copyright law, as understood by the majority of international copyright law scholars.
[Meredith Jacob, Peter Jaszi, Prue Adler, Michael Carroll, Will Cross, Kristina Ishmael, Pernille Ripp and Carrie Russell] In recent days, as many teachers have faced an abrupt shift to online teaching, there have been questions about how copyright law applies to the translation of classroom-based practices of reading aloud to students to the digital environment. While many well-intentioned commentators have warned teachers against this practice, the fact is that copyright law -- specifically fair use -- permits many read-aloud activities online. As instructors and learners adapt to new educational environments, copyright concerns about reading aloud need not be among the challenges they face.
[Statement signed by over 150 librarians] This Statement is meant to provide clarity for U.S. colleges and universities about how copyright law applies to the many facets of remote teaching and research in the wake of the COVID-19 outbreak. We write this as copyright specialists at colleges, universities, and other organizations supporting higher education in the U.S. and Canada who work every day with faculty, staff, and librarians to enable them to make ethical and legal choices about copyright issues in online teaching.
[Samuel Trosow and Lisa Macklem] In the wake of the COVID-19 outbreak, Canadian post-secondary institutions are replacing classroom-based instruction with online teaching for the remainder of the Winter/Spring 2020 semester. ... As instructors grapple with the mechanics of making this unanticipated conversion, most attention is focused on how to use technological tools to accomplish this transition. Less attention is being given to copyright issues. We are worried that without some affirmative intervention in the form of copyright training, opportunities to take advantage of Canada’s broad fair-dealing rights may be missed. This article explains how copyright law applies to online course materials. We hope it will assist instructors, librarians, teaching assistants, students and administrators working in Canadian colleges and universities.
Abstract: This Article argues that U.S. copyright law provides a competitive advantage in the global race for innovation policy because it permits researchers to conduct computational analysis — text and data mining — on any materials to which they have access. Amendments to copyright law in Japan, and the European Union’s recent addition of limitations on copyright to legalize some TDM research, implicitly acknowledge the competitive benefits provided by the fair use provision of U.S. copyright law.