We filed comments with the U.S. Intellectual Property Enforcement Coordinator yesterday, as did hundreds of individual artists and creators, but there were many other submissions the USIPEC, Victoria Espinel, and her team should find of value. A common theme among just about every one I’ll be summarizing here — the importance of education on the value of copyright to the economy, our society, our culture, consumers, and present and future creators — is a key theme of our own filing. Here are some other highlights.

AFTRA, DGA, IATSE, NMPA, SAG, MPAA, RIAA

A broad coalition of creative guilds, unions and trade associations — the American Federation of Television and Radio Artists (AFTRA), the Directors Guild of America (DGA), the International Alliance of Theatrical Stage Employees (IATSE), the National Music Publishers’ Association (NMPA), the Screen Actors Guild (SAG), the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) — submitted a joint filing. The comments contain useful data on the role copyright plays not just in these industries but for the guild and union members in those industries. The filing offers several constructive suggestions to not only facilitate greater enforcement of copyright by government agencies but also to make it easier for rightsholders to enforce their own rights, and emphasizes the significant harm resulting from the theft of creative content:

The creative community organizations represent the companies and people who make and disseminate American motion pictures, television programs, music, and other copyrighted works. The livelihoods of millions of creators and workers depend on the continued growth and vitality of these creative industries… The undeniable fact is that the theft of intellectual property today in its many forms is rampant, and that such theft is and will continue to have a significant adverse economic impact both on the directly affected industries and the United States as a whole… If we are to make meaningful inroads into the problem, new solutions are required. We hope that this will be the first step in an iterative process for developing, vetting, and implementing an ambitious, flexible and comprehensive plan for attacking the copyright theft and trademark counterfeiting that so fundamentally threaten U.S. economic recovery, current and future job growth, international competitiveness, and the creativity and innovation that have been the hallmark of the content we have created and financed for close to one hundred years.

The joint filing notes that the threat takes many forms, but “the growth of online theft of copyrighted works presents the greatest and most urgent challenge.” Broadband enables exciting consumer-friendly business models but also allows for widespread abuse of creators’ rights:

Online copyright theft undermines our economy, steals our jobs and threatens our national interest. Marshaling and coordinating the resources of government to attack this problem, including by encouraging other industries to take all reasonable steps to deal with it, should be a principal focus of the Joint Strategic Plan. We welcome this opportunity to work with the Administration on these issues at a time when similar efforts are being undertaken in France, the U.K., Germany, the European Union, and other countries throughout the world.

MPAA

The MPAA submitted its own filing, which recognized that motion picture production occurs in every part of the U.S. in communities large and small (nearly 40% of productions in the U.S. are done outside of California or New York), and “the livelihoods of millions of American creators, talent, craftspeople and workers depend upon a strong and vibrant production industry.” There is a large impact on small businesses across the U.S.:

The motion picture and television industry is a nationwide network of small businesses, comprising more than 95,000 businesses in total in 2009, including:

* Over 49,000 businesses involved in film and television production-related activities, including not only production studios but core industry suppliers such as wardrobe companies and camera equipment firms. These businesses are largely entrepreneurial small businesses: 93 percent employ fewer than 10 people. They are located in every state in the country; in fact, the majority (64%) are located outside of California and New York.

* Over 45,000 businesses involved in distributing films and television shows to consumers, including movie theaters, specialized video retail and rental operations, television broadcasters, and cable companies, among others. These businesses are also spread far and wide across the country – 80 percent are outside California and New York.

Motion picture and television production relies on a network of businesses to bring projects to fruition, not only the core industry suppliers noted above, but also innumerable general suppliers, such as caterers, lumberyards, apparel retailers and florists. In 2008, the production industry alone made $40.0 billion in direct payments for goods and services to more than 144,000 businesses large and small, in every state in the country.

BROADCAST MUSIC, INC.

Broadcast Music, Inc. (BMI) in its comments emphasized how it “offers an easy and friction-free solution to clear the public performing rights to more than 6 million musical works with one simple license and one payment. This business model of blanket licensing has been endorsed by virtually all parties across the copyright licensing spectrum.” In a great description of composers and the importance of their rights, BMI wrote:

When the Federal government thinks of BMI’s affiliates, and BMI is aware of President Obama’s love for music, one should not only think about the superstars. The typical songwriter is a small business person who does not receive the majority of his or her income from sales of recordings of his or her own songs. Instead, most songwriters rely on their public performing rights to generate the majority of their income. BMI represents the livelihood of more than 400,000 of these small family businesses. The typical songwriter is working out of a home studio, often borrowing money when necessary, sometimes working two jobs. The typical songwriter receives a modest income stream for his or her creative efforts. You may not know their names, but you see them in the supermarket pushing a grocery cart or on the soccer field with their kids. They may be your neighbors. When you consider BMI and the music industry, please think of these songwriters and composers. And think of American jobs.

BMI noted that its experience as a collective copyright licensing organization working with blanket licensing has been “an effective response to the blizzard of copyright piracy brought about by the broadband Internet revolution.” It suggested that the U.S. IPEC keep this “in the forefront of mind when considering methods to address digital copyright piracy.” The performing rights organization also noted the notice-and-takedown provisions of the Digital Millennium Copyright Act are being used “as an excuse for failing to license copyrighted content that is obviously contained all over their offerings.”

AMERICAN SOCIETY OF COMPOSERS AUTHORS AND PUBLISHERS

ASCAP is the nation’s oldest performing rights organization, and its filing noted that it returns a higher percentage of income earned for its members than any other PRO worldwide. ASCAP cited the Copyright Alliance filing for evidence of the harms of piracy, but it noted that its members suffer any time the blanket licenses ASCAP offers are not used, from restaurants to web sites:

As a result of the many thousands of users across the country that refuse to take a license, the copyright owners have long been forced to play infringement “whack-amole.” For every user that is found liable for infringement, another two infringers pop up. ASCAP could not possibly address all of these cases of infringement. After all, its raison d’etre is to distribute royalties to its members, not expend them on infringement litigation.

The problem is acute outside the U.S. ASCAP called on the US IPEC to work closely with the U.S. Trade Representative to address the many establishments and others in that country that blatantly disregard the copyrights of ASCAP composers. It also said bilateral trade agreements should be a vehicle to simplify the steps required for a U.S. copyright owner or enforcement agent to pursue an infringement suit abroad.

Of course, ASCAP takes proactive steps to reduce the culture of piracy; for example, its ASCAP Foundation produces strong classroom materials for young students. All of ASCAP’s free curricula are available on the Copyright Alliance Education Foundation web site.

NEWSPAPER ASSOCIATION OF AMERICA

Copyright infringement is a major challenge to the ability of newspaper journalists to continue to provide us quality, balanced coverage of local, regional, national and international news. Thus it’s no surprise the Newspaper Association of America (NAA) filed comments in the IPEC proceeding. NAA said it “submitted the comments to highlight the importance of intellectual property protections for newspaper content regardless of the platform, to summarize industry initiatives to track, detect and license content being reused on the Internet without permission, and to emphasize the important role of the federal government to ensure that intellectual property rights in newspapers and other creative works are protected.”

NAA noted that more than 335,000 people are employed in the U.S. newspaper publishing industry in 2008 but that number is in decline, even as the Pew Research Center’s Project for Excellence in Journalism concluded that most of what the public learns “is still overwhelmingly driven by traditional media — particularly newspapers.” Newspapers are embracing the digital age, posting material online, providing value-added content for their online readers, and also using technology to wrap their content in a “digital permissions framework” that makes it easy for third parties to license and publish work.

Note the interesting work newspapers and wire services are doing with tech companies such as Attributor, both tracking infringement online while also facilitating access to ad revenues for copyright owners. This is critical, as an Attributor study of 100,000 articles from 157 American newspapers over one month noted more than 75,000 unlicensed websites reusing U.S. newspaper content.

SOFTWARE AND INFORMATION INDUSTRY ASSOCIATION

There is good information in the Software and Information Industry Association (SIIA) comments on the many different ways copyrighted material is infringed online, often hiding on sites and through services that also host legal content, thus confusing consumers. From the comments:

SIIA’s membership includes a variety of businesses: software publishers, educators, test publishers, book publishers, magazine publishers, even newspaper and online content publishers. Combined, these companies continue to lose billions of dollars a year to Internet piracy. To protect its members, SIIA employs a global strategy that proactively addresses Internet piracy of SIIA’s member companies’ copyrighted works. Piracy has no geographical boundaries, thus SIIA monitors the Internet in multiple languages in order to protect member companies on an international scale.

That international emphasis carries forward into its policy recommendations:

We cannot stress enough how important it is to SIIA and its members that all countries — and most importantly, the United States — have in place adequate and effective enforcement mechanisms for dealing with the theft of intellectual property. Without workable means for enforcing one’s intellectual property rights, the rights have essentially little value. It is, therefore, imperative that barriers to enforcement not be erected — whether bureaucratic or substantive — and that, where appropriate, domestic and foreign governments take appropriate steps to remove existing barriers to enforcement and improve enforcement abroad.

GRAPHIC ARTISTS GUILD

Another guild filing was the Graphic Artists Guild, which noted the broad scope of its industry:

Graphic art and illustration is used commercially in virtually every industry in the United States, and in a wide variety of media. Hundreds of thousands of Americans earn their living as graphic artists and illustrators, working both full-time and part-time. Presently, 1,063 colleges, universities, technical and vocational schools have graphic design and illustration programs… Graphic art and illustration are an integral part of the US economy and used on and with virtually every product sold and service produced in the country.

The Guild said consumers need to better understand copyright, that many believe if one is technologically capable of right-clicking and saving a file, “that no copyright protection or limitation exists for the file they are using. They believe that if their computer allows them to “save” or “copy” the digital file, it must be legal. They include recommendations on how to make it easier for graphic artists to protect their work online, as well as make it easier for those who wish to make legal use of images to locate the rightsholder.

PICTURE ARCHIVE COUNCIL OF AMERICA

Another visual arts group, the Picture Archive Council of America, in its filing also noted the “right-click” scourge facing photographers and stock photo houses. It cited a PicScout study for the Stock Artist Alliance that found nine out of every ten images on commercial web sites were infringed. A 2010 follow-up study by PicScout found a three-times increase in infringement volume over its 2006 data. Among PACA’s recommendations was a way to ease administrative burdens on those infringed seeking to enforce their rights. In addition:

PACA encourages the use of technology solutions to encourage proper licensing and deter infringements. Technology companies are offering image recognition and image tracking solutions that can connect a potential user to the image owner or image licensor.

PPL (UK)

Quite compelling comments were submitted by a Copyright Alliance board member, PPL, a not-for-profit that represents about 47,000 individual British and overseas performers and more than 5,000 British record companies, licensing their rights in sound recordings and music videos for use in broadcast, public performance and new media. PPL noted that “[i]ntellectual property is of global concern,” and emphasized the importance of education:

There is no doubt that much more has to be done on both sides of the Atlantic in explaining to the general public, especially the young generations that creators everywhere as well as those who continue to invest in finding, nurturing, developing and supporting new talent need to get paid for their creative effort… Whilst this battle for the hearts and the minds will be difficult, at the same time it represents a very exciting and ultimately hugely rewarding challenge… We have also been very active in working closely together with our British Government by taking part in and contributing towards several initiatives focused on schools, colleges and universities in a user-friendly process of explaining the concept, importance and value to copyright to society, our culture and the British and global economy.

REED ELSEVIER

The publisher of more than 2,000 journals — including ones done in parnership with U.S. scholarly societies such as the American College of Cardiology and the American College of Surgeons — Reed Elsevier “continues to face significant challenges to the protection of its intellectual property,” it said in its filing. Its journals during the last ten years have become highly accessible — the filing cites a study showing that 94% of university and college-based respondents found access to information very easy or fairly easy — but some policy decisions have been undermining the ability of copyright owners to produce journals and provide easy access. This has been an issue since an appropriations bill allowed NIH to publish on its site journal articles whose publication and peer review was funded by journals. The comments stated that “[a]ny public access policy implemented by the government should enhance accessibility without undermining U.S. IP protection and enforcement.” (We offered the same perspective in a recent submission to a call for comments from the White House Office of Science and Technology Policy.)

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE

The International Intellectual Property Alliance sponsors some great research, some of which we cited in our own filing. In its filing, IIPA reiterates its own studies on the importance of core and total copyright industries to economic growth, job creation, and exports, then makes some recommendations related to international enforcement. IIPA called for increased funding for agencies involved in international IP enforcement; the development of “concrete action plans for all countries and territories named to the Priority Watch List each year” (egregious countries on copyright that emerge from the US government’s Special 301 interagency process); facilitate training and capacity building within agencies “in order to avoid duplication or working at cross-purposes, and to ensure that these valuable training and assistance resources are targeted as intelligently and expended as efficiently as possible”; and “provide strong support to provisions of pending legislation (S. 1631) that would enhance the enforcement capabilities of U.S. customs officials against piratical imports, including the import of devices aimed at circumventing technological measures used by U.S. copyright owners to control access to their works.”

ARTS+LABS

An alliance of members of the technology and copyright industries, Arts+Labs filed comments arguing “that the wholesale digital theft of intellectual property such as music, video, software, games, news, and other content undermines the creative community and poses a significant long-term threat to our economy and to the continued evolution of the Internet. If intellectual property rights are not enforceable our information and our economy will suffer.” More:

Some argue that the revolution in technology demands a laissez-faire attitude towards copyright and market rules. Arts+Labs strenuously disagrees.

Even in a world of “bits” and “bytes,” the continued development of content is contingent on respect for creators’ intellectual property. Authors, musicians, filmmakers, inventors, software writers, game developers, journalists and others who earn a living by creating content are entitled to control the use of their work and to a genuine opportunity to earn fair and adequate remuneration. Absent those assurances, the professional creators on which so much of our economy is based will be discouraged from new creative work. The result will be diminution in the volume and quality of online content and the loss of the general economic benefits that flow from this work.

Among the recommendations of Arts+Labs was for “the Department of Commerce or other appropriate agency to undertake and complete in 2010 an independent assessment of the extent of online digital theft and its economic impact on professional creators.”

AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM)

The non-profit coalition of independent music labels, A2IM, in its filing gave an “overview of the plight of our independent music community.” The independent music label sector makes up almost 40% of digtal sales and well over 90% of all music released in the U.S. This music community “plays a vital role in the continued advancement of cultural diversity and innovation in music at home and abroad, but we need the assistance of the U.S. government in the areas of intellectual property and anti-piracy enforcement.” More:

Of all the technological developments in recent history, the Internet represents the most potent platform for entrepreneurship and expression our community has witnessed. Yet it also has produced tremendous uncertainty among those who earn their living from their copyrights — from artists to labels to songwriters to publishers and all of the businesses; distributor, aggregators, manufacturers, etc. that support our community and bring us to market.

A2IM notes how services such as Pandora and eMusic allow its community to compete on a more level playing field, and also interact directly with the consumer. It praises attempts to preserve an open Internet, but said rules should only apply to legal content and services, “as it has become increasingly clear that the music sector must be free to pursue any and all available means of combating the unlawful sharing of copyrighted content.” It also directs the USIPEC to examine “certain loopholes that exist in the DMCA which currently considers it ‘legal’ for sites to allow unlicensed but copyrighted user-generated content to be posted on their sites (e.g.. YouTube, Myxer, Grooveshark, and many others) while leaving the burden on the copyright owner to file ‘take down notices’ to the sites for each unauthorized posting when they become aware of them,” a tremendous burden on independent artists. “A2IM member labels simply do not have the means to engage in copyright enforcement on the Internet.”

INFORMATION TECHNOLOGY AND INNOVATION FOUNDATION

A welcome filing was submitted by the Information Technology and Innovation Foundation. ITIF’s press release said:

With IP theft costing the U.S. billions of dollars a year and the resultant jobs dependent on IP, ITIF argues that the U.S. needs to significantly step of enforcement against nations that systematically steal, extort or otherwise gain U.S. IP without paying for it. Part of this must include a robust partnership with Europe to take action against these other nations, but the U.S. should also use new IT tools to better track and prosecute IP theft.

The ITIF filing contains detail on international infringement, not just with copyrighted goods but other IP-related exports from automobile parts to pharmaceuticals. Specific suggestions include increased funding for USTR IP trade agreement enforcement, coordination with international development organizations, serving as a role model to other countries on online copyright enforcement, and supporting innovation in online IP enforcement.

INSTITUTE FOR POLICY INNOVATION

As with IIPA, the Institute for Policy Innovation was one of the think tanks producing data cited in our filing. IPI in its filing reiterated key data from its report, “The True Cost of Copyright Piracy to the U.S. Economy,” such as the loss to the U.S. economy of $58 billion annually and 373,375 jobs. Among its asks of the USIPEC: 1) Resist attempts to weaken the DMCA or the Trade Related Aspects of Intellectual Property Rights (TRIPS). 2) Complete the Anti-Counterfeiting Trade Agreement (ACTA) and include IP protection in future trade agreements. 3) Resist undermining copyright owners through extensions of fair use and targeting of technical protection measures.

PROPERTY RIGHTS ALLIANCE

The Property Rights Alliance in its filing focused on the critical role IP plays in the US economy and GDP (their International Property Rights Index was one of the studies we cited in the Copyright Alliance filing). The PRA called for continued strong IP enforcement provisions in any trade agreements the USTR negotiates, and urged the completion and implementation of the Anti-Counterfeiting Trade Agreement. The filing also emphasizes how important it is for policymakers not to interfere with the ability of copyright owners to manage their rights through the use of technology.

This entry was posted on Thursday, March 25th, 2010 at 3:04 pm by Patrick Ross and is filed under Obama. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.