Policy comments and letters

June 2017 Comments to the U.S. Trade Representative regarding the North American Free Trade Agreement

As the U.S. Trade Representative (USTR) embarked on the process of renegotiating the North American Free Trade Agreement (NAFTA), OTW Legal advocated for an open and transparent negotiation process and emphasized the importance of including exceptions and limitations such as fair use in any provisions concerning intellectual property protection.

March 2017 Comments to Copyright Office Regarding Moral Rights of Attribution and Integrity

On March 30, 2017, OTW Legal submitted a response to the U.S. Copyright Office’s request for comments regarding whether the U.S. should adopt additional laws requiring that authors be identified in connection with their works (known as a right of “attribution”) and requiring an author’s permission to make changes to copyrighted works (known as a right of “integrity”). Collectively, these are known as “moral rights.” The OTW argued that a right of integrity would harm free expression, an that while in general attribution norms are often beneficial and common within fan communities, they should not be given the force of law. Instead, attribution rights are well-protected by contract law, additional legal rights would be a poor fit for common forms of collective and sequential creation, and the wide variation in attribution norms in different communities (for example, fandom, academia, moviemaking, and advertising) demonstrates that individual communities should be allowed to determine when and how attribution is best accomplished.

February 2017 Follow-Up Comments to Copyright Office Regarding DMCA Section 512

In a follow-up to our March 2016 comments, OTW Legal answered questions from the Copyright Office regarding the notice-and-takedown provisions in Section 512 of the U.S. Digital Millennium Copyright Act. Among other things, the OTW drew on its experience operating the Archive of Our Own and the experiences of its members in dealing with takedown notices to highlight ways in which the current system works well and ways in which it can be improved.

October 2016 Comments to Singapore

On October 23, 2016, OTW Legal submitted comments to the government of Singapore in response to a Public Consultation on proposed changes to Singapore’s copyright regime. We emphasized the benefits of a balanced copyright regime with a robust fair use doctrine that permits the creation of noncommercial transformative works without permission, and suggested the possibility of a “user generated content” exception to copyright protection to augment fair use. We drew on our experience obtaining the vidding exemption to the DMCA’s “anti-circumvention” provisions to discuss Singapore’s proposals regarding “technical protection measures” for copyrighted works. We also also urged Singapore to adopt simple and consistent rules regarding the duration of copyright protection, discussed the benefits and drawbacks of granting authors a right to attribution, and discussed proposals for dealing with “orphan” works whose copyright owners are not easily identified.

June 2016 Comments to the U.S. Copyright Office

On June 24, 2016, together with the EFF and Professor Eric Goldman, the OTW submitted comments to the U.S. Copyright Office in response to a Notice of Proposed Rulemaking that would make sites that rely on the DMCA safe harbor–like the Archive Of Our Own–to renew their registrations every three years. We argued that this new requirement could harm small service providers and expose providers to risk for small oversights.

June 2016 Comments to the European Commission

April 2016 Comments to the European Commission

The OTW explained that while notice-and-takedown systems are designed to make intellectual property enforcement faster and less expensive, it is “crucial that these savings do not come at the expense of suppressing non-infringing speech.” The OTW also urged the Commission to recognize that significant innovation and creativity can come from the non-commercial sector, and not to make rules that only large businesses will be able to follow.

March 2016 Comments to the U.S. Copyright Office Regarding DMCA Section 512

In response to a request by the U.S. Copyright Office, OTW Legal commented on the notice-and-takedown provisions in Section 512 of the U.S. Digital Millennium Copyright Act. The OTW argued that the law is far from perfect, but that it provides an important framework that allows online creativity to thrive. It reminded the Copyright Office that many entities that rely on the DMCA, like the OTW’s Archive of Our Own, are small and conduct individual hand-review of takedown notices, and lack the resources to monitor user-provided content for infringement. The OTW also highlighted the importance of mechanisms for preventing and punishing improper takedown notices, and identified ways in which the current system of counter-notification is inadequate to protect users engaged in fair use and free expression.

Comments to the US Copyright Office

In response to a request for comments by the U.S. Copyright Office, OTW Legal argued that section 1201 of the Digital Millennium Copyright Act is overbroad and unnecessarily chills valuable creation and innovation by preventing people from circumventing technological protections on copyrighted materials even for otherwise-noninfringing purposes such as fair use. We also argued that the triennial rulemaking procedure, under which we have successfully obtained exemptions for vidders, is unduly burdensome and proposed concrete suggestions for improvement.

Comments to the European Commission

In December, 2015, OTW Legal submitted a comment in response to to European Commission’s request for comments regarding online platforms, online intermediaries, and cloud computing. The OTW’s comments emphasized the dangers of regulating based on the false assumption that all online platforms and intermediaries are large commercial entities like Google and eBay.

Comments to the U.S. Intellectual Property Enforcement Coordinator

On October 16, 2015, the OTW, together with ally Public Knowledge, submitted comments to the U.S. Intellectual Property Enforcement Coordinator of the Office of Management and Budget in response to that office’s request for comments on its plan for intellectual property enforcement. The comments made specific recommendations and emphasized the importance of considering the interests of the public at large, including users who can be harmed by overly aggressive enforcement of intellectual property laws.

Comment of the OTW to the South African Government

In connection with the South African government’s copyright reform process, the OTW filed a comment supporting South Africa’s adoption of a fair use standard to replace narrow, outdated exceptions in its copyright law. As the OTW said in its comment, we believe that it is vital “to make the Government aware of the richness and importance of noncommercial remix communities and the works they produce, in South Africa and elsewhere. Empirical research reveals that remix culture is a global phenomenon, with similar characteristics around the world.”

Letter to U.S. Congress

OTW Legal joined a coalition of organisations, academics, and legal professionals in sending a letter to the United States Congress regarding the importance of ‘a balanced copyright system [that] benefits creators, users and innovators’ and encourages free expression.

Submission to the Australian Government’s Online Copyright Infringement Discussion Paper

OTW Legal, jointly with Creative Commons Australia, contributed a Submission to the Australian Government’s Online Copyright Infringement Discussion Paper on September 5, 2014, recommending against a proposal by the Australian government. The proposal expanded the definition of “authorisation” liability for internet service providers. This would mean that, even if they couldn’t stop individual infringements by individual users, they could have to change how their services operated, such as by shutting off internet access for accused infringers or by filtering users’ activity.

Comments to the European Commission

In February 2014, the OTW’s Legal Committee registered the OTW in the European Union’s Transparency Register and filed a submission to the European Commission in response to its call for comments concerning possible EU copyright reform.

Comments to the PTO/NTIA

In October 2013, the U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO) sought public comments on copyright policy issues, including the legal framework for the creation of remixes. Our attorneys used stories submitted by fans to explain to these agencies, which are likely to propose new legislation about copyright, why any change in copyright law should favor freedom to make transformative works.

OTW Legal staffer Rebecca Tushnet also appeared on a panel on Legal Framework for Remixes which was asked to testify to these agencies in connection with the same public comment process on December 12, 2013. (She begins to speak at :33 minutes).

OTW Legal chair Betsy Rosenblatt has represented the OTW at a Green Paper Roundtable working group to develop a legal framework for the creation of remixes. Her appearance on July 29th can be viewed starting at 1:56:00 of the morning video.