Back in 2011, legislation was introduced in the U.S. House of Representatives that targeted “piracy” of copyrighted works. These were known as SOPA and its U.S. Senate counterpart, PIPA. The OTW has written about the issue several times. Thanks to activism on the part of Internet users and the participation of various large, well known online sites, the legislation was shelved.
Recently concern has emerged among fan communities that the legislation is back and will result in radical changes in how fans will be able to create and share fanworks. While it’s wise for fans to be vigilant in protecting their rights, it’s also important to avoid misinformation.
The current alarm seems to be in response to a paper published by the U.S. Commerce Department earlier this summer. In this paper they have asked Congress to amend the Copyright Act itself to make it a felony to reproduce or distribute at least 10 or more copies of copyrighted works with a total retail value of at least $2,500. In other words, their stated intention is to match up aspects of 20+ year-old laws to make them more consistent with each other when applied to downloading and streaming. Whether that’s a good idea or not is outside the OTW’s focus on fanworks, because streaming of fanworks would still be protected under Fair Use as transformative works. To be clear, the revision proposed by the Commerce Department may have been included as part of SOPA, but nowhere in the recent Commerce Department paper did they ask Congress to bring back SOPA wholesale, with its broader provisions about blocking websites.
Only the U.S. Congress can create legislation by writing a bill; the Commerce Department is an administrative body and it can’t make something a felony, although it can influence legislation in various ways, including through the U.S. Trade Representative’s negotiations with other countries. Assuming that legislation was written and brought before congressional committees, there would be an opportunity for anti-SOPA forces to weigh in. Further, if this particular Commerce Department proposal did become law, it would have no direct impact on fanworks or transformative works because of the fair use provisions of the Copyright Act.
To be clear, the provision proposed by the Commerce Department could have some impact on fandom activities. If it were to become law it could affect, for example, live group viewings of TV shows or films through unlicensed sites. It could also potentially affect whether certain websites implemented screening mechanisms that didn’t allow for fair use, though other aspects of copyright law are likely to be much more important than a change in criminal penalties. But even if the proposed law were enacted, it wouldn’t have any direct impact on transformative fanworks like those hosted by the AO3. Such works aren’t, and wouldn’t become, actionable infringement because “fair use [including in a transformative work] is a lawful use of copyright.”
If you have questions about legal matters related to fanworks and fan activities, you can always send a message to the OTW’s legal team (and thank you to those who alerted us to this matter!); please get in touch with us if you see statements that a certain proposal or piece of legislation would force the OTW and/or AO3 to shut down. We are advocates for and about fandom, and we will protect fans’ rights to be creative and share their creativity noncommercially, and work to stop or overturn any laws that would block fans from doing so. You can also subscribe to OTW News through the platform of your choice to stay informed.