The OTW’s Legal Committee has been representing fans in a series of discussions dubbed “The Green Paper Roundtable”, which are part of the U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO)’s efforts to seek public comments on copyright policy issues.
The OTW’s earlier participation led to our team having a seat in these ongoing discussions to advise the NTIA/PTO on a legal framework for the creation of remixes.
The USPTO has posted the video and transcript of its Los Angeles Green Paper roundtable which was held on July 29. Unfortunately, the transcript is not of the best quality though it may be helpful to some.
The remix panel, which the OTW participated in, is the second panel of the morning (starting at about 1:56:00 of the morning video).
Praise for the OTW and Fans’ Participation
Mitch Stoltz of the Electronic Frontier Foundation gave a shoutout to the OTW’s Green Paper submission linked above:
“I was moved by the passion of a lot of the advocates on this panel on all sides of this issue and I’m moved by art and creative work of all kinds. I want to ask everyone here and everyone watching online that if you too are moved by creative work and the passion of the people who create it is to take another look at the green paper comments submitted by the Organization for Transformative Works.
This was pages and pages of incredibly moving personal stories about people, and these are, for the most part, marginalised people. These are women, these are people of colour, these are new Americans, these are LGBT, using fanwork, using video and writing and music and other media and using mainstream creative work to talk back to popular culture, to participate in popular culture, to enrich it and maybe to change it, and I was moved to tears by some of these stories. These are folks who, most of them will never be able to afford the hourly rates of Dina [LaPolt] or Jay [Cooper] or even lesser attorneys. Some of them will, some of them will probably become mainstream artists and in so doing change our culture for the better. Most won’t, certainly they don’t right now.
I will encourage everyone, and I encourage the task force and the copyright office to take another look at those comments and once you have I think there is no way that anyone would be able to come back to the task force and say that these people are not creative, that they are not creators, that they don’t contribute to our shared culture, that they don’t deserve the same protection and the same freedom that our laws give to mainstream artists. Thank you.”
You can view his comment at 3:35:25 of the afternoon video.
Standing Against Barriers to Speech
Betsy Rosenblatt of the OTW also said:
“I think we’re looking at two very competing rights. One is the right to control what happens with your work. The other is the right of speech. And, as Jay pointed out, many people struggle for years to hone their crafts. Many of those people who are struggling for years to hone their crafts are doing so by playing cover songs, for example, or by making mash-ups through which they learn editing skills, video skills, that sort of thing. And licensing not only prices many of these struggling artists out of creation, but also breeds censorship, as I think the examples highlight. Naturally, Steven Tyler doesn’t want people using his music, in that particular example, but that’s exactly why we have fair use, to allow people to make commentary without getting his permission.
Legal uncertainty permits over-reaching by copyright holders, and, particularly in concert with the digital millennium copyright act notice and takedown procedure, can be used to suppress commentary or criticism by playing on the risk aversion—the rational risk aversion—of intermediaries who don’t want their safe harbour taken away. And uncertainty also disproportionately chills speech by the smallest and least privileged speakers. Our fair use regime generally favours transformative non-commercial speech, so generally would favour—and we hear this all the time, this isn’t just the Organization for Transformative Works saying it—generally favours the sort of remix embodied in, the sort of mash-up embodied in fanworks and fan cultures, but when paired with the burden-shifting regime of the DMCA, ends up being very chilling because it moves the burden of proving non-infringement to the remix artists and away from proving infringement to the copyright owners.
What that means is it harms those who already face financial or social barriers to speech, or having difficulty finding or paying for legal services. As an example, we at the OTW get e-mails and calls from men who say ‘I got a takedown notice. I’m going to fight it. Help me.’ We get calls and e-mails from women who say “‘I’m afraid to post my ‘My Little Pony’ fiction because I’ll get kicked off the internet.’ Those are very different reactions to the same law based on the amount of privilege that they have going in. So I have some concrete suggestions for how to approach this. Remix creators need to know that they have a right to create without permission, and they don’t just exist at the sufferance of copyright owners. And the law should expressly permit non-commercial remix through doctrines very much like what we have now—fair use, safe harbours. But—and these should be flexible—but not permit the sort of uncertainty we have now. For example, they shouldn’t make remix illegal, as 1201 would, if not for the copyright office exemptions provided in 2010 and 2012. And we should seriously consider the possibility of a specific safe harbour for non-commercial remix as Canada has.”
You can view Betsy’s statement at 2:24:10 of the morning video.
OTW’s Legal Committee works on behalf of fans and fandom to make sure our voices are represented in these important discussions, and we will continue to update you on these developments. As part of the Organization for Transformative Works, a 501(c)(3) non-profit organization, OTW Legal exists entirely on the generosity of our donors. If you appreciate their work, please consider donating today.