The OTW’s Legal Advocacy Project often offers their insight to governments around the globe by responding to inquiries, sending letters, or submitting comments on policies. This is an important part of the OTW’s mission to ensure that all fannish works are recognized as legal, transformative, and legitimate creative activities.
This is a core part of the OTW’s mission to protect and defend the fannish community from commercial exploitation and legal challenges.
This page is a list of policy comments and letters that the OTW has made. If you have any questions about them, please feel free to contact the Legal committee.
2022
Response to U.S. Copyright Office Inquiry on DMCA Section 512
May 2022
OTW Legal submitted comments in response to a U.S. Copyright Office inquiry regarding technical measures under section 512 of the Digital Millennium Copyright Act (DMCA). We explained that current technologies do not exist that would allow service providers (like the OTW) to distinguish between infringing and non-infringing material, and opposed any suggestion that the Copyright Office endorse or impose technical filtering measures on online service providers.
2021
Comments to U.S. Copyright Office on the CASE Act
April 2021
OTW Legal joined allies to submit comments to the U.S. Copyright Office in response to a Notice of Inquiry regarding implementation of the CASE Act. The CASE Act created a tribunal called the “Copyright Claims Board” (CCB) within the Copyright Office for handling copyright “small claims”, and gave the Copyright Office discretion regarding many aspects of the CCB and its operation. Our submission gave specific recommendations regarding how the Copyright Office should limit the scope of the CCB’s power, be impartial in communications regarding the CCB, and make it clear and easy for people to opt out of participation in CCB proceedings.
Comments on DMCA Discussion Draft
March 2021
OTW Legal submitted comments on U.S. Senator Thom Tillis’s discussion draft of the DMCA, which was published in December 2020. We argued that several aspects of the draft’s proposals would be counterproductive to the goals of progress and incentivizing creativity that the Copyright Act is designed to promote, and would be especially harmful to Internet users.
2020
Statement on DMCA Reform
December 2020
OTW Legal sent in a response to a U.S. Senate request for comments on particular questions relating to the DMCA, focusing on how changes would affect fans, fan creators, and transformative works. We argued that the current Section 512 safe harbor framework largely works and shouldn’t be upended, cautioning against new categories of platforms or broad powers for the U.S. Copyright Office.
Comments to U.S. Senate on the DMCA
June 2020
OTW Legal submitted comments to the U.S. Senate in connection with the Senate’s ongoing assessment of Section 512 of the DMCA. The OTW responded to a report by the U.S. Copyright Office; urged the Senate to consider the needs of Internet users, independent creators, and small service providers; and presented empirical data regarding Section 512’s effectiveness for transformative creators.
Testimony to the U.S. Senate on the DMCA
February 2020
- DMCA Testimony Video (begins at 1:30:30)
- DMCA Written Testimony (PDF)
OTW Legal testified before the U.S. Senate Judiciary Committee about the DMCA. Our testimony focused on how the safe harbor provisions of the DMCA work for small organizations like the OTW, how they advance creative expression by making sites like the Archive of Our Own (AO3) possible, and how they provide the legal flexibility necessary for a diverse Internet to survive. Our testimony also addressed the failure of the DMCA’s anti-circumvention provisions and the work the OTW has done in creating exemptions that protect vidders and similar creators from those provisions’ overreach.
2019
Coalition Letter to U.S. Senate on the CASE Act
July 2019
OTW Legal joined allies to oppose the CASE Act, which would create a copyright small-claims tribunal that could impose penalties of up to $30,000 on alleged infringers without due process.
Joint Statement of Principles Regarding Section 230 of the Communications Decency Act
July 2019
OTW Legal joined a diverse group of allies and experts to make a joint statement of principles about Section 230 of the U.S. Communications Decency Act, which provides protections for Internet platforms.
Section 512 Study Roundable
April 2019
Following up on March 2016 and February 2017 comments, OTW Legal participated in a U.S. Copyright Office roundtable regarding their long-delayed report on Section 512. The roundtable was intended to update the study’s record from 2017, when progress stalled on the report. The 2019 roundtable was attended by over 50 stakeholders—including copyright owners, platform representatives, legal experts, and advocates.
Comments to the New Zealand Parliament on the New Zealand Copyright Act
April 2019
OTW Legal filed a comment in response to New Zealand’s call for comments as part of the country’s review of its Copyright Act. The OTW relied on powerful testimonials from New Zealand fans to demonstrate the many social and cultural values of laws that permit and promote creation of transformative works, and argued that New Zealand should retain and expand fair dealing policies to advance those priorities.
Comments to the U.S. Copyright Office on the Music Modernization Act
March 2019
OTW Legal responded to a Notice of Proposed Rulemaking by the U.S. Copyright Office concerning the meaning of “non-commercial” use as contemplated by the recently-passed Music Modernization Act (MMA). The OTW argued, among other things, that the definition of commercial use for purposes of the MMA should focus on the particular use rather than the user, should analyze commerciality based on profit-seeking by the user rather than by the platforms or web hosts they use, and should distinguish between commerciality and noncommercial “benefit”.
2018
Comments to the Canadian Parliament on the Canadian Copyright Act
June 2018
OTW Legal submitted comments to the Canadian Parliament as part of Canada’s regular review of its Copyright Act. The OTW relied on stories from Canadian fans to argue that Canada’s Fair Dealing and User-Generated Content exceptions were effective and socially beneficial.
2017
Comments to the U.S. Trade Representative on the North American Free Trade Agreement
June 2017
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.
Comments to the U.S. Copyright Office on the Moral Rights of Attribution and Integrity
- Comments from the OTW (PDF); March 2017
- Reply Comments from the OTW (PDF); May 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, and that while in general attribution norms are often beneficial and common within fan communities, they should not be given the force of law. Attribution rights are already well-protected by contract law, and additional legal rights would be a poor fit for common forms of collective and sequential creation. Individual communities should be allowed to determine when and how attribution is best accomplished in a manner appropriate to that media.
Follow-Up Comments to U.S. Copyright Office Regarding DMCA Section 512
February 2017
In a follow-up to our March 2016 comments, OTW Legal answered questions from the U.S. Copyright Office regarding the notice-and-takedown provisions in Section 512 of the U.S. DMCA. The OTW drew on its experience operating AO3 and the experiences of its members in dealing with takedown notices in order to highlight ways in which the current system works well and ways in which it can be improved.
2016
Public Consultation on Proposed Changes to Singapore’s Copyright Regime
October 2016
OTW Legal submitted comments to the Singapore government 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 non-commercial 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 urged Singapore to adopt simple and consistent rules regarding the duration of copyright protection, outlined 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.
Comments to the U.S. Copyright Office on DMCA Agent Renewal
June 2016
Together with the Electronic Frontier Foundation and Professor Eric Goldman, the OTW submitted comments to the U.S. Copyright Office in response to a Notice of Proposed Rulemaking that would require sites that rely on the DMCA safe harbor—like AO3—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.
Public Consultation on the Role of Publishers in the Copyright Value Chain and the ‘Panorama Exception’
June 2016
In a submission to the European Commission, OTW Legal argued against the creation of new “neighbouring” rights for publishers and other copyright value-chain actors, contending that such rights would create legal uncertainty, reduce access to information, and disadvantage authors, researchers, and the public. We emphasized the importance of existing limitations and exceptions (such as fair use) that enable transformative and user-generated creativity, and urged that any reform consider the negative impacts on access and creative expression.
Public Consultation on the Legal Framework for the Enforcement of Intellectual Property Rights: Intermediaries
April 2016
OTW Legal 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.
Comments to the U.S. Copyright Office Regarding DMCA Section 512
March 2016
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. DMCA. 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 smaller entities that rely on the DMCA, like the OTW’s AO3, manually review each takedown notice 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 U.S. Copyright Office
February 2016
In response to a request for comments by the U.S. Copyright Office, OTW Legal argued that Section 1201 of the DMCA is overbroad and unnecessarily chills valuable creation and innovation by preventing people from circumventing technological protections on copyrighted materials, even for otherwise non-infringing 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.
2015
Comments to the European Commission
December 2015
OTW Legal submitted a comment in response to the 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
October 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 from the OTW to the South African Government
September 2015
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. 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 Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda (pdf)
March 2015
OTW Legal joined a coalition of organizations, 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.
2014
Submission to the Australian Government’s Online Copyright Infringement Discussion Paper
September 2014
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 on EU Copyright Reform
February 2014
OTW Legal 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.
2013
Comments on the Legal Framework for the
Creation of RemixesNovember 2013
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. OTW Legal shared stories submitted by fans and explained 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.
In December, OTW Legal’s 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. A PDF transcript of that panel is viewable on the PTO website.
OTW Legal’s Betsy Rosenblatt also represented the OTW in a series of discussions called the Green Paper Roundtable, which were part of the NTIA and PTO’s efforts to seek public comments on copyright policy issues and develop a legal framework for the creation of remixes.
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