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Published:
2017-12-01 12:32:57 -0500
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spotlight on legal issues

In recent weeks, OTW Legal has gotten some questions about net neutrality in the United States. Net neutrality is the principle that Internet Service Providers (ISPs) should treat all data on the Internet the same way, without discriminating or charging differently by user, content, website, platform, application, type of attached equipment, or method of communication. There's been some recent activity surrounding net neutrality regulations that fans may want to know about.

Last week, the U.S. Federal Communications Commission (FCC) released a proposal that would severely reduce net neutrality requirements in the United States. The FCC is currently in charge of regulating broadband internet access services in the U.S., and FCC rules currently forbid ISPs from, for example, blocking or "throttling" access to lawful content, prioritizing access to content based on payment, or requiring consumers to pay more for access to certain content or services. The new FCC proposal would retain existing transparency rules, but would roll back prohibitions--effectively permitting ISPs to engage in blocking, throttling, paid prioritization, and other interfering behaviors.

The FCC's proposed order has not gone into effect yet; the FCC Commissioners will discuss the proposal at their December meeting. Despite widespread and vocal opposition to the proposal, most expect that it will pass in mid-December.

What would this mean for fans?

It's difficult to predict exactly what these changes would mean, because it's difficult to predict what ISPs will do when the regulations change. Many major ISPs have pledged not to block or throttle content, but the law wouldn't prohibit them from changing their minds. Some ISPs may also decide to offer tiered pricing that would, for example, charge different amounts for access to different parts of the Internet, or create "fast lanes" and "slow lanes."

Essentially, the changes would allow ISPs to do whatever they think will be most profitable for them, which may mean (for example) giving preferred treatment to sites or services that are affiliated with the ISP or pay the ISP. This could make it more expensive for consumers to gain access to the full range of Internet services and content, and could make life harder for small sites or startups. ISPs would have to disclose when they do such things, but there would be little meaningful mechanism for preventing them, other than market forces.

Most of the effects would probably be for users in the U.S., although decisions about Internet in the United States tend to have a broad impact on access even for non-U.S. residents. Any law affecting internet access may also have an impact on works hosted by AO3, information available on Fanlore, and the OTW's day-to-day work of preserving fan works and supporting fan culture.

For these reasons, the OTW supports net neutrality and OTW Legal personnel have submitted comments to the FCC in support of net neutrality. We will continue to be involved as opportunities arise.

What can fans do about it?

Although it is likely that the FCC will adopt this proposal, the FCC is not the last word on the matter. The FCC must submit its rules to the U.S. Congress, which can overturn them. Therefore, one thing that fans can do--especially fans in the U.S.--is contact their Congresspeople to let them know that they should care about net neutrality. Knowing that net neutrality is important to their constituents, and having concrete examples about why constituents care about net neutrality, will make a difference in whether Congress decides to overturn the FCC's plan. A coalition of Internet-focused nonprofits led by Fight for the Future has created tools to make it easier to contact your Congresspeople about net neutrality, and has also planned some other actions. See their "Battle for the Net" site here.

In addition, many of the OTW's allies, such as the Electronic Frontier Foundation and the Center for Democracy and Technology, are active in promoting net neutrality. Interested fans can follow their activities and get involved through them.

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Published:
2017-11-23 13:09:46 -0500
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Spotlight on Legal Issues

Do you use screencaps or video clips in your fanfiction? If so, the OTW needs your help!

The Digital Millennium Copyright Act ("DMCA") makes it illegal to rip from DVDs, Blu-Ray discs, and many other encrypted technologies. The OTW has won a legal exemption that makes it legal to rip DVDs, Blu-Rays, and digital downloads to make fair uses for the purpose of noncommercial remix videos, like fanvids.

But the DMCA still blocks fans’ ability to make fair uses of video in other contexts, such as fanfiction. Although fair use law would often allow fans to incorporate video clips or stills into their fanfiction (making it what the law calls a "multimedia e-book") the DMCA restricts fans’ ability to gain access to video material for that purpose.

What the OTW is Doing About This

Fortunately, the law provides for a rule-making process every three years where the Copyright Office can recommend exemptions for authors to access the works they need, which the OTW has participated in. There is currently an exemption for e-books, but it only applies to nonfiction multimedia e-books offering film analysis.

A group of allies led by the OTW and the Authors Alliance are fighting for a modified exemption that will allow all authors of e-books, including fanfiction creators, to gain access to the clips they need from DVDs, Blu-ray discs, and digital streaming services.

How You Can Help

Share your stories with us! If you're a fanwork creator who's needed to rip digital content for use in your fanfiction, or if you anticipate finding yourself in that situation in the future, you can help us demonstrate why there's a need for this exemption.

The Copyright Office places an emphasis on stories from authors who have been harmed by the DMCA in the past or are likely to be harmed by the DMCA in the future, so please take our 5-minute survey and share your experience!

The deadline for us to submit our evidence is soon, so please fill out the survey by December 4, 2017. And even if you have no story to contribute, please spread this message to others. Every story helps.


The Organization for Transformative Works is the non-profit parent archiveofourowno.comanization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported archiveofourowno.comanization staffed by volunteers. Find out more about us on our website.

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Published:
2017-02-24 14:54:26 -0500
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Banner by Erin of a spotlight shining the OTW logo behind the text spotlight on legal issues

Last month, OTW Legal conducted a survey about fan experience with and knowledge of copyright. We had such a great response! Nearly 3,000 people participated. Because of this amazing response rate, we have a LOT of data - especially since so many gave us great, detailed answers to free response questions. So we still have more analysis work to do! But as part of fair use week, we wanted to provide some preliminary results, and give some thoughts about trends we're seeing - especially around issues related to fair use. And the best part about our results is that we're learning a lot about how we think we can help you as a legal advocacy team!

For some of the results below, we have only analyzed a portion of the data, so though the trends are meaningful, not all responses are accounted for.

First, some information about you guys as fan creators!

Pie graph showing whether respondents identify as fan creators; roughly 85% responded yes; roughly 15% responded no

Bar graph showing the types of fanworks created by respondents; from most to least popular, the answers are fanfiction; fan art; graphics; fanvids; other; podfics; filk

Bar graph showing the platforms respondents use to share fanworks; in order from most to least popular, the answers are AO3; Tumblr; fanfiction dot net; Livejournal; Twitter; Dreamwidth; Facebook; Wattpad

Most people who filled out our survey identify as fan creators, and fanfiction is by far the most common type of fanwork among our participants. This makes sense since so many of you use AO3! In fact, 97% of our participants reported having shared and/or read content on AO3 (and 32% are official members of OTW). Besides the fanworks we listed on the survey, the most common in the "other" category were: meta, cosplay, fanmixes, crafts, and roleplay. There were also many different online platforms listed; the ones represented on the chart are the most common.

Bar graph showing how many fanworks respondents consume; in order from most to least popular, the answers are many per day; a few per day; a few per week; a few per month; a few per year; less than a few per year

Unsurprisingly, our participants also read/watch/view a lot of fanworks, too!

And though an accurate count of self-described fandoms is ongoing, our initial analysis shows the following top 20 (starting with the most popular) among those who responded: Marvel (and MCU), Harry Potter, Supernatural, Star Wars, Sherlock, Star Trek, Teen Wolf, Dragon Age, Doctor Who, Avengers, Naruto, Merlin, Hannibal, Mass Effect, Lord of the Rings, Yuri on Ice, Overwatch, NCIS, Steven Universe, and Hamilton.

And now, onto questions about copyright!

Only about 15% of respondents reported having any kind of formal copyright education or training, ranging from "l'm a lawyer!" to "I watched YouTube's copyright school video." However, unsurprising to us, they also self report as knowing more about copyright than the average person.

Bar graph showing how respondents rate their own knowledge of copyright law; from most to least popular, the answers are average; slightly above average; moderately above average; slightly below average; moderately below average; far above average; far below average

Interestingly, we found that on average, those who identify as fan creators reported a somewhat lower copyright knowledge than those who do not. However, we also did not find a clear correlation between this self-reported knowledge of copyright and the actual accuracy of a description of fair use. Self reports are always tricky in surveys - but we might speculate here that those who do know more about copyright might know enough to know that they don't know everything!

We also asked some questions about the relationship between fanworks and copyright law.

Pie chart showing what respondents believe about whether fanworks are copyright infringement; roughly 7% responded yes; roughly 33% responded not sure; roughly 60% responded no

Pie chart showing what respondents believe about whether fanworks must be permitted by copyright owners; roughly 2% responded yes; roughly 33% responded it depends; roughly 65% responded no

As you know, at OTW we advocate for the legality of noncommercial fanworks and the right for creators to create and share them without permission. It seems that most of you agree with us! And for those who were unsure, that most often hinged (rightly!) on commerciality.

We also asked specifically about fair use, and analyzed all of that data to find out what people think fair use is, and how accurate their ideas are.

Pie chart showing whether respondents are familiar with US Fair Use law; roughly 8% responded that they were unfamiliar; roughly 37% responded that they had heard the term; roughly 55% responded that they were familiar

Pie chart showing whether respondents were able to accurately describe US Fair Use law; roughly 13% gave explanations with high accuracy; roughly 45% gave explanations with medium accuracy; roughly 30% gave explanations with low accuracy; roughly 12% gave explanations that were wrong

As you can see, almost all of our participants were at least aware of fair use, and more than half could explain what it was. For those who could explain, an awesome group of law students evaluated how accurate these explanations were. "High" accuracy meant that the explanation was completely accurate; "medium" meant that there was nothing blatantly incorrect, but might be slightly misleading (e.g., the implication that it turns entirely on commerciality); "low" meant that it wasn't entirely wrong but might have missed the main points (e.g., that fair use is about "personal use"); and "wrong" was an incorrect explanation (e.g., saying that it requires permission). It turns out that most of our participants have a decent understanding of what fair use is - but there's more we can do to help educate!

Bar graph showing which factors respondents believe are relevant to US Fair Use law; in order from most to least popular, the answers are commerciality; amount; transformativeness; market harm; purpose; credit; external; critique/parody; nature; education

We also asked what factors you think determine whether something is fair use. Nearly everyone who answered this question was in the ball park, naming at least one correct factor! In the chart above, only the last two are not part of what determines fair use.

The first factor in a fair use determination is the purpose and character of the use. This includes things like transformativeness (so important!), educational use, critique and parody, and commerciality. We are not surprised at all that most people hit commerciality as being a very important part of fair use. However, remember that this is not the only part! Though we advocate that noncommercial fanworks are fair use, there are some commercial works that can be fair use as well, and types of noncommercial works that might not be.

The second factor is the nature of the underlying copyrighted work - whether it's fact or fiction, published or unpublished. For fanworks, this does not tend to be very relevant.

The third factor is the amount and substantiality of the underlying copyrighted work used. So those who said things like "how much of the original comes into your fanwork" are completely right! However, it's important to remember that there isn't a bright line rule for how much this is. Like all of these factors, they're all balanced together for a fair use determination.

The fourth factor is market harm for the underlying copyrighted work. Does the new work replace the underlying work in the market, or potentially harm the potential for the original copyright owner to make money? As we know, this is almost never true for fanworks--in fact, fanworks often augment the market for the underlying work!

The most common factor we saw discussed about what makes something fair use is credit. Attribution to the original source is not generally part of what determines fair use. It might be good manners, and it might show good faith, but isn't required by copyright law. And importantly, disclaimers do not hold any official legal weight at all. Some people also mentioned external factors like the feelings of the original copyright owner towards the work, or "who has the best lawyer." Technically these things don't matter either as a matter of law, although, like disclaimers, they may have practical or ethical importance.

So what's the upshot of this? It's good news: most fans know something about fair use law, and most of what fans know is correct. But we still have a long way to go in helping fans understand how copyright law, and fair use, is good for them! Here are some things to keep in mind when you're thinking about fanworks and copyright:

  • Disclaimers and attribution don't matter, legally, but might be considered good manners
  • Commerciality is important but not all of a fair use determination
  • You don't need permission when something is fair use, and the copyright owner's feelings about fanworks don't matter, legally
  • If you get a DMCA takedown, you can fight it if your work is fair use
  • If someone remixes your fanwork, that could be fair use, too
  • If you have questions, you can come to us!

We'll be back with reports on more of the survey results. We have much more information than this, ranging from knowledge of the Digital Millennium Copyright Act, to common fan experiences with copyright, to copyright law outside the U.S., and much more! We're grateful to everyone who took part in the survey, and we look forward to sharing more with you about it!

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Published:
2017-01-20 13:25:30 -0500
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Copyright Week banner

Yesterday, we asked you to take part in a short survey about copyright law. (If you haven't done it yet, please do! And tell your friends to, too!) Today, as Copyright Week draws to a close, we want to focus on copyright and free speech.

Fanworks are the very essence of free speech: Fans saying what they need to say, building community through self-expression. A few years ago, when we asked you to tell us your stories of how fanworks have helped you, you told us powerful stories about how fanworks helped you find your voices, your skills, and yourselves. We used those stories of empowerment and self-expression to help advocate for balanced copyright laws that preserve the relationship between copyright and free expression.

How does copyright law relate to free expression? Copyright law is a double-edged sword. On one hand, copyright law promotes free expression: Authors of all kinds, from bestselling novelists to fledgling fanwork creators, can feel comfortable expressing themselves because they know that they own the copyright in what they produce, and can use copyright law to prevent people from profiting off of their expression without permission. But on the other hand, this same protection can hinder free expression, if copyright owners use it to prevent people from talking about or building upon their works. That is why copyright doctrines like Fair Use and Fair Dealing are so important: they help authors take advantage of the safety of copyright law while still allowing people to comment and build upon existing works without having to get permission.

The Organization for Transformative Works believes that copyright law should promote free speech, not restrict or suppress it. And we want to know what that means to you! In the comments below, or in an e-mail to legal [at] transformativeworks.archiveofourowno.com, tell us how creating and consuming fanworks has helped you express yourself. We will use your comments and e-mails to continue our advocacy work.

It's Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Most laws don’t get even one “week” of their own, but copyright law gets two: Copyright Week in January, and Fair Use Week in February. The OTW is taking part in both, so stay tuned!

You can learn about the OTW’s activities concerning copyright law and fandom, or ask questions, from the OTW’s legal team. Find out more at http://www.archiveofourowno.com/projects/legal.

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Published:
2017-01-19 14:01:28 -0500
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Copyright Week banner

All around the Internet today, you can find discussions of "21st Century Creators." We think there are no better examples of 21st century creators than fans! Fans have long been in the vanguard of creating new kinds of work, using new technologies to express themselves, and popularizing new platforms for sharing creative work. But how much do fans and fan creators actually know about copyright law -- the law that surrounds almost everything that fans do? OTW Legal wants to know. Your answers will help us serve the fan community, advocate for fans, and answer your questions about the law.

We have created a short survey about copyright law, fan practices, and your knowledge, and we hope you will take part in it. It should only take about 20 minutes to complete. It's completely anonymous, and you won't have to answer any question you don't feel like answering. We'll discuss what we learn next month, during Fair Use Week.

Please tell your friends -- we want as many responses as possible. Click here to participate!

Most of all, thanks to you and fans everywhere for being 21st century creators and enjoying 21st century creativity.

It's Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation. Most laws don't get even one "week" of their own, but copyright law gets two: Copyright Week in January, and Fair Use Week in February. The OTW is taking part in both, so stay tuned!

You can learn about the OTW's activities concerning copyright law and fandom, or ask questions, from the OTW's legal team. Find out more at http://www.archiveofourowno.com/projects/legal.

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Published:
2016-07-02 12:29:51 -0400
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Banner by Erin of a spotlight shining the OTW logo behind the text spotlight on legal issues

Last week, Paramount and CBS released for fan films, and a lot of questions have been asked of us at OTW, including Support and Legal, as well as in other areas online, what this really means for creative fans.

The Guidelines do indeed seem limited to fan films and even from Paramount and CBS's perspective; they don't apply to crafts, fanvids, cosplay, fan fiction, fan games, fan art, or anything else. Of course we have no idea what Paramount and CBS’s plans are for the future, and historically Paramount has not always done the best job of understanding fan culture, but at this point there’s no indication that Paramount or CBS would have any interest in taking action against fan creations other than fan films, even though the guidelines themselves are phrased very broadly. For a long time, Paramount and CBS have stayed away from challenging most fan activities—especially noncommercial ones like the fanworks posted on the Archive of Our Own-and we have no reason to think that would change.

We should also add that the fan film guidelines that Paramount and CBS put out are not actually expressions of law. They're not even a contract between Paramount/CBS and any fan film-makers.

The guidelines lay out “guidelines for avoiding objections,” but an objection is a very different thing from a valid legal claim. The guidelines talk about, for example, restrictions on length, title, use of clips, use of reproductions, compensation for service, fundraising, and distribution. Their language on "amateurs" doesn't even have definitions, and if it did, the question of amateur-vs-professional status is not something the courts take into consideration when doing Fair Use analysis; two of the most high profile cases involve findings of fair use by the rap act 2 Live Crew, and Google - neither of whom would ever be considered "amateurs".

At present, US law is much more open to fan productions than Paramount and CBS would be. As Legal Staffer Heidi explained in a recent post on the FYEAHCOPYRIGHT Tumblr, the question of whether a fan film is legal will depend mostly on copyright fair use law, and fair use law takes several factors into account. These factors include whether the new work is distributed commercially, whether it transforms the meaning or purpose of the original, how much of the original it copies, and whether it substitutes in the market for the original work. No one of these factors will answer the question completely, and in fact many courts have found fair use in cases when (for example) a work was commercially distributed or even when it copied the entire original (as long as additional content was added, and transformative). So we can envision plenty of fan films—even commercial ones—that would qualify as legally permitted fair uses that would not meet Paramount and CBS’s “guidelines".

Therefore all the guidelines really signal is what Paramount and CBS would prefer from fan films—not what the law would allow. We are, of course, keeping an eye on this, but even if Paramount and/or CBS tried to extend guidelines to other kinds of fannish creativity, we would stand up for the authors and creators whose works we host, and we do not expect that we would be standing alone.

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Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

The Trans Pacific Partnership is a treaty among 12 nations: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Many have criticized the secretive process by which it was negotiated over the last 5 and a half years, but on October 4, 2015, negotiations ended and all of the member states agreed in principle to a treaty whose text was disclosed on November 5, 2015 by the U.S. Trade Representative.

This treaty hasn’t been signed into law yet by anyone, and it may never be. But its language and concepts may become the law in at least some of the 12 member countries - as well as other nations that sign onto it in the future - so it’s good for fans to understand the impact its intellectual property provisions would — and wouldn’t — have on fan activities. We wanted to provide this information now, as countries are considering adopting the TPP, to give fans an opportunity to review and comment on their governments’ adoption of it, if they want to.

In nearly every situation, the treaty requires member nations to strengthen protections for rights holders as a minimum floor for intellectual property rights; countries are allowed to adopt stronger protections than the treaty includes. Member nations are often allowed, or even encouraged, to make exceptions that would protect fans (and other users or follow-on creators), but they’re never required to. As a result, the treaty’s protections for rights holders are much stronger than its protections for fans. The treaty has some significant problems, discussed below, and doesn’t provide the safeguards for fans that we had hoped for. Overall, the treaty exports U.S. intellectual property laws to the other 11 countries, bringing the other countries’ intellectual property laws closer to their American counterparts.

Here are a few areas where legal changes might have an impact on fan activities in nations that sign on to the treaty. In addition to general provisions, we have noted a few particular areas of interest for fans in the US, Canada, Chile, and Japan. We will continue to watch for issues specific to other member nations.

1. Fair Use and Fair Dealing

The treaty encourages member nations to have “balance” in copyright law, which would include fair use and fair dealing exceptions to copyright infringement, but it doesn’t require them to do anything in particular to protect users or follow-on creators. For countries that already have fair use or fair dealing laws, it doesn't change anything, so it won't diminish fair use in the United States or fair dealing and the "YouTube Exception" in Canada. In general, it contains a lot of language that gestures toward a need for balance, but while pro-protection provisions are requirements, most of the provisions that support rights for users are merely suggestions. For example, the treaty provides only that parties will “endeavor to achieve appropriate balance in its copyright and related rights system,” but it gives little guidance about what balance countries might deem “appropriate.”

The treaty does allow member nations to place limitations or exceptions on copyright that give “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” These are all interests that align with existing fair use and fair dealing laws, and with many fan activities. But the treaty doesn’t require member nations to have fair use or fair dealing laws, and doesn’t even say anything about how hard members have to try to move toward copyright balance. So this isn’t necessarily bad for fans, but it isn’t necessarily an improvement or expansion of fan rights either.

2. Vidding and Technological Protection Measures

The treaty requires member nations to provide “anti-circumvention” laws that punish people for breaking “technological protection measures” (that is, encryption or DRM) on copyrighted works or making tools for doing so. It requires that the punishment for violating these laws include both civil and criminal penalties for willful violation. It also forces member countries to make circumvention illegal even if the circumvention doesn't lead to infringement. This is very similar to the anti-circumvention provisions that exist in the U.S. under the Digital Millennium Copyright Act—and it’s bad for fans, for exactly the same reasons the US provisions are bad. For example, vidders need to rely on breaking the DRM encryption on DVDs and online video sources in order to make high-quality vids.

In the U.S., the OTW has fought hard and won an exemption allowing vidders to break DVD, Blu-Ray, and online video encryption. That exemption is not at risk from this treaty, which says that member nations "may" create exceptions where there is an "actual or likely adverse impact of those measures on those non-infringing uses"—like the vidding exemption. But the treaty doesn’t require countries to pass those exceptions or create a framework creating and continuing those exceptions. Thus, member nations must import encryption rules into their copyright codes, but also can choose not to make exceptions at all, or can choose the inefficient and burdensome system we have in the U.S. The treaty also requires that when nations consider making exceptions, they also consider whether rights holders have already taken measures to allow non-infringing uses to be made. This means that rights holders might try to rely on “screen capture” and other similar technologies that they claim—falsely—allow vidders to make vids without decrypting originals.

3. The Public Domain

The public domain is the universe of works that aren’t protected by intellectual property law, either because protection has expired or because the law never protected them in the first place. The public domain is important for fans because it represents works for which fans don’t need to rely on exceptions like fair use or fair dealing to make follow-on works. The treaty states that the parties “recognize the importance of a rich and accessible public domain,” and “acknowledge the importance of informational materials…that assist in the identification of subject matter that has fallen into the public domain,” but it contains no affirmative duty on members to identify, preserve, or promote a robust public domain. This is disappointing—but although it does not require any nation to make things better for the public domain, it also doesn’t require any nation to make things worse, with the exception of copyright duration, which we describe next.

4. Copyright Duration

The treaty would require members to lengthen copyright protection so that works are protected for 70 years after the death of the author or, for works created by anonymous, pseudonymous, or corporate entities, 70 years after publication. This represents a 20-year extension from previous treaties, but it’s still shorter than U.S. copyright, which lasts for 70 years after the death of the author but lasts 95 or 120 years in the case of works created by anonymous, pseudonymous, or corporate entities. Ultimately, this 20-year extension may not make a practical difference for that many works—it’s an awfully long time either way—but it does mean that it will take longer for works to enter the public domain, which is bad for fans. The good news is that the treaty won't require member nations to yank material back into copyright protection if copyright protection has already expired.

5. Notice-and-Takedown and Fan Privacy

The treaty requires member nations to have a “safe harbor” for Internet Service Providers (“ISPs”) that implement a notice-and-takedown regime that looks a lot like the one created by the U.S. Digital Millennium Copyright Act (“DMCA”). It also requires member nations to provide legal procedures, like those in the DMCA, that allow rights holders to get information about the identities of alleged infringers so they can enforce copyright directly. There are some carve-outs for countries like Canada, which has a “notice-and-notice” system, and Chile, where ISPs are not required to take down content without a judicial order. These carve-outs are limited to those countries, though; everyone else is bound to a U.S.-style system.

Although the treaty contains some safeguards for fans, like penalties for rights holders who issue wrongful takedown notices, it remains unbalanced. It permits, but does not require, member nations to implement a “counter-notice” procedure like the one in the DMCA that allows users to have their material restored in the case of an improper takedown. Likewise, it permits, but does not require, a Japanese-style system of verification of takedown notices by an independent body.

Privacy issues also intersect with the treaty's provision on internet domain names, which requires countries to provide "online public access to a reliable and accurate database of contact information" of domain name registrants. While this provision would undermine privacy for domain name registrants, there would likely be ways to work around it. First, it would only apply to registrants in countries that sign on to the TPP, and the European Union, which has strict privacy laws, could try to block access to or distribution of this information for EU domain name registrants who are EU residents. Also, this provision might not prevent registrants from relying solutions that use "middlemen" (like GoDaddy and Register-dot-com), who could store registrants' information in their own databases, identify themselves as Domain Name Contacts, and forward communications to the actual registrants without making the registrants' identities or contact information publicly accessible to the whole internet.

6. Criminal Penalties

Finally, the treaty provides for criminal penalties for copyright infringers. This isn’t entirely new: many countries, including the U.S., provide criminal penalties for certain kinds of copyright infringement, some quite harsh. In the U.S., such penalties have mostly been reserved for large-scale piracy operations. But the treaty requires much more sweeping criminal penalties, requiring member nations to provide for criminal penalties for any act of willful copyright infringement “on a commercial scale,” even if not done for financial gain, if the infringement has a “substantial prejudicial impact on the interests of the copyright” owner in the marketplace. In fact, it goes even farther: member nations must allow “competent authorities” to initiate legal action for criminal penalties even without the need for a formal complaint by a private party or right holder. The treaty seems, however, to allow member nations to limit “competent authorities’” power to enforce copyright to situations where there is an “impact on the right holder’s ability to exploit the work in the market.”

Because copyright owners don’t object to most fan activities, the idea that authorities other than the copyright owner could enforce copyright has been a major concern for many fans during the treaty negotiation process. It was the subject of very vocal opposition by Japanese fans in particular, who were concerned that cosplay, doujinshi, and other fan activities would be subject to the nation’s already-harsh criminal copyright penalties, even though Japanese copyright owners have long allowed large-scale sales of fanworks, and even stores that primarily sell fanworks. The treaty provision isn’t as bad as some had feared, because it only applies to infringements that harm the copyright holder’s ability to exploit its work in the market. On October 5, the Japanese government released a summary of the TPP that confirmed exceptions for copyright infringement on an (unspecified) non-commercial scale. In Japan, this is being interpreted by some as a sign that lobbying by fannish archiveofourowno.comanizations and legal scholars was successful and that the Japanese government wants to protect fanworks, presumably because it recognizes their social and (especially) economic value as a bedrock of Japanese manga culture. However, it's still unknown how exactly these provisions will be reflected in Japanese, and other, laws. Fears also remain that certain aspects of Japanese fan culture that are more easily interpreted as “commercial”, like fanworks shops or individual fans who sell a lot of copies of their works, will still get in trouble. So there are still a lot of interesting developments to come for Japan. And for all the member nations--not just Japan--it’s still not clear why the treaty should ever allow for enforcement of copyright by non-copyright-holders, much less require it in any circumstance.

In the end, the treaty’s criminal penalties should not be able to impact fanworks in a gift economy, or even commissioned work, because they only apply to willful infringement, and they only apply to infringement “on a commercial scale” that has a “substantial prejudicial impact” on the interests of the rights holder. For most fanworks, especially the noncommercial transformative fanworks that the OTW is focused on, none of these three things is true, much less all three. And in countries with fair use and fair dealing laws, most noncommercial fanworks works are not infringing in the first place, so criminal penalties don’t make a difference. But the criminal penalty provisions are particularly harsh for fans in countries where there aren’t fair use or fair dealing to rely on.

If you have other questions, OTW Legal is always happy to answer questions about the TPP or other issues of fandom law! Feel free to e-mail them at [email protected]

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Published:
2015-07-08 13:42:55 -0400
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For years, we at the OTW have been fighting for copyright laws that make room for fans to express themselves through fanworks. We haven't been alone in this fight: over the years, we've partnered with groups like the Electronic Frontier Foundation, Public Knowledge, the Center for Democracy and Technology, the American Library Association, and others to argue that the law should encourage a wide range of creation and expression, including the fair use of material created by others.

Now, we're officially coming together with a network of archiveofourowno.comanizations that believe, like we do, that U.S. copyright law should reflect the diversity of the creators, innovators, and consumers who make, use, remake, and reuse creative expression; that U.S. copyright law should not stand in the way of free expression worldwide; and that fair use is a vital component of a balanced copyright law. In March, we joined members of this group in sending a letter to the U.S. Congress encouraging balanced copyright policies -- and we're very happy to continue that work with a great group of partners.

“Fanworks serve a unique and important role in our society and must be protected. Fair use is a critical right that permits the public to use portions of copyrighted material without permission, under certain circumstances, from the copyright owner. Whether it be an adapted story with our favorite characters or an app for our phones, fair use makes creativity and innovation possible. Re:Create is excited to welcome OTW to the coalition and we look forward to all that we will accomplish together,” said Tina Pelkey, a spokesperson for Re:Create.

Find out more about the Re:Create coalition and its work at its site, and watch this space for news of coalition activities and opportunities.

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