7 Copyright Themes That Defined 2013

Happy 2013!Here in New Orleans, 2013 only has hours left to live. But as the clock winds down on a turbulent year, now is a great time to look back at the year that was so that, in a couple of days, we can do the same with the year that will be.

In many ways, 2013 felt like a “calm before the storm” kind of year. Though there was a lot going on and a long list of major copyright stories, there was no banner event like the SOPA/PIPA protests or the closure of Megaupload, both of which happened January 2012.

In 2013, it became clear that the issues everyone was fighting over in 2012 were nowhere near resolved and that the fights over copyright would be going on for a very long time and would be a truly global phenomenon.

Indeed, if there’s one single overarching theme in 2013, it’s probably “internationalization”. Where 2012 was very U.S.-centric for copyright news, Russia, Italy, China and the pacific rim nations have all been at the forefront of copyright news. While the U.S. has played a part in copyright news, most of the big battles have been fought in legislatures abroad.

But beyond internationalization, there are still several key themes to pull from 2013 and, though there are too many to list them all, here are seven of the more important ones that will likely continue to make their presence known for years to come.

1. Fair Use on the Internet

The Internet has changed the way people interact with content and that, in turn, has pushed the boundaries of what is and is not fair use.

Though these issues are as old as the Internet, 2013 was the year a lot of them came to something of a head. This includes the Google Book Search case, where a judge recently ruled the controversial service is a fair use of author content (though the case is under appeal).

It was also the year of the Beastie Boys and Goldieblox dispute, which raised the issue of whether the use of a parody song in a viral video is fair use of the original. Finally, it was also the year of the YouTube Content ID debacle, which saw thousands of videos being flagged as containing copyrighted content though their use, in many cases, was decidedly fair.

That, of course, was just the tip of the iceberg but all three of those stories were major headlines both in and out of copyright circles, putting the issue of fair use far more in the public eye than ever before.

2. Shuttering Sites and Seizing Domains

After the SOPA/PIPA protests in early 2012, the issue of what to do with pirate and infringing sites remained very much a challenge. Even if site blocking was off the table, in the U.S. at least, law enforcement continued to seize domains and shutter sites where it could.

The Pirate Bay, for example, changed domains 9 times in 2013. We also saw the closure of Hotfile, the National Music Publishers Association (NMPA) took on infringing lyric sites, the City of London Police went on the offensive against dozens of allegedly infringing sites and, in the U.S., Immigrations and Customs Enforcement (ICE) seized hundreds of domains of sites infringing trademark and copyright.

Even as site blocking begins to come back into focus at the end of the year, most of the year was spent taking more traditional routes for dealing with piracy, with decidedly mixed results.

3. DMCA Debates and Challenges

Typically, when it comes to the DMCA, it’s the anti-circumvention portions that draw the most controversy. Though the notice-and-takedown provisions are occasionally misused, they, historically, had been seen as a fair compromise.

However, that tone changed some this year. On one side, challenges were raised by those upset at the way the law is sometimes abused, including the birthing blogger battle, Automattic, the company behind WordPress.com, suing two alleged false DMCA filers and even GoPro, the makers of the popular cameras, found itself in a DMCA debacle that drew a lot of criticism.

But it wasn’t just DMCA victims that were protesting. Copyright holders weren’t particularly happy with the way 2013 went either. Copyright holders filed over 235 million DMCA notices with Google in the year and many began to say that the DMCA was not an effective way to handle modern infringement issues. One paper even referred to the DMCA as a “failure”.

In the courtroom, the DMCA faced different challenges. The Hotfile, Veoh and YouTube cases all tested how far the law would protect hosts but the most likely damaging case is one in New York State Court against Grooveshark, which has found, so far, that pre-1972 sound recordings are not covered under the law at all.

All in all, notice and takedown is under attack from all sides with no signs of stopping.

4. To Stream or Not to Stream

Musicians have been angry with Spotify, Pandora and YouTube over the royalties they have been receiving (or not receiving) for the streaming of their music.

The rhetoric reached a fever pitch in 2013 as Pandora pushed for the Internet Radio Fairness Act (IRFA), which would have reduced the royalties paid to musicians it, and other Internet radio services, stream. After a lot of backlash from artists and a skeptical Congress, Pandora abandoned the bill, focusing instead on the Copyright Royalty Board.

Spotify was also heavily criticized for its rates, so much so that it created a whole new site to communicate and work with artists directly.

Aritsts wrestled all year on questions of whether or not to allow their music into the service. Though many, like Radiohead, left the service, other previous holdouts, like Metallica, joined.

5. Public Domain Battles

Many people are surprised to learn that seemingly old works are often still protected by copyright.

However, 2013 was the year that some of those works were challenged, most notably Happy Birthday to You and Sherlock Holmes.

Both of the works in those cases have complex origins that span periods that are both in and out of copyright protection. Happy Birthday has hotly-contested origins stretching back to a now-public domain work “Good Morning to All” and Sherlock Holmes has seen most of his tales lapse into the public domain, save 10 written after 1923.

While a judge has already ruled Holmes is in the public domain, there’s no conclusion yet on the Happy Birthday lawsuit. Also, with a likely appeal in the Holmes case, these are going to continue into 2014.

6. BitTorrent’s Resurgence

In 2013 it became clear that, despite the increasing legal availability of copyright works, piracy was also growing. As a study by NetNames highlighted, though availability and access slowed growth in some regions, it still grew.

However, according to the study, the growth came from a seemingly unusual source, BitTorrent. Though Cyberlockers had long been the most popular source for illegal content, in 2013, one year after the Megaupload closure and the shakeup that followed, The Pirate Bay claimed (reclaimed?) the top spot for pirated content.

BitTorrent has been resurgent all through 2013 and a recent report by Torrentfreak shows that the site has surged 50% in terms of uploads this year.

In short, Megaupload’s loss ended up being The Pirate Bay’s gain.

7. Impending Copyright Reform

Finally, 2013 was the year in which, in the U.S., the gears on possible major copyright reform got started, with the U.S. Copyright Office taking the lead.

In March, the Register of Copyrights called for a complete rewrite of U.S. copyright law, a review of which is already under way in Congress, the U.S. Copyright Office also proposed a small claims court for minor copyright infringements and, earlier this month, proposed a resale royalty rights for visual artists.

While it’s unclear if any of these proposed changes will come to fruition, the fact that they are being discussed at all, including ongoing hearings in Congress, is pivotal.

Bottom Line

There’s no doubt that 2013 was an interesting year for copyright though much of it seems to be setting up for bigger battles down the road. What will come of the fair use battles? The public domain fights? The possible copyright reform? We won’t know until later.

All in all, we won’t see the conclusion of 2013′s themes, many of which began in 2012 and earlier, until much later. Still, there are some things that will likely be new in 2014 and we will be discussing those in a later post.

Until then, happy New Year’s everyone!

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