U.S. Bill Would Introduce a Copyright Claims Board

Representatives Judy Chu (CA-27) and Lamar Smith (TX-21) introduced this month a bill, the Fairness for American Small Creators Act, which would amend the Copyright Act to introduce a Copyright Claims Board (the Board). The press release is here.

The Board would be established within the Copyright Office and would be an alternative forum to resolve some, but not all, copyright claims (collective sigh of relief from IP attorneys).

15500658421_d0d4806dda_zThree Copyright Claims Officers

Three full-time copyright claims officers would serve on the board for a six-year term. They would all be attorneys with at least seven years of legal experience. Two of the copyright claims officers would “have substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims and, between them, … have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works. The third copyright claims officer [would] have substantial experience in the field of alternative dispute resolution.”

They would be independent from the Register of Copyrights, but could consult it on general issues of law, but not with respect to the facts of any particular matter pending before the Board or the application of law to a particular matter. The Board’s decisions could be reviewed by a court.

Copyright Claims Attorneys

No less than two attorneys would be appointed by the Register of Copyrights to assist in the administration of the board. They would have to have at least three years of copyright law experience.

Authority and Responsibilities of the Copyright Claims Board

The Board would determine whether a particular copyright claim, counterclaim, and defense could be brought before the Board, and would ensure that they are “properly filed and otherwise appropriate for resolution by the Board.” The Board would manage the proceedings of the Board and render rulings relating to the consideration of these claims, which would include scheduling and discovery. Indeed, the Board would have the power to request the production of information and documents relevant to the resolution of a claim, and to conduct hearings and conferences. The Board would also have the power to facilitate the settlement of any claim or counterclaim of parties and to require cessation or mitigation of an infringing activity, including takedown or destruction of infringing materials, but only if the party asked to do so agrees.

Authority and Responsibilities of the Copyright Claims Attorneys

Copyright Claim Attorneys would have to provide assistance to the copyright claims officers in the administration of their duties, and provide assistance to members of the public with respect to the procedures and requirements of the Board.

Proceedings

Parties would only participate in a Board proceeding on a voluntary basis and the right of any party to pursue a claim in any court of law would be preserved. The claim would have to be filed no more than three years “after the claim that is the basis for the proceeding accrued.” The Board could review claims for infringement, or provide a declaration of non-infringement, unless the claim is already pending before, or finally adjudicated by a court of law. Both parties would have to be in the U.S. The Board could award actual damages and limited statutory damages, but the latter could not exceed $15,000 per work infringed.

This would be a centralized process, as the Board would conduct proceedings “by means of Internet-based applications and other telecommunications facilities, except that in any case involving physical or other nontestimonial evidence, the Board may make alternative arrangements for the submission of evidence if the arrangements do not prejudice another party to the proceeding.”

The parties could be represented before the Board by an attorney or law student who is qualified under applicable law to represent a party on a pro bono basis.

It is an interesting proposal, especially as the whole procedure could be conducted electronically. Allowing qualified law-students to represent parties may, however, have a somewhat limited impact on the ability of parties to seek pro bono counsel, as U.S. states typically require law students representing parties pro bono to be supervised by a faculty member or a practicing attorney.

This article was first published on The 1709 Blog.

Image courtesy of Flickr user Michael Coghlan under a CC BY-SA 2.0 license.

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Fair Use… The Final Frontier?

Judge Klausner from the  Central District of California Court denied summary judgment on January 4 for both parties in the Paramount v. Axanar case. Plaintiffs Paramount Pictures and CBS Studios were moving for partial summary judgment for direct, contributory and vicarious copyright infringement claims against Defendants Axanar Production and its owner Alec Peters. Defendants were moving for summary judgment. Hat’s tip to Ars Technica for providing the link to these two motions.

Star Trek Pizza CutterI am writing here only about the two motions and will comment on yesterday’s ruling later on.

Readers of this blog may remember that Paramount Pictures and CBS Studios are suing Axanar Productions and Alec Peters, “one of Star Trek’s biggest fans” (Defendants motion p. 7), claiming that the short movie Star Trek: Prelude to Axanar and the full-length movie titled Star Trek: Axanar, which Defendants plan to release soon(ish), are infringing unauthorized derivative works of the original Star Trek works.

Defendant’s short movie is a prequel to the original television series and movies. Defendants call it a “mockumentary, ”with direct interviews of characters, in “a style never before used by either Plaintiffs or in any other Star Trek fan fiction” (Defendants’ motion p. 10). It features Klingons, Vulcans, and some other characters originally created for the CBS television series. Axanar is a battle between the United Federation of Planets and the Klingon Empire which was won by one of Captain Kirk’s hero, Starfleet Captain Garth of Izar. CBS will premiere in 2017 a new Star Trek series, Star Trek: Discovery, which will be a prequel to the original series, taking place about twenty years before Captain Kirk took command of the U.S.S. Enterprise.

Let’s first note that both of the Defendants’ movies are crowd-funded. The issue of whether the individuals who contributed to finance these movies, and the crowdsourcing platform, could be sued for contributory infringement would make a fun “additional question” in a copyright law exam.
As the full-length Axanar movie has not been made yet, let alone released, Defendants are claiming that Plaintiffs‘claims with respect of the full length movie are premature, as the Court cannot compare the two works for similarities to decide whether or not there is infringement. The movie’s script is still evolving, and thus the dispute is not ripe. Defendants cite in their motion several cases where courts refused to review drafts to determine substantial similarities (Defendants’ motion p. 15).

Copyright Infringement Claims

Plaintiffs are claiming that Defendants’ works are substantially similar to the original Star Trek works and that Defendants‘works are not fair use. Plaintiffs claim that these works are not “fan films” but rather unlicensed professional productions, and that they take place in the “alien star systems created by Plaintiffs, on spaceships belonging to the United Federation of Planets, on Klingon battlecruisers fighting the Klingon Empire, and on planets such as Qo’nos, Vulcan and Axanar” (Plaintiffs’ motion p. 21 and 22).

Defendants are arguing that their works are not substantially similar to Plaintiff’s works and that Plaintiffs, while owning a limited number of Star Trek episodes and films, “do not own a copyright to the idea of Star Trek, or the Star Trek Universe as a whole” (Defendants’ motion p. 7). Defendants further argue that Plaintiffs cannot claim copyright in “the general mood and theme of science fiction; names and words used in Plaintiff’s Works; elements in the public domain and nature; the Klingon language; Scènes à Faire [for once spelled correctly, I tip my hat to Defendants’ attorneys]; most specific characters; and the general costuming and appearance of, or shapes affiliated with, characters in Plaintiffs’ Works.” Once these unprotectable elements are filtered out, Defendants claim that both Plaintiffs and Defendant’s work are not substantially similar (Defendants’ motion p. 17).

Characters

Plaintiffs claimed that Defendants infringed on the Star Trek characters which are protected by copyright. They cited the Ninth Circuit DC Comics v. Towle case, where the Court found the Batmobile to be a character protected by copyright. The Court laid out then a three-part test to determine whether a particular character is protected by copyright: the character must have “physical as well as conceptual qualities,” the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears, and the character must be “especially distinctive” and “contain some unique elements of expression.”

Defendants argued that such elements as “pointy ears” cannot be protected but, as noted in Plaintiffs’ motion, though ideas are not protectable by copyright, the expression of these ideas can be protected. Plaintiffs claim that Defendants have copied the exact Star Trek characters in their movie. Defendants admit that Plaintiffs own the copyright in the Spock and Captain Kirk characters, but that its works do not include them, “or any other characters to which Plaintiffs own separate copyright” (Defendants’ motion p. 9). Defendants also noted that the still unfinished script of the full-length movie features 50 original characters out of 57 characters in total.

Is Prelude to Axanar Fan Fiction?

Defendants are claiming that their work is fan fiction, made “to celebrate their love of Star Trek” (Defendants’ motion p. 9), and is protected by fair use. They note that there is a “longstanding tradition of Star Trek [f]an [f]iction” and that Star Trek’s creator, Gene Roddenberry, encouraged fan fiction (Defendants’ motion p. 13 and p. 14). As there is no “fan fiction” provision in the Copyright Act, fan fiction is not infringing if it is fair use. Is it the case here?

Plaintiffs claim that the use of the Star Trek characters, setting and plots are not fair use, as they are not a parody or a satire, nor were they created for purposes of criticism or teaching, and thus furthered the goals of the Copyright Act. They also argue that the use is not transformative enough to be fair use, but that, instead, Defendants have “meticulously replicate[d]” the Star Trek works. For Plaintiffs, merely setting the action of the movie in a different time is not transformative enough, as the “creation of a derivative work that is set in a (slightly) different time than the original does not constitute a “transformative use” (Plaintiffs’ motion p. 19).

Defendants are arguing that their works “are transformative-going where no man has gone before” [ah!), and feature “numerous original characters, original dialogue, a unique plot, and an unexplored timeline” (Defendant’s motion p. 8). Also, “the styling of Prelude [to Axanar] as a short mockumentary featuring first-person interviews makes it especially unique and distinctive from Plaintiffs’ Works”(Defendants’ motion p. 22).

Plaintiffs claim that Defendants’ plot is directly taken from the original Star Trek television show episode which introduced Garth of Izar and also took story elements from a Star Trek role playing game book. For them, the effect on the market, which is one of the four fair use factors, is significant, as Defendants damaged Plaintiffs’ potential market for derivative works (Plaintiffs’ motion p. 23). Defendants are arguing instead that their works have no effect on the potential market, but instead “offer free promotional value to Plaintiffs (Defendant’s motion p. 19 and p. 20).They “do not act as a substitute for Plaintiff’s work.”

Defendants are claiming that their works “are not intended to be commercialized” and that “Defendants have no ambitions of competing against Plaintiffs’ Works in movie theaters, on television, over premium streaming services or to otherwise sell their [w]orks for profits” (Defendant’s motion p. 11). In the eyes of the  Defendants, their works are protected by fair use.

Image is courtesy of Flickr user Joe Hall, under a CC BY 2.0 license.

This blog post was first published on The 1709 Blog.

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Who’s on Second (Circuit)? Transformative fair use

The Second Circuit found on 11 October 2016 that verbatim use of the famous ‘Who’s on First’ Abbott and Costello routine in the Hand to God play was not transformative enough to be fair use. The Second Circuit nevertheless affirmed the dismissal of the lower judgment as Plaintiffs did not have a valid copyright interest in the routine. The case is TCA Television Corp. v. McCollum, No. 1:16-cv-0134 (2d Cir. Oct. 11, 2016).

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William ‘Bud’ Abbott and Lou Costello formed a comedy duo which was popular in the thirties and forties. Who’s on First is one their most famous routines, where Abbott plays the manager of a baseball team which Costello just joined. The newbie wants to know the name of his fellow players and the manager obliges: they are “Who,” “What,” and “I Don’t Know.” Misunderstandings ensue, fired up at a rapid pace. The routine was named “Best comedy routine of the 20th Century” by Time magazine in 1999.

The play Hand to God, written by Robert Askins, was shown off-Broadway in 2011 at The Ensemble Studio Theatre, and has since been shown on Broadway and in London. The play is about Jason, an introverted young man from a small Texas town who participates in his church’s “Christian Puppet Ministry,” a sock puppet show. Tyrone, Jason’s sock puppet takes a life on its own and blurts out embarrassing facts, maybe because it is an incarnation of the devil, maybe because Jason uses him to say what he truly thinks. Jason recites Who’s on First, with Tyrone as his partner, to a young woman in order impress her, and then pretends that he is the one who came up with the routine. Tyrone then calls him a liar and tells the girl she is stupid for believing that Jason indeed created the routine. An excerpt of that scene was used in a promotional video for the play.

When Abbott and Costello’s heirs learned about this use, they filed a copyright infringement suit against the Ensemble Studio Theatre and the playwright in the Southern District of New York (SDNY). Defendants conceded that they had used part of the routine, but argued in defense that is was “part of a sophisticated artistic expression” and also that Plaintiffs do not own a valid copyright in the routine.

On December 17, 2015, Judge Daniels from the SDNY dismissed the copyright infringement suit brought by Plaintiffs because, while Plaintiffs had indeed established a continuous chain of title in the copyright, use of the routine by Defendants was fair use. Plaintiffs appealed.

The use of the routine is not protected by fair use

Plaintiffs had argued that the play had not added anything new to the original routine as Jason merely recited it without transforming it, and that therefore is was not fair use. The Second Circuit agreed.

When examining whether a particular use of a work protected by copyright is fair, courts use the four factors enumerated by Section 107 of the Copyright Act: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used and the effect of the use on the market.

Judge Daniels had found, when examining the purpose and the character of the use of the routine in the play, that it was transformative enough to be fair use. He had cited the Second Circuit Cariou v. Prince case, where the Court had found that Richard Prince’s use of Cariou’s photographs to create new works was transformative enough to be fair use because Prince had “employ[ed] new aesthetics with creative and communicative results distinct from Cariou’s” and also had incorporated “new expression” in his works.

For Judge Daniels, “the performance through the anti-hero puppet… create[d] new aesthetics and understandings about the relationship between horror and comedy that are absent from Abbott and Costello’s… routine.” He further explained that “[t]he contrast between Jason’s s seemingly soft-spoken personality and the actual outrageousness of his inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small town in the Bible Belt.”

The Second Circuit found this reasoning to be “flawed in what it identifies are the general artistic and critical purpose and character of the [p]lay” and that the court did not explain how “extensive copying of [the] routine was necessary to this purpose.” Section 107 enumerates the uses which are fair: criticism, comment, news reporting, teaching, scholarship and research. For the Second Circuit, the use of the routine “does not appear to fit within any of these statutory categories.”

Even though the Second Circuit had held in Cariou that it is not essential that a use comments on the original work to be transformative, it also held that a use is transformative only if it alters the original work with “new expression, meaning, or message.” For the Second Circuit, this was not the case as the routine had not been altered in the play, but used for what it is, a famous classic routine, instantly recognizable by the audience. The Court quoted its own On Davis v. Gap, Inc. case which explained that a use is not transformative if it used the original “in the manner it was made to be” used. The Court pointed out that it was necessary that the routine is not altered, so that the audience can recognize it and laugh when Jason pretends he created it. For the Second Circuit, the use of the routine is  a mere “McGuffin,” an event which sets the plot, in that case informing the audience that Tyrone the sock puppet can speak unprompted and has a foul mouth. However, not “any new dramatic purpose justif[ied] [d]efendants’ extensive copying of the [r]outine.” As the use was not transformative, the purpose and character of the use factor weighed in Plaintiff’s favor.

The Court also found that the nature of the work factor weighed in favor of Plaintiffs, as the routine was created to entertain the public, and thus is “at the heart of copyright’s intended protection.” It dismissed Defendants’ argument that use of the routine was justified by the need to use “an instantly recognizable “cultural” touchstone in the relevant scene” because Defendants could have used another cultural touchstone, such as “inventing the Internet” or “out-swimming Michael Phelps.” These examples are not convincing as they are not examples of cultural touchstones performed by a duo, a format which was needed in a play about a man and his evil sock puppet.

The amount and substantiality of the use factor weighted “strongly” in favor of Plaintiffs as the copying of the original work was “substantial” and because, while even a substantial use can be fair use “if justified,” it was not the case here. The fourth factor, the effect on the potential market, also did weigh in favor of Plaintiffs because there is a licensing market for the routine.

However, even though all of the fair use factors weighed in favor of Plaintiffs, the Second Circuit nevertheless affirmed the dismissal of the case because Plaintiffs failed to prove they own a valid copyright in the routine.

Plaintiffs do not own the copyright in Who’s on First

Judge Daniels had found that Plaintiffs had proven a continuous chain of title in the copyright of the routine, but the Second Circuit disagreed.
The routine was first performed in 1938 on the radio. It was also performed by Abbot and Costello in their 1940 One Night in the Tropics movie (Tropics) and in 1945 in their Naughty Nineties movie. As both the routine and the two movies were created before January 1, 1978, date of the entry into force of the 1976 Copyright Act, they are subject to the 1909 Copyright Act, which only protects published or registered works. A work was protected for twenty-eight years under the 1909 Copyright Act, if it was published with the required copyright notice. However, public performance of a work was not a publication under the 1909 Copyright Act, Silverman v. CBS Inc. (SDNY 1986), and therefore the routine was not first published in 1938, but in 1940. Unpublished and unregistered works were protected indefinitely by common law, but became automatically protected by copyright on January 1, 1978.

In November 1940, Abbot and Costello allegedly assigned their rights in the routine as performed in the two movies to Universal Pictures Company (UPC), which registered the copyright of Tropics in 1940 and of The Naughty Nineties in 1945, and timely renewed both copyrights. As the common law copyright of the routine as first performed in 1938 was never assigned, Abbot and Costello had retained it. They registered a copyright for “Abbott and Costello Baseball Routine” in 1944, but did not renew it and thus the work is in the public domain since 1972.

Plaintiff did not rely on the 1944 registration to claim they own the copyright, but rather in an agreement made in 1984 where UPC quitclaimed all of its rights in the performance of the routine to Abbott &Costello Enterprises (ACE), a general partnership formed by the comedians’ heirs. ACE was later dissolved and copyrights’ ownership were divided among Abbot and Costello heirs.

Defendants had argued that the routine was in the public domain because only Abbott and Costello could have renewed the copyright of the movies, but Plaintiffs argued that UPC had the authority to do it because the comedians had assigned ownership of their common law copyright in the routine to UPC, the routine had merged into Tropics, and the copyright was transferred to ACE by the quitclaim.

For Judge Daniels, the 1940 registration of the One Night movie by UPC in 1940 “extinguished whatever common law copyright Abbott and Costello had in the unpublished version of the [r]outine.” However, the Second Circuit found that Abbott and Costello had merely intended to license the use of the routine to UPC, not to assign their common law copyright in it. The Second Circuit did not interpret the agreement as being a work-for-hire agreement either, because the routine had already been created in 1938 and thus could not have been created at UPC’s “instance and expense” as required it to be a work for hire, Playboy Enters., v. Dumas (2d Cir. 1995). The routine had not merged in the movies either, as “authors of freestanding works that are incorporated into a film… may copyright these ‘separate and independent works’”, 16 Casa Duse, LLC v. Merkin (2d Cir. 2015) and the routine is such a freestanding work.

Image is courtesy of Flickr user Jinx! under a CC BY 2.0 license.

This article was first published on the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.

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Corporations Have No Moral Rights over Works in France, Even if They Commissioned It

The French Cour de cassation, France’s highest judiciary court, held on November 16 that a corporation cannot have moral rights over a work, even if it had commissioned the work or if the work was created by one of its employees.

Article L. 111-1 of the French intellectual property Code (CPI) gives authors both patrimonial and moral rights. Moral rights, which are perpetual, inalienable and imprescriptible, are the right of respect for the author’s name and status, and the right of the respect of the integrity of the work.

In this case, an advertising agency, which rights now belongs to the Maetva corporation, had commissioned a corporation, G. studio, to take photographs of watches to illustrate a catalog published by the Pierre L. corporation, a watchmaker.5802530663_45c7b853d7_z

The Pierre L.corporation used these photographs a year later for a new advertising campaign, which was featured on bus stops, magazines and online. G. studio found this new use to be infringing, as it claimed that it had only sold the rights in the photographs for their use in the catalog. G. studio sued the Pierre L. corporation for copyright infringement and Pierre L. called Maetva into the proceedings.

As you can see, no physical person is part of the procedure, only corporations. The issue of which corporation owned the patrimonial rights of the photographs was debated in the lower courts, and the Court of appeals found that they belonged to G. studio, as did thus, necessarily, the moral rights.

The Cour de cassation refused to rule on the issue of patrimonial rights, arguing that reviewing them would impinge on the exclusive rights of the lower courts to estimate the amount of prejudice. However, it ruled on the issue of moral rights ownership. For the Court, the author, if the author is a physical person, enjoys an inalienable right to respect for his name, his quality and his work. Therefore, even if the author created the work as part of an employment contract, “neither the existence of a contract of employment nor ownership of the material support of the work are likely to confer on the corporation employing the author the enjoyment of that right.” The Cour de cassation did not send the case back to the Court of appeals for remand, as there is no need to estimate the amount in damages for violation of the moral rights, as these rights simply do not belong to G. studio.

Corporations cannot own the moral rights of a work under French law, even if they commissioned it, even if the work was created by an employee, and even if they own the patrimonial rights. The moral rights to the photographs at stake belong to the physical person who took them: whoever she is, she was not a party to this lawsuit. For the sake of this discussion, let’s add that if is true that the photographs were used without mentioning her name, she would have the right to sue Pierre L. for failing to disclose her name, as this is a violation of her moral right to paternity of a work.

Even if the photographer had signed a contract transferring all her rights to the pictures, the contract could not have transferred her moral rights, even if the contract would have explicitly, but illegally, mentioned them as being ceded, because moral rights cannot be transferred under French law.
This case should serve as a warning for corporations acquiring the patrimonial rights of a work in a country which recognizes perpetual and inalienable moral tights, such as France, that the physical person who took the picture retains his moral rights forever. This is the case even if the law of the contract is the law of a country which does not recognize such rights, as in the U.S.; see for instance Paris Court of appeals, February 1, 1989, (D. 1990. 52).

Image is courtesy of Flickr user JBBrazito under a CC BY 2.0 license.

This blog post was first published on The 1709 Blog.

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Richard Prince May Offer the SDNY Another Chance to Define Transformative Use of a Work

Richard Prince was sued on November 16 by yet another photographer over the use of a photograph in his New Portraits series. The case is Eric McNatt v. Richard Prince, 1:16-cv-08896, Southern District of New York (SDNY).

Readers of this blog may remember that Richard Prince used various photographs protected by copyright to create his New Portraits exhibition. He had commented, cryptically, or nonsensically, whatever your mood is, below several photographs which had been uploaded by others on Instagram. He then printed the results on canvas to create a series of works, New Portraits, which has been shown in New York. Prince has been sued by some of the copyright holders of the original works. One of these cases, Donald Graham v. Prince, is still pending at the SDNY.

This time, it is photographer Eric McNatt who is suing Richard Prince and the Blum and Poe Gallery for copyright infringement. The complaint alleges that Richard Prince reproduced a photograph taken by Plaintiff of Kim Gordon, a founding member and bassist of Sonic Youth, by downloading it from the web, where it had been published with a copyright notice, and uploading it on his own Instagram account. Prince has since deleted this account. Prince then wrote three lines of comments under the photograph:  “Portrait of Kim Gordon,” then “Kool Thang You Make My Heart Sang You Make Everythang Groovy” and finally added a string of music-related emojis.

This Instagram post and its comments was then printed and added to the New Portraits exhibition, which was shown in the spring of 2015 by the Blum & Poe gallery in Tokyo and featured in the catalog of the exhibition.7197150970_772ee19f92_z

Will TCA Television Corp. v. McCollum Influence the Outcome of this Case?

The Donald Graham v. Richard Prince case is still pending at the SDNY. On November 4, attorneys for Donald Graham sent a letter to Judge Sidney Stein from the SDNY, who is presiding over the case, to alert him of the recent TCA Television Corp. v. McCollum Second Circuit case (2nd Circ. Oct. 11, 2016), which, in their view, “undermines Defendants ‘motion to dismiss on fair use grounds.”

In TCA Television Corp., the author of the play Hand of God had been sued by the heirs of Abbot and Costello over the use of their famous “Who’s on First” routine. The main character of the play recites the routine verbatim in the play with his trusty (but evil) sock puppet acting as sidekick. Judge Daniels from the SDNY had dismissed the copyright infringement suit, finding the use of the routine in the play to be fair use. The Second Circuit affirmed, but on alternative grounds: the use of the routine was not transformative enough to be fair use, but the heirs had not proven that they owned the copyright in the routine.

Attorneys for Prince sent their own letter a few days later, where they argued that the holding in TCA Television is distinguishable from the case, that the TCA Television case is not even related to fair use and that thus “the entire discussion of fair use is dicta.” They also argue that the Second Circuit did not find the use of the routine to be fair because, according to the Court, “the extent of defendants’ taking is identically comedic to that of the original authors, that is, to have two performers expand on a singular joke in order to generate increasing audience laughter.”

Attorneys for Prince also argued in the letter, that, “[b]y contrast, Prince used Graham’s photograph for a highly transformative purpose: as a commentary on social media. This new meaning and message is apparent to any reasonable observer who looks at the artwork. “Prince’s attorneys also argued that “Prince’s transformative purpose [was] to provide a commentary on social media [and thus] required the incorporation of the entire Instagram post… to accomplish that purpose. “

Is the use of the McNatt Photograph Transformative Enough to be Fair Use?

What is transformative use? We still do not have a “so transformative it is fair use” test. However, the TCA Television case may influence the McNatt v. Prince case. If we consider that Prince’s purpose for reproducing Eric McNatt’s photograph of Kim Gordon was to comment on social media, as claimed by Prince’s attorneys in the Graham v. Prince case, then it is fair use under Cariou if Prince added something materially new or provided a different aesthetic. The Second Circuit had found in Cariou v. Prince that Prince’s use of Cariou’s photographs was fair use, because he had used them to create new works and had “employ[ed] new aesthetics with creative and communicative results distinct from Cariou.”

Judge Daniels from the SDNY had found in TCA Television that the use of the routine was fair use, explaining that “[t]he contrast between Jason’s seemingly soft-spoken personality and the actual outrageousness of his inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small town in the Bible Belt. Thus, Defendants’ use of part of the Routine is not an attempt to usurp plaintiffs’ material in order to “avoid the drudgery in working up something fresh.” Campbell, 510 U.S. at 580, 114 S.Ct. 1164. Nor is the original performance of the [r]outine “merely repackaged or republished.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97 (2d Cir.2014).”

The Second Circuit found that the use was not fair because it had not transformed the routine’s aesthetic, it had appropriated the routine extensively, and “[n]o new dramatic purpose was served by so much copying” and “there is nothing transformative about using an original work in the manner it was made to be used.”

If we apply this to our case, then Prince must prove that he used the original work in a different manner than it was made to be used. Should we only look at the comments written by Prince to decide if the use is transformative enough to be fair, or at the ensemble, work and comments? In both ways, the Prince’s work could be considered fair use if proven to be a critique on the desperate banality of social media and social media comments. But is it?

As noted by the Complaint, “Kool Thang You Make My Heart Sang You make Everythang Groovy” is “a transliteration of lyrics to the 1960 song “Wild Thing,”written by Chip Taylor, except that the word “Kool” replaces the word “Wild.” “Kool Thing” is the title of Sonic Youths first major label record single.” As itself, this comment may not be original enough to be protected by copyright yet it is more creative than most social media comments. The emojis chosen by Prince, however, are quite banal and so their banality may comment on banality. Pass the aspirin.

Image is courtesy of Flickr user torbakhopper under a CC BY 2.0 license.

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Online Service Providers Must Now Designate their DMCA Copyright Agent Electronically

Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) provides Online Service Providers (OSPs) four types of safe harbor against copyright infringement. In order to benefit from these safe harbors, OSPs must designate a DMCA copyright agent. Such agents are designated by the OSPs to receive notifications of claimed infringement, the “DMCA takedown notices,” which are usually sent by email.
Since December 1, 2016, OSPs must do so electronically. Even if an OSP had formally designated a DMCA agent using the paper method, it must now do so again electronically before January 1, 2018.

dmcaThe Four DMCA Safe Harbors

The DMCA provides a safe harbor for transitory communications. Entities merely serving as a conduit for transmitting, routing or providing connections for digital online communications that are between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received, are shielded from copyright infringement liability, Section 512(k)(1)(A).

The DMCA also provide a safe harbor to providers of online services or network access, or operators of facilities for such services, for system caching, storing information at the direction of users and providing links or other tools for locating material online, Section 512(k)(1)(B).

OSPs Must Designate a DMCA Agent

In order to benefit from these four safe harbors, OSPs must designate individuals as copyright agents and must provide this information on their website “in a location accessible to the public.” They must also provide this information to the U.S. Copyright Office, by providing the name, address, telephone number and email address of the agent.

The Copyright Office maintains a directory of these agents. The list of DMCA agents 1998-2016 is available here. This list will now be phased out. If a OSPs has a DMCA listed in this directory, it satisfies its obligation to register a DMCA agent, but only until December 31, 2017. The designation will expire after this date.

New Rule as of December 1, 2016: OSPS Must Designate their DMCA Agent Electronically

Under interim regulations in effect between November 3, 1998 and November 30, 2016, OSPs could designate agents using a paper form. This changed on December 1, 2016, when the new regulation about the new online registration system entered into force. Under the new electronic system, OSPs must now designate their agents electronically.

Therefore, an OSP wishing to retain its active designation must submit electronically a new designation using the new online registration system by December 31, 2017. The new directory is available here. Good news: the fee to register electronically is significantly lower than was the fee was to register by paper, from $106 to register by paper to $6 to register by electronically.

Image is courtesy of Flickr user Cory Doctorow under a CC BY-SA 2.0 license.

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Is Trading Twitter Profiles a Violation of Alabama Right of Publicity Act?

On 24 August 2016, Jason Parker and other Twitter users residing in Alabama filed a putative class action suit against Twitter and Hey Inc., the maker of the Stolen app, which allows players to use Twitter profiles, including those of the plaintiffs, to create profile cards to be traded online. Plaintiffs claim this is a violation of the recently enacted Alabama Right of Publicity Act, Alabama Code 1975 § 6-5-770, et seq.

According to the complaint, Hey entered into a partnership with Twitter around June 2015. The micro-blogging company allowed Hey to access its application programming interface so that information about Twitter’s users accounts could be imported into the app. Hey then imported the identities of Twitter users, including their names and photographs, into the app, even though they had not consented to it.

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Hey, Inc. started selling its “Stolen” app on October 2015, by invitation only or to everyone with a verified Twitter profile. Stolen users could buy and sell Twitter profile images online as if they are trading cards. They were given some virtual credit when signing up for the game and earned more credit when playing the game and could buy more credit using real-world currency.

Initially, the profile mentioned that the profile “belonged” to the Stolen user who “owned” the profile he had bought, but this was changed to show instead that the player had “stolen” the profile. To steal a profile meant that a user had bought a particular profile for a higher price than the one paid by another user.

Even more troublesome, users owning a particular profile on Stolen could alter the name of the profile, even by using derogatory terms. This led Representative Katherine M. Clark (D-MA5) to send a letter on 12 January 2016, to Jack Dorsey, Twitter’s CEO, and to Tim Cook, CEO of Apple, which sells the app. Representative Clark was concerned about possible use of this app as a “tool to harass, bully and intimidate,“ particularly women and people of color.”

The renaming function was deleted by Hey on 12 January 2016, but Representative Clark was also concerned about the use of the Twitter profiles without the consent of their owners. She asked Dorsey to “immediately suspend Stolen access to Twitter until nonconsenting profiles are removed and safeguards are implemented to ensure that no Twitter profile may be used by the [app] without clear, express consent.”

Hey temporarily pulled the app from the Apple’s store the same day, posting on Twitter: “We’ve heard everyone’s concerns and have decided the best thing to do is to shut down.” It then launched a new app, “Famous: The Celebrity Twitter,” which the complaint alleges is merely a re-brand of Stolen, because its “nature and core functionality (and look and feel) remain the same.” The complaint further argues that the app continued to “allow its players to display ownership over real-life people by spending virtual currency,” and that it is just “Stolen with a new name.” They claim this a violation of Alabama right of publicity law.

The broad scope of the Alabama Right of Publicity Act

The Alabama Right of Publicity Act went into effect on 1 August 2015. It protects the right of publicity of individuals “in any Indicia of Identity,” which is defined by Section 6-5-771 as “[i]nclud[ing] those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more of those attributes.” The scope of the Alabama law is rather broad, as “indicia of identity” protects even representation merely evoking the person, if it is substantially similar, which is a concept open to interpretation.

The commercial use of the indicia of identity of a person without consent entitles this person to monetary relief, statutory and punitive damages, and injunctive relief. The use must have been “in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement.” In our case, there is little doubt that the Alabama Right of Publicity Act protects Twitter profiles, even if the profile does not feature a person’s real name, but rather her avatar or other biographical element allowing for her identification.

There is no federal right of publicity law, and the states have their own laws, which differ in scope. New York right of publicity law, New York Civil Rights Law §§ 50 and 51, protects only the commercial use of a “name, portrait or picture.” California law, California civil Code section 3344-3346, is broader than New York law as it protects against unauthorized commercial use of “name, voice, signature, photograph, or likeness,” but is not as broad as Alabama law. Such difference in state right of publicity laws may lead to forum shopping. Indeed, the Alabama law would have favored Lindsay Lohan, who lost in September 2016 her New York right of publicity suit against the makers of the video game Grand Theft Auto, because the game “never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.” Lindsay Lohan, however, may have won her case under Alabama law.

Black market for influencer marketing?

This case is interesting as it shows that social media profiles have monetary value, and for different reasons. In this case, Twitter was able to license their use for Hey’s commercial gaming purposes. But profiles can also be used for marketing purposes. An article published online noted that if a player owns a profile on Stolen, he could then use it to promote his own products. Such use would create a sort of black market for influencer marketing, which occurs when companies are tapping into the influencing buying power of a social media star to promote their products or services. Even if, say, Kim Kardashian does not endorse a particular product on her various social media accounts, the company making the product could still “steal” her profile on Stolen and use it as a way to promote the product, as long as it is able to hold the profile. This complaint is only against Hey and Twitter. Could a complaint against one of the Stolen users also be successful, if filed?

This article was first published on the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.

Image is courtesy of Flickr user Esther Vargas under a CC BY-SA 2.0 license.

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CJEU Rules French Out-of-Print Book Database Illegal Under InfoSoc Directive

The Court of Justice of the European Union (CJEU) held on November 16, 2016, that the French law which allowed for the digital exploitation of out-of-print books is precluded by article 2(a) and article 3(1) of Directive 2001/29/EC, closing the door on a scheme which allowed orphan books and other out-of-print books to be accessible online. The case is Soulier and Doke, C-301/15.

The French Law Allowing For the Digital Exploitation of Out-of-Print Books

A French law, enacted on March 1, 2012, the Law No. 2012-287 on the digital exploitation of out-of-print 20th century books, added articles L. 134-1 to L. 134-9 to the French intellectual property Code (CPI). Its February 27, 2013 décret (decree) n˚2013-182 stated how the law should be implemented.

The law introduced a mechanism allowing for the digital exploitation of out-of-print books published between January 1, 1900 and December 31, 2000, and which were no longer available for sale. Some of them are still protected by copyright. Some of them are orphan books, that is, books for which right holder is no longer known. The law directed the creation of a public database indexing all of these books, which would be available to the public for free. The Bibliothèque Nationale de France, France’s national library, was put in charge to implement and update this database, which was named ReLIRE (to read again).

Article L. 134-4 of the CPI provided the author, and the editor holding the right to reproduce the book in print, the right to opt-out of that scheme. The opt-out right had to be exercised within six months after the book had been placed in ReLIRE. After six months, a collecting society was in charge of authorizing the reproduction and the performance in digital format of the book, in return for remuneration, on a non-exclusive basis for a renewable five year period. The remuneration was shared equitably between authors and editors.

The author could exercise her opt-out right even after six months if she believed that reproducing and representing the book was likely to harm her honor or reputation. The author could also opt-out any time if she could prove that she held the exclusive right to exploit the book in a digital form.2549672390_7c7dbd415a_z

Facts and Procedure

Mr. Soulier and Ms. Doke, both authors, asked, in May 2013, the Conseil d’État, the Council of State, France’s highest administrative court, to annul the February 27, 2013, decree. They claimed that articles L.134-1 to L.134-9 of the CPI limited their exclusive right of reproduction provided by Article 2(a) of Directive 2001/29 (the InfoSoc Directive) but that this limitation was not included in the list of exceptions to this right listed by Article 5 of the same Directive.

The Council of State first asked the Conseil Constitutionnel, the Constitutional Council, to rule on the constitutionality of the law. On February 28, 2014, the Constitutional Council issued its decision. It found that the law did not violate the right of the copyright holders, that it did not prevent them from exploiting their works in other forms than the digital form and that the law did not violate the right of having a private property which is protected by article 17 of the 1789 French Declaration of Human Rights and Civic Rights.

The Council of State then stayed the proceeding and asked the CJEU for a preliminary ruling on the question of Article 2 and 5 of the InfoSoc Directive 2001/29 precluded articles L. 134-1 to L. 134-9. On November 16, 2016, the CJEU held that it does indeed.

Authors Must Be Able to Give Their Permission Prior of the Placement in the Database

The CJEU first noted that the exceptions provided by the French law do not fall within the scope of the exhaustive list of exceptions provided by Article 5 of the InfoSoc Directive, and thus Article 5 is irrelevant to this case. However, Article 2 (a) and 3(1) of the Directive both provide an exception on the rights of reproduction and communication to the public and are thus relevant to this case. They provide, respectively, that the Member States must grant authors an exclusive rights of reproducing their works or to prohibit their direct or indirect the reproduction by any means and in any form, and that the Member States must grant authors the exclusive rights to authorize or prohibit any communications to the public of their works.

For the CJEU, the rights given to authors by Article 2(a) and Article 3(1) require the consent of the author prior to the reproduction of his work. However, this consent can be implicit or explicit (Soulier at 35). The French scheme, while giving the author a right to opt-out, does not inform them that their works will be placed in the ReLIRE database prior to that placement.

As the French law does not offer “a mechanism ensuring authors are actually and individually informed…, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or another, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use” (Soulier at 43).

While the CJEU admitted that the InfoSoc Directive cannot prevent Member States from implementing legislation allowing for the digital exploitation of out-of-prints books “in the cultural interest of consumers and society as a whole,” pursuing that objective “cannot justify a derogation not provided by the EU legislature to the protection that authors are ensured by [the InfoSoc Directive]” (Soulier at 45).

Authors Have the Exclusive Rights to Authorize the Reproduction and Communication of their Works

The CJEU was also troubled by the fact that the French law gave the editors of the books in printed format the right to authorize or not their reproduction in the digital database. For the CJEU, only authors have the right to exploit their works because the rights of reproduction and communication to the public provided to them by Article 2(a) and Article 3(1) of the InfoSoc Directive are exclusive rights. Also, Article 5(2) of the Berne Convention, to which the EU is a party and which the InfoSoc Directive is intended, in particular, to implement, requires that authors must be able to exercise their rights of reproduction and communication without any formalities.

However, if an author decided to terminate future exploitation of his work in a digital format, he had to secure, under French law, the agreement of the publisher holding the right of the work in a printed format (Soulier at 49). For all of these reasons, the CJEU held that Article 2(a) and Article 3(1) of the InfoSoc Directive preclude a national legislation such as the one implanted in France to allow the digital exploitation of out-of-print books.

What about Orphan Works?

While the CJEU recognized that exploiting such books is of value to society, it did not provide the Member States much clue as to how they could implement a scheme to make these books available to the public which would pass muster with the EU law.

Should Soulier be interpreted as only barring the commercial exploitation of out-of-print books which authors are known? The Court placed much weight on the importance of securing the consent of the author of the work prior of its placement into the database. Does that mean that orphan works can never be placed in such a database, since it is impossible to secure the consent of their unknown right holder, or, to the contrary, should Soulier be interpreted as meaning that only orphan books can be placed into the database, since it is not possible to secure the prior consent of their authors, and they are thus out of the scope of the Soulier decision?

Image is courtesy of Flickr user Ginny under a CC BY- SA 2.0 license.

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Ballot Selfies Are Still Illegal in New York

Three voters registered in New York have filed a suit in the Southern District of New York (SDNY) (the SDNY Complaint) against the New York Board of Elections and New York City Board of Elections. They claim that the New York ban against ballot selfies violates their freedom of speech, and are asking the SDNY to preliminary enjoin Defendants from enforcing New York Elections Law banning booth selfies.

On November 3, 2016, District Judge Kevin Castel denied Plaintiff’s motion for a preliminary injunction.

“This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.”

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The New York Law Banning Booth Selfies

Plaintiffs claimed that they are prevented from engaging in political expression and speech because New York Election Law, N.Y. Elec. Law § 17-310(10) makes it a misdemeanor to show one’s ballot “after it is prepared for voting, to any person so as to reveal the contents, or solicits a voter to show the same” (see here for a former post on the topic).

Judge Castel wrote about the history of the New York law:

“The provision, enacted 126 years ago, was part of 19th century legislation popularly known as the Australian ballot reforms. The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun noted in Burson, the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” 504 U.S. at 200. The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.” Id. Because of the statute, those who would engage in ballot policing, for the purpose of bribery or to enforce orthodoxy among members of a group, whether members of union, employees of a company, or members of a religious group, have longed been deprived of an essential tool for success. The absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New York statute.”

The SDNY Complaint noted that similar laws have been struck down in three states, Michigan, Indiana and New Hampshire.

New Hampshire Law Banning Booth Selfies Found Unconstitutional

Indeed, on September 28, the First Circuit, which is the Federal Court of appeals for New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico, struck down a New Hampshire law which made ballot selfies illegal, Rideout v. Gardner. The Court found that its “restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment.”

The purpose of the New Hampshire law banning selfies at the booth was to avoid vote buying and voter intimidation, and voters who published their voting selfies could be fined $ 1,000 under N.H. Rev. Stat. Ann. § 659:35.

659:35 Showing or Specially Marking Ballot. –

I. No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

The First Circuit applied the intermediate scrutiny test, used by the courts to verify the constitutionality of a content-neutral regulation which purpose is unrelated to the content of expression. Such regulation must be “narrowly tailored to serve a significant governmental interest.” If it does not meet this standard, it violates the First Amendment.

The First Circuit applied the test and found the statute facially unconstitutional, as the government could not justify the restrictions that banning booth selfies imposed on speech. The Court noted that “the legislative history of the bill does not contain any corroborated evidence of vote buying or voter coercion in New Hampshire during the twentieth and twenty-first centuries.”

The Court also noted that even if ballot selfies would indeed “make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.” In other words, the law cannot solve a problem with a hedge hammer, but must instead be narrowly tailored to only forbid what is necessary to achieve its goal. A general ban on booth selfies is too broad a measure, as it “reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reason.” There is not a current voting fraud problem which can only be solved by banning selfies at the booths. The First Circuit concluded that “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”

Booth Selfies and Democracy

The SDNY Complaint argued that ballot selfies “[have] become a common manner of political expression.” Snapchat (now Snap) had filed an amicus curiae brief in the Rideout v. Gardner case where it pointed out that that “younger voters participate in the political process and make their voices heard” by taking selfies at the polls. Its brief had cited a Pew Research Center 2012 report, which found that “22% of registered voters have let others know how they voted on a social networking site such as Facebook or Twitter,” that “30% of registered voters have been encouraged to vote for [one Presidential candidate or the other] by family and friends via posts on social media such as Facebook or Twitter” and that “20% of registered voters have encouraged others to vote by posting on a social networking site such as Facebook or Twitter.” These percentages are likely to be higher this year as more and more people are active social media users.

A Hodgepodge of Laws

Booth selfies are banned in some states, tolerated in others, and legal in some. The press has recently published helpful guides so that voters can check out whether they can indeed share their voting selfies on social media, see here or here. However, these guides may become quickly obsolete, as several cases challenging the constitutionality of law forbidding booth selfies have been filed.

The Sixth Circuit upheld on October 28 Michigan’s ban of booth selfies for this upcoming election. The Court reserved the right of plaintiff to fully litigate his First Amendment complaint, but only after the election, as the issue is too important to be decided too quickly (the complaint had been filed in September 2016). The Sixth Circuit noted, however, that the “ban on photography at the polls seems to be a content neutral regulation that reasonably protects voters’ privacy—and honors a long tradition of protecting the secret ballot.”

In California, the ACLU had filed a suit on October 31, requesting the District Court for the Northern District of California to issue a temporary restraining order and a preliminary injunction to enjoin California Secretary of State to enforce the California law banning booth selfies, Cal.Elec. Code §§ 14276, 14291. The Court rejected the demand on November 2. A new law will allow a California voter to disclose how she has voted, but it will only enter into force on January 1, 2017, too late for the Presidential Elections.

What is next? New York voters will not be able to share their booth selfies in this week’s election. Regardless, please VOTE!

 

Image is courtesy of Flickr user justgrimes under a CC BY-SA 2.0 license.

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Of the Importance of Having a Privacy Shield Notice

An article I wrote in French about the U.S.-E.U. Privacy Shield Framework, De la sphère au bouclier : qu’est-ce que le Privacy Shield ? has just been published by the Information, données & documents review.

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The E.U. does not find the U.S. to have an adequate level of protection, as required by the Data Protection Directive. Therefore, U.S. companies wishing to transfer personal data to the European Economic Area (EEA), which includes the European Union (EU) and also Iceland, Liechtenstein and Norway, must implement a valid transfer mechanism.

Among these mechanisms are the Binding Corporate Rules (BCRs), which are internal rules a multinational group of companies may adopt to define its global policy regarding international transfers of personal data within the corporate group.

Companies may also implement Standard Contractual Clauses (SCCs). The E.U. Commission has issued two sets of such clauses, one for transfers from data controllers to data controllers established outside the EU/EEA, and one for the transfer to processors established outside the EU/EEA.

Companies used to be able to self-certify to the U.S.-EU Safe Harbor Framework, negotiated by the U.S. Department of Commerce (DoC) and the EU Commission. Self-certified companies which voluntarily agreed to respect the Safe Harbor principles and the Safe Harbor frequently asked questions were deemed to comply with E.U. data protection law when transferring personal data from the EU to the US. However, on October 6, 2015, the European Court of Justice declared the Safe Harbor Framework invalid. The U.S. and the E.U. Commission then engaged in negotiations to reach a new agreement which would allow transatlantic personal data transfer. The Privacy Shield was adopted on July 12, 2016 and became operational on August 1, 2016.

If a company wishes to participate in the Privacy Shield, it must publicly declare its respect for the Privacy Shield Principles, as stated in the Privacy Shield ‘Notice’ Principle.

Therefore, these companies must have a privacy policy which complies with the Privacy Shield Principles. The DoC will regularly review the policies of self-certified companies to ensure that they follow these principles. Failure to do so may lead to sanctions and removal from the Privacy Shield list. Therefore, having a Privacy Shield-compliant privacy policy is of the utmost importance.

Privacy Shield Principles:

1. Notice
2. Choice
3. Accountability for Onward Transfer
4. Security
5. Data Integrity and Purpose Limitation
6. Access
7. Recourse, Enforcement and Liability

Privacy Shield Supplemental Principles:

1. Sensitive Data
2. Journalistic Exceptions
3. Secondary Liability
4. Performing Due Diligence and Conducting Audits
5. The Role of the Data Protection Authorities
6. Self-Certification
7. Verification
8. Access
9. Human Resources Data
10. Obligatory Contracts for Onward Transfers
11. Dispute Resolution and Enforcement
12. Choice – Timing of Opt-Out
13. Travel Information
14. Pharmaceutical and Medical Products
15. Public Record and Publicly Available Information
16. Access Requests by Public Authorities

Image is courtesy of Flickr user Riley Kaminer under a CC BY 2.0 license.

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