The Most Significant Copyright Issues Likely to Arise in 2023
During the first few weeks of 2023, we took a look back at 2022 by summarizing the most important copyright-related court cases, U.S. Copyright Office activities, and legislation that commanded our attention in 2022. In this blog, we look forward and try to predict the most significant copyright issues that will draw the focus of the copyright community in 2023. This blog won’t attempt to cover everything—just the highlights. And, no doubt, there will be important, potentially unforeseen copyright issues that will arise in 2023 that won’t be on this list. With those two caveats in mind, and in no particular order, we present some of the most significant copyright issues we expect to arise in 2023.
AWF v. Goldsmith
Perhaps the biggest copyright news to drop in 2023 will be the U.S. Supreme Court decision in Andy Warhol Foundation v. Goldsmith. It’s rare for the Supreme Court to take on a fair use case, so any time it does, the case has the potential to be earthshaking and to have a tremendous impact on future litigation and spawn numerous panel discussions, news articles, and law review articles. A decision in this case could be especially impactful because it will decide the standards for determining whether and under what circumstances a work can be transformative under the first fair use factor. There is no doubt that this is a case that anyone and everyone even remotely connected to copyright will be following in 2023 as the decision in the case could have a lasting impact on transformative use analyses and copyright owners’ derivative works right not just in 2023 but well into the future.
Artificial Intelligence Policy
Artificial Intelligence (AI) issues were a hot topic of discussion by policymakers, stakeholders and many others in 2022, but much of those discussions (at least in the early part of the year) failed to consider the important copyright issues at stake when copyrighted works are used without permission (or compensation) to train AI systems. As AI discussions continued throughout 2022, this seemed to change, as more individual creators and the organizations that support them raised concerns about their works being used in an unauthorized manner. Just last week, a group of artists filed a class action lawsuit against Stability AI—the creator and operator of the Stable Diffusion AI image generator—for the infringement of billions of copyrighted images it uses without permission to train its system. And earlier this week, Getty Images announced a lawsuit it was bringing against Stability AI in London.
This just goes to show that the copyright issues associated with AI are not going away anytime soon and, in fact, are likely to demand a significant amount of the copyright community’s focus in 2023 and beyond. One important AI-related copyright issue that will be followed closely is the copyrightability of works created by or through the use of AI. The case of Thaler v. Perlmutter pending in federal court, in which this issue is at the forefront, has received most of the attention here. However, the Copyright Office is also considering whether to cancel the copyright registration of Kristina Kashtanova, an artist and AI consultant and researcher, for her partially AI-generated graphic novel, Zarya Of The Dawn. Given the nuances of the Kashtanova registration, the Office’s decision in that case may very well be the more impactful of the two cases moving forward and is one that the copyright and AI communities should be watching closely in 2023.
Another copyright-AI related issue that should draw significant attention is the U.S. Copyright Office and the U.S. Patent and Trademark Office response to a request by Senators Tillis and Coons to conduct an examination of the relationship between IP and AI. That may include the formation of a national commission on AI, as was requested by the Senators. But as noted in the response to the Senators, the formation of such a commission could be difficult because it would require funds to hire staff and pay commission members. Even if a commission is not ultimately formed, there is no doubt that these two Offices will be examining and requesting input on the relationship between IP and AI in some manner in 2023.
Of course, U.S. Government policymakers are not the only ones considering AI-copyright issues. We are seeing these issues arise and be considered by policymakers throughout the globe as more nations consider what their AI laws and policies ought to be, and that will undoubtedly continue in 2023. It is our hope that whatever the results of such deliberations, that ultimately, they uphold the underlying goals and purposes of copyright and continue to respect the rights of creators and copyright owners. To find out more about the Copyright Alliance views on copyright-related AI issues, check out our position paper on the issue.
American Music Fairness Act (AMFA)
Over the years, there have been many different legislative proposals that sought to codify a terrestrial broadcast right in sound recordings. Many of those legislative approaches didn’t get very far. But the latest attempt to address this issue—the American Music Fairness Act (AMFA)—may be different. The bill appeared to pick up some momentum this Fall when a companion to the House bill was introduced in the Senate, and the U.S. Copyright Office and the U.S. Patent and Trademark Office sent a supportive letter to the Chairmen and Ranking Members of the House and Senate Judiciary Committees. But the big indicator that this bill may have real hope of making it across the finish line, unlike its predecessors the House Judiciary Committee passed an amended version of AMFA in mid-December. AMFA passing the House Judiciary Committee is especially significant because it’s the first time a bill addressing this issue has passed through full committee in over a decade. This may indicate that AMFA will continue to get a lot of attention in Congress and by stakeholders in 2023.
Copyright Claims Board
After years of anticipation, the U.S. Copyright Office’s new Copyright Claims Board (CCB) launched in June of 2022. Close to 300 cases were filed with the CCB, but by the end of 2022, apart from the one case that was transferred from a district court, none of the active cases had progressed much further than the issuing of scheduling orders. Throughout 2023, these and other active cases will progress through the system and we’ll begin to see discovery, conferences, hearings and other indications that these cases are moving to an ultimate determination by the CCB officers. So, although right now we may not have good feel for how the CCB is working, by the end of 2023 we should have a much better idea.
Hachette v. Internet Archive
Since the Association of American Publishers (AAP) first filed suit on behalf of four of its book publisher members two years ago against the Internet Archive (IA) for the illegal mass scanning and distribution of literary works under the guise of the fabricated legal theory referred to as “controlled digital lending,” the case has been slowly proceeding through the Southern District of New York. In 2022, both sides filed motions for summary judgment and both sides responded. As a result, the next step is for the district court to possibly hold a hearing and then issue a ruling on the summary judgment motions. Any decision(s) coming from the district court would almost certainly be appealed by the losing party. Nevertheless, the stakes are extremely high since this case will have a lasting impact on the ability of copyright owners to protect and control their works, and as such, will no doubt be a case that the whole copyright community, not just publishers and authors, will be watching in 2023.
Some other cases that will be closely watched in 2023 include Hunley v. Instagram, which will consider the server test, Valancourt v. Garland, which challenges the constitutionality of the mandatory deposit provisions of section 407 of the Copyright Act, and the aforementioned Thaler v. Perlmutter.
Copyright Office Modernization
The Copyright Office has been taking steps to modernize during the past several years. Last year, we saw some of the tangible results of this work. For example, in the summer of 2022, the new recordation system was made publicly available, allowing users to submit electronic documents related to transfer of copyright ownership or other documents pertaining to copyright under section 205 of the Copyright Act. Although the Office has made recent progress to modernize, there is still much work to be done. We look forward to seeing aspects of the new registration system demonstrated by the Office in February. The Office has also testified to the fact that they are actively examining numerous other improvements to the registration system, such as:
- a new group registration for two-dimensional works of visual art;
- increasing the limit on the number of photographs that can be registered in a group registration for photographs; and
- implementing a tiered fee structure that permits small businesses and individual creators to pay a reduced fee to register works.
We were pleased to see that the Office is considering these improvements and others. Rights holders have waited much too long for these improvements, and we hope to see them rolled out in 2023. We also think other improvements to the registration system are necessary, such as those aimed at improving and updating the deposit and best edition requirements, and we will continue to push for those changes. And to the extent any of these changes require legislative amendments, we plan to work with Congress, the Copyright Office, and other stakeholders to make them a reality in 2023.
Right-to-Repair Legislation
In 2022, there were a host of right-to-repair bills that were introduced in the Senate and the House, and also in several state legislatures. These bills are generally intended to require manufacturers of certain types of equipment, like tractors and cell phones, to permit users or authorized repair shops to repair certain types of equipment. In theory, these right-to-repair bills should not implicate copyright concerns, but some of the bills were intentionally or unintentionally drafted very broadly and would therefore have significant damaging copyright implications. Most of the impetus for these bills comes from farmers who want to be able to repair their tractors, but opportunistic anti-copyright groups that have long sought for a back-door way to circumvent copyright protections have tried to latch on to the farmers’ movement.
On January 8 of this year, the American Farm Bureau Federation (AFBF) and John Deere signed a Memorandum of Understanding (MOU) about agricultural Right to Repair. Importantly, the MOU stipulates that AFBF encourages its state organizations to “refrain from introducing, promoting, or supporting federal or state ‘Right to Repair’ legislation that imposes obligations beyond the commitments in this MOU.” PIRG Right to Repair Campaign Director Kevin O’Reilly said that they plan to continue to push for right-to-repair legislation, despite the fact that there is now a market solution to the tractor repair issue. (What is it they say about never letting the truth get in the way of a good story?) Because the AFBF has agreed not to push for right-to-repair legislation, the only parties left to push for legislation are those who have ulterior motives, so it will be interesting to see what happens next. No doubt there will be right-to-repair legislation introduced in the states and in Congress, but it’s likely that there will be many fewer bills introduced and it’s likely that none of these bills get much “traction.”
DMCA
Millions of individual creators and small and large businesses throughout the United States rely on the protections of copyright law—including the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA)—to protect their creative efforts and investments in the creation and distribution of new copyrighted works. Every year we see examples of creators, copyright owners, platforms, and others using the notice and takedown provisions of the DMCA—sometimes done effectively and correctly and sometimes not. I am confident that, as with prior years, we will see our share of good and bad DMCA takedown stories in the news. In 2023, there will also be considerable discussion about the need for legislation to update and improve the now quarter century old law. Once again, as was the case in prior years, it is likely that there is legislation introduced or drafted for consideration and/or hearings on these issues as Congress determines what the next logical step is to help combat rampant piracy.
SMART Copyright Act
The development and implementation of effective standard technical measures for the protection and identification of copyrighted works online are critical components to combatting infringement in the digital age. Congress understood this when it enacted section 512(i) of the Copyright Act. But section 512(i) has not been effective. It has been dormant for a quarter century, and, in 2022, Congress took notice. In an effort to find a middle ground between all the stakeholders, Senators Tillis and Leahy introduced “the Strengthening Measures to Advance Rights Technologies Copyright Act (“the SMART Act”), which would, among other things, establish a triennial public rulemaking process (separate from section 512(i) through which the Librarian of Congress would publicly designate certain technical measures. There was no formal activity on the bill because the bill’s sponsors wanted the U.S. Copyright Office to complete its study of technical measures and standard technical measures before determining whether and what amendments to the SMART Copyright Act were warranted. At the end of 2022, the Copyright Office issued its findings in its technical measures and STM studies. Also, in mid-December, Representatives Judy Chu (D-CA) and Kelly Armstrong (R-ND) introduced their own version of the SMART Copyright Act in the House. With all this activity on the SMART Copyright Act in late 2022, it certainly appears that the SMART Copyright Act is being teed up to be more fully considered by Congress in 2023.
Copyright Royalty Board (CRB)
There has been lots of talk in the music community recently about the Copyright Royalty Board (CRB) and the need to fix the problems that exist with the CRB. At this stage, there seems to be general agreement that there are problems with the CRB that need to be addressed, but it’s unclear to what extent there is agreement on what those problems are, how significant they are, how to fix them, and whether the fixes would be through legislation, changes to the rules, or some combination thereof. In 2023, we should get a better idea of what directions these discussions are taking and what changes to the CRB are ripe for consideration.
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