By: Jason Anterasian

COVID-19 vaccines and new technologies fighting climate change face the same perils.

COVID-19 has upended the world and we are entering our third year of the pandemic.  When the pandemic first emerged, private biopharmaceutical companies such as Pfizer, Moderna, and Johnson & Johnson quickly developed COVID-19 vaccines.  Such rapid vaccine development was possible in part because these companies benefited from receiving government funding for COVID-19 vaccine research and development, advanced purchase orders from the government for the vaccines, or both.  COVID-19 vaccines also built on prior decades of mRNA vaccine research that had been largely funded by the government.  The biopharmaceutical companies now have patents on the vaccines and trade secrets on the manufacturing and commercializing of the vaccines, which have been cited as causes of the inequitable vaccine rollout throughout the world.  According to the Global Dashboard for Vaccine Equity, 67% of individuals in high-income countries have been vaccinated with at least one dose of the vaccine as of January 5, 2022, compared to 11% in low-income countries.  The divide between the developed and developing worlds has created problems globally, as it has produced breeding grounds for the virus, resulting in new variants such as Omicron that prolong the pandemic.  

While COVID-19 may seem like a unique crisis, another global crisis is emerging: climate change.  Like COVID-19, climate change has severe ramifications on global health, as extreme weather and natural disasters, extreme heat, environmental degradation and loss of biodiversity, water and food supply impacts, water quality impacts, and increased allergens and air pollutants all threaten public health.  Rich, developed countries emit the most greenhouse gases today; in developing countries, quality of life is increasing and will continue to increase – which is fantastic – but this will come with increased greenhouse gas emissions, as there is limited ability for these countries to pay the higher costs that exist today for green technology.  Similar to COVID-19 vaccines, new technologies must be invented and widely distributed throughout the developed and developing worlds to prevent (or slow down) a climate crisis.  Governments are the largest funders of efforts to develop new green technologies. As these technologies are created, patents and trade secrets in the new technologies will inevitably exist. As a result, we must learn from the COVID-19 vaccine rollout and avoid intellectual property becoming a barrier to global access and adoption of new green technologies.  A world in which only developed countries are using green technologies will not stop a climate crisis, as increased emissions in the developing world contribute to climate change, producing global effects.

Current laws and international agreements are insufficient solutions to disseminate green technologies.

Neither international agreements nor freedom of information laws provides a sufficient solution to ensure global access to new green technologies.  The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) established minimum intellectual property standards for countries in the World Trade Organization (WTO), and its Article 7 encourages “dissemination of technology . . . . in a manner conducive to social and economic welfare.”  TRIPS Article 31 also allows for compulsory licensing of patented technologies without authorization of rights holders in times of “national emergency or other circumstances of extreme urgency.”  Given TRIPS’ support of technology dissemination, green technology’s contribution to public welfare, and a climate crisis likely constituting an “emergency,” compulsory licensing under TRIPS is an avenue countries could take to circumvent patents in green technology.  However, compulsory licensing is an imperfect solution because it threatens to destroy incentives to innovate and can lead to backlash from patent owners and their home countries.  Also, there are many new large and small green technologies that must be developed across all sectors of our lives, such as manufacturing, energy, agriculture, and travel, to avoid a climate crisis.  This expansiveness makes it difficult to define the scope of which inventions would qualify for compulsory licensing. 

Similarly, while over one hundred countries have freedom of information laws, these laws are likely insufficient to circumvent intellectual property barriers and produce global use of new green technologies.  For example, the US Freedom of Information Act (FOIA) requires disclosure of recorded information held by public authorities, subject to listed exemptions.  “Any person,” including foreign nationals, can file a FOIA request.  A private company who partners with the government to build and test a green technology could have its information disclosed under FOIA, if the information is on the government’s records.  However, trade secrets are explicitly exempted from FOIA (Exemption 4).  Additionally, in 2019 the Supreme Court ruled in Food Marketing Institute v. Argus Leader Media that a private company’s information will remain confidential under this exemption as long as the company customarily and actually treats the information as private and provides it to the government under an assurance of privacy.  As a result, Exemption 4 makes it difficult for the trade secrets of a private company’s new green technology to be disclosed under FOIA, preventing dissemination.  

With proactiveness, patents, trade secrets, and tacit knowledge of green technology can be disseminated to the developing world.

Ultimately, advancements in green technology will come largely from funding by governments and innovation by companies in the developed world, and these technologies will come with patents, trade secrets, and tacit knowledge.  However, applying the lessons from COVID-19 to climate change, we cannot let intellectual property become a barrier to the implementation of new green technologies in the developing world.

Governments must aid private companies in both the supply of green technologies by funding innovation and the demand for it by growing the market via policy changes, given how inexpensive current practices like fossil fuels are compared to green technologies.  In exchange, governments must proactively look for ways to ensure these technologies can be disseminated throughout the world.  First, with respect to patents, the government should be enough of a co-inventor/patent owner such that it can license the new technology to the developing world at no additional cost compared to current alternatives.  Second, with respect to trade secrets, the government should require private companies to disclose helpful information related to green technology, to enable the developing world to manufacture and commercialize the technology.  This can be done by requiring private companies to spend certain amounts of time counseling and partnering with their peers in the developing world, and also by requiring private companies to contribute knowledge to global organizations such as the Green Climate Fund that work to aid developing countries in combating climate change.  Third, with respect to tacit knowledge, to the extent it is not a trade secret but is documented, tacit knowledge can be disclosed under freedom of information laws such as FOIA.

Ultimately, the COVID-19 pandemic has shown the increasing connectedness of our world and the importance of global adoption of new technologies to solve global challenges.  The US government and governments of the developed world should learn from COVID-19, and beyond funding supply for new green technologies to fight climate change, they should leverage their influence to ensure broad global access to these new technologies.  If this is done, some of the IP pitfalls that have prolonged the COVID-19 pandemic can be avoided in the fight against climate change. 

By: Gracie Loesser

You may know already that copying an image from the internet and pasting it onto your website or blog can get you into trouble. But you might be surprised to learn that embedding images can get you in just as much trouble.

Both methods of sharing media implicate Section 106 of the U.S. Copyright Act, which gives copyright holders the exclusive right to “display the…work publicly,” meaning all other individuals are not allowed to “show a copy of it, either directly or by means of a film, slide, television image, or any other device or process…” or they may be brought to court for copyright infringement. Although copying and pasting another person’s copyrighted content on to your webpage is widely accepted as an act of infringement by U.S. courts, the use of embedding technology to accomplish the same task is still an unsettled question.    

What is embedding, anyway?

Embedding technology allows anyone to render a visual image of remote content directly onto their own webpage, functioning as a kind of window into the external page. Embedding provides a much more polished and digestible presentation than a simple URL link and eliminates the need for viewers to leave the page at all. Embedding content is easier now than ever before, as social media applications, web hosting services, and other platforms offer user-friendly tools that facilitate embedding nearly every kind of content imaginable.

The problem is that U.S. courts are torn on whether this now-ubiquitous form of content sharing constitutes infringement.

Is unlicensed embedding a violation of the Copyright Act?

The Ninth Circuit and the Southern District of New York are staunchly divided on the legality of unauthorized embedding, and the Southern District’s recent rulings have only sharpened that divide.

The Ninth Circuit first addressed the issue in 2007. In Perfect 10 v. Google, the court articulated a standard which it called the “server rule,” holding that website publishers who embed copyrighted material into their pages are not guilty of infringement. The court reasoned that embedding content did not constitute a “display” of the material under Section 101 of the Copyright Act, since the website publisher was merely creating a frame to view the material on the original host server. Several courts have since adopted and applied the “server rule” in infringement cases.

Over the last fourteen years, the Ninth Circuit’s “server rule” has faced scrutiny from courts and legal experts. One of the most vocal opponents to the rule has been the Southern District of New York. The Southern District first explicitly rejected the “server rule” in 2018, finding “no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act.” The District Court has maintained its position over the years, most recently this past July 2021 in Nicklen v. Sinclair Broadcast Group.

How can we reach a consensus?

Given the near-ubiquitous use of embedding tools on the internet, U.S. copyright holders and internet users deserve a clear answer. That answer could come from either the Supreme Court or Congress.

The Supreme Court has not indicated an interest in weighing in, but this issue does seem prime for the Court’s review. Mindful of the public’s interest in judicial predictability, the Supreme Court will often grant certiorari for cases involving legal questions that lower courts can’t agree on. In the present issue, there is obvious disagreement among courts on how to resolve embedding copyright infringement claims, and the resolution of this split will have major implications for social media providers, news organizations, and other internet users. More broadly, the questions implicated are not limited to embedding, but are indicative of a larger concern: adapting the Copyright Act to address developing technologies. The Supreme Court will likely continue to face questions regarding the role of copyright protection in the ever-evolving digital world over the next five to ten years.

Congress could also take action. Indeed, Congress may be a better vehicle for modernizing existing copyright law since the current difficulty arises mainly from the fact that the Copyright Act does not sufficiently address the reality of our current media landscape. Legal scholars are actively encouraging Congress to take action by amending the Copyright Act, but it is unclear whether Congress has the political motivation to pursue such legislation. Congress seems more polarized than ever, and its inability or unwillingness to pass substantial bipartisan legislation suggests a prompt legislative remedy is unlikely.

Meanwhile, the demand for user-friendly content sharing options shows no signs of slowing. As developers unveil new technologies to meet this demand, the U.S. legal profession will need to keep pace to make sure that U.S. copyright law is reflective of our increasingly digital world.

By: Laura Ames

This October, OnlyFans, the social media platform known for hosting explicit content, gained a rather surprising new account: a consortium of Viennese museums. The museums are using their account to post pieces of nude fine art from their collections that have been censored or taken down by other social media sites. This unique solution is a symptom of larger issues surrounding social media sites grappling with what content to allow and the imperfect application of guidelines. 

Museums Take Action Against Censorship 

According to a spokesperson for the Vienna Tourism Board, the museums launched their “Vienna Laid Bare” program after they found their social media accounts suspended for posting images of their nude artwork.  The Board’s website identifies these institutions as “casualties” of a “new wave of prudishness” from social media platforms, proving that the fight against censorship that these artists originally faced is still going strong over 100 years later. The Tourism Board directly frames this campaign as a reaction to and protest against censorship. In response to censorship and bans, the museums turned to OnlyFans to post their banned work, ranging from paintings to a 25,000 year old limestone figurine.

Founded in 2016, OnlyFans is marketed as a social media platform that is “inclusive of artists and content creators from all genres.” OnlyFans requires users and creators to be at least 18 and has become the platform for explicit content. As of January 2021, the site had over 100 million users and over 1 million creators. As with other content on the platform, users must subscribe to the Vienna museums’ account in order to access their content. 

Social Media Sites’ Rules and Uneven Application 

Vienna is not alone in its struggle to post content containing nude artwork. Institutions have been running afoul of increasingly rigid nudity policies for years. Most social media sites’ guidelines purport to allow exceptions for some explicit content, including art. For example, Facebook’s Community Standards say that users may post nude artwork even though explicit content is generally banned. Instagram, which is owned by Facebook, has a similar rule allowing nudity in photos of paintings and sculptures. Rounding out the trio of commonly used sites, TikTok’s policies say the platform may allow exceptions to banned nudity for certain purposes like educational and artistic content. OnlyFans itself, even though it is marketed as an adults-only site, has not been able to avoid this censorship debate. In August 2021, OnlyFans announced it was banning explicit content due to credit card companies’ discomfort with handling pornography-related transactions. This announcement prompted a panic and outcry among creators and many left the platform. In response, the platform reversed its decision  just a few days later. 

Given that these policies all seem to allow exceptions for art, the question becomes why the Vienna museums needed to turn to OnlyFans at all. The answer comes in the shape of these sites’ uneven track record in applying their standards. In a similar situation, the Flemish Tourism Board complained in 2018 that Facebook had repeatedly censored nude paintings from famous artist Peter Paul Rubens. That same year, a French court held that Facebook was at fault for removing a French teacher’s post of a nude painting by Gustave Courbet. Similarly, online arts magazine Hyperallergic wrote earlier this month that Facebook contacted its marketing team about promotional material for the magazine’s upcoming exhibition of work by artist Suzanne Valadon. Facebook told the team that the paintings featured in the advertisement were inappropriate for the platform. In affirming this decision, Facebook directed Hyperallergic to a webpage explaining its policy for explicit content, which seemed to contradict the decision by saying that a photo of a nude statue would be appropriate.  And this year, TikTok banned Vienna’s Albertina Museum for posting nude photography. It appears that these sites are often overbroad in their efforts to take down or censor banned material. These accidental removals are often due to sites using artificial intelligence to flag banned content. 

Larger Censorship Issues

With this uneven application of guidelines, it makes sense that the museums would turn to an alternative site to post their content, but those involved in the project argue this effort is about more than generating clicks for the institutions. Nobert Kettner, Director of the Vienna Tourist Board, says  the OnlyFans account will not be a permanent feature but is an act of protest against censorship and a way to prompt discussion of the issue. Artists and others argue that finding alternative platforms to post nude art cannot be the only solution to combating censorship. Artists point out that efforts like this one chiefly provide visibility to historical and established artists, while the larger issue is that current and new artists are falling prey to social media platforms’ restrictive rules and struggling to get exposure.   

Beyond the ramifications for museums and artists, this debate about censorship is taking place amidst larger discussions about social media sites’ power to moderate and remove content in general.  For example, several states have proposed or passed legislation aiming to prohibit social media sites from censoring certain content, particularly political content. These bills would allow private citizens in these states to sue social media platforms for removing or moderating content based on a user’s politics. Lawmakers behind this legislation in Wisconsin argue that these laws will require companies to be transparent and consistent with their policies. Critics argue that some amount of censorship is necessary to prevent the spread of misinformation and that social media companies have First Amendment rights to decide what content to host. Currently, these efforts to curb censorship of political content have gained more attention than similar efforts in the art world, but the debate over censorship of all types of content rages on.