Yesterday, Congress passed two important copyright measures that the creative community has long advocated for:
The first is the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE), which will establish a voluntary adjudicatory process, housed within the Copyright Office, for copyright claims under $30,000 in value. The law requires that the Copyright Office establish the Copyright Claims Board within a year of the law’s enactment. As Register of Copyrights Shira Perlmutter noted in the Office’s announcement, the Copyright Office has long supported the idea of hosting a small-claims tribunal which, just like the Music Modernization Act passed in 2018, was the subject of an extensive report of the Copyright Office and years of congressional inquiry and review.
You can read more about issues surrounding “small” copyright claims, and why the Copyright Claims Board will be a welcome development for many copyright owners — especially photographers — in chapter 6 of my book, The Unrealized Promise of the Next Great Copyright Act.
The second major development is the passage of a bill to close the “streaming loophole.” The Copyright Act, as it currently stands, provides that the unlawful reproduction or distribution of copyrighted works can be treated as a felony (when certain factors make the conduct especially egregious), but the unlawful performance of copyrighted work is treated only as a misdemeanor, meaning fewer cases were prosecuted.
As content distribution technologies have evolved, and streaming has become the dominant mechanism by which legal content offerings are distributed, pirates have followed suit, and today illegal streaming sites and services are the dominant form of piracy. Still, the law treated the two differently (more about this in chapter 4 of my book).
The felony streaming provision which, as the Copyright Office noted in its announcement, “was the result of a negotiated profess among a number of consumer and industry groups,” fixes that disparity, but does so in a way that specifically excludes “criminal prosecution of individual users.”
The two copyright measures now await the President’s signature.
Shira Perlmutter has taken the reins at the U.S. Copyright Office after the prior register, Karyn Temple, departed for the Motion Picture Association in . Shira brings with her decades of copyright policy expertise, having served previously at the Copyright Office, TimeWarner, the International Federation of the Phonographic Industry, and most recently as the Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office.
Here’s the official announcement from the Copyright Office:
The U.S. Copyright Office welcomes Shira Perlmutter today as 14th Register of Copyrights and Director of the U.S. Copyright Office. Librarian of Congress Carla Hayden presided over Perlmutter’s oath of office in which, among other obligations, she swore to uphold the Constitution of the United States, which is the foundation for federal copyright law.
Perlmutter steps into the role during the Office’s 150th anniversary year at a time in which important forward-focused projects, such as copyright modernization, are at the forefront. In her first weeks, Perlmutter will be meeting staff, participating in public presentations, and taking on the management of ongoing programs and initiatives. She looks forward to engaging with a wide range of stakeholders and hearing about their priorities and concerns in the coming weeks and months.
Perlmutter has served since 2012 as Chief Policy Officer and Director for International Affairs at the United States Patent and Trademark Office (USPTO), working in all areas of intellectual property, including copyright. From 1995 through 1999, Perlmutter served as the Associate Register for Policy and International Affairs at the U.S. Copyright Office. Read more about her career here.
Maria Strong, who had led the office as the acting register since Temple’s departure last December (and admirably managing its COVID-19 response), returns to her previous post as Associate Register of Copyrights and Director of Policy and International Affairs.
The Copyright Office has released a new version of Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. It contains a number of significant updates to copyright law that have been enacted since the last edition of the circular was released in 2016, including the:
Marrakesh Treaty Implementation Act
Orrin G. Hatch-Bob Goodlatte Music Modernization Act
National Defense Authorization Act for Fiscal Year 2020
Satellite Television Community Protection and Promotion Act of 2019
Library of Congress Technical Corrections Act of 2019
Coronavirus Aid, Relief, and Economic Security Act
The document is available on the Copyright Office website. The Office says a print edition is forthcoming but has been delayed due to the ongoing COVID-19 pandemic.
It seems like only yesterday that the Copyright Office announced the seventh triennial 1201 rulemaking (or maybe it was only yesterday that I finally finished reading the 340+ pages of the Register’s recommendation), but here we are again: the Office has just announced the commencement of the eighth proceeding. The rulemaking, under 17 U.S.C. § 1201, aims to identify particular classes of works for which users are adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access control technologies.
As I describe more fully in Chapter 5 of my book, the proceeding has evolved over the years form a relatively banal, esoteric administrative exercise into a more closely watched and sometimes hotly contested battle. (It was the fifth triennial rulemaking during which the Copyright Office determined — and justifiably so — that there was no longer a need for an exemption to allow consumers to “unlock” their cell phones).
The last rulemaking cycle was the first during which the Office used its streamlined procedure for “renewals” of existing exemptions, recognizing that while the statute does not permit the Office to simply “renew” previously granted exemptions, it could accelerate the way it adjudicates requests for those exemptions to continue. That approach apparently worked well, as the Office is doing it again during this cycle.
Here’s the full announcement from the Copyright Office:
The Copyright Office has published a notice of inquiry and request for petitions initiating the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201. Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls. When such classes are identified, the Librarian promulgates regulations exempting the classes from the prohibition for the succeeding three-year period.
For this proceeding, the Office is again using a streamlined procedure for the renewal of exemptions that were granted during the seventh triennial rulemaking. If renewed, those current exemptions would remain in force for an additional three-year period (October 2021–October 2024).
The notice of inquiry requests that interested parties submit written petitions for renewal of current exemptions by 11:59 p.m. Eastern Time on July 22, 2020, written comments in response to any petitions for renewal by 11:59 p.m. Eastern Time on September 8, 2020, and written petitions proposing new exemptions by 11:59 p.m. Eastern Time on September 8, 2020.
The Office will be offering a public webinar to discuss the 1201 rulemaking process on June 23, 2020, at 2 p.m. Eastern Time. Registration is required and available here.
After more than five years, the Copyright Office released its long awaited report on Section 512 of Title 17. Better known as the “safe harbor” provision that grants internet service providers with immunity from liability for copyright infringement committed by their users, Section 512 has become one of the most hotly debated provisions of copyright law. It’s also the provision that is arguably the ripest for a legislative fix, and yet the least likely to ever get one for want of consensus among stakeholders.
Enacted in 1998, at the dawn of the commercial internet, Section 512 was intended to create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringement that may occur in the course of their activities.” S. Rep. 105-190, at 20 (1998).
Unfortunately the spirit of cooperation envisioned by Congress has not been realized. Today, service providers use the safe harbor as a shield, turning a blind eye to obvious copyright infringement taking place on their networks, a perspective endorsed by a number of course who have misunderstood (or been willfully blind to) the balance that Congress sought to strike. Copyright owners are left holding the bag, essentially having to police the internet themselves for the rampant infringement that still takes place there today, notwithstanding the dozens of legal sources for copyrighted books, films, television shows, and music.
Thankfully the Copyright Office more or less agreed, writing:
Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.
The report, which runs nearly 200 pages, distilling five years of study into twelve recommendations, is available from the Copyright Office’s website. (The full record of the proceeding that led to the report is available here).
You can find more on the history and background of the Digital Millennium Copyright Act in Chapter 4 of my book, The Unrealized Promise of the Next Great Copyright Act.
In an opinion piece published by The Hill on December 17, Senator Thom Tillis (R-N.C.), chairman of the Senate Judiciary Subcommittee on Intellectual Property, announced that he plans “to launch a major new initiative … to explore ways we can better promote the creative economy in the 21st century.” That initiative, comprising “a series of hearings … to evaluate both the policy baseline created by the DMCA and the current practices and and operations of both platforms and creators…” is intended to “re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet.”
It’s a noble goal to be sure, but as I wrote in Chapter 6 of The Unrealized Promise, what to do with the DMCA — specifically the safe harbor provisions found in Section 512 of Title 17 — is among the most divisive issues in copyright policy discussions and, at least as of the House Judiciary Committee’s copyright review, one that stakeholders on either side had little interest in doing anything other than bemoan the fact that the other side “doesn’t get it” (I paraphrase slightly).
But as I also discuss in the book (in Chapter 11), there have been significant changes to the copyright policy landscape since the House undertook its review. Perhaps now — or more specifically, next year, when Sen. Tillis promises his hearings — is an appropriate time to re-visit the conversation. That said, I’m doubtful much has changed on this particular issue given how polarizing it’s been, dating back as long as the statute itself.
As an aside, Sen. Tillis mentioned that he’s looking forward to reading the forthcoming Copyright Office study on Section 512, but I hope he’s not holding his breath. That study has now been pending for four years, and given the recent news that Register of Copyrights Karyn Temple is leaving at the end of the year, it’s unlikely that the Office will be in a position to finalize a report on something as controversial as the DMCA anytime soon.
Following the resignation of Karyn Temple in early December, the Librarian of Congress has announced that Maria Strong, a longtime Copyright Office staffer and expert on international copyright law, will serve as acting Register of Copyrights until a permanent replacement is found.
From the announcement:
Strong has served as Associate Register of Copyrights and Director of Policy and International Affairs since April 23, 2019. In her position, Strong assisted the Register with critical policy functions of the U.S. Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations. She directed the Office of Policy and International Affairs, representing the Office at meetings of government officials concerned with the international aspects of copyright protection and enforcement and providing regular support to Congress and its committees.
Prior to that position, Strong served as deputy director of policy and international affairs since January 2015. Upon joining the Copyright Office in 2010, she served as senior counsel for policy and international affairs and also served as acting general counsel from April to July 2013. Before joining the Office, Strong spent nineteen years in private practice in Washington, DC, where she represented clients in the media, technology, and entertainment sectors and provided analyses and advocacy on global and domestic issues involving copyright law, enforcement, trade policy, and e-commerce. She began her legal career as a staff attorney at the Federal Communications Commission.
Strong earned her JD from George Washington University Law School, her MA in communications management from the University of Southern California’s Annenberg School of Communications, and her BA in communication studies from UCLA.
Chapter 10, “Regime Changes” delves into the unfortunate, untimely, and unseemly removal of Maria Pallante from the Register of Copyrights post in late 2016. The then Associate Register for Policy and International Affairs, Karyn Temple was announced as interim register shortly thereafter. Temple was eventually appointed permanently to the post on March 27, 2019.
No word yet on who will take over the Register post, though word is that Congress is pushing Librarian of Congress Dr. Carla Hayden, to fill it promptly.
Update: On December 18, 2019, Dr. Hayden appointed longtime Copyright Office staffer Maria Strong as acting Register of Copyrights. Strong was most recently the head of the Office’s department of policy and international affairs, and before that served as deputy director and senior counsel in the same department. From April to July 2013 she served as acting general counsel. She joined the Copyright Office in 2010.
In Chapter 6 I lay out several of the major challenges confronting photographers and other visual artists. Among them is the outdated and outmoded definition of “publication” set forth in Section 101 of the Copyright Act. That definition says, on the one hand, that “offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display, constitutes a publication.” But goes on to say that a mere “public performance or display of a work does not of itself constitute publication.”
The definition was relatively easy to apply in the pre-internet era, where it was fairly obvious what was “published,” but as distribution technology has evolved, the Copyright Act has remained static, calling into question whether works posted online are “published” as contemplated by the Act. Because the requirements for copyright registration differ based on the publication status, and because registration is required before a copyright owner can enforce his or her rights in court, the distinction is critical.
On December 4 the Copyright Office announced it has launched an inquiry into the issue, with the intent of ultimately providing some guidance on “interpreting the statutory definition of publication and the role that publication should play in copyright law and the registration process.”
