As I’ve done in previous years (2015 and 2016), I’d like to take a look ahead at what we may expect in the world of copyright policy in the year ahead. The difficulty of that task is markedly greater this year—a new Administration will take the lead of the Executive Branch at the beginning of the year, and that brings with it a shift in priorities and entirely new agenda. Congress too, will begin a new term. But even the Copyright Office, which is outside the Executive Branch, faces some uncertainly—it has been operating without a permanent Register of Copyrights at its lead since October. That means the sands could shift quickly over the next twelve months, rendering the predictions below meaningless.

Executive Branch

Let’s turn first to the Executive Branch, which administers areas impacting copyright such as enforcement, trade, and antitrust. In addition, the Administration, through the Department of Commerce, oversees the US Patent and Trademark Office, which advises it and other federal agencies on intellectual property policy, including copyright.1Though by statute, this responsibility is shared with the Copyright Office, which resides in the Legislative branch. USPTO copyright policy work may not “derogate from the duties and functions of the Register of Copyrights or otherwise alter current authorities relating to copyright matters,” and “In exercising the Director’s powers and duties under this section, the Director shall consult with the Register of Copyrights on all copyright and related matters.” 35 USC § 2(c).

President-elect Trump will be inaugurated on January 20, beginning the symbolic first 100 days of his administration. Copyright has not been explicitly mentioned in any outline of policy priorities for those first 100 days.2Which is not surprising, since copyright has rarely, if ever, ranked high on the agenda for any President. Even beyond the first 100 days, there have been few public statements from President-elect Trump or his advisors regarding copyright. In a recent article at IP Watchdog, copyright policy expert Marla Grossman reads the tea leaves to see what we might expect from a Trump administration in that area.

But beyond the front-page policy items, there is a lot of ongoing work within the Executive Branch that continues across Administrations. For example, the Intellectual Property Enforcement Coordinator’s Joint Strategic Plan for 2016-2019 was released last month and will likely be relied upon by those agencies with IP enforcement responsibilities. Its recommendations include continuing a “follow the money” approach to combat online commercial piracy and reducing online piracy by increasing the ability of consumers to locate content through lawful means.

The Director of the USPTO is a political appointee, so eyes will be on who may take over the helm of that department if current Director Michelle Lee decides not to remain in the position. In a recent interview with The Hollywood Reporter, Lee discussed copyright reform efforts and her Office’s ongoing work in that area. The USPTO is currently working on issues that it addressed as part of the Department of Commerce’s Internet Policy Task Force in its White Paper on Remixes, First Sale, and Statutory Damages, released at the beginning of 2016. Last month, the department held a public meeting which looked at “ways to promote a more robust and collaborative digital marketplace for copyrighted works.” The meeting “focus[ed] on initiatives in this space that relate to standards development, interoperability across digital registries, and cross-industry collaboration, to understand the current state of affairs, identify challenges, and discuss paths forward.” Director Lee has said of the issues discussed at the meeting and on the issue of first sale in the digital environment, the USPTO will “continue to convene and encourage multiple stakeholders to convene on best practices and so forth. There’s still lots of work to be done.”

US Copyright Office

The US Copyright Office is charged, among other things, with the statutory duty to “Advise Congress on national and international issues relating to copyright.”317 USC § 701(b)(1). But before looking at the substantive work the Office may take on 2017, let’s take a look at a matter far more pressing to the Office: the appointment of the next Register of Copyrights. Since October, the Office has been without a permanent Register, following the Librarian of Congress’s de facto termination of Maria Pallante (occurring only five weeks into the new Librarian’s tenure).

The move fueled plenty of speculation about the motivations of the Librarian, but the real question for 2017 involves the future of the Copyright Office. Will the move advance efforts to modernize the Copyright Office? Those calls have come consistently over the past several years, beginning in earnest with former Register Pallante’s 2013 article The Next Generation Copyright Office and producing an extensive public record identifying the challenges facing the Office as it currently operates and potential solutions for giving it the tools to effectively meet the challenges of a 21st century copyright system.4See, e.g., Pallante, The Next Generation Copyright Office, 61 J. Copyright Soc’y 213 (2014); House Judiciary Committee hearing, Oversight of the US Copyright Office (Sept. 18, 2014); House Judiciary Committee hearing, US Copyright Office: Its Functions and Resources (Feb. 26, 2015); House Appropriations Legislative Branch Subcommittee budget hearing, Architect of the Capitol and Library of Congress (Feb. 26, 2015); Senate Appropriations Legislative Branch Subcommittee budget hearing, FY16 Library of Congress and Architect of the Capitol (March 17, 2015); House Judiciary Committee hearing, Register’s Perspective on Copyright Review (April 29, 2015); US Copyright Office, Strategic Plan 2016-2020 (Dec. 1, 2015); House Administration Committee hearing, Improving Customer Service for the Copyright Community (Dec. 2, 2015); US Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (March 1, 2016); House Appropriations Legislative Branch Subcommittee budget hearing, Architect of the Capitol and Library of Congress and US Copyright Program Project and Activity Review (March 2, 2016); Senate Appropriations Legislative Branch Subcommittee budget hearing, Library of Congress and Architect of the Capitol FY17 (March 15, 2016). In response, last year, Representatives Judy Chu (D-CA) and Tom Marino (R-PA) introduced H.R. 4241, the Copyright Office for the Digital Economy Act, to address many of the challenges identified in the operation of the Copyright Office—including making the Register of Copyrights a Presidential appointee (with the advice and consent of the Senate).

In December, the House Judiciary Committee issued a policy proposal addressing reform of the Copyright Office. It too recommended that while the Office remain within the Legislative Branch, the Register of Copyrights should be appointed by the President with the advice and consent of the Senate. Significantly, the proposal said that “the next Register and all that follow should be subject to [this] nomination and consent process.” (Emphasis added). However, the Librarian, apparently ignoring the Committee’s clear instructions, moved ahead a few days later with its own process to appoint the next Register, the first step of which includes that time honored method of collecting public input via Survey Monkey. We will likely see further developments in this area in the weeks and months to follow.

Nevertheless, the Copyright Office has not slowed down its regular policy work. It currently is working on two major ongoing policy studies. The first involves Section 1201, which prohibits certain anticircumvention devices used to access or copy copyrighted works. The Copyright Office, following an initial round of public comments and public roundtables last year, collected a second round of public comments this past autumn. The second study involves Section 512, which establishes safe harbors against infringement claims for internet service providers engaged in certain acts. The Copyright Office is currently engaged in a second round of public comments for that study. It’s possible the Office will release one or both final reports some time in 2017, although it’s also likely one or both won’t arrive until a later year. The Office had also begun work in 2016 on a potential update for Section 108, which permits reproduction by libraries and archives for preservation and archival purposes, and on moral rights. It would not be surprising to see additional work on either of these issues in 2017.

Congress

As noted above, the House Judiciary Committee released a policy proposal for reforming the US Copyright Office and will be taking public comments through the end of January. The proposal is the latest step in the Committee’s ongoing copyright review process, which began in 2013. However, it is not the last step. When the proposal was released, Judiciary Chairman Goodlatte said, “Nothing should be read into the fact that we are only releasing a policy proposal on one topic today. This is just the beginning of this stage of the copyright review, and we intend to release policy proposals on music licensing issues and other individual issue areas in time.”

A number of bills relating to music licensing have already been introduced during the 114th Congress. These include the Fair Play Fair Pay Act (H.R. 1733), which would, among other things, extend the public performance right for sound recordings to audio transmissions such as AM/FM terrestrial radio and the Songwriter Equity Act, (S. 662 and H.R. 1283) which adjusts the ratesetting process for the statutory license for public performance of sound recordings by digital audio transmission. It’s possible these or similar bills will be reintroduced in the 115th Congress as part of the Judiciary Committee’s process.

The Judiciary Committee’s policy proposal also called for a small claims process within the Copyright Office. The Office released a report recommending such a process in 2013, recognizing that federal litigation is too costly for individual copyright owners creating works of low individual economic value. Two bipartisan bills were introduced last Congress that would create a process consistent with the Office’s recommendations: the Copyright Alternative in Small Claims Enforcement Act of 2016 (H.R. 5757) and the Fairness for American Small Creators Act (H.R. 6496). It’s likely we will see futher action on this issue over the next year.

Finally, last year, the President sent two copyright related treaties to the Senate for advice and consent. The Beijing Treaty on Audiovisual Performances provides an international framework for protecting the rights of motion picture, TV, and other audiovisual performers in their performances. The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled addresses the “book famine” for literary works in accessible formats by requiring parties to create limitations allowing authorized entities under certain circumstances to reproduce and distribute books in accessible formats to beneficiaries, as well as authorized entities in other countries that are a party to the treaty. The Senate did not pass a resolution recommending ratification before the end of the year, so it may be possible we see that occur in 2017.

References   [ + ]

1. Though by statute, this responsibility is shared with the Copyright Office, which resides in the Legislative branch. USPTO copyright policy work may not “derogate from the duties and functions of the Register of Copyrights or otherwise alter current authorities relating to copyright matters,” and “In exercising the Director’s powers and duties under this section, the Director shall consult with the Register of Copyrights on all copyright and related matters.” 35 USC § 2(c).
2. Which is not surprising, since copyright has rarely, if ever, ranked high on the agenda for any President.
3. 17 USC § 701(b)(1).
4. See, e.g., Pallante, The Next Generation Copyright Office, 61 J. Copyright Soc’y 213 (2014); House Judiciary Committee hearing, Oversight of the US Copyright Office (Sept. 18, 2014); House Judiciary Committee hearing, US Copyright Office: Its Functions and Resources (Feb. 26, 2015); House Appropriations Legislative Branch Subcommittee budget hearing, Architect of the Capitol and Library of Congress (Feb. 26, 2015); Senate Appropriations Legislative Branch Subcommittee budget hearing, FY16 Library of Congress and Architect of the Capitol (March 17, 2015); House Judiciary Committee hearing, Register’s Perspective on Copyright Review (April 29, 2015); US Copyright Office, Strategic Plan 2016-2020 (Dec. 1, 2015); House Administration Committee hearing, Improving Customer Service for the Copyright Community (Dec. 2, 2015); US Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (March 1, 2016); House Appropriations Legislative Branch Subcommittee budget hearing, Architect of the Capitol and Library of Congress and US Copyright Program Project and Activity Review (March 2, 2016); Senate Appropriations Legislative Branch Subcommittee budget hearing, Library of Congress and Architect of the Capitol FY17 (March 15, 2016).