What wonders does 2018 have in store for the world of U.S. copyright law and policy? As I’ve done in previous years (2017, 2016, 2015), I’d like to take a look at what we might expect over the coming year. Last year, I noted how difficult U.S. policy predictions would be given the political landscape—an easy prediction to make and one that was true several times over. That unpredictability should continue through 2018, and perhaps become greater with the 2018 mid-term elections in November.
As noted above, 2018 is an election year, which means (1) any bills that aren’t passed by the end of the session expire and (2) those members of Congress who are running (the entire House of Representatives and one-third of the Senate) will spend more time toward election efforts the closer we get to November and less time on legislative matters. To add to the political overtones of the next year, House Judiciary Committee Chairman Bob Goodlatte’s term as Chairman ends with the end of the current Congressional session. The Committee has jurisdiction over copyright law, and during his term, Chairman Goodlatte has overseen a comprehensive review of copyright law, with twenty hearings, extensive stakeholder consultations, and an initial policy proposal addressing issues relating to the operation of the U.S. Copyright Office.
Those proposals included “granting the Copyright Office autonomy with respect to the Library of Congress, requiring the Copyright Office to maintain an up-to-date digital, searchable database of all copyrighted works and associated copyright ownership information.” As anyone who has registered a copyright with the Office or searched the Office’s records knows, the technological systems of the Office are outdated. And as the Judiciary Committee has recognized (as has this blog), the technological shortcomings of the Office’s systems have been exacerbated by its placement as a service unit within the Library of Congress, an agency with a distinct mission and sometimes dissimilar technological needs.
Given the lack of a permanent Register of Copyrights, the House Judiciary Committee moved part of the policy proposal, elevating the Register of Copyrights to a Presidential Appointee, forward as a standalone bill, the Register of Copyrights Selection and Accountabiity Act (H.R. 1695). The bill was passed by the House with a vote of 378-48. Senate Judiciary Committee leadership from both parties introduced a Senate companion bill following the House vote, but the bill was referred to the Senate Rules Committee, where it continues to sit today. 2018 brings only questions about this bill—will it move forward, will an alternative emerge, or will the Librarian of Congress restart her search for a permanent Register of Copyrights?
Music licensing is often mentioned as the next highest item on the copyright legislative agenda, and so we may see movement over the next twelve months on that issue. Just before the end of the year, Rep. Doug Collins, along with Rep. Hakeem Jeffries and six additional co-sponsors from both parties, introduced the Music Modernization Act. Although the bill’s title refers to music in general, the provisions are directed solely at the musical composition side of the industry, leaving aside sound recording issues. The bill would create a Mechanical Licensing Collective that would administer blanket mechanical licenses for interactive streaming or digital downloads of musical works; establish a “willing buyer/willing seller” standard for setting rates under Section 115; assign a random judge to hear ratesetting disputes under the ASCAP and BMI consent decrees; and repeal Section 114(i), which bars rate court judges from considering sound recording royalty rates as a relevant benchmark when setting performance royalty rates for songwriters and composers. The bill joins other music bills introduced this session, including the CLASSICS Act, the AMP Act, and the Fair Play Fair Pay Act, among others. The complexity of the issues within the music licensing sphere makes any legislation a challenge, so we will see what progress 2018 brings there.
Finally, this past October saw the introduction of H.R. 3945, the Copyright Alternative in Small-Claim Enforcement Act, which would establish a voluntary tribunal within the Copyright Office to hear copyright claims under $30,000 in total damages. The goal is to create a stream-lined, easy to use venue that would provide relief to copyright owners who are unable to file suit in federal court due to cost or difficulty in finding representation. The bill is the result of years-long efforts by visual artists and other independent and individual creators, and they continue to mobilize grassroots support for the bill.
In sum, there are a number of substantive bills teed up for the 115th Congress as it finishes out its session in 2018. We shall see what gets done over the next twelve months and, in particular, what role the end of Chairman Goodlatte’s tenure as Chair of the House Judiciary Committee plays.
U.S. Copyright Office
We should see the release of the Copyright Office’s anticipated report on the impact and effectiveness of the safe harbor provisions in Title 17. The Office announced the study in the final hours of 2015 and then held a series of public roundtables as well as two rounds of public comment. This is the first comprehensive look at the safe harbor provisions by the Office since they were created through the DMCA two decades ago. It is not uncommon for the Office to propose legislative changes in its report—whether it does so here, and, if so, what it would recommend, remains a question that 2018 should answer.
In June, the Office announced the beginning of the seventh triennial rulemaking for temporary exemptions to section 1201’s prohibition against circumvention of technological measures that control access to copyrighted works. It has since begun three rounds of public comment as part of the rulemaking, a process that will conclude March 14, 2018, followed by public hearings the week of April 9. If the timeline of this rulemaking adheres to that of previous rulemakings, we can anticipate a final rule some time third quarter 2018.
The Office has also been on a rulemaking spree over the past year, laying the regulatory groundwork for modernization of its IT systems. The overall plans for modernization, proceeding as part of a centralized Library of Congress IT modernization effort, can be found in a Modified USCO Provisional IT Modernization Plan released in September 2017. The Plan notes that development of a new electronic Recordation system will begin in 2018, while business requirement analysis and planning of a new electronic Registration system will also take place over the next year.
U.S. Patent and Trademark Office
We will likely see the confirmation of Andrei Iancu as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office in the early weeks of 2018. Iancu was nominated in September to replace Michelle Lee, who resigned in June after serving in the role for three years. A confirmation hearing was held at the end of November, and his nomination was reported favorably out of the Senate Judiciary Committee December 14, leaving only a floor vote before Iancu can begin.
The copyright policy work of the USPTO otherwise marches along. The PTO’s Office of Policy and International Affairs is part of the Department of Commerce’s Internet Policy Task Force, along with the National Telecommunications and Information Administration, which continues work stemming from its 2016 White Paper on Remixes, First Sale, and Statutory Damages. Right before the end of last year, the Task Force announced the second public meeting on “Developing the Digital Marketplace for Copyrighted Works.” The Task Force has indicated that the topics covered would include “(1) initiatives to advance the digital content marketplace, with a focus on standards, interoperability, and digital registries and database initiatives to track ownership and usage rights and facilitate licensing; (2) innovative technologies (e.g. blockchain, artificial intelligence) designed to improve the ways consumers access and use photos, film, music, text, and other types of digital content; (3) international initiatives, including the role of government in facilitating such initiatives and technological development.” It has also stated that there will be no legislative or policy outcomes from this meeting; its goal is instead to “facilitate constructive, cross-industry dialogue among stakeholders about ways to promote a more robust and collaborative online marketplace for copyrighted works.”
Negotiations between the U.S., Canada, and Mexico to modernize the North American Free Trade Agreement (NAFTA) began August 16, 2017, and an update of the Agreement’s Intellectual Property chapter is on the agenda. Coming into force in 1994, NAFTA’s intellectual property chapter was implemented during the infancy of the modern internet and before the growth of digital commerce. Negotiators concluded five rounds of talks in 2017; the sixth round is set for January 23-28, 2018, in Montreal, Canada. The (perhaps overly optimistic) hope to conclude talks by the end of 2017 was dashed early on. Though the hope for conclusion in early 2018 still exists, a number of factors complicate it: for example, the 2018 Mexican general election in July, the expiration of U.S. Trade Promotion Authority in July, and the 2018 U.S. mid-term elections in November, to name a few.
The contours of the copyright provisions will likely be similar to those seen in previous free trade agreements, such as the KORUS FTA. That’s not to say they will be identical or that there are not live issues among U.S. copyright stakeholders—particularly on the questions of how the Agreement should address liability for online platforms and limitations and exceptions. But the ultimate fate of NAFTA will be driven more by big-ticket, non-copyright provisions, such as those dealing with automobiles, dairy, and dispute resolution procedures. If those can be resolved, then we should know roughly what to expect in the agreement’s intellectual property chapter.
Happy 2018, copyright fans!