Copyhype

2014 was a busy year for copyright policy on a number of fronts, with the House Judiciary Committee, US Copyright Office, and USPTO actively working on a broad range of issues. What will 2015 bring?

House Judiciary Committee

Turning first to the House Judiciary Committee, it will likely continue its review of copyright law. The current copyright review process began nearly two years ago when Register of Copyrights Maria Pallante addressed Congress, saying it was time for it to approach copyright law issues “comprehensively.” Heeding the Register’s call, a Congressional copyright review was formally announced April 24, 2013. Representative Goodlatte (R-VA), chairman of the House Judiciary Committee, said the Committee would hold over the next few months a “comprehensive series of hearings on U.S. copyright law” in order “to determine whether the laws are still working in the digital age.”

Since then, the House Subcommittee on Courts, Intellectual Property, and the Internet has conducted sixteen days of informational hearings, five in 2013, and eleven this past year, on a range of issues across the copyright spectrum. Following November’s elections, Rep. Goodlatte announced Rep. Darrell Issa (R-CA) as chairman of the IP Subcommittee for the 114^th Congress, also announcing that all copyright related issues will be handled at the full Committee. Goodlatte has said elsewhere that while the review process will continue into 2015, it is “almost complete.” He has emphasized that no specific goal or end product has been set for the process, saying, “A lot of the problems will be solved not by legislation but by new technologies, by business models, by business deals.”

One issue that hasn’t been heard yet during the review process is the operation of the Copyright Office. The IP Subcommittee did hold an oversight hearing on the Copyright Office September 18, where Register of Copyrights Maria Pallante testified not only about the current status of the Office and its projects but also the obstacles and opportunities it faces going forward. Pallante noted that the Office is “leanly funded” and its “fee authority does not permit the Office to collect for capital improvements or other forms of investment above the cost it incurs in the ordinary course of business.” She said the staff is “smaller than it should be to carry out the volume and complexity of work prescribed by Title 17.” Finally, Pallante remarked that the Office may need to “absorb more direct responsibility for its” technological needs; it currently uses the technical infrastructure of the Library of Congress, “including its network, servers, telecommunications and security operations.” This arrangement results in “both synergies and resource challenges.”

Departments across the Library compete for services and equipment. However, these services do not always support the fact that the Copyright Office is a twenty-four-hour business with a distinct mission. The Copyright Office intersects with a dynamic global marketplace and affects the legal rights and economic interests of those who rely on the provisions of Title 17.

This has been a constant theme of the review process—when Pallante first proposed a comprehensive review of copyright law, she remarked that “Evolving the Copyright Office should be a major goal of the next great copyright act.” ¹Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 341 (2013). The article is “is an extended version of the Twenty-Sixth Horace S. Manges Lecture delivered on March 4, 2013 at Columbia Law School.” See also “The Register’s Call for Updates to U.S. Copyright Law”, Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary United States House of Representatives 113th Congress, 1st Session, Statement of Maria A. Pallante, Register of Copyrights of the United States (March 20, 2013); (“evolving the Copyright Office should be a major goal of the next great copyright act.”).

Copyright Office

Pallante expanded on her thoughts during the Eleventh Annual Christopher A. Meyer Memorial Lecture delivered on November 20, 2013 at George Washington University Law School, remarks of which have been edited and published as The Next Generation Copyright Office: What it Means and Why it Matters. There, Pallante noted that there is a desire among the broader copyright community to build a “next generation Copyright Office” that could take advantage of technology to provide a wider array of services.

For example, BMI suggested that it would be useful for the Office to collect and incorporate short digital samples of musical works as part of its registration records, to help people identify copyright ownership. The American Society of Media Photographers and the Graphic Artists Guild suggested it would be helpful for the Office to invest in image recognition technologies to help people find works of visual art. The Association of American Publishers said it would be helpful to the book publishing industry if the Office adopted commercially successful metadata standards for digital content, such as ONIX. And SoundExchange said that if the Copyright Office could develop APIs, then rights management organizations and aggregators could create innovative applications for collecting and disseminating information regarding copyrighted content across the supply chain. In a publication about the Copyright Office released in 2010, Public Knowledge observed that “[t]he long term cost savings created by an easy-to-use, comprehensive registry should easily outweigh the costs associated with its creation.”

Nevertheless, the Copyright Office remains busy going into 2015. It is currently engaged in active policy studies on orphan works and mass digitization, the making available right, and music licensing. While the Office has solicited public comments and held public roundtables on each of these studies over the past year, that does not necessarily mean we will see any outcomes in 2015—it would not be surprising for the Office to call for additional comments or other public input in any of these proceedings. ²Two recently concluded policy studies from the Copyright Office concerning resale royalty and copyright small claims could give some idea of report timelines. The Copyright Office solicited two rounds of public comment regarding resale royalties September 2012 and March 2013 and held a public roundtable April 2013. That report was released December 2013. The study of copyright small claims involved three rounds of comments—October 2011, August 2012, and February 2013—and two sets of public events—a roundtable May 2012 and two days of public hearings November 2012—with the final report released September 2013.

US Patent and Trademark Office

Shifting to the executive branch, The Internet Policy Task Force (IPTF)—a Department of Commerce group led by the US Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA)—held a series of public roundtables over the past year on several topics identified in its 2013 Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy. Those include “(1) the legal framework for the creation of remixes; (2) the relevance and scope of the first sale doctrine in the digital environment; and (3) the appropriate calibration of statutory damages in the contexts of (i) individual file sharers and (ii) secondary liability for large-scale infringement.” The stated purpose of these roundtables was to “seek additional input from the public in locations around the country in order for the Task Force to have a complete and thorough record upon which to make recommendations.” During the fourth and final roundtable, held July 30, 2014 in Berkeley, California, Chief Policy Officer and Director for International Affairs at the USPTO Shira Perlmutter remarked that the conclusions and recommendations would be issued in the form of a White Paper, which would likely be issued sometime early 2015.

During 2014, the IPTF also coordinated a multistakeholder process for consensus-building among stakeholders with the aim of producing an agreed outcome by the end of 2014 on the issue of improving the operation of the DMCA notice and takedown system. The final public meeting of 2014 occurred December 18, where the Working Group presented a discussion draft of “Good, Bad and Situational Practices.” The draft notes:

The document represents the near final outcome of eight months of intensive public discussions, meetings, and negotiations in a process that was open to any and all interested stakeholders. A broad range of practices for potential inclusion were considered and discussed intensively over the course of eight months, and this draft contains recommendations on issues within the scope of the group’s work as to which best practices could be formulated.

The draft goes on to note that comments on the specific wording of the draft are now being accepted, and the IPTF will provide further information as to any future plenary meetings of the group.

In sum, 2015 promises to bring plenty of developments in copyright law and policy.