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.
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.
It didn’t last long.
After less than a year of being in the role, on December 9, 2019, Temple announced that she would leave the Copyright office on January 3, 2020 to join the Motion Picture Association as its general counsel.
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.”
Comments are due by 11:59 p.m. on February 3, 2020. You can learn more about the inquiry on the Copyright Office’s website.
Former Congressman John Conyers, Jr. (D-Michigan) passed away today, October 27, 2019. He was 90. According to The Washington Post, Conyers, one of the longest-serving members of Congress and the longest-serving African American member of Congress, died from natural causes.
Although Conyers is most frequently associated with civil rights issues and as one of the founding members of the Congressional Black Caucus, he was also an ardent supporter of copyright and the rights of creatives. In his capacity as ranking member of the House Judiciary Committee, a position Conyers held from 2001 to 2017 (and had held previously from 1995 to 2007), he worked closely with chairman Bob Goodlatte to spearhead the copyright review, which would become the most comprehensive examination of U.S. copyright law since the passage of the Copyright Act of 1976.
Conyers also served as chairman of the House Judiciary Committee from 2007 to 2011, and chairman of the House Oversight Committee from 1989 to 1995. He left Congress in late 2017 following allegations of sexual harassment.
He is survived by his wife and two sons.
To date, the copyright review that he helped start has produced one successful piece of legislation, the Music Modernization Act (see Chapter 7 of The Unrealized Promise of the Next Great Copyright Act), and one other bill, the Copyright Alternative in Small-Claims Enforcement (CASE) Act just passed the House and is awaiting a floor vote in the senate.
As I wrote back in June, the Copyright Alternative in Small-Claims Enforcement (CASE) Act, which had been introduced in the 115th Congress, was reintroduced on May 1st of this year as H.R. 4246. On October 22, it passed the House on a vote of 410-6. It now goes on to the Senate, where companion bill S. 1273 awaits a floor vote (it was reported out of the Judiciary Committee on September 12, 2019).
Discussed more fully in Chapter 6 of The Unrealized Promise of the Next Great Copyright Act, the CASE Act calls for the establishment of a tribunal within the Copyright Office to adjudicate relatively minor copyright infringement claims. The procedure is intended to provide alternative path to adjudication for small, independent creative professionals who typically do not have the resources to bring full-fledged federal infringement litigation. Damages would be capped at $15,000 per claim (and $30,000 per total). The streamlined adjudicatory process would be entirely voluntary — plaintiffs would remain free to file infringement actions in feral district court, just as they do now, and defendants may opt out, effectively requiring the plaintiff to bring the action in federal district court.