Congress Passes Small Claims and Felony Streaming Measures

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.

New Book on Copyright and Creativity in the 21st Century

Routledge Companion to Copyright and Creativity in the Twenty-First Century

I am pleased to announce the upcoming release of The Routledge Companion to Copyright and Creativity in the 21st Century, to which I am honored to have been asked to contribute an essay. Edited by Professor Michelle Bogre, Esq., of the Parsons School of Design, and noted copyright lawyer Nancy Wolff of Cowan, DeBaets, Abrahams & Sheppard, the book features the basics of copyright law and a series of essays from academics and practitioners reflecting a diverse range of perspectives on how copyright law works (or doesn’t work) in the contemporary environment. The anticipated date of publication is November 26, 2020.

My contribution is titled The DMCA Safe Harbor: Policy and Practice Divided, appearing in section 8.2.

Here’s the official description of the book from the publisher:

These collected chapters and interviews explore the current issues and debates about how copyright will or should adapt to meet the practices of 21st-century creators and internet users.

The book begins with an overview of copyright law basics. It is organized by parts that correspond to creative genres: Literary Works, Visual Arts, Fine Art, Music, Video Games and Virtual Worlds, Fashion, and Technology. The chapters and interviews address issues such as copyright ownership in work created by Artificial Intelligence (AI), the musical remix market, whether appropriation is ever a fair use of a copyrighted work or if it is always theft, and whether internet- based platforms should do more to deter piracy of creators’ works. Each part ends with an essay explaining the significance of one or two landmark or trendsetting cases to help the reader understand the practical implications of the law.

Written to be accessible to both lay and legal audiences, this unique collection addresses contemporary legal issues that all creators need to understand and will be essential reading for artists, designers, and musicians as well as the lawyers who represent them.

You can learn more about the book (and buy a copy, of course): at the publisher’s website, Amazon, or numerous other booksellers.

Using Image and Videos in Your Planetarium…Legally

A couple weeks ago I had the pleasure of presenting another seminar to the Pacific Planetarium Association (PPA) on legal issues surrounding the use of images and video footage in planetarium shows and exhibits. The session was something of a follow-up to my presentation last year on using music in the planetarium.

The recording of the presentation is now available on YouTube. While you’re there (and if you work in a planetarium or around the industry) be sure to check out the full library of PPA seminars.

Shira Perlmutter Appointed 14th Register of Copyrights

Source: U.S. Copyright Office

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.

I’m Speaking at the 2020 Midwest IP Institute

Midwest IP Institute Brochure Cover

I will be speaking at the 2020 Midwest IP Institute on October 1 from 4:15 to 5:00 p.m. Central Time.

Specifically, I’ll be on a panel titled Copyright Enforcement Entities v. The Internet — Today’s Practices and Policy Attitudes and What They Mean for Your Clients, that will look at the current state of enforcement practices in the visual arts industry. Moderated by Minneapolis intellectual property attorney Michael Lafeber, I’ll be joined by panelists Michael Masterson, the CEO of Permission Machine, and Catherine Rowland, Associate Register for Public Information and Education at the U.S. Copyright Office.

Here’s the official description of the panel:

Easy access to and use of photos and images on the internet has given rise to a proliferation of copyright enforcement entities. In this session, with the benefit of diverse perspectives, you’ll learn about the current landscape of copyright policing and enforcement on the internet, including the need for, the practices of, and the policy issues surrounding copyright enforcement entities – and the practical import for your clients. Speakers include: the Associate Register for Copyrights at the U.S. Copyright Office; an author and corporate counsel for Fox Corporation; the CEO of a user-friendly and ethics-focused copyright enforcement service; and an experienced IP litigator.

The IP Institute offers two full days of programming and virtual networking, October 1-2, 2020. You can learn more on the Minnesota CLE’s website by clicking here.