A Busy Week for Copyright
Last week was certainly an eventful week on Capitol Hill, but with all eyes on the hearings for the Supreme Court nominee, you may not have realized just how eventful (and non-partisan) the week was for copyright law.
On Tuesday, Representatives Jerry Nadler (D-NY) and Doug Collins (R-GA), along with Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT) introduced the American Royalties Too Act of 2018 (ART Act) in the House and Senate, respectively. Under current law, creators of fine visual art do not receive royalties when their works are resold at auction, meaning that in many cases—even as the artist’s work grows in notoriety and value—these artists never benefit financially from the success of those works. The ART Act would help to address this inequity by requiring auction houses to pay a 5% royalty (capped at $35,000) to the artist for the artwork they sell.
Also on Tuesday, the House voted unanimously to pass not one, but two important bills into law—the Marrakesh Treaty Implementation Act and the Music Modernization Act. The Marrakesh bill will make modest changes to the copyright law to increase the availability of accessible books for persons with print disabilities (i.e. blindness or another visual impairment) throughout the United States. The Music Modernization Act—recently renamed the Hatch-Goodlatte Music Modernization Act in honor of Senator Orrin Hatch and Representative Bob Goodlatte, both huge supporters of copyright who are retiring this year—will revamp the way songwriters are paid to help ensure that their earnings are properly paid out and received, while streamlining payments to audio engineers and producers, and creating a framework for legacy artists to get paid when their songs are streamed. Both bills await a signature from the President before becoming law.
On Wednesday, the Senate Rules Committee held a hearing on S. 1010 and H.R. 1695, the Register of Copyrights Selection and Accountability Act—legislation that would make the Register of Copyrights a presidentially appointed position, requiring the advice and consent of the Senate. Copyright Alliance CEO Keith Kupferschmid testified at the hearing, along with Johnathan Band, Counsel to the Library Copyright Alliance. During the hearing, Keith emphasized that making the Register a presidential appointee would reflect the important role that copyright, the Register, and the Office as a whole play in driving economic growth in the United States, and would ensure that the someone with the right expertise leads the Copyright Office in its efforts to modernize the IT system as well as copyright registration policy.
On Thursday, the House Judiciary Committee held a hearing on H.R. 3945, the CASE Act—a bill that would create a small claims tribunal for copyright cases as an optional alternative to federal court. Witnesses at the hearing included Copyright Alliance CEO Keith Kupferschmid, Professional Photographers of America (PPA) CEO David Trust, Internet Association Senior Vice President and General Counsel Jonathan Berroya, Computer and Communications Industry Association (CCIA) Vice President of Law and Policy Matthew Schruers, and a professional photographer by the name of Jenna Close. Mr. Trust, Ms. Close, and Mr. Kupferschmid expressed full support for the bill in its current form, while Mr. Schruers and Mr. Berroya expressed concerns about various parts of the bill.
Finally, also on Thursday, the U.S. Supreme Court granted cert in Rimini Street v. Oracle—a case in which Rimini Street was found liable for infringing the copyright in Oracle’s software and appealed the Ninth Circuit’s decision awarding Oracle attorney’s fees and costs. The Supreme Court will soon determine “Whether the Copyright Act’s allowance of ‘full costs,’ 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.”
By my calculations, last week may have been one of the busiest weeks for copyright in recent history.