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Mid-Year Copyright Review Part 2

Mid-Year Copyright Review Part 2 by Keith Kupferschmid

July 10, 2019

It’s July, which means it’s time for our mid-year copyright review in which we look at the progress of copyright issues in Congress, the Courts, the Copyright Office, and abroad.

This is the second part of a two-part blog. In this second part, we will explore a copyright update with the U.S. Copyright Office and abroad.

The Copyright Office

The Copyright Office has also been extremely busy during the first half of 2019. It finalized several rulemakings, including rulemakings relating to group registration option for unpublished works and for newspapers, as well as clarifying procedures for registering architectural works.

In addition, pursuant to Title I of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act, the U.S. Copyright Office published an interim rule with request for comments, which “amends the Office’s existing regulations pertaining to the compulsory license to make and distribute phonorecords of musical works so as to conform the existing regulations to the new law, including with respect to the operation of notices of intention and statements of account, and to make other minor technical updates.” On March 22, the USCO published a final rule which “largely finalizes the interim rule … with some adjustments adopted in response to public comment.”  And on April 9, the Copyright Office published its final rule regarding noncommercial use of Pre-1972 sound recordings that are not commercially exploited. The final rule governs three specific areas regarding the newly-created exception in 17 USC 1401(c): (i) the “specific, reasonable steps that, if taken by a [noncommercial user of a Pre-1972 Sound Recording], are sufficient to constitute a good faith, reasonable search” to support a conclusion that a relevant Pre-1972 Sound Recording is not being commercially exploited; (ii) the form, content, and procedures for a user, having made such a search, to file an NNU; and (iii) the form, content, and procedures for a rights owner to file a Pre-1972 Opt-Out Notice.

The Office also began several new rulemakings, including rulemakings relating to:

Group Registration Option for Works on an Album of Music: On May 20, the Copyright Office published a notice of proposed rulemaking, “proposing to create a new group registration option for musical works, sound recordings, and certain other works contained on an album.” This registration option would be available in addition to other options for registering multiple sound recordings and musical works, including the group registration for unpublished works, registration as a collective work, and registration as a unit of publication. Comments on the proposal are due to the Office by July 19.

Group Registration of Small Literary Works: On December 21, the U.S. Copyright Office published a notice of proposed rulemaking, proposing the creation of a new group registration option to allow 50 works to be registered with one application, as long as the works meet the following criteria: they must “contain at least 100 but no more than 17,500 words”; “[be] created by the same individual, and that individual must be named as the copyright claimant for each work”; and “[are] all published online within a three-calendar-month period.” Comments were due on this back in February.

Other rulemakings that were started last year are still opened but are likely to be finalized soon.

Fee Schedule: The Copyright Office issued a Notice of Proposed Rulemaking, proposing a new fee schedule that would increase fees an average of 41% and generate approximately $41 million per year. The Office will likely announce a revised schedule by the end of the fiscal year, with the new fees going into effect at the end of 2019/beginning of 2020.

Designation of Mechanical Licensing Collective: The Copyright Office also published a Notice of Inquiry regarding the section of the Music Modernization Act (MMA) that “calls for establishing a collective to manage a new blanket licensing system governing licensed uses of musical works by digital music providers.” The Office requested information to assist the Register in identifying appropriate entities for “the mechanical licensing collective and the digital licensee coordinator that will carry out key functions under the new blanket license.” Two proposals for entities were submitted: the Mechanical Licensing Collective, Inc. [MLCI] and the American Music Licensing Collective. Reply comments regarding the designation were due April 22, 2019, and the Office received over 400 submissions. The Office made its recommendation on July 8, designating the Mechanical Licensing Collective. In doing so, it concluded that, “while both candidates meet the statutory criteria to be a nonprofit created to carry out its statutory responsibilities, only MLCI satisfies the endorsement criteria, and MLCI also has made a better showing as to its prospective administrative and technological capabilities.”

The Copyright Office also finished its Study on the Moral Rights of Attribution and Integrity and released its Moral Rights Report, which “presents an extensive review of the U.S. moral rights regime, exploring the current state of attribution and integrity interests – particularly with respect to legal and technological changes since the United States joined the Berne Convention thirty years ago.” The Report concludes that the U.S. moral rights framework is adequate, “despite there being some room for improvement,” and suggests possible avenues for strengthening the framework, including amending the Visual Artists Rights Act (VARA) and the Lanham Act, expanding authors’ recourse for removal or alteration of copyright management information in section 1202, and adopting a federal right of publicity law.

Finally, the Office is continuing its study to evaluate the impact and effectiveness of the Section 512 safe harbor provisions. On April 8, the Office held another roundtable. This roundtable focused on recent domestic case law interpreting provisions of the DMCA safe harbor framework; and recent international legal and policy developments related to addressing liability for infringing content online, limited to developments that have occurred after the close of the previous written comment period February 6, 2017. The final study will likely not be released by the Office until much later this year or possibly early 2020.

Internationally

Internationally, there can be no doubt that the biggest copyright news came out of Europe when, on April 15, the Council of the European Union approved the EU Copyright Directive, a broad set of reforms aimed at modernizing EU copyright rules as part of its Digital Single Market strategy. EU Member States have 24 months to transpose the Directive into their national legislation.

Click here to read part 1 of the Mid-Year Copyright Review.

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