Standing Up for Creators – 2018 in Copyright Law and Policy by Terry Hart
This past year delivered a lot of change on the copyright front, keeping us at the Copyright Alliance busy as we continued to work on behalf of creators and copyright owners, making sure the copyright law they rely on protects their creativity, efforts, and investments in the creation and distribution of new copyrighted works for the public to enjoy. Let’s take a look at some of the developments 2018 brought in copyright law and policy.
Music Modernization Act
One of the biggest developments in 2018—and arguably, decades—was the passing of the Orrin G Hatch-Bob Goodlatte Music Modernization Act (MMA) in October. Even more remarkable is the fact that the largest title of the bill was only introduced less than a month before 2018 began—although work behind the scenes had been progressing for longer than that. We have a summary of the bill, which would make major changes to how streaming services license songs, ensure that owners of pre-1972 sound recordings are compensated when digital services play those works, improve the rules governing the two major performing rights organizations, and recognize the contributions of studio professionals.
The successful passage of the MMA was the result of countless hours of hard work by artists, industry advocates, and members of Congress, and we in the Copyright Alliance were happy to support those efforts through Congressional testimony, briefings, letters (e.g., here and here), and other outreach. You can find much more information about the bill and its passage here.
But the work has only just begun. Implementing the MMA will take months, if not years—from setting up the Mechanical Licensing Collective, to creating the music rights database, and promulgating all the regulations that go with that. Just this past November, for example, the US Copyright Office sought comments on a new exception created by the MMA, which would allow noncommercial use of pre-1972 sound recordings that are not being commercially exploited. The Copyright Alliance offered its views on that exception through initial comments and reply comments to make sure the regulations work effectively and appropriately and do not place any undue burdens on rights owners.
U.S. Copyright Office Modernization
As the administrator of the copyright registration and recordation system and the expert advisor on copyright policy to Congress and federal agencies, the US Copyright Office plays a central role in the US copyright system and is critically important to the copyright community. The Office has been hard at work over the past several years to modernize, in order to create a user-friendly, efficient, and nimble system that encourages registration and recordation and enables a robust public record of ownership information. The Copyright Alliance has engaged with the Office in providing feedback on usability testing for new systems and making sure our members are kept in the loop.
Along with updating its information technology systems, the Office has been updating its rules and regulations to make sure its policies reflect its modernized systems. This past year, the Copyright Alliance filed comments in a number of these rulemakings, including new rules on Mandatory Deposit of Electronic-Only Books and Group Registration of Serials. These comments help the Office understand issues and concerns of copyright owners, particularly the many individual creators we represent, and help the Office shape their regulations to address these and other concerns—for example, the final rule for Group Registration of Serials adopted three of the recommendations we made in our comments.
The Copyright Alliance has also worked to make sure the Copyright Office has the resources it needs to operate effectively and efficiently. We submitted a statement to the Legislative Branch Appropriations Subcommittee on Copyright Office funding, and we’ve filed comments regarding the Office’s new proposed fee schedule, which, among other things, highlighted concerns that the burden of registering is too high for many individual creators and small businesses, which in turn leads to fewer registrations and a less robust public record.
More broadly, we continue to support structural changes to the Office so it could operate better, including elevating the Register of Copyrights to a Presidentially appointed position, confirmed by the Senate. In September, Copyright Alliance CEO Keith Kupferschmid testified in front of the Senate Rules and Finance Committee on the Register of Copyrights Selection and Accountability Act, which would accomplish the latter goal. The Copyright Alliance also filed an amicus brief with the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case which would determine when a copyright owner has satisfied the Copyright Act’s registration requirement for civil lawsuits.
All copyright owners have a keen interest in adequate and effective enforcement, particularly online, and we have brought attention to enforcement issues to a number of different agencies over the year. In November, we submitted comments to the Intellectual Property Enforcement Coordinator, who is currently in the process of developing that office’s Joint Strategic Plan on intellectual property enforcement by the US government over the next three years. The Federal Trade Commission is in the midst of a series of hearings on competition and consumer protection in the 21st century; our CEO Keith participated on a panel devoted to the role of intellectual property in innovation in October to discuss many of the issues we also raised in written comments. Finally, the National Telecommunications and Information Administration sought public input this past summer on internet policy priorities, and we once again called attention to the importance of strong copyright protections and online accountability. That includes the ability of rights owners to access WHOIS data, which has been limited by ICANN in response to the European Union’s General Data Protection Regulation. Along with raising the issue with NTIA, we separately wrote to ICANN earlier this year to maintain the accessibility of its WHOIS database.
Unfortunately, a number of court decisions have been released in 2018 that misapply fair use doctrine in a way that would undermine the value of copyrighted works, particularly photographs. The Copyright Alliance filed an amicus brief in one of them, Brammer v. Violent Hues Productions, to urge the Fourth Circuit to reverse a troubling decision.
In Rimini Street v. Oracle, the Supreme Court will consider the question of what court costs a prevailing party may recover in a lawsuit. We filed an amicus brief there to argue that the ability to recover all litigation expenses is important to ensure that copyright owners can protect their rights and that defendants with meritorious defenses can pursue those in court.
Individual copyright owners and small businesses face the steepest challenges to protecting their rights. In many cases, they effectively have no rights at all, since the costs to bring a federal lawsuit are out of that reach. For that reason, we have been a strong supporter of the Copyright Alternatives in Small Claims Enforcement, or CASE, Act. The bill would create a streamlined, inexpensive, and voluntary process within the Copyright Office for hearing copyright infringement claims. We’ve worked tirelessly with our members to build support for the bill, and in September, Keith testified in front of the House Judiciary Committee during a hearing on the CASE Act. Although the Congressional session ended before the bill could be brought to a vote, we are optimistic that it has gained enough momentum to continue to move forward during the next Congressional session.
Finally, our advocacy efforts include educating individual creators about copyright law, what it is, and how it can protect their work. In May, we submitted a statement to the House Committee on Small Business detailing our many efforts there. Those efforts include creating videos for creators, such as a series of videos explaining the Digital Millennium Copyright Act (DMCA) notice and takedown process, all of which you can find here.
What developments will 2019 bring? It’s too soon to say. But we do know that he Copyright Alliance will be on the front lines making sure creators and copyright owners can continue to be protected and rewarded for their creative efforts. Individual creators can join the Copyright Alliance to support those efforts, stay up to date on important developments, and receive many other benefits. We also offer a free weekly policy update for all the latest copyright news.