2022 was not the busiest year in terms of copyright legislation, but nonetheless, there were some significant legislative activities both in Congress and at the state level, including one copyright bill that was enacted into law and several bills that seemed to receive enough consideration that they may appear high on the Congressional IP docket in 2023. Below is a quick overview of the various copyright-related legislative activities that transpired in Congress and in the states in 2022.
Copyright legislation can often be complex and get bogged down when legislators attempt to sate the interests of a myriad of stakeholders with diverse views. That was not the case with the only copyright legislation that was enacted in 2022—the Artistic Recognition for Talented Students (ARTS) Act, Public Law 117-201. The ARTS Act directs the Register of Copyrights to waive the copyright registration fee for student winners of the Congressional Art Competition, sponsored by the Congressional Institute; and the Congressional App Challenge, sponsored by the Internet Education Foundation (IEF). While the ARTS Act may not have been high on anyone’s legislative priority list, it’s hard to imagine that any individuals or organizations would have had concerns with it either.
The ARTS Act was originally introduced in February 2021 in the Senate by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) as S. 169, and in the House by Representatives Hakeem Jeffries (D-NY) and Nancy Mace (R-SC), as H.R. 704. Within months, the bills passed the Senate and House respectively. But it wasn’t until September 2022 that the Senate bill was also passed by the House and then later sent to the President, where it was signed into law on October 17.
In addition to the ARTS Act, there were relatively minor, targeted changes to section 105 of the Copyright Act that were made in H.R.7776, the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 that was signed into law by the President on December 23. Sections 3514 and 6306 of the law amend section 105 of the Copyright Act to expand the list of “covered institutions” pertaining to copyright of Government works to include faculty at the U.S. Merchant Marine Academy and the U.S. Coast Guard Academy and to National Intelligence University.
Copyright Bills Introduced and Considered in Congress
As usual, there were several copyright bills that were introduced and considered by Congress in 2022. These include:
SMART Copyright Act
In March, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced “the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (“the SMART Act”), S. 3880. Among other things, the bill would add a new section—section 514—to the Copyright Act to establish a triennial public rulemaking process through which the Librarian of Congress would publicly designate certain standard technical measures (or designated technical measures, known as DTMs). Following the bill’s introduction, many groups, including the Copyright Alliance, issued statements commending both Senators for introducing the bill. You can find all of the statements on the Copyright Alliance’s DMCA Legislative Reform webpage, and you can read more about the legislation in a Copyright Alliance blog.
While the Senate Judiciary Committee never voted on the bill, it was the focus of many discussions and debates between stakeholders throughout the year. In April, the Copyright Alliance and 35 other organizations sent a letter to Senators Tillis and Leahy, commending them for introducing the bill. In the joint letter, the organizations stated, “We applaud your effort to breathe new life into what the Copyright Office…identified as the untapped potential of STMs [Standard Technical Measures],” and that “The SMART Copyright Act will encourage cooperation between platforms and rightsholders to address online piracy in practical, effective ways that benefit creators, consumers, and services.”
In June, various library organizations—including the Library Copyright Alliance (LCA), the American Library Association, the Association of Research Libraries, and the Association of College & Research Libraries—sent a letter to Senators Leahy and Tillis stating that they would withdraw their opposition to the SMART Copyright Act if specific language excluding libraries and archives, as provided in the letter, was included in the bill and the legislation did not change in a material way that affected libraries. The bill, as introduced, excludes libraries and archives from the scope of the bill’s proposed technical measures rulemaking process but the aforementioned libraries and archives sought further clarification. Ultimately, there was no formal activity on the bill because Congressional staff wanted the U.S. Copyright Office to complete its consideration of technical measures (see our blog for more information on this) before determining whether and what amendments to the SMART Copyright Act were warranted.
In the waning weeks of last year, the Copyright Office issued its findings in its technical measures and STM studies and Representatives Judy Chu (D-CA) and Kelly Armstrong (R-ND) introduced the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2023, H.R. 9541, which is similar to the Senate counterpart, but not identical. As a result, it appears that the SMART Copyright Act will be more fully considered by Congress this year.
American Music Fairness Act
U.S. copyright law is relatively unique in that it does not provide for a terrestrial broadcast right in sound recordings. Various attempts to right this wrong have led to many different legislative solutions being proposed over the years. Many of those legislative approaches didn’t get very far, largely due to opposition by terrestrial (i.e., FM/AM) radio broadcasters. That was not the case for the most recent attempt to address the issue—the American Music Fairness Act (AMFA), H.R. 4130, which was introduced by Representatives Ted Deutch (D-FL) and Darrell Issa (R-CA). AMFA would require that performing artists are paid for the use of their songs on terrestrial radio, and in doing so would close the loophole in the law, while also ensuring that competing music platforms are treated the same and that small, local broadcasters are protected by only being required to pay a de minimis amount for using the work of performing artists.
In September, a companion bill, S. 4932, was introduced by Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN). Shortly thereafter, the U.S. Copyright Office and the U.S. Patent and Trademark Office sent a letter to the Chairmen and Ranking Members of the House and Senate Judiciary Committees, expressing support for legislation that would provide public performance royalties for performing artists for songs played on radio stations. The letter noted that enacting a public performance right for the broadcasting of sound recordings would remedy an anomaly under U.S. copyright law and that the U.S. “stands alone among industrialized nations in not recognizing such a right.”
In December, the House Judiciary Committee passed an amended version of AMFA by a voice vote. Most members of the Committee voiced their support for AMFA and the importance of bipartisan cooperation toward its passage. A few members emphasized the need to carefully balance the interests and concerns of both performers and local radio stations. Only Representative Steve Chabot (R-OH) expressed outright opposition to the bill, cautioning that its passage would cause harm to local broadcasters. AMFA’s passing the House Judiciary Committee is significant because it’s the first time a bill addressing this issue has passed through full committee in over a decade, and therefore it may be a strong indication that the bill is primed to be more fully considered by the 118th Congress.
Pro Codes Act
In February, Representatives Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the Protecting and Enhancing Public Access to Codes Act (“Pro Codes Act”), H.R. 6769. The bill clarifies that model codes and standards do not lose copyright protection by virtue of having been adopted or incorporated by reference into law or regulation, provided that the codes/standards are available for free viewing on a publicly accessible website. If passed, the bill would allow citizens to know what the law is without having to pay for it, while still preserving the efficient and effective system used by standards development organizations to create model codes and the copyright protection for those model codes. While the bill was not formally considered by the House Judiciary Committee, there were many positive developments that will likely lead to a revised bill being introduced and considered during the current congressional session.
Copyright Term Legislation
So far, we’ve discussed a few bills that at the very least would make conceptually beneficial changes to U.S. copyright law. But not all copyright bills that were introduced in 2022 fit into that category. In May, Senator Josh Hawley (R-MO) introduced the Copyright Clause Restoration Act of 2022, S. 4178, which proposed an original term of copyright protection of 28 years, and a renewal term of an additional 28 years. Additionally, the bill would apply retrospectively on or after May 1, 2022, to the works of copyright owners who have a market capitalization of more than $150 billion and are entertainment and theme park companies. A month later, Representative Greg Steube (R-FL) introduced an identical companion bill, H.R. 8250, in the House. Unsurprisingly, neither bill engendered much support, even from the usual copyright cynics. Other than some initial publicity that had more to do with the political justifications for the bill versus any legal rationale, neither bill got much attention and neither bill is expected to move forward this year.
Lastly, it is worth mentioning a host of right-to-repair bills that were introduced in the Senate and the House in 2022. Although these bills are generally intended to require manufacturers of certain types of equipment, like tractors and cell phones, to permit users or authorized repair shops to repair certain types of equipment, some of the proposals are very broad and would have damaging implications for copyright and the creative community. For example, in February, Senator Jon Tester (D-MT) introduced the Agriculture Right to Repair Act, S. 3549, which obligates manufacturers of agricultural equipment to provide repair documentation, parts, software, and tools on fair and reasonable terms to owners or independent repair providers of agricultural equipment.
In theory, a bill of this type should not implicate copyright concerns, but the bill goes way too far by overriding section 1201(a) of the copyright law, which is very problematic. Similarly, Representatives Mondaire Jones (D-NY) and Victoria Spartz (R-IN) introduced the Freedom to Repair Act, H.R. 6566, which would also override Section 1201 of the Copyright Act by permitting the “diagnosis, maintenance, or repair of a digital electronic equipment, to circumvent a technological measure that effectively controls access to a [copyrighted] work,” except in the cases of medical devices. Right-to-repair legislation is likely to introduced during this session of Congress as well. Time will tell whether new legislation is more narrowly tailored so the copyright interests are not implicated by such legislation.
State Legislative Activities
Usually, our summary of the year in copyright legislation begins and ends with legislation pending in Congress. But 2022 was different. When certain groups couldn’t get their anti-copyright legislation enacted by Congress, they decided to do an end-run around Congress and instead asked state legislators to push their copyright-related agenda. This occurred primarily in two areas: right-to-repair legislation and eBook legislation.
In the case of right-to-repair legislation, these groups’ efforts were somewhat successful in New York where the New York Assembly passed the Digital Fair Repair Act (DFRA). The DFRA requires all manufacturers who sell “digital electronic products” within state borders to make any tools, parts, and documentation for repair available to both consumers and independent shops. Notably, there is a provision that explicitly carves out copyright from the bill (section 3(F) of the Act notes that it does not require manufacturers to make such items available for digital electronic products “in a manner that is inconsistent with or in violation of any federal law…”). on December 28, Governor Hochul signed the DFRA into law. Reports indicate that the bill “won’t require OEMs to provide ‘passwords, security codes or materials’ to bypass security features, which is sometimes necessary to do to save a locked, but otherwise functionally fine device” and may not “apply to anything made before the bill’s effective date,” which is July 1, 2023.
The other state legislation with copyright implications relates to eBooks. These eBook bills would compel publishers, independently published authors, and others to grant licenses to eBooks and other digital text documents to libraries in the state immediately after granting commercial licenses. Bills were introduced in Maryland (HB518), New York (A5837B), Connecticut (SB131), Rhode Island (SB2842) Massachusetts (H4120), Missouri (HB2210), Illinois (SB3167), and Tennessee (HB1996).
Maryland is the only state that passed its bill. However, before the bill could go into effect on January 1, 2022, the Association of American Publishers (AAP) filed suit against the State of Maryland and moved for a preliminary injunction. In June, the federal district court for the District of Maryland handed down a decision agreeing with AAP and holding that “the state of Maryland’s compulsory eBook licensing bill [was] unconstitutional and unenforceable because it conflicts with and is preempted by the Copyright Act.” In New York, after seeing the Maryland bill flame out, New York Governor Kathy Hochul vetoed the bill for similar reasons. In all the other states where eBook legislation was pending, the bill expired when the legislative session ended. And thus, this concludes our annual summary of the year in copyright legislation. As noted at the start of the blog, it was a fairly uneventful legislative year. But if one looks beyond the legislation that passed, it does likely give us some indication of what’s likely in store for 2023 and beyond.
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