As the second in our year-in-review series, this blog highlights the most significant Copyright Office’s activities that took place in 2022. We encourage you to also check out the first blog in the series, on copyright cases, and to keep an eye out for the next blog on legislation to be published later this week. Before we address the substance, we want to take a moment to commend the Copyright Office leadership and staff, under the direction of Register Shira Perlmutter, for the incredible amount of work that they accomplished in 2022.
Copyright Claims Board
Keeping up the momentum from 2021, the Copyright Office issued a number of rulemakings to implement the processes and procedures for the Copyright Claims Board (CCB)—the new copyright small claims tribunal housed within the Copyright Office. Following more than a year of rulemakings and implementation, the CCB began operations on June 16, 2022. At the end of 2022, 281 total cases had been filed with the CCB. One hundred and six of the cases are “smaller claims.” At least 237 of the cases involve infringement claims, 44 involve Section 512(f) misrepresentation claims, and five involve non-infringement claims. The works at issue in these cases are as follows: Pictorial Graphic & Sculpture (141); Literary Works (42); Motion Picture and Audiovisual Works (47); Sound Recordings (24); Musical Works (17); Dramatic Works (3) and some cases include claims for multiple works. There are twelve active proceedings underway.
Policy Studies of 2022
The Copyright Office is responsible for providing expert advice on matters regarding copyright law and policy to Congress. As part of that role, the Office regularly conducts studies and issues reports to Congress based on their findings. In 2022, the Copyright Office concluded five of its ongoing studies, and began one new study on non-fungible tokens (NFTs) at the request of Congress.
Study on Ancillary Copyright Protections for Publishers
In 2021, the Office began conducting a study to examine “the current copyright protections available to [press] publishers, the desirability and scope of potential new protections, and the interaction between potential new protections and existing laws and international obligations” at the request of Senators Thom Tillis (R-NC), Patrick Leahy (D-VT), John Cornyn (R-TX), Mazie Hirono (D-HI), Amy Klobuchar (D-MN), and Chris Coons (D-DE).
After conducting a roundtable and reviewing comments received in late 2021 and early 2022, the Office published its report on June 30, 2022. In the report, the Office declines to recommend the adoption of new ancillary rights, stating that it “does not believe it has been established that any shortcomings in copyright law pose an obstacle to incentivizing journalism or that new copyright-like protections would solve the problems that press publishers face.”
Deferred Registration Examination Study
Following a request by Senator Tillis, in December 2021, the Office began a study to “examine the feasibility, benefits, drawbacks, costs, and mechanics of creating a deferred examination option, including any potential impacts to the registration system, the public records maintained by the Office, and the ability of the Library of Congress to maintain and grow its collections.”
On August 1, 2022 the U.S. Copyright Office sent a letter to Senator Tillis on its findings and conclusions from its study. The Office did not recommend a new deferred examination registration system, concluding that it would potentially lead to “costlier and less efficient system, while also creating new concerns, including with regard to the public record.” Instead, the Office noted that alternative solutions might address some concerns and that the Office is evaluating whether to implement those solutions which include offering dynamic fee structures for small-entity or individual filers, increasing the limits for group registration of photographs, and adopting subscription-based pricing for certain registration options.
Electronic Deposits and Best Edition Policy Study
In June 2022, the Copyright Office began studying the deposit requirements of section 407 and 408 of the Copyright Act and whether removing the best edition requirement from the registration deposit process in section 408 could help improve the registration process. The study began at the request of Senator Tillis. On December 2, 2022, the Office published its report, concluding that no statutory changes were needed at this time and that “any benefits from the adoption of different standards for Library and registration deposits would be outweighed by potential adverse impacts on the Office, the Library, and its collections.”
Technical Measures Consultations
In December 2021, the Copyright Office published a Federal Register notice “announcing a series of consultations on technical measures that identify or protect copyrighted works.” The consultations were held in response to a request from Senators Leahy and Tillis that the Office “convene a representative working group of relevant stakeholders to achieve the identification and implementation of technical measures” that will aid in the protection of copyrighted works. In February 2022, the Office held the plenary session, followed by six smaller group technical measures meetings throughout June 2022. The full recordings of the plenary session and the closing sessions are available on the Copyright Office’s website. In December, the Copyright Office sent a letter to Sens. Leahy and Tillis proposing two options: (1) The Office could continue to convene periodic public sessions for stakeholders in a discussion format similar to the ones that took place in 2022; (2) Alternatively, the Office could host periodic public events where technologists provide informational updates on new uses and experiences involving technical measures.
Standard Technical Measures and Section 512
In April 2022, the Copyright Office published a notice of inquiry soliciting comments to “gather information on the development and use of standard technical measures for the protection and identification of copyrighted works” under section 512(i) of the Copyright Act in order to “enhance the public record and advise Congress.” This study began at the request of Senator Tillis and built on the Office’s comprehensive study on the operation of section 512 completed in May 2020. In December 2022, the Office completed this study and sent a letter recommending that Congress “amend section 512(i) to: (1) clarify that the terms ‘broad consensus’ and ‘multi-industry’ require the support only of the industries directly affected by an STM; (2) state that technical measures qualify as STMs if they are recognized as such by a broad consensus of copyright owners and service providers, even if they were originally developed by a narrower subset of stakeholders or emerged from proprietary processes; and (3) set forth a list of factors used in weighing whether a particular measure imposes substantial costs and burdens.”
Non-Fungible Token Study
Interest in non-fungible tokens (NFTs) skyrocketed throughout 2021. As the popularity of NFTs rose, so did questions and concerns about the copyright implications of these transactions, prompting Sens. Leahy and Tillis to send a letter in June 2022 to USPTO Director Kathi Vidal and Register of Copyrights Shira Perlmutter, requesting that their agencies conduct a joint study on “how NFTs fit into the world of intellectual property rights.” In November 2022, the Office kicked this study off by publishing a Federal Register soliciting written comments and announcing public roundtables. Written comments are due by February 3, 2023 and roundtables on trademarks, patents, and copyright will be held on January 24, 26, and 31, respectively.
Rulemakings of 2022
The Copyright Office is also responsible for conducting rulemakings and establishing regulations to facilitate and administer copyright law. Most of the rulemakings conducted by the Office in 2022 related to implementation of the CCB. In addition to those rulemakings, the Office conducted rulemakings related to the Music Modernization Act (MMA) and Mechanical Licensing Collective (MLC), registration, and payment options.
The Music Modernization Act and Mechanical Licensing Collective
Since the MMA passed in 2018, the Copyright Office has continued implementing various regulations to support the changes to the law established by the MMA. In May 2022, the Office issued a supplemental interim rule governing certain reporting requirements of digital music providers pursuant to the MMA in response to operational and compliance challenges with existing regulations.
In October 2022, the Copyright Office published an NPRM regarding the applicability of the derivative works exception to termination rights under the Copyright Act to the new statutory mechanical blanket license established by the MMA. The Office’s proposed rule aims to clarify the appropriate payee under the blanket license to whom the MLC must distribute royalties in connection with a statutory termination. Written comments were due by December 27 and written reply comments were to be due by January 5, 2023. This rulemaking remains open at this time.
Deposit Requirements for Registering a Single Issue of a Serial Publication
In July 2022, the Office published a final rule (effective August 22, 2022) amending the deposit requirements for a registration of a single issue serial publication. The Office now allows “applicants whose serials are published in physical format, or in both electronic and physical formats, to submit a single deposit copy for registration. Publishers may submit the deposit copy in electronic format, which will expedite receipt and examination and result in an earlier effective date of registration.”
Remitter Payment Options and Deposit Account Requirements
In February 2022, the Office issued an NPRM regarding its regulations related to remitter payments for Office services and requirements for to deposit account requirements. After reviewing public comments, on September 30, 2022, the Copyright Office published its final rule. The final rule consolidates all regulations regarding payment options for Copyright Office services, eliminates the requirement for a minimum number of 12 transactions per year for deposit accounts, and opts to maintain the pre-existing rule that the Office will automatically notify deposit account holders when their accounts fall below a minimum balance of $450 rather than assessing a service change. The Copyright Alliance supported these positions in our comments and also raised additional proposals for the Office to consider. In response to proposals raised in our comments: (1) the Office will now accept PayPal and Amazon digital wallet options on Pay.gov “to better accommodate a broader range of stakeholders”; and (2) the Office conducted a further investigation and determined that Pay.gov permits automatic replenishment via ACH transactions and will explore the feasibility of implementing that feature to help avoid overdraft of deposit accounts. In light of a general desire from commenters that the Office increase communication regarding account status issues, the Office will automatically notify account holders if their accounts are made inactive due to inactivity or being overdrawn.
Other Activities of 2022
Commission on Artificial Intelligence
On December 12, the Copyright Office and the U.S. Patent and Trademark Office sent a letter to Senators Tillis and Coons in response to an October 27 request by the Senators that the agencies “jointly establish a national commission on AI.” In the response, the two agencies said they would continue to actively engage on Artificial Intelligence (AI) issues by continuing interagency engagements, holding public consultations, and training staff on registration practices surrounding AI-generated works.
The Copyright Office also indicated that it would issue a public notice of inquiry on questions involving copyright and AI sometime in 2023. To the specific question regarding the creation of a national commission on AI, the agencies express an interest in discussing the findings of their ongoing efforts related to AI and what a national commission might look like. They explain that “for the Copyright Office, which relies in part on Congressional appropriations, the costs of establishing a commission on AI would present a potentially significant expenditure that has not been planned for within the budget and would impact the ability to satisfy previously-approved uses of appropriated funds.” The letter discusses the National Commission on New Technological Uses (CONTU) created by law in 1974, adding that if an approach similar to CONTU is followed, “then legislation outlining the specific scope of work and containing appropriated funds” to hire staff and pay commission members would be necessary.
USCO Strategic Plan 2022-2026
In January 2022, the Copyright Office released its 2022–2026 Strategic Plan, titled Fostering Creativity and Enriching Culture, which outlines its 2022-2026 goals with a focus on “expanding the Office’s outreach, improving integration of data and technology, and continuing to provide expertise to the copyright community as a whole.” According to the Office, the strategic plan includes four broad stroke goals: “Copyright for All, Continuous Development, Impartial Expertise, and Enhanced Use of Data.” In a statement, Register of Copyrights Shira Perlmutter noted that, “The Office is adapting and responding to new demands, needs, and expectations…This strategic plan builds on our strong foundations, and charts a course for future initiatives.”
Women in the Copyright System
In June 2022, the Office published a report titled Women in the Copyright System: An Analysis of Women Authors in Copyright Registrations from 1978 to 2020. The report features data on women’s authorship rates within the U.S. copyright system, with a comparison to their participation in the copyright-based creative industries. According to the study, over 38% of all copyright registrations were granted to women authors in 2020, as compared to 28% in 1978. The study also notes that the share of copyright registrations that list women authors has risen across nearly every category.
In February, the Office announced the first release of its digitized Copyright Historical Record Books Collection, which is comprised of digitized versions of historical record books. The collection will eventually include images of copyright related records, such as registration applications bound in books dating from 1870 to 1977. The first release features images from record books dating from 1969 to 1977. Register of Copyrights Shira Perlmutter stated that, “Today’s release of the first batch of our digitized historical record books will ensure that these records are preserved for future research and that anyone can access them from anywhere.”
In August 2022, the Copyright Office announced that the new recordation system is publicly available, allowing users to submit electronic documents related to transfer of copyright ownership or other documents pertaining to copyright under section 205 of the Copyright Act. The Office also began holding monthly webinars to keep the public updated on the Office’s optimized Recordation System. The upcoming webinars, which began in December 2022, “cover announcements about the module, important reminders, frequently asked questions, and a live question-and-answer session.” Webinars will be held at 1 p.m. ET during 2023, as follows: January 5, January 26, February 23, March 30, April 27, May 25, June 29, and July 27.
We would be remiss to write about the year in copyright at the Copyright Office without mentioning former Register of Copyrights Marybeth Peter’s passing in September 2022. The Copyright Office posted a heartfelt tribute that praised former Register Peters’ four decades of service to the Copyright Office in numerous roles and described her as “a global authority on copyright law and a well-known and well-loved presence in the world of copyright.” During her tenure at the Copyright Office, she was instrumental in countless important initiatives, including helping to implement the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act, which serve as cornerstones of today’s copyright law. Former Register Peters indeed left a lasting impact copyright world and touched the lives of so many in the process.
Last year was an incredibly busy year for the Copyright Office, and we expect 2023 to be no different. Among other things, we will continue to monitor the Copyright Claims Board, and we look forward to the Office’s upcoming studies on artificial intelligence and NFTs and unveiling of the Office’s new registration system, at least in beta form, and other aspects of modernization. We also anticipate movement on the ongoing rulemaking regarding online publication, which the Office began in 2019.
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