Last year was one the busiest years in recent history for the U.S. Copyright Office. In addition to numerous personnel changes—including a new Register of Copyrights in late 2020 and transitions in the Office of the General Counsel and the Office of Public Information and Education—Copyright Office staff have been working tirelessly on a number of policy studies and rulemakings. Here’s a look back at Copyright Office activities throughout 2021.
Policy Studies of 2021
One of the primary responsibilities of the Register of Copyrights is to serve as the principal advisor to Congress on national and international copyright matters. In carrying out this duty, the Copyright Office regularly conducts studies and issues reports to Congress on a myriad of topics concerning copyright law and policy. In 2021, the Copyright Office concluded three of its ongoing studies, and began several new studies at the request of Congress.
Satellite Television Community Protection and Promotion Act of 2019 Study
In 1988, Congress created a compulsory license for satellite retransmission of broadcast television distant signals with the goal of fostering competition in the video marketplace. That compulsory license, found in section 119 of the Copyright Act, was reauthorized by Congress five times, in five-year increments—in 1994, 1999, 2004, 2009, and 2014. In 2019, the satellite retransmission compulsory license legislation was once again set to expire.
The compulsory license for satellite retransmission of broadcast television distant signals was created to foster competition in the video marketplace. Following a recommendation by the Register of Copyrights that Congress allow the legislation to expire without reauthorization, Congress enacted the Satellite Television Community Protection and Promotion Act of 2019 (‘‘STCPPA’’), which made certain provisions of the compulsory license permanent, and allowed others to expire.
At the top of 2021, the Copyright Office began its study regarding “how a revised section 119 statutory license is affecting the provision of both local and distant broadcast network stations to subscribers defined as unserved households” with a Federal Register notice seeking public input. Congress directed the Office to conduct this study in December 2019 after the STCPPA passed. In a letter sent to Congress on June 21, 2021, the Copyright Office explained that it “received relatively few public comments, and statistical data is only available for approximately six months post-STCPPA (the second half of 2020), which coincided with a pandemic,” and ultimately concluded that it was “too early to tell how the changes made to the section 119 license by the STCPPA will ultimately play out in the marketplace.”
Unclaimed Royalties Study
On January 1, 2021, the Mechanical Licensing Collective (MLC) began administering blanket licenses to eligible digital service providers (DSPs), pursuant to the Music Modernization Act (MMA) which passed in 2018. The MLC is responsible for collecting royalties paid by DSPs and distributing them to the appropriate copyright owners (as of August 2021, the MLC has distributed more than $106 million in royalties). In light of this important responsibility, the MMA directed the Copyright Office to conduct a study and recommend best practices regarding identifying copyright owners with unclaimed royalties, encouraging copyright owners to claim their royalties, and reducing incidences of unclaimed royalties. In December 2019, the Office held an educational symposium to kick off the study. In June 2020, the Office solicited public comments through a notice of inquiry, and held public roundtables in March 2021.
The Office issued its report at the conclusion of this study in July 2021. The report provided a number of recommendations, including recommending:
- ways to make the MLC’s online portal and other public-facing systems or services simple, accessible, well organized, and user-friendly;
- that the MLC should employ automated and manual matching processes that rely on standard unique identifiers; and
- that the MLC should adopt transparent, practical, and equitable policies, practices, and procedures, especially with respect to holding and distributing unclaimed royalties.
Study of Infringements by State Entities
In April 2020, following the Supreme Court’s decision in Allen v. Cooper striking down the Copyright Remedy Clarification Act of 1990—a law that allowed copyright owners to sue state entities for copyright infringement—Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter to the Copyright Office asking the Office to study “the extent to which copyright owners are experiencing infringements by state entities without adequate remedies under state law.” Throughout 2020, the Copyright Office solicited comments and held roundtables to get input from the public.
On August 31, 2021, the U.S. Copyright Office sent its state sovereign immunity report to Congress. In its report, the Copyright Office found that, “the evidence gathered far exceeds that underlying the [Copyright Remedy Clarification Act]” and that it is “clear that state infringements do in fact occur and that states’ immunity from damages leaves copyright owners with inadequate remedies in many such cases.” While the report says it is “unclear whether the evidence gathered in the study would be found sufficient to abrogate state immunity under the Supreme Court’s precedent,” the Copyright Office “continues to believe that infringement by state entities is an issue worthy of congressional action.”
Study on Ancillary Copyright Protections for Publishers
In May 2021, 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) sent a letter to the Copyright Office requesting a study on “ancillary copyright protection” for press publishers. As the letter explains, during a series of hearings held by the Senate Judiciary Committee Intellectual Property Subcommittee throughout 2020 regarding reforms to copyright law to better protect digital content, witnesses discussed the “ongoing developments in foreign copyright law which require platform aggregators to pay publishers for excerpts of content they provide for others to view” and expressed interest for a related study here in the United States.
In October, the Copyright Office officially began this study with a notice of inquiry requesting written comments from the public and announcing a virtual roundtable on the subject. Initial comments were due by November 26 and the roundtable was held on December 9.
The Senators’ letter requests that the Office complete the study and issue a report by May 3, 2022, including an assessment of
- “the viability of adding specific protections to U.S. copyright law similar to those now being implemented in Europe;”
- “the appropriate scope of such a right  and how that would coincide with existing rights such as those of underlying writers or visual artists as well as any existing rights held by publishers;” and
- “relevant exceptions such as “fair use” or “quotation” exceptions, and any international treaty implications.”
The December 9 roundtable featured other panelists including the Copyright Alliance, News Media Alliance, Professor Jane Ginsburg, Google, and Meta. Panelists discussed whether various types of news content have adequate protections under copyright law, the market dynamics and harms caused by aggregation of news content without payment, and the implication of a new ancillary right on existing U.S. law and international treaty obligations. The Office will issue its final report on press publishers’ rights by May 3, 2022.
Deferred Registration Examination Study
In May 2021, Senator Thom Tillis (R-NC) sent a letter to the Copyright Office requesting studies related to modernizing the registration system. Among those, Senator Tillis requested a study on the “feasibility, benefits, and costs of creating an option for deferring examination of an application.” In December, the Copyright Office commenced this study with a notice of inquiry soliciting input from the public on a number of logistics to help it “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.” Written comments are due by January 24, and Senator Tillis has requested that the Office issue a report on this subject by August 1, 2022.
In connection with past inquiries published by the Office related to registration modernization and Copyright Office fees, the Copyright Alliance has expressed support for a deferred examination option that would allow copyright owners to pay a discounted fee for registration without an examination, and opt later to pay an additional fee to upgrade the deferred registration to a full registration if/when they need to enforce their rights in court. We believe that such a proposal stands not only to benefit individual creators (who, for financial reasons, often do not register or only register only some of their works), but also the Copyright Office and the public by increasing the number of works that are registered, thereby also improving the public record and increasing the number of deposits for the Library of Congress’ collections.
Online Publication Study
What initially began in 2019 as a rulemaking on whether and how to amend Copyright Office regulations to address issues related to online publication turned into a hybrid rulemaking/policy study when, in May 2021, Senator Thom Tillis (R-NC) requested that the Office complete a study on the matter by December 1, 2021 to assist in his efforts to reform copyright law for digital works. While the Office has not yet completed the study or its related rulemaking, Register Shira Perlmutter provided Senator Tillis with a 15-page report on the status of the online publication study. The report addresses: (i) the Copyright Office NOI process and the comments it received from stakeholders; (ii) the legal implications of publication and the nature of first publication; (iii) the importance of publication status in the copyright registration system; (iv) Copyright Office activities related to publication; and (v) possible statutory and regulatory amendments.
Standard Technical Measures
In June, 2021, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter to Register Perlmutter requesting “the Copyright Office convene a representative working group of relevant stakeholders in order to identify and implement standard technical measures [(STMs)] and recommend other necessary steps to stop online copyright theft and improve the digital ecosystem for creators, content owners, and lawful internet users.” The letter requests that the working group produce a report “identifying and clarifying what STMs currently exist in the marketplace and should be adopted by online service providers in order to fulfill the obligations expected by Congress in enacting the DMCA.” On December 22, 2021, the Office officially began this policy study with a notice inviting members of the public to participate in “a series of consultations on technical measures that identify or protect copyrighted works.” The Office plans to hold the sessions on February 22, and those interested in participating must submit the required materials by February 8.
Rulemakings of 2021
Another one of the Register’s primary responsibilities is to establish regulations to enable the Copyright Office to carry out the duties and functions established under the law. In 2021, the Office finalized and began a number of rulemakings to establish or update regulations related to matters including registration procedures, exemptions under section 1201 of the Copyright Act, and newly enacted legislation.
The Copyright Alternative in Small-Claims Enforcement Act (CASE Act)
Since the CASE Act passed in December 2020, the Copyright Office has been hard at work on a number of rulemakings to get the new small claims process up and running, which we quickly provided a general overview of here. In May 2021, the Office implemented a final rule updating the Office’s organizational structure to make room for the new Copyright Claims Board (CCB). In addition to adding the CCB to the organizational structure, the new rule renamed and realigned certain offices and senior positions, and updated descriptions of the various offices and divisions to better reflect their current responsibilities.
The Office has also been working on a number of rulemakings dealing with the specific workings and processes of the CCB. In March 2021, the Office began these rulemakings with a comprehensive notice of inquiry (NOI) regarding subjects including: Initiating CCB Proceedings, Notice, and Service of Notice and Claim; Opt-out Provisions; Additional CCB Practice and Procedures; Public Access to Records and Proceedings; Certifications; Case Management System Considerations; Register’s Review of CCB’s Denial of Reconsideration; Fees; Permissible Number of Cases; and Conduct of Parties and Attorneys. From there, the Office began publishing proposed rules related to the various topics addressed in the initial NOI.
- In April, the Office published a proposed rule regarding the process for expedited registration under the CASE Act and the operation of the Freedom of Information Act (FOIA) as it relates to the CCB. Among other things, the final rule set the fee for expedited registration in relation to the CCB at $50.
- In September, the Office issued two proposed rules.
- The first proposed rule dealt with procedures for libraries and archives to preemptively opt out of small claims proceedings (a courtesy specifically granted to those entities by the CASE Act itself) and class actions. The Office has not yet issued a final rule, so this rulemaking remains open at this time.
- The second proposed rule issued in September dealt with how to initiate a proceeding before the CCB. This rulemaking also remains open.
- On December 8, the Copyright Office published another proposed rule, this one dealing with procedures governing active proceedings before the CCB and post-determination procedures. Initial comments are due by February 7, 2022, and reply comments are due by February 22, 2022.
- On December 30, the Copyright Office issued what we expect to be the final set of proposed rules, regarding procedures governing representation of parties by law students and representation of business entities by authorized individuals in proceedings before the Copyright Claims Board. Initial comments are due by February 3, and reply comments are due by February 18, 2022.
The Music Modernization Act and Mechanical Licensing Collective
Since the MMA passed in 2018, the Copyright Office has been busy implementing regulations to support the changes to the law established by the MMA. In 2021, the Copyright Office issued three rules related to the MLC component of the MMA (this seems like a good time to remind you of our blog on copyright-related acronyms). In January, the Office closed a rulemaking that began in July of 2020 by issuing a final rule “to ensure that the MLC receives the information and royalties it needs to fulfill its statutory duties, that copyright owners and songwriters are accurately paid any royalties they are owed, and that DMPs can realistically and practicably obtain the limitation on liability by complying with the statutory requirements.” That rule went into effect on February 10, 2021.
On February 11, the Office issued an interim rule regarding the treatment of confidential information by the MLC. In a summary of the rule, the Office says, “[t]his rule defines “confidential information” and regulates disclosure and use of confidential information by the MLC and [Digital Licensee Coordinator (DLC)] … It separately addresses the use and disclosure of sensitive financial or business information about the MLC’s and DLC’s internal operations (as opposed to confidential information about third parties).” That rule went into effect on March 15, 2021 closing out a rulemaking that began in April 2020.
In March, the Office issued a supplemental interim rule regarding the reporting obligations of digital music providers (DMPs). According to the Office, this supplemental interim rule established regulations regarding:
- DMP data collection and delivery efforts;
- notices of license submitted to the MLC by DMPs in connection with obtaining a blanket license;
- reports of usage and related royalty payments submitted to the MLC by DMPs under the blanket license;
- notices of nonblanket activity submitted to the MLC by significant nonblanket licensees (SNBLs);
- reports of usage submitted to the MLC by SNBLs; and
- musical work copyright owner data collection and delivery efforts.
That rule went into effect on April 5, 2021 closing out a rulemaking that began in April 2020.
Group Registration of Works on an Album of Music
On February 23, the Copyright Office created a new group registration option to help music creators register multiple works on an album of music together. The group option includes two types of applications. Under the application for ‘‘musical works from an album,’’ an applicant can register up to twenty musical works together in one group application as long as the works were distributed together. Under the application for “sound recordings from an album,” an applicant can register up to twenty sound recordings that were distributed together, along with any liner notes, photographs, or artwork first published with that group of sound recordings. The application became available on March 26 and the fee is currently set at $65.
Modernizing Recordation of Notice of Termination
On February 25, 2021, the U.S. Copyright Office completed a rulemaking it began in June 2020 regarding notices of termination.
For those not familiar with the process of termination, copyright law allows a creator or his or her heirs to “terminate” any license or transfer of the copyright in their work and reclaim those rights after a certain period of time (usually 35 years after the license/transfer). In order to reclaim those rights, the creator is required to provide notice to the licensee and submit a copy of that notice to the Copyright Office within a certain timeframe. The reason this provision is included in the copyright law is because Congress wanted to give creators and their heirs a second opportunity to make money from their efforts because they often find themselves selling their rights before the actual worth of the works is established.
In its final rule, the Office updated the regulations regarding the requirements for notices of termination in order to improve efficiency in processing. In its rule, the Office addresses updates to timeliness, harmless errors, manner of service, identification of a work, and date of recordation. The rule went into effect on March 29, 2021.
Section 1201 Triennial Rulemaking
Every three years, the Copyright Office must consider whether to grant certain exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. While the rulemaking process is facilitated by the Copyright Office and the Register makes certain recommendations, the Librarian of Congress, Dr. Carla Hayden, has the final say.
The Office initiated the eighth triennial rulemaking proceeding in a notice of inquiry on June 22, 2020 which requested petitions for renewal of previously granted exemptions, petitions in opposition to renewal, and petitions for new exemptions. In October 2020, the Office issued a proposed rule, for which three rounds of public comments were initiated, followed by hearings and several ex parte meetings with participants concerning ten proposed classes. As required by section 1201(a)(1), the Register also consulted with the National Telecommunications and Information Association (“NTIA”) during the rulemaking.
- all the 2018 exemptions with expansions and additions relating to (1) audiovisual works, (2) literary works, and (3) computer programs;
- new or expanded rules for audiovisual works including exemptions for the purposes of comment and criticism, accessibility, preservation, and text & data mining;
- new or expanded rules for literary works including exemptions for the purposes of text & data mining, accessibility, and operability with medical devices; and
- new or expanded rules for computer programs including exemptions for the purposes of unlocking, jailbreaking, repair, security research, preservation, 3D printing, copyright license investigation, and accessibility.
In addition, three proposed classes were rejected relating to audiovisual works exemptions for the purposes of texting, livestream recording, and space-shifting.
In February 2021, the Copyright Office issued an interim rule to enable secure tests—defined as “nonmarketed test[s] administered under supervision at specified centers on scheduled dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage or secure electronic storage following each administration”—to be registered even while Copyright Office staff work remotely throughout the pandemic. Rather than requiring in-person examinations for these registration applications, the interim rule allows examiners to examine the applications remotely. The interim rule went into effect immediately.
Other Activities of 2021
In addition to policy studies and rulemakings, the Office is also responsible for facilitating other activities such as examining copyright applications and registering copyrighted works, maintaining public records, and providing education to the public on copyright law. Here are a few other things the Office accomplished in 2021.
The Copyright Office has been engaged in efforts to modernize its IT system and ensure that its internal practices and procedures are similarly modernized for the last several years. In line with these efforts, in 2021, the Office hosted four webinars providing updates to the public on its progress. The webinars in 2021 covered topics such as:
- the benefits of an agile methodology approach for the new Enterprise Copyright System (ECS);
- strategies and goals of the Historical Public Records Program and an update on current efforts related to digitizing the record books and creating searchable metadata for the card catalog;
- the re-envisioned Standard Application process and the progress of the development work on the internal functionality of the new registration system; and
- how the Office is working to standardize its IT systems to improve the Public Information Office Contact Center’s ability to provide better public information services.
In February, the Library of Congress published a notice “convening a public committee to enhance communication and provide a public forum for the technology-related aspects of the U.S. Copyright Office’s modernization initiative” called the Copyright Public Modernization Committee (CPMC). The Library accepted applications from “qualified members of the public” and ultimately selected the following committee members:
- Todd Carpenter, National Information Standards Organization;
- Wahaj Chaudhry, Amazon.com;
- Susan Chertkof, Recording Industry Association of America (RIAA);
- Brewster Kahle, Internet Archive;
- Roy Kaufman, Copyright Clearance Center;
- Keith Kupferschmid, Copyright Alliance;
- Melissa Levine, University of Michigan Library;
- Pamela Malpas, Association of American Literary;
- Micah May, Digital Public Library of America;
- James Neal, Columbia University Librarian Emeritus, ALA, ACRL;
- Kathleen Rodriguez, Warner Media;
- Jeff Sedlik, Picture Licensing Universal System (PLUS) Coalition; and
- Scott Weingart, Carnegie Mellon.
The Committee held its first meeting on July 22, 2021. The meeting included an update from experts at the Library of Congress “on the development of the Enterprise Copyright System (ECS), a discussion about Copyright IT modernization with CPMC members, and a public Q&A period.” The next meeting is expected to be held later this month.
In October, the Senate Rules and Administration Committee held a hearing titled Oversight of Library of Congress Modernization Efforts. Dr. Carla Hayden and Register Shira Perlmutter both testified at the hearing about the modernization efforts of the Library of Congress and the U.S. Copyright Office (USCO), respectively. In her testimony, Register Perlmutter highlighted the specific achievements such as the electronic records pilot, clickable prototype of registration, the Copyright Public Modernization Committee, the CASE Act, and the Music Modernization Act (MMA). She also mentioned that in fiscal year 2020, the Copyright Office received more than 500,000 copyright claims and that the average processing time for registration has been significantly decreased from multiple months to a few weeks.
DIY Music Licensing Information
In December, in response to a request from Senator Tillis (R-NC) that the Office “augment its resources to provide additional materials useful for the DIY music community,” the Copyright Office developed educational materials on topics including sampling, remixes, mashups, interpolations, covers, online beat stores, fair use, and the public domain. These materials are a part of the Office’s broader education and outreach efforts related to the Music Modernization Act.
Copyright Claims Board Officers
In July, the U.S. Copyright Office announced the appointments of David Carson (for a 4 year term), Monica P. McCabe (for a 5 year term), and Brad Newberg (for a 6 year term) to serve as the first Copyright Claims Officers on the newly established Copyright Claims Board, effective July 6, September 13, and August 16, respectively.
Since 2014, Carson has headed the Copyright Policy Team in the Office of Policy and International Affairs at the U.S. Patent and Trademark Office. His previous experience also includes: Executive Vice President for Global Legal Policy at the International Federation of the Phonographic Industry; General Counsel and Associate Register for Policy and International Affairs at the Copyright Office; and practicing law leading copyright law firms in New York City and Los Angeles.
McCabe is described as a veteran copyright litigator with over three decades of experience, representing both users and copyright owners. Since 2018, McCabe has chaired the intellectual property department at Phillips Nizer LLP. Her previous experience also includes serving on numerous arbitration panels, including for the International Trademark Association, the Southern District of New York, and the New York State Supreme Court Commercial Division.
Since 2014, Newberg has led the copyright and trademark litigation practice at McGuire Woods, and he has more than 20 years’ experience serving as lead counsel in well over a hundred copyright matters and appearing before federal trial and appellate courts across the country.
Preemption of State Laws Related to Ebook Licensing
Under the Copyright Act, the federal government has exclusive jurisdiction to create laws regarding copyright. In May 2021, Senator Tillis (R-NC) requested that the Office conduct an analysis of various state e-book bills (that have been introduced recently in several states) that appear to be encroaching on the exclusive domain of federal copyright law. In his letter, Senator Tillis cites that one state recently passed legislation that would require “a publisher who offers to license an electronic literary product to the public to also offer to license the electronic literary product to public libraries in the state on reasonable terms that enable public libraries to provide library users with access to the electronic literary product.” He raises alarm that these state legislative efforts appear to be directly in conflict with the Copyright Act’s clear language preempting “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright…”
On August 30, 2021, the U.S. Copyright Office sent a letter in response to a request from Ranking Member Tillis, detailing the results of its preemption analysis regarding state legislation purporting to create compulsory licenses for e-books and regulate the terms of those licenses. In its letter, which looked at legislation introduced in New York, Rhode Island, and Maryland, the Office concluded that “a court considering the state legislation at issue would likely find it preempted under a conflict preemption analysis.” In December, Governor Kathy Hochul vetoed the legislation passed by the New York legislature in light of the fact that it is preempted by federal copyright law.
Onward to 2022
As you can see, 2021 was another incredible year for copyright due in large part to the efforts of Copyright Office staff and Senators Tillis, Leahy, and others who recognize the importance of modernizing copyright law and policy. And the work is not done yet! With everything that’s currently on the Office’s plate, as well as the deadline for the CCB to begin operations by June 25, 2022 is already shaping up to be yet another momentous year for copyright.
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