More than 20 years have passed since Congress passed the Digital Millennium Copyright Act (DMCA), which was intended to enable copyright owners and online service providers to collaborate to combat online infringement — but today, piracy is more rampant than ever. So where does the DMCA stand now, and what needs to happen for it to live up to the potential that Congress intended? Senator Thom Tillis (R-NC), chair of the Senate Judiciary Committee’s IP Subcommittee, has planned a series of hearings throughout 2020 on what’s working and not working re: the DMCA. Following the conclusion of the hearings, determinations will be made on how to best proceed.
For more information regarding the DMCA Hearings, including a schedule, coverage and more, please see below.
The DMCA at 22: What is it, Why It Was Enacted, and Where Are We Now.
The first hearing provided an opportunity to give necessary background and level-set for the entire Subcommittee, most of whom were not around when the DMCA was enacted. The hearing also addressed the reasons for the DMCA’s enactment, the balance that was struck between copyright owners and internet platforms, and how is that balance working, or not working, in the 21st century.
March 10, 2020:
Copyright Law in Foreign Jurisdictions: How are other countries handling piracy?
This hearing examined differences between legal regimes in other countries and the United States in regards to online privacy. Specifically, this hearing examined the EU Copyright Directive and how it should inform our legislative efforts.
May 27, 2020:
Hill Staff Briefing: Scope of Music Rights Within the Digital Millennium Copyright Act (DMCA).
This briefing addressed whether the U.S. should have a more complete public performance right for sound recordings, and specifically addressed the lack of royalties paid for music that is played on terrestrial radio.
June 2, 2020:
Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?
This hearing addressed how copyright notices work in practice and whether the notice and takedown system is succeeding in reducing piracy online. In addition, it addressed issues with improper notices and review how federal courts have interpreted Section 512’s notice and takedown provisions.
July 28, 2020:
How does the DMCA Contemplate Limitations and Exceptions Like Fair Use?
This hearing will address if Congress should consider responding to aspects of recent litigation over the DMCA and fair use? Should Congress consider implementing an objective standard requiring reasonableness on the part of the notice sender? Should fair use be considered in the assessment of a sender’s good faith?
September 16, 2020:
Are Reforms to Section 1201 Needed and Warranted?
The September DMCA Hearing will address the following: Section 1201 prohibits the circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. The law establishes a triennial rulemaking process through which the Librarian of Congress may grant limited exceptions to the bar on circumventing access controls. In 2017, the U.S. Copyright Office studied the issue and did not recommend altering the basic framework of 1201, but did recommend certain legislative updates. This hearing will consider the Copyright Office’s recommendations and seek to determine whether additional changes to 1201 are warranted.
October 6, 2020:
Can Private Agreements and Existing Technology Provide a Solution to Online Piracy?
The October 2020 DMCA Hearing will address what kind of cooperate efforts between content owners (and others in the online ecosystem) currently exist, how do they work, and how effective are they. Additional questions will include: Have cooperative efforts been lacking or fallen short?; Can Congress do anything to foster greater willingness on the part of parties to discuss voluntary agreements?; Are there any effective technological solutions to online piracy in the marketplace that are widely used, and what can be done to encourage content owners and online platforms to develop and deploy them?
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