Q&A with Senator Thom Tillis, Chairman of the Intellectual Property Subcommittee

Senator Thom Tillis

I recently had the opportunity to share some questions with Senator Thom Tillis (R-NC) about a number of critical topics, ranging from DMCA reform to digital video piracy to his dedication to his role as the Chairman of the Senate Judiciary IP Subcommittee, and much more. Read on to learn what Senator Tillis had to say.

Keith: What are your responsibilities as Chairman of the Senate IP Subcommittee, particularly with regard to copyright law?

Senator Tillis: For almost twelve years, the Senate Judiciary Committee did not have a dedicated intellectual property subcommittee. But intellectual property is critical to the U.S. economy, and it really needed to have its own specialized subcommittee so that we can focus on deeply reviewing our intellectual property laws and examining spaces where legislative reform would better serve creators, innovators, businesses, and the public. As the first Chairman of the reconstituted Subcommittee on Intellectual Property, I believe it is my responsibility to ensure that our intellectual property system – so our copyright laws, and our patent laws, and trademark, and trade secrets – works the best it possibly can to foster American creativity and innovation. Put more strongly, my goal is to promote policies that will ensure America’s innovation and creative economies continue to be the best in the world. To do so, I’ve focused on doing some long overdue reviews of our copyright administrative system and our copyright, patent, and trademark laws. Last year I focused on potential reform of patent eligibility, and this year the Subcommittee is holding a series of hearings on reform of the Digital Millennium Copyright Act, with an eye toward releasing draft legislation in December.

Keith: What one thing do you wish that more people understood about copyright?

Senator Tillis: The critical role that creativity plays in the U.S. economy, and in the economy of the great state of North Carolina. I first became interested in intellectual property during my career before politics, working in technology and business consulting. Copyright is the engine of creative expression – it provides the incentives that allow aspiring authors to turn an idea into a best-selling story and with it a career. Copyright law also helps the United States be the entertainment capital of the world, and it contributes to millions of jobs across the country.

Keith: What do you think is the country’s biggest copyright-related challenge?

Senator Tillis: The United States has long provided a model to the world of the ideal copyright system, but U.S. copyright law is long overdue for an update. The last major overhaul of copyright law was with the enactment of the Copyright Act of 1976. The Digital Millennium Copyright Act helped bring U.S. copyright law into the internet age when it was enacted in 1998. But the DMCA is also showing the wear and tear of more than two decades of trying to adapt to changes in technologies and business models that Congress couldn’t have anticipated. When the DMCA was originally enacted, section 512 was viewed as a compromise between copyright owners and nascent online service providers. In exchange for receiving a limitation on liability for the infringing activities of users, online service providers were supposed to take specific actions to help curb online piracy, including making reasonable efforts to remove pirated material once they received notice that it was online. Unfortunately, this grand bargain is no longer working, and the notice-and-takedown system, which is a key component of the DMCA, isn’t achieving the policy goals Congress intended.

Keith: You’re working on drafting legislation that would close the loophole for criminal streaming piracy so that it is treated like a felony just as criminal reproduction and distribution are. Why do you think that this is important?

Senator Tillis: Global digital video piracy costs the U.S. economy something like $30 billion each year – and the vast majority of that is attributable to illegal streaming of copyright protected works. In part this is because the internet has grown so dramatically in recently years and technology has advanced to make new forms of dissemination possible that weren’t before. Just as the Subcommittee is reviewing the DMCA so that the law can be updated where appropriate to reflect changes to the world the law operates within, our criminal copyright laws also require some updating. As you noted, currently, criminal streaming of copyrighted works – that’s what is done by large commercial enterprises that stream unlicensed films and programs – is only a misdemeanor, but criminal reproduction and distribution – like bootleg DVD street markets – are felonies. This doesn’t make sense. It’s bad policy, and it hurts our creative community. That’s why my staff and I have spent this year working to develop legislation that will close this felony streaming loophole and benefit both copyright owners and users. Copyright owners will have their interests better protected by the backing of potential Department of Justice felony prosecution of large commercial enterprises profiting off illicit streaming, while users will be better protected from the potential malware, spyware, and viruses that these pirates can introduce through their criminal streaming operations.

Keith: As you and your office continue to hold hearings to assess the effectiveness or ineffectiveness of the Digital Millennium Copyright Act (DMCA), what parts of this law do you think need updating in order for it to work well in the 21st century?

Senator Tillis: Thus far, our four hearings have focused on why the DMCA was originally enacted; approaches that other countries have taken to curb infringement online while encouraging growth of internet companies; the operation and effectiveness of section 512; and how the DMCA contemplates the doctrine of fair use. My Subcommittee will hold a hearing this month on section 1201, which prohibits circumvention of technological protection measures like encryption for DVDs and watermarks on photographs. We also will hold a hearing next month on the role of voluntary agreements between private companies that supplement that legal regime created by the DMCA. I’ve been learning a lot from all of our witnesses, and I look forward to the remaining hearings. At this point, I’m still reviewing the record, but one thing that has become clear is that the DMCA is no longer working as Congress intended it in 1998, and my staff and I are laboring to identify ways to amend the statute to help restore the balance. The fantastic growth of the internet has had the consequence of making the notice-and-takedown process unworkable for most copyright owners and many service providers. When a copyright owner notifies a service provider of an infringing work, it needs to come down and stay down. I’m also concerned that the process for putting back a work that should not have been taken down does not work for anyone. And I’m looking forward to our section 1201 hearing this month because my sense is that we may need to tweak that provision to ensure that the exemptions adequately account for consumer concerns, including by allowing for third-party repair of software-enabled devices.

Keith: With it being very easy to pirate the works of others, particularly online, do you believe that legislation is needed to help small creators combat these illegal activities?

Senator Tillis: Absolutely, and there is a great piece of legislation that I’ve co-sponsored that would do just that. The CASE Act is a critical piece of copyright legislation that would help individual authors quickly and effectively secure remedies for copyright infringement. Artists – from writers and photographers to musicians and software designers and all other kinds of creatives – play an important role in our communities and in our economy, but often the benefits of copyright protection lie practically out of reach because of the time and costs involved with enforcement through federal courts. The CASE Act will create a more efficient way for copyright holders to protect their intellectual property and ensure that our content creators can be properly paid when their work is used without authorization.

Keith: What are specific IP-related successes that you hope to deliver over the short-term and the long-term?

Senator Tillis: I am honored to have co-sponsored several important pieces of bipartisan IP legislation, and I am hopeful that these will all be successful both in the short-term and the long-term. Among these I count the CASE Act, which has already passed out of the House and out of the Senate Judiciary Committee. I’m also very proud of the work my staff and I are doing to patch the streaming loophole. And I’ve been busy working with stakeholders on consensus-driven legislation to modernize the U.S. Copyright Office. As I look ahead to my second term, intellectual property issues will remain a top priority for me, and I look forward to continuing to work with the Copyright Alliance and other key stakeholders to achieve meaningful reforms.

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