In 2023, like the rest of us who toil in copyright and creativity, the U.S. Copyright Office was also laser focused on the impact of AI on copyright. Last week, we published a two-part blog series highlighting the most significant activities related to Artificial Intelligence (AI) and copyright that took place in 2023. Much of what we discussed in part one of the blog addressed all the different things the U.S. Copyright Office is doing related to AI, ranging from listening sessions, webinars, and requests for comments on its impending study of AI issues.
Although the Copyright Office was extremely busy on issues related to AI, there were actually a host of other important issues and activities that the Office was actively involved in that had nothing to do with AI. In case you missed any of these, we highlight below the most important non-AI related Copyright Office activities that took place in 2023.
The Copyright Claims Board
At the start of 2023, the Copyright Claims Board (CCB) was a mere six and half months old. As you might imagine, at such an early stage of its development, there wasn’t much to note about the CCB last year at this time. But that all changed in 2023.
In 2023, the CCB issued its first thirteen decisions. In February the CCB made its first final determination of a CCB case. In the case, Flores v. Mitrakos, the claimant alleged that the respondent filed a knowingly false takedown notice under the Digital Millennium Copyright Act (DMCA), which caused Google to remove materials from the Chrome Web Store. Through the CCB, the parties reached a settlement agreement that included a concession from the respondent that the information in the takedown notice was false and an agreement that the respondent will not file any future false takedown notices or counter-notices related to the claimant. The CCB approved the settlement agreement, dismissed the claim with prejudice (meaning that the claim cannot be brought again), and closed the case.
Later that same month, the CCB issued its first final determination on the merits in a case. The case, Oppenheimer v. Prutton, was referred to the CCB from the federal district court for the Northern District of California using a little known provision in the law that created the CCB (called the CASE Act) that allows a federal district court to refer a copyright case to the CCB if all the parties involved in the case agree (and other requirements are met). Since the respondent admitted to copying and displaying the claimant’s photograph on the respondent’s website and discovery had been completed already, the CCB only had to analyze the respondent’s defenses of fair use and unclean hands and render a decision. Ultimately, the CCB found for the claimant on copyright liability, holding that the respondent failed to meet its burden of proof on the fair use defense by failing to address three out of the four fair use factors, and that the respondent also failed to present sufficient evidence to support a finding of unclean hands. The CCB awarded the claimant $1,000 in statutory damages.
Throughout the year, the CCB rendered final decision in eleven other cases. We posted a blog last month summarizes the first twelve cases (the thirteenth decision was published after the blog was written). With the CCB now over 18-months old, we should expect many more decisions by the CCB in 2024.
In 2023, 419 total cases were filed with the CCB. Of these claims, 106 were “smaller claims.” In at least 172 of all cases, the claimant used legal counsel. At least 372 of the cases involved infringement claims, 77 involved Section 512(f) misrepresentation claims, and 17 involved claims for declarations of noninfringement. According to the eCCB docket, the works at issue in these cases were as follows: Pictorial Graphic & Sculpture (165 cases); Literary Works (62); Motion Picture and Audiovisual Works (85); Sound Recordings (49); Musical Works (34); Architectural Works (4); and some cases include claims for multiple works. Sixty foreign residents filed claims. Of all the cases filed, 409 were dismissed for one or more of the following reasons: Due to Respondent’s Opt-Out (47); Due to Failure to Amend Noncompliant Claim (183); Registration Issues (11); Due to Failure to Provide Proof of Service of Process (88); Claimant Withdrawal and Dismissal of Claims (37); Bad Faith Claimant (13); and Settlement (30). In 2023, there were 88 total cases that became active this year and 13 final determinations.
In addition to the cases filed and decided in 2023, the U.S. Copyright Office issued two new rules related to the CCB. The first rule amending the existing rules related to the filing of agreement-based counterclaims and related discovery requirements in cases before the CCB. The second rule allowed the CCB to modify or suspend certain rules when a claim is referred by a district court and, in cases that are first filed before the CCB, accept alternative proof of service forms. The new rule also clarified the rules governing default proceedings and law student representations.
Copyright Office Final, Interpretive, Interim, and Proposed Rules
In addition to the new CCB rules noted above, the Copyright Office also enacted several other final, interpretive, and proposed rules. One new rule issued by the Office related to Ex Parte Procedures. The final rule largely memorialized the Office’s existing procedures for ex parte communications between the Office and other parties while incorporating a few changes and clarifications. The new rule provided instructions for requesting ex parte meetings and identifying impermissible ex parte communications.
In June, the Office published an interim rule regarding registrations of secure tests, continuing the emergency adoption during the COVID-19 pandemic of otherwise eligible tests that were administered online during the national emergency to qualify as secure tests.
In September, the Copyright Office adopted an interpretive rule regarding fees for late royalty payments under the Music Modernization Act’s (MMA) statutory mechanical blanket license. In its interpretive rule, the Office declined to issue any regulations, instead finding that the statute is unambiguous as to “(i) due date provisions, (ii) direction to the Office to adopt regulations governing adjustments, and (iii) delegation of authority to the CRJs to promulgate late fee provisions.” Specifically, the Office concluded that “the plain and natural meaning of the statute is that ‘all royalties’ for a given monthly reporting period are ‘due’ no later than 45 days after the end of the monthly reporting period. Thus, any royalties received by the MLC for such reporting period after this ‘due date for payment’ are late.”
The Office also began several new rulemakings in 2023 including rules related to:
Access to Electronic Deposits: In September, the Copyright Office published a notice of proposed rulemaking (NPRM) that would update its regulations governing access to electronic deposits of published works submitted to the Office that have been selected for addition to the collection of the Library of Congress by expanding the categories of eligible deposits covered by the regulations including group registrations for published photographs, short online literary works, and works on an album, amongst others. The Copyright Alliance filed comments, as did others, opposing the proposed rule because it presents significant legal issues that require a more comprehensive discussion with affected stakeholders and raises serious security concerns.
Section 1201 Triennial Rulemaking Process: The Copyright Office began the long process it undertakes every three years to consider potential exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. In June, it published a notification of inquiry and request for petitions for its ninth triennial rulemaking proceeding. A total of 11 new petitions and 38 renewal petitions were filed. In October, the Office then published a notice of proposed rulemaking, proposing to renew of all but one of the existing exemptions to the DMCA prohibition against anti-circumvention of technological measures protecting copyrighted works. The Office noted that since no renewal petition was received for the current exemption permitting circumvention of video games in the form of computer programs for the purpose of allowing an individual with a physical disability to use alternative software or hardware input methods, the Office therefore will not recommend this exemption to the Librarian for approval. Proposed new or expanded exemptions include expansions to the TDM of literary and audiovisual works in the scholarly/research contexts and a new proposed exemption of computer programs for generative AI research. In the notice, the Office also launched three rounds of public comments on new or expanded exemptions in addition to virtual public hearings which will be held in spring 2024. Initial written comments in support of a proposed exemption were due in December. Written comments in opposition of a proposed exemption and written reply comments from supporters of a proposed exemption and parties that neither support nor oppose a proposal are due in February and March 2024, respectfully.
Termination Rights and MMA’s Blanket License: In September, the Office published a supplemental notice of proposed rulemaking (SNPRM) to further clarify policies and procedures surrounding royalty distribution and dispute resolution practices for royalties administered by the MLC. The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC.
Copyright Office Studies
In addition to the AI and copyright study that was the primary focus of many in the copyright community, the Office also continued a joint study with the U.S. Patent and Trademark Office, that actually began in late 2022 relating to issues of intellectual property (IP) law and policy associated with non-fungible tokens (NFTs). In January, the Copyright Office held a day-long roundtable—which consisted of four separate sessions on topics such as technological processes, creative sector uses of NFTs, and enforcement—to help gather further input on the joint study. We anticipated that the study would be published in the fall of 2023, but since that did not happen, we anticipate that it will be published in 2024.
Copyright Office Modernization Activities
Throughout 2023, the Library of Congress and the Copyright Office continued their ongoing effort to modernize the Office. Staff of the Office and Library held two public meetings with the Copyright Public Modernization Committee (CPMC). The bulk of the fourth meeting of the CPMC, which was held in March, was comprised of copyright registration staff giving a demonstration of the Enterprise Copyright System (ECS) Registration module, which CPMC members agreed reflected significant progress. The demonstration included both the user side and the examiner side of ECS. This was the first time anyone other than Office and Library personnel was able to see a demonstration of ECS. Office staff indicated that there will be an opportunity for user testing. The fifth CPMC meeting, which was held in August, featured the progress made in modernization efforts to the Copyright Office’s online services and systems. The modernization team presented updates and features including a feature that directs registrants to choose the correct application form by asking a series of questions, standardizing displays for forms in the limited licenses that the Copyright Office administers and digitizing many more analog historical records for the public.
Copyright Office Leadership Changes
Throughout 2023 there were numerous changes in the Copyright Office leadership. In January, Andrew Foglia was appointed to be Deputy Director of Policy and International Affairs for the U.S. Copyright Office. In March, the Emily Chapuis was appointed to be the Deputy General Counsel for the U.S. Copyright Office, and later that month, Iyauta Green was appointed to be the Deputy Director of Operations for the U.S. Copyright Office.
The Copyright Office has an incredible amount of work ahead of them in 2024 on a range of issues. In addition to the AI study, we anticipate the Copyright Office will publish its NFT Study, and also expect continued work to modernize the Office’s registration practices.
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