Copyright Office’s Busy Summer Includes a Full Slate of Studies and Rulemakings

Congress

A steady stream of new study requests from Congress over the last few months, combined with approaching deadlines for ongoing studies and CASE Act implementation activities, means a busy summer (and rest of 2021) for the Copyright Office. With the recent announcement that General Counsel and Associate Register of Copyrights Regan Smith is leaving the Office for the private sector, it’s sure to be all hands on deck for studies, rulemakings, and other activities spanning a variety of important issues. And like many of the Office’s undertakings, the recommendations made to Congress and rules established will have a lasting impact on the rights of creators and copyright owners. 

State Sovereign Immunity

On August 31, the Copyright Office will issue its report on the extent to which copyright owners are experiencing infringement by state entities without adequate remedies under state law. The study was initiated in response to a letter from Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent to the Office on April 28, 2020. As the letter explains, the Supreme Court’s 2020 ruling in Allen v. Cooper left creators without a remedy when a state infringes their copyright and claims sovereign immunity under the Eleventh Amendment. Both the Copyright Office and the Patent and Trademark Office were asked by the Senators to conduct a study “to determine whether there is sufficient basis for federal legislation abrogating state sovereign immunity when states infringe.”

In response to a Copyright Office Notice of Inquiry asking for public input on the extent to which state infringement is a problem, the Copyright Alliance submitted comments (and reply comments) that include survey results and creator stories that highlight the frequency and harm of state infringement. Since the Office’s comment period closed, there’s been further proof that alternative state remedies, such as takings claims, fail to provide copyright owners meaningful recourse against state infringement. Based on the evidence compiled in our comments and from recent court cases, we continue to strongly urge the Copyright Office to recommend that Congress enact legislation that holds states accountable for infringement.

CASE Act Rulemakings

Passed in late 2020, the Copyright Alternative in Small Claims Enforcement (CASE) Act establishes a small claims tribunal within the Copyright Office that will provide a low cost and streamlined alternative to federal court. The Copyright Office has been hard at work hiring the officers and attorneys who will oversee the Copyright Claims Board (CCB), and it’s been issuing notices of inquiry (NOIs) and notices of proposed rulemakings (NPRMs) related to CASE Act implementation.

In response to an initial Notice of Inquiry, the Copyright Alliance submitted comments (and reply comments) stressing the need for the procedures adopted by the Office to be objectively simple, easy to understand, and designed to meet the needs of those who cannot afford to hire an attorney or litigate in federal court. After a Notice of Proposed Rulemaking on a new expedited registration option and a conforming amendment to the Office’s Freedom of Information Act regulations under the CASE Act, the Copyright Alliance submitted comments mostly in support of the Office’s proposed regulations.

The Copyright Office will continue to publish NPRMs throughout the summer and fall in preparation for the expected launch of the Copyright Claims Board in December. The Office is expected to publish several NPRMs on specific topics (like the expedited registration and FOIA NPRM) rather than one comprehensive NPRM.

In testimony before the Senate IP Subcommittee last year, many witnesses expressed support for the advancement of additional rights for press publishers whose content is often aggregated and distributed without authorization by online platforms. These “ancillary” or “neighboring” rights have been adopted in some EU Member states, including France, which just fined Google over half a billion euros for breaching an order to negotiate in good faith with French publishers to renumerate them for displaying portions of news content.

On May 3, Senators Thom Tillis (R-NC), Chris Coons (D-DE), John Cornyn (R-TX), Mazie Hirono (D-HI), Patrick Leahy (D-VT), and Amy Klobuchar (D-MN) sent a letter to Register of Copyrights Shira Perlmutter requesting a Copyright Office study on the viability of adding ancillary protections to U.S. copyright law that would require platform aggregators to pay publishers for excerpts of content they provide for others to view. Specifically, the letter asks that the Office “analyze what the appropriate scope of such a right should be 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.” The letter also requests that the study include a discussion of how exceptions such as fair use would be accounted for and how an ancillary right would affect international treaty obligations.

In a May 24 letter to the Copyright Office, Senator Tillis requested that the Copyright Office undertake studies on the following issues related to the modernization of registration and examination procedures.

  • Digital Deposits and Best Edition

The letter first asks the Copyright Office to conduct a study on the practicality of decoupling the deposit requirements found in Sections 407 and 408 of the Copyright Act. Section 407 currently requires the submission of two complete copies or phonorecords of the “best edition” of a work for the use or disposition of the Library of Congress, while Section 408 requires an applicant to deposit two best editions to the Copyright Office for purposes of registration. In response to calls to remove the best edition requirement from Section 408, the letter asks the Copyright Office to examine whether such a removal could help improve registrations requirement by allowing for low resolution digital deposits. The letter also advises that the study should be conducted in consultation with the Library of Congress to “assess the Office’s legal review needs while also addressing the Library’s separate need to grow its collection.”

  • Deferred Examination

Requested in the same letter is a study examining the “feasibility, benefits, and costs of creating an option for deferring examination of an application.” The study request comes after the Supreme Court’s Fourth Estate v. Wall-Street.com decision, which held that a copyright registration application be, rather than just submitted, approved or denied by the Office before a copyright owner can file an infringement lawsuit. The concern among copyright owners is that on average it takes at least six months for a registration to be approved or denied, and during that time an applicant is powerless to stop infringement.

In an attempt to find a workable solution to this problem, the Copyright Office has been asked to consider adding an option for registering a work for which the registrant could obtain an “effective date of registration” upon submission of an application and deposit. The registrant could then defer examination until the registrant makes an examination request. The letter also advises the Copyright Office to address any statutory changes that might be necessary to enable registrants who take advantage of the effective date option to commence civil lawsuits.

  • Definition of Publication

Finally, Senator Tillis’ May 24 letter asks that the Copyright Office’s ongoing study on the statutory definition of publication, which is meant to provide guidance on what the definition should be in the modern context, be completed no later than December 1, 2021. On December 4, 2019, the Copyright Office issued an initial Notice of Inquiry asking for public input on “issues relating to online publication, including whether and how to amend its registration regulations and other considerations relevant to ensuring continued thorough assistance to Congress.” The Copyright Alliance filed comments (and reply comments) in response to the notice which address a variety of questions related online publication and ultimately caution against any statutory amendment of the definition of publication. 

E-book Compulsory Licensing by States

In response to troubling state legislative activity that would require e-book publishers to license their works to specific parties by government mandate, Senator Tillis sent a letter to the Copyright Office on May 26 asking it to review a number of state bills that appear to preempt federal copyright law. The letter raises concerns that, in addition to being preempted by federal law, these state compulsory licensing efforts “remove from the copyright owner the decision as to whether, in what format, and on what terms works will be made available.” Calling the state bills an “unprecedented government intrusion into the copyright marketplace for creative literary works,” Senator Tillis’ letter asks for the Office’s immediate attention on the matter.

As Terrica Carrington wrote in a recent blog, national uniformity in copyright protection is essential given the technological progress that constantly changes the way works are disseminated. Without it, copyright owners and users of their works would have to navigate a confusing patchwork of state laws that all apply their own nuances and special interests. Varying state laws, especially those that impose vague and impractical compulsory licensing mandates, would strip copyright owners of their exclusive right to distribute their works and thereby threaten incentives to invest in future works.

Standard Technical Measures

Most recently, on June 24, Senators Leahy and Tillis sent a letter to Register Perlmutter asking the Copyright Office to convene a working group of stakeholders “in order to identify and implement standard technical measures and recommend other necessary steps to stop online copyright theft and improve the digital ecosystem for creators, content owners, and lawful internet users.” Over the course of many hearings on reforming and updating copyright law in the digital age, the Senate IP Subcommittee heard testimonies that “clearly demonstrate” that piracy is on the rise and better protection measures are needed.

Despite the Digital Millennium Copyright Act’s aim to have copyright owners and online service providers work together to establish standard technical measures (STMs) that would help identify and protect copyrighted works, the letter points out that no STMs have been agreed upon or implemented. Copyright Alliance CEO Keith Kupferschmid testified at a Subcommittee hearing in late 2020, titled The Role of Private Agreements and Existing Technology in Curbing Online Piracy, that OSPs have been unwilling to cooperate with copyright owners and creators to establish STMs, even though there is existing technology that could be adopted. He urged the Copyright Office to take lead in facilitating discussions amongst stakeholders toward the development of STMs and to recognize existing STMs that have been developed in the marketplace.

As the Copyright Office continues to work closely with Congress on a myriad of studies and follow-up actions, it will certainly make for a busy period for everyone involved. And we’ll keep you apprised as things continue to unfold.

Photo Credit: iStock/Benjamin Clapp

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