By Craig Gipson and Brian Flagler
Changes at the Copyright Office May Be Beginning of Copyright Reform
U.S. copyright law, which has remained mostly static for more than thirty years, may soon be changing. After more than two years of Congressional review, the winding process of copyright reform has finally reached the starting line. And the venue for the first leg of the race may be the Copyright Office. On April 26, the U.S. House of Representatives passed the Register of Copyrights Selection and Accountability Act. If approved by the Senate, the Act would remove the Copyright Office from under the umbrella of the Library of Congress and make the Register (the head of the Copyright Office) a presidential appointee subject to Senate approval.
The struggle for control of the Copyright Office will impact stakeholders on all sides of the copyright issue. Content creators and their licensees—publishers, record labels, movie studios—have favored the move of a more independent Copyright Office. Technology companies and libraries have generally opposed the measure and prefer the Register to remain under the authority of the Librarian of Congress.
While the position of Register has no lawmaking authority, it comes with significant power to shape policy. The House’s quick action—the Act was introduced only a month before passage—may signal a recognition of the inherent conflict in the missions of the Librarian and Register in the 21st century: one to disseminate works and the other to help determine the appropriate level of protection for them. It may also be in response to the dismissal of former Register Maria Pallante from her post in October 2016 by recently-appointed Librarian Dr. Carla Hayden. Many in the entertainment and technology fields viewed Pallante as being sympathetic to content creators while Hayden is considered more favorable to those lobbying for looser copyright regulations and greater public access to creative works.
Publishers and others in the creative industries will continue to monitor reform efforts as they develop. The House version of the Act will now head to the Senate where technology groups have already vowed to fight its passage.
DMCA Changes Coming?
The fight over the Copyright Office’s fate is only the beginning of the copyright reform effort. In February, the music industry launched its public campaign to pressure the Copyright Office into recommending that Congress reduce legal protections for aggregators of copyright-protected content (e.g. YouTube). A section of the current Digital Millennium Copyright Act insulates these aggregators from copyright infringement liability if they respond in a timely manner to a takedown request from the copyright owner. The problem with the law to many in the entertainment industry is the requirement of notice for each individual infringement, a system that led to Google receiving nearly 75 million takedown requests per month in 2016, according to Engadget. This system, the RIAA wrote in a letter to the Copyright Office, creates “an endless game of whack-a-mole” with infringers popping up at a new URL as soon as the old one is removed. Like the Copyright Office tug-of-war, the fight over DMCA notices and filtering of infringing content largely pits content heavy industries and their trade associations, especially the music industry, against large technology companies. Any major changes in the law are unlikely, however, until Congress settles management of the Copyright Office.
Copyright Changes Abroad
As the U.S. considers changes to its copyright law, current proposals in Europe and Australia could affect English language publishing abroad and on some issues, foreshadow what lies ahead domestically. Like U.S. efforts, other English language jurisdictions are considering how best to adapt their copyright laws to the digital age.
The E.U.’s European Commission continues to propose copyright reform that would further its Digital Single Market objective across all member states. Later in 2017, digital subscriptions of E.U. residents will no longer be geoblocked—a Netflix or Amazon Unlimited subscriber in France will no longer be prevented from accessing subscription content in Spain—and intra-E.U. mobile roaming fees will also be a thing of the past. But it is the Commission’s September 2016 comprehensive proposal that is the most ambitious and has elicited the most discussion.
The Commission’s most controversial proposal involves the electronic monitoring of copyright-protected content. Like the Digital Millennium Copyright Act in the U.S., Europe’s current patchwork copyright scheme places the burden on copyright owners and licensees to police their rights. The new proposal would not eliminate this burden but would share it in some instances with large aggregators of content (e.g. YouTube). The proposal requires any responsibility of the aggregator site to be “proportionate,” but given the number of uploads to these sites, many commentators believe this necessitates the implementation of content identification software. Critics counter that software cannot weigh the nuanced factors of fair use and would broadly remove any non-licensed content. But the Consumer Technology Association admits that modern automated content identification systems can be calibrated to protect content that is likely fair use in most instances.
Other hot topics within the Commission’s proposal include the protection of neighboring rights and text and data mining. Neighboring rights protect snippets of information, generally posted with a link to a third party website (e.g. Google News). Laws containing these rights aim to safeguard news and non-fiction publications by requiring news aggregation sites to obtain a license before publishing a snippet. In practice, neighboring rights laws in Europe have not been successful. In Germany, publications eventually granted aggregators licenses after seeing web traffic and ad revenue plummet. In Spain, Google News simply withdrew, damaging income for the Spanish journalism industry. The proposal also expands protections for text and data mining for research institutions conducting scientific research. While raising questions of ambiguity regarding commercial data mining, the proposal also disappointed many copyright reformists who hoped such a provision would explicitly protect small derivative works which may only technically be copyright infringing (e.g. memes, GIFs, etc.).
Amendments to the Commission’s proposal were filed in April and a new compromise report is expected to be unveiled in committee during the summer of 2017. A vote before the full E.U. Parliament could be a year or more away.
Australia has undertaken a comprehensive review of its copyright laws during the past three years and has begun implementing some changes while others remain under consideration. Earlier this year, the Australian Parliament proposed a bill to expand its copyright infringement safe harbor provision beyond commercial internet service providers. Currently, U.S. law insulates a variety of online organizations from liability for user infringement on their sites if they comply with certain removal procedures. Australia’s version of the same law currently protects only internet service providers. The expansion would also insulate cloud computing services, search engines, and online bulletin boards in the same manner. Objections from Australia’s creative industries have stalled this expansion pending further stakeholder input.
Also this year, the Australian Parliament introduced a bill to consolidate and clarify the “fair dealing” copyright exception for persons with disabilities. The bill is the latest effort in Australia to provide “reasonable access” of copyright-protected works to libraries, archives, educational facilities, cultural institutions, and disabled persons. In 2015 the Australia Law Reform Commission recommended expanding Australia’s “fair dealing” copyright exception to something more akin to fair use in the U.S. Fair dealing under Australian law generally is a narrower exception than American fair use and, for example, does not protect certain personal, non-commercial uses of copyright-protected material.