Copyright Reform and the Academy
Shira Perlmutter Chief Policy Officer & Director for International Affairs
US Patent and Trademark Office (USPTO)
We seem to be poised at the brink of very significant change. Matching tech change, but policy evolution has not been smooth or consistent recently, and stalled in the US for about 10 years after flurry of initial responses to digital tech (Digital Performance Rights Act, WIPO Treaties, DMCA, Digital Distance Education amendment; EU E-commerce and InfoSoc directive). Why stall for 10 years?
Factors that converged to gum up the works: Increasingly central/visible role of © in society. Increased focus on metrics for measuring that—Dep’t of Commerce says 4.4% US GDP in 2010 was from © intensive industries. Part of daily life as it never was before—every consumer is user, creator, transformer, publisher. Resulting public visibility/press attention. Increased lobbying from all sides, parts of industries formerly with no presence in Washington are now there; cacophony of voices. Greater grassroots consumer involvement, using internet to inundate members of Congress with messages. Greater range of actors/more complex distribution chains. Finally, more overlap with other areas of law—telecom policy, privacy, cybersecurity.
That had a major impact on SOPA/Protect IP act in 2012. After that happened, everyone who works on these issues in DC was in shock; a year of quiet reflection and wound-licking. A lot of activity last year. 2010: Dep’t of Commerce formed Internet Policy Task Force—NTIA, telecom, PTO. Listening sessions, public comments—then interrupted by SOPA. March 2013, Register spoke on Next Great Copyright Act, and Chairman Goodlatte’s announcement of a review of the © Act. July, Dep’t of Commerce released green paper on copyright policy, creativity and innovation in the digital economy. Legis. and executive branches getting very involved. Stakeholders sometimes complain it’s too much to submit all the comments, but we’re trying hard to be collaborative and respectful of time, but there’s a lot on the agenda.
Cellphone unlocking: one bit of progress. We welcome that but it’s not new or controversial; restoring previous exemption from last rulemaking. Relatively easy lift as policymaking matter. It’s still important that we not underestimate difficulty of legislating in today’s environment. Her view: legislation that’s narrow and incremental; things in packages of related issues where there can be tradeoffs. Public legitimacy is also vital.
Also, don’t assume legislation is the best/only answer. Be pragmatic in approach: what can work in reasonable amount of time. Any solution that takes 10 years to get through Congress isn’t a solution. Rulemaking is a possibility: 1201. Private sector best practices. Guidelines from gov’t or private sector—set up ongoing forums to bring people together. Tech solutions.
What’s going on in Copyright Office/Hill. © reform has become a loaded word, and now it’s being called “review.” Throwing out the whole thing and starting from scratch is in some ways appealing, but that’s a difficult political lift w/major int’l implications. [RT: of course we’re happy to tell other countries to make huge changes, but American exceptionalism.] 14 House hearings so far; Senate is starting to think about it. General topics rather than specific proposals. There’s been 1 hearing or less on each issue, except for 2 on music licensing. Only a few witnesses on each; some are academics, but there’s not really time for discussion. A quick tour through basic issues. Hearings are expected to continue all year, culminating in drafts for comment early next year.
Copyright Office is also active right now, issued 2 reports last year on resale royalties where it recanted its prior rejection of legislation and were now more open to it and on establishing a small claims court for individuals and small entities that find going to federal court too expensive/difficult. Public roundtables/studies, planning to issue legis. recommendations on, e.g., making available right—whether it should be made more explicit in §106. Music licensing study; orphan works; mass digitization (complicated by Google Books) [RT: or simplified?]; Section 108/libraries; a lot of work on recordation and registration; summarizing fair use case law as an element of the IP Enforcement Coordinator’s last strategic plan to help people understand what they can and can’t do in reusing existing works.
On our side, green paper was supposed to be objective and calm overview of issues and framework for analyzing them. Given recent levels of controversy, we tried to lay groundwork for moving forward more productively. CO is Congress’s chief advisor, but PTO is President’s chief advisor on all IP including © and has always had lead in int’l negotiations but green paper is first time in 20 years that PTO has been involved in domestic policy discussions (NII White Paper from Clinton administration).
Relation of green paper to congressional review: narrower and broader. Looking only at internet issues, but goes beyond © Act and focuses on legislation and enforcement.
Summary of recommendations: (1) maintaining balance of rights and exceptions; (2) enforcement of rights in internet environment; (3) helping to ensure functioning/streamlining online licensing marketplace.
Balance: a lot of descriptive work about what’s changed in 20 years. New attention now warranted in public performance right for sound recordings. Revision of licensing. CO’s work on orphan works, mass digitization and libraries. Need for more clarity in fair use. Two areas for NTIA/PTO work: (1) remix—is the current combination of some licensing options like Content ID and reliance on fair use leading to adequate results, or is greater clarity advisable and if so how should it be done—microlicensing, specific exception, etc.; (2) scope and relevance of first sale doctrine in digital environment, updating CO’s 2001 study.
Enforcement: Called for providing same range of penalties for criminal acts of streaming that exist for criminal reproduction/distribution. Voluntary initiatives to increase online enforcements—support initiatives for advertisers and payment networks, as well as graduated response through Copyright Alert system. PTO has taken on itself to assess effectiveness of these initiatives to see how they’re working and has solicited public comments on the methodology for doing so, which is difficult b/c the initiatives are new. Supported CO’s work on considering small claims system. Encouraged enhanced public education and outreach—critical to legitimacy of any proposed enforcement approach.
Further work: (1) statutory damages in individual filesharing cases and online services that make many works available to the public and secondary liability could be billions (trillions); (2) stakeholder dialogue on improving operation of DMCA notice and takedown system. We heard from many that the system is working well, but there are various difficulties experienced by users on all sides, including rightsholders, ISPs, and consumers. Difficulties related to (1) sheer volume of notices; (2) content that had been taken down being immediately reposted; (3) abuse of the system; (4) feasibility of using system for individuals and small players. Significant fears about reopening carefully struck balance of §512, but voluntary cooperation could alleviate some burdens.
Online marketplace: State of play—many positive achievements in making content available in multiple diverse formats, but there are still some gaps/barriers to licensing. Mainly: comprehensiveness of ownership/licensing info, and connections across sectors and geographical boundaries, as well as interoperability. (1) Licensing of musical works—compulsory licensing is anachronistic; problems with divided rights for the same use; old consent decrees—support congressional efforts to simplify and update the licensing system. CO and Congress are also working on this, and we expect some action; DoJ is engaged in public examination of consent decrees. (2) Importance of access to ownership info as foundation of licensing; ways to improve CO records and give incentives to use them short of formalities. CO has resource constraints but is working. (3) Potential for streamlined online licensing transactions, which so far are limited to CCC, Creative Commons, and some individuals publishers. Private sector should do most of the work, but gov’t might have role in improving the licensing environment.
We’ve had written comments and public roundtables. Now we are looking at policy issues—potential legis. solutions w/r/t first sale, remix, calibration of statutory damages. Also multistakeholder forum on improving DMCA notice and takedown. And finally gov’t role in facilitating online marketplace.
Where are we? First sale and remix: Four public roundtables around the country: Nashville, Boston (publishing/library/tech), Los Angeles, Silicon Valley/Berkeley. Plan: issue white paper with conclusions on those issues in next 6-9 months. Multistakeholder DMCA meeting: four public meetings; will continue about every 6 weeks at least through end of year. Smaller working group is looking at standardizing DMCA notices and their processing. Reporting back to full group on Sept. 10. Goal: outcome by the end of the year w/some sort of best practices. Success is defined as establishing a constructive process and making at least some improvements in system’s operation. Congressional pressure as backdrop: several members of Congress expressed interest in voluntary improvements before considering legislative change. Avoid legis. change by agreeing on some ways to make process work.
Online marketplace: we’re a bit further behind. In comments, considerable caution expressed on scope of gov’t role. We’ve been brainstorming. CO and NIST (Nat’l Inst. for Standards & Tech.) has also gotten involved. Another conference in the fall coming. Likely to focus on standard identifiers in different sectors and how they can be interoperable/relate to CO database; desirability of Copyright Hub as under construction in UK—gov’t could bring private sector together to encourage them to make something.
Is optimist about incrementalism, not needing to wait for legis. change that may take some time.
Role of academy: participation by academic contributors can make a huge difference. Academics increasingly integrated into policy development in this administration. Many opportunities to give testimony, comments, public participation. You can sign up at the PTO website for copyright alerts. Help navigate polarized stakeholder views, which gov’t can’t always do, and offer innovative ways to break logjams.
Q: what about the interface b/t USTR and bilateral/multilateral agreements w/IP enforcement or other issues in them (term, safe harbors) that limit the extent to which US can consider domestic reforms? Hamstringing our own ability to reform internally.
A: Her office works closely with USTR. Necessary for negotiators to work from some level of certainty about what US law is. But tension is what you’ve articulated—don’t want agreements to be straitjackets. Personally, would have been better if earlier trade agreements had gone into less detail and been more statements of principle. This is work in progress/needs to be kept in mind. TPP negotiations: USTR has announced built in goal for countries to put balance in with exceptions as well as rights, which is consistent w/US law. We want to see US law reflected in these agreements but leave room for change/adaptation.
Gordon: right now there’s supposedly a big difference between copyright and patent in the status of works that infringe in part—improvement patents. Copyright has the odd §103A where you don’t get copyright in the part that is used unlawfully. Patent approach is better. A number of cases drastically broaden the ineligibility for © of a partially infringing work, like Pickett v. Prince. Green paper talked about freedom of mashups from infringement—but don’t they deserve © in the rest of what the musician has made?
A: We focused on issues raised to us, but agrees it’s worth looking at.
White House Innovation Strategy
Colleen V. Chien Senior Advisor to the Chief Technology Officer, Intellectual Property and Innovation White House Office of Science and Technology Policy (OSTP)
Strategy for American innovation. Looking for “gettable” and good ideas. Submit your ideas for update of our strategy—responses are due on Sept. 23. Look for fit between your ideas and the questions we asked in the RFI (link at beginning of paragraph). What idea should you pitch? How should you pitch to a nonacademic audience?
Read the question, as we tell our students! Two Qs mention IP: (1) What new challenges for IP/competition policy are posed by increased variety of innovation (e.g. user innovation, computational, internet-enabled)? (2) “Beyond current Federal efforts to promote open data and open application programming interfaces (APIs), what other opportunities exist to open up access to Federal assets (such as data, tools, equipment, facilities, and intellectual property from Federally-funded research) in order to spark private sector innovation?” How do we allow public access to what public has already paid for? Need not answer the other 20 questions, but consider them—e.g., regional innovation ecosystems. Also: “What are specific areas where a greater capacity for experimentation in law, policy, and regulation at the Federal level is likely to have large benefits?”
Writing with your audience in mind: Think broadly about which projects make most sense—10-year timeline for Congress; 900 days for this administration. What’s desirable and gettable. What’s within the control of the decisionmaker; don’t exclude bigger lifts. Specific proposals for actual policy changes are more useful than general observations and recommendations. Best practices guidelines, executive actions, data release.