Tuesday, May 14, 2019

CopyrightX summit: Keynote by Maria Strong

CopyrightX summit
Keynote: Maria Strong, Director of Policy & International Affairs, U.S. Copyright Office

Update on elements of protection, exceptions/permissible uses.  Biggest news in 20 years: Music Moernization Act, including many recommendations from the CO.  Blanket license for digital music providers: new way for tech platforms and music providers to unite online. CLASSICS Act: pre-72 recordings partially into the federal © system, with some exceptions/limitations.  Requires a lot of rulemaking by CO, including exceptions for noncommercial use and designating licensing coordinators.  New spirit of cooperation and momentum in Washington.  Could this lead to more openness to action on things like felony streaming of infringing public performances?  That died along with SOPA but maybe there’s an appetite for it now, or for something on small © claims.  $350,000 is average © litigation.  New legislation was just introduced in House and Senate on small claims.

DMCA: continue to work on policy study examining effectiveness of §512.  92,000 comments received and several roundtables.  Often oversimplified by 2 sides.  Content folks feel 512 is broken and tech feel its fine. Large content providers have different concerns than small providers, and so too with tech companies. Many different kinds of users.

Moral rights: 30 years since we joined Berne under a “patchwork” of moral rights. Tech changes, Dastar, state law changes, new int’l treaties chane things.  Did notice & comment.  Report identified key principles: maintain First Amendment & fair use, copyright’s limited term, importance of attribution to creators. US legal framework provides important protection, but there’s room for improvement if Congress wants.  Identifies several legislative paths: amending the Lanham Act; VARA fixes; §1202 copyright management tweaks in new 1202A; federal right of publicity.

Proposed changes to Compendium of office practices; currently seeking comments. Also post review letters for appeals from denial of registration.  And we’ve prepared a Fair Use index: summaries of over 200 fair use cases, searchable by court and type of work. 

Int’l: WIPO. Broadcasting Treaty negotiations, going on for more than 20 years at WIPO.  US supports a signal-based approach to the treaty. More guidance coming in October.  Second, IGC (intergovt’l committee) tackling connections b/t cultural identity and mobility. Current focus: distinction b/t traditional knowledge and traditional cultural expressions and possibility of different treatment of those.  Most important politically: decide on recommendation on scope of group’s mandate.

Activities related to exceptions/permissible uses: Marrakesh Treaty was adopted rapidly.  US amended law to comply, last October, just in effect on May 8.  From nondramatic literary works, expanded coverage. New 121A deals with export and import of accessible works by authorized entities.

1201: Policy study to streamline the process, which is long/arduous [co-signed!].  Proposed some streamlining for renewals of unopposed exemptions, which was implemented. Split process into looking at unopposed v. new proposals/data. Many of the new exemptions built on prior rulemaking. Recommended 9 classes for exemptions. 20% faster than previous. 329 pages this time versus 400+ last time.  It’s a fulltime yearlong process; we realize it’s challenging for participants.

MMA: permits unoncommercial uses of pre-72 sound recordings not being commercially exploited under certain circumstances.  CO now accepts Notices of Noncommercial Use: document users can file to become eligible for safe harbor. CO doesn’t verify information in NNU.  User has to conduct good faith, reasonable search & rightsowner must not object w/in 90 days of filing of NNU.  Detailed instructions for good faith search: example—for recordings of recognized Alaska Native or American Indian tribes, search must be done through contacting the relevant tribe, association, or holding institution.

Section 108: discussion document stating CO’s belief that 108 needs revision for libraries and archives.  Wanted a framework for further discussion among stakeholders and Congress: preservation, security.  CO provided model statutory language to jumpstart the discussion.

Working on better public access to records. Digitized over 41 million © card catalogs, 1870-1977. Now browsable. MMA outreach: we have tutorials, dedicated website, participation in events around the country.

Q re digitization: did you get everything?

A: we got all of one type of record, but there are 2 other types we’re digitizing.

Q: museum exceptions?

A: a major modification we’d like to make is to include museums specifically, not just libraries/archives.

Q: moving CO out of Library of Congress?

A: awkward Q! Two years ago, there was uncertainty when Register left and House passed a bill to make the Register a Senate appointed position. That didn’t pass and hasn’t been reintroduced. Near future: that issue is probably not going to be engaged.  [I think there’s a huge separation of powers issue in giving the CO rulemaking etc. powers as an entity in the legislative branch but that’s not a political or policy question in the ordinary sense and there’s no reason Strong needs to have a position on it.]

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