The U.S. government actions described in this NewsBreak represent significant changes to copyright approaches, including registration, infringement, and the appointment of the Register of Copyrights.
Expect a busy but hopefully productive 2019 for all things copyright.
The U.S. Congress passed two landmark copyright acts in 2018.
The Marrakesh Treaty Implementation Act
On Oct. 9, 2018, the president signed into law the Marrakesh Treaty Implementation Act. It outlines exceptions to copyright law that make it easier for those who are blind, visually impaired, or otherwise unable to read certain texts to access printed works in accessible formats such as Braille and digital audio files.
Although the U.S. had signed the Marrakesh Treaty on Oct. 2, 2013, revisions to the Copyright Act had to be made in order to implement it. Essentially, the Marrakesh Treaty Implementation Act expands and modifies Section 121 of the Copyright Act to better address the needs of individuals who are blind or visually impaired. Changes include expanding the types of works allowed to be copied to encompass all literary works instead of only nondramatic literary works, switching the nomenclature from “specialized formats” to “accessible formats,” and revising the beneficiaries section from its original wording of “blind or other persons with disabilities” to “eligible persons,” which is defined as people with a “visual impairment or perceptual or reading disability” who are unable to read printed works “to substantially the same degree as a person without an impairment or disability.”
The Orrin G. Hatch-Bob Goodlatte Music Modernization Act
On Oct. 11, 2018, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act was signed into law. This bipartisan legislation unanimously passed both the House of Representatives and the Senate and represents years of effort on behalf of policymakers, stakeholders, and the U.S. Copyright Office to address licensing and distribution by musical services, particularly for today’s digital environment.
Essentially, this law provides a framework for the usage and sharing of music via the various platforms available today. In its February 2015 report, “Copyright and the Music Marketplace,” the Copyright Office listed four grounding principles:
- Music creators should be fairly compensated for their contributions.
- The licensing process should be more efficient.
- Market participants should have access to authoritative data to identify and license sound recordings and musical works.
- Usage and payment information should be transparent and accessible to rightsowners.
Additionally, the Copyright Office recognized principles that should guide government music licensing reform:
- Government licensing processes should aspire to treat like uses of music alike.
- Government supervision should enable voluntary transactions while still supporting collective solutions.
- Ratesetting and enforcement of antitrust laws should be separately managed and addressed.
- A single, market-oriented ratesetting standard should apply to all music uses under statutory licenses.
If this sounds complicated, it is—but the new legislation sets forth certain conditions for the implementation of these principles, specifically the creation of a Mechanical Licensing Collective that will be responsible for collecting, administering, and distributing royalties under the terms and conditions established by a blanket license that must be available by Jan. 1, 2021. Within 270 days of the law’s enactment date, several items need to be resolved by the Copyright Office, including identifying the body that will serve as the Mechanical Licensing Collective and selecting a digital licensing coordinator who will be responsible for working directly with digital music providers. The Copyright Office has already begun soliciting input on these two roles.
Several court and legislative efforts could lead to changes to copyright law in 2019.
Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC
Not to be outdone by the legislative actions, the U.S. Supreme Court has heard an argument on what the Copyright Act defines as registration for the purpose of filing a copyright infringement suit. The case in point is Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, in which Fourth Estate, a producer of articles, licenses these materials to other websites, of which Wall-Street.com is one. The license agreement requires that Wall-Street.com remove all Fourth Estate articles from its website prior to canceling the agreement. Wall-Street.com did indeed cancel but did not remove the Fourth Estate content. Fourth Estate sued, claiming that it had satisfied Title 17, Section 411(a) of the U.S. Code, which requires the content owner to obtain registration from the Copyright Office. Wall-Street.com countersued, claiming that although Fourth Estate had filed for registration, it had not yet been approved or denied by the Copyright Office, so its claim was not valid. The district court agreed with Wall-Street.com and dismissed the case. Fourth Estate appealed, saying that simply filing for registration, whether it was approved or not, was enough to satisfy the registration requirement.
Since the district court can’t seem to determine what an “official and approved” registration actually is, the Supreme Court has opted to rule on what constitutes registration—the “application” approach, which states that a work is registered once a party has filed an application, deposited a copy of the work, and paid the fee or the “registration” approach, which states that a work is not registered until the Copyright Office has acted on the request.
Although registration is voluntary, and copyright protection exists from when a work is initially created, if a lawsuit for infringement is to be filed, the work must be formally registered with the Copyright Office. The Supreme Court is now tasked with determining the specifics of this for purposes of infringement lawsuits.
The Register of Copyrights Selection and Accountability Act of 2017
On May 2, 2017, S. 1010, the Senate companion to H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, which had recently passed the House of Representatives, was introduced in the Senate. The main intent of this bill is to change how the Register of Copyrights is appointed, as well as to limit the term of the position to 10 years.
Currently, the Librarian of Congress appoints the Register of Copyrights. S. 1010 would change the nomination process as noted by the Copyright Alliance to “make the Register of Copyrights a position appointed by the President and confirmed by the Senate. Like the process for numerous other Presidential appointees, the bill would create a panel of Congressional leaders, including the Librarian, to develop a slate of candidates to be considered for the Register of Copyrights position. The President may then choose a candidate from this slate, after which the candidate would be vetted and confirmed by the Senate.” It is important to note that regardless of how the Register of Copyrights is appointed, the Copyright Office will still remain in the Library of Congress. Hearings were held on Sept. 26, 2018, but no additional activity has occurred since then.
The bill has also generated heated debate. ALA and the Electronic Frontier Foundation (EFF) fear that making the Register of Copyrights a presidential appointee would overly politicize the position, while the Motion Picture Association of America (MPAA), the Association of American Publishers (AAP), and the Copyright Alliance strongly approve of the legislation.
What will happen next? Given the government’s current pressing concerns, don’t be surprised if this bill is not addressed until later this year.
The CASE Act of 2017
The CASE (Copyright Alternative in Small-Claims Enforcement) Act of 2017 should become law sometime this year. Introduced in October 2017, the bill’s intent is to amend Title 17 of the U.S. Code to establish an alternative dispute-resolution program for copyright small claims, thereby enabling individual creators and small businesses to affordably sue and be compensated for copyright infringement.
Keith Kupferschmid, CEO of the Copyright Alliance, presented the benefits of the CASE Act in a hearing before the House of Representatives Committee on the Judiciary on Sept. 27, 2018:
For over a decade, these individual creators and small businesses … have been advocating for a change in the copyright law to address an inequity in the law that routinely leaves them with rights but no remedies. The [CASE Act] would make very targeted, modest changes to the copyright law to address this inequity and give America’s creators the tools to protect the fruits of their creativity. …
The CASE Act is a legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers across the country. … The CASE Act will help restore America’s creators’ faith in the copyright system. …