U.S. Copyright Office Chief Testifies: Eight Issues Ready for Legislation

May 09 2015

By Mark Wittow and Stephanie Liu | IP Law Watch

On April 29, 2015, U.S. Register of Copyrights, Maria Pallante, testified to the House Judiciary Committee providing the Copyright Office’s perspective on updates to U.S. copyright law. In addition to recommending a more autonomous Copyright Office and flagging policy issues that warrant further analysis and attention, Ms. Pallante identified eight issues deserving current legislative action:1. Music Licensing. After undertaking a comprehensive study last year to assess the impact of copyright law on the music marketplace, the Copyright Office recommends

a. greater negotiating room for public performance rights while preserving the benefits of collective licensing for smaller actors

b. U.S. recognition of a full public performance right for sound recordings

c. federal copyright protection for pre-1972 sound recordings.

2. Copyright Small Claims. The Copyright Office recommends creation of an alternative, administrative tribunal as a wholly voluntary alternative to federal court that is focused on small infringement cases valued at no more than US$30,000. In the Office’s draft legislation, the tribunal could award monetary or limited statutory damages in non-precedential decisions.

3. Felony Streaming. Currently, those who engage in unlawful internet streaming can only be charged with a misdemeanor, while those who unlawfully reproduce and distribute copyrighted material can be charged with a felony. The Copyright Office recommends eliminating this distinction to make unlawful streaming a felony.

4. Section 108.The Copyright Office is recommending an update to the statutory exceptions that provide a safe harbor for libraries and archives. Based on its comprehensive report, the Office will recommend museums be given eligibility for the Section 108 exceptions, introduce certain preservation exceptions, and enable ‘web harvesting’ activities.

5. Orphan Works. After complex studies of the orphan works problem, the Copyright Office recommends legislation in which liability is limited or eliminated for a user who conducts a good-faith, diligent search for the copyright owner. “[T]oo many works languish in legal uncertainty. Moreover, this kind of marketplace gridlock–the kind caused by an absent or nonexistent copyright owner–does not serve the overall objectives of the copyright law.” The Office describes the orphan works issue as ‘complex’ and ‘a legislative priority’ because there are numerous and competing equities at stake, equities that cannot be reconciled through litigation or voluntary measures.

6. Resale Royalty. After an updated analysis of resale royalty rights in the United States in 2013, the Copyright Office concluded that visual artists operate at a disadvantage under the copyright law relative to authors of other types of creative works. Unlike other works of art that can generate additional income through their reproduction and wide dissemination, works of visual art are typically valued for their singularity and scarcity. The Office is recommending that Congress add a resale royalty right, with a minimum threshold value within the $1,000 and US$5,000 range and a resale royalty rate between 3% and 5%. These recommendations are contained in a recent bill introduced in the U.S. House and Senate.

7. Improvements for Persons with Print Disabilities. The Copyright Office continues to support a digital age update to exceptions in copyright law for persons who are blind or visually impaired. The Office believes that an update to the Chafee Amendment, adopted in 1996 and codified in Section 121 of the Act, should address the current needs of the visually impaired community and developments in the commercial marketplace. Additionally, the Office supports a swift ratification of the recent Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

8. Section 1201 (Regulatory Presumption for Existing Exemptions). The Copyright Office agrees with the wide range of stakeholders who have expressed frustration that the Section 1201 statutory framework (concerning circumvention of technological measures that control access to works) requires proponents to bear the legal and evidentiary burden of justifying the exemption anew in each subsequent rulemaking proceeding. Thus, the Office recommends that Congress amend Section 1201 to provide that existing exemptions be presumptively renewed in cases where there is no opposition and supports recently introduced legislation on this issue.