2016 in Copyright Law and Policy

What can we expect for US copyright policy in 2016?

As I did last year, I’d like to take a brief look at what developments we may see in the copyright policy arena over the next twelve months.

House Judiciary Committee copyright review

Last year the House Judiciary Committee brought the first phase of its copyright review process to a close. Over the course of two years, the Committee had held a series of twenty hearings, featuring 100 witnesses, covering a broad array of topics. Chairman Goodlatte announced the next step would consist of meeting one on one with stakeholders to discuss their priorities and positions regarding copyright law. The Committee also traveled to Nashville, Silicon Valley, and Los Angeles as part of a “listening tour” to hear from different parties.

The ultimate outcome of the review process is still undetermined. A number of bills have been introduced addressing issues such as music licensing (the Fair Play Fair Pay Act and Songwriter Equity Act), resale royalties (American Royalties Too Act), and embedded software (You Own Devices Act). None of these bills have advanced since being introduced.

US Patent and Trademark Office

This year will likely see the release of an Internet Policy Task Force’s (IPTF) White Paper on copyright policy in the digital era. In 2013, the IPTF—a Department of Commerce task force composed of Commerce bureaus including the USPTO’s Office of Policy and International Affairs and the National Telecommunications and Information Administration—released a Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy that examined the current legal framework related to copyright and the internet. According to remarks by PTO Director Michelle Lee, the forthcoming White Paper will contain policy recommendations on three issues: “The appropriate calibration of statutory damages; [t]he application of the First Sale doctrine to digital transmissions; and the legal status of remixes.”

Copyright Office

The Copyright Office looks like it will be keeping busy this year. At the end of 2015, the Copyright Office dropped not one but three requests for public comment on studies it is initiating. The most recent of these will look at the impact and effectiveness of the safe harbor provisions contained in Section 512 (the DMCA safe harbors). As Register Pallante observed in her testimony at the final copyright review hearing in April, “In the nearly twenty years since Congress enacted the DMCA, courts have stepped in to fill perceived gaps in the statutory framework, often interpreting provisions in ways that some believe run counter to the very balance that the DMCA sought to achieve. … The current online environment is vastly changed from the bulletin-board era in which Congress enacted the DMCA in 1998.”

The other two studies are closely related, looking at software-enabled consumer products and Section 1201 of the Copyright Act (which prohibits the circumvention of technological protection measures). As more and more everyday consumer devices—everything from toasters to tractors—include copyrighted software, a host of issues regarding the “impact of existing copyright law on innovation and consumer uses” are emerging. The Office is engaging in a separate Section 1201 study to examine more closely the anti-circumvention provisions and triennial rulemaking process for exemptions to those provisions.

The Office is collecting public input in all three studies throughout the first several months of 2016. It has stated plans for public meetings for each of these studies following the comment period, so we may see one or more of those later in the year. The software-enabled consumer products study was initiated as a result of a request from Senators Grassley and Leahy who asked that it be completed by December 15, 2016.

Still outstanding are reports on mass digitization, visual works, and making available; perhaps we’ll see one or more of these issued in 2016.

Copyright Office modernization

The operation of the Copyright Office itself promises to remain an active area of development in 2016. The department’s resources and functions—most notably its IT and technology—have been the focus of increasing attention. In the past year and a half, the Office’s operations have been discussed at an oversight hearing, a copyright review hearing, and a House Admin hearing. Last year, the issue was also explored in House and Senate appropriations hearings along with a GAO report. The Office itself most recently underscored the need for modernization in its 2016-2020 Strategic Plan.

In December, Representatives Marino, Chu, and Comstock introduced legislation (the Copyright Office for the Digital Economy, or CODE, Act) that would address the significant structural challenges facing the Office by providing it with more autonomy over its budget and technology. It is likely we will see additional Copyright Office modernization developments over the next twelve months.

Library of Congress

Given that the US Copyright Office is a department within the Library of Congress and acts under its direction and supervision, who the next head of the Library will be may have copyright policy implications.

The most recent Librarian, Dr. James Billington, announced on June 10 he would retire at the end of the year. He subsequently stepped down three months early, on September 30, and deputy Librarian David Mao has been serving as Acting Librarian since then. Although names of some potential candidates have floated in the press, no one has been nominated yet.

The Administration would presumably want to have a Librarian nominated and confirmed before the end of the President’s term next January, so it’s reasonable to expect a new Librarian some time in 2016, but time is running short.

Trans-Pacific Partnership

In October, trade ministers from the twelve Trans-Pacific Partnership (TPP) nations announced the conclusion of negotiations, paving the way for the major trade agreement to go into effect. The US Trade Representative released the full text of the agreement in November, which covers a broad array of issues, including standards for intellectual property protections like copyright.

Conclusion of the agreement triggers a process ultimately leading to adoption. Over 2016, we will see an International Trade Commission analysis of the economic impact of the TPP, as well as any draft legislation required for implementation (the TPP’s copyright provisions should not require any legislative changes since they are consistent with US law). Though the agreement is a top priority for the Administration, it remains to be seen, whether the agreement will make it in front of Congress before the end of the year.

In closing, I’d note that the question of what we can expect in 2016 cannot help but be shaped by the November Presidential election. Though copyright has not historically been an election (or even partisan) issue, the focus on the contest will no doubt shape what policymakers do (or don’t do) in the copyright space. One immediate consequence of the election is an abbreviated Congressional calendar; the House will be in session just 111 days this year, the least amount of workdays since 2006.