Copyright Law in 2017: A Look at What Happened on Capitol Hill

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Copyright Law in 2017: A Look at What Happened on Capitol Hill

by Keith Kupferschmid Keith is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.

2017 was a tumultuous year — even in the copyright world.

In this three-part series, we’re taking a look at the most significant U.S. copyright moments of 2017 from a few different perspectives: what happened on Capitol Hill, in the courts, and in the headlines.

Copyright and Capitol Hill

In December 2016, we were recoiling from the Librarian of Congress’ abrupt removal of Maria Pallante as the Register of Copyrights. There was an immediate backlash against the Librarian in response to a public survey regarding the next Register. Around that same time, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and then-Ranking Member John Conyers, Jr. (D-Mich.) released the first policy proposal to come out of the Committee’s review of U.S. Copyright law. Among other things, that proposal made it clear “the next Register and all that follow should be subject to a nomination and consent process” and thus, not chosen by the Librarian.

Introducing the Register of Copyrights Selection and Accountability Act of 2017

The Rules Committee very rarely considers legislation relating to copyright or the U.S. Copyright Office, and therefore there was a significant learning curve for the Committee staff that took up most of the second half of 2017.

This proposal led to the introduction and eventual passage by the House of the H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, a bill that would make the Register of Copyrights a presidential appointee. This was a significant accomplishment as it represented the most substantive, stand-alone copyright bill to pass through the House in a decade (since the PRO-IP Act, which passed in 2008). It is worth noting that the vote was not even close — with the bill passing by an overwhelming 378-48 vote on April 26, which coincidentally is World IP Day.

The bill then headed to the Senate for approval where it was joined by companion bill Section 1010, which was introduced by Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Ranking Member Dianne Feinstein (D-CA), and Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT). Instead of being referred to the Senate Judiciary Committee, where virtually all copyright bills are sent, the bill was referred to the Senate Rules Committee. The Rules Committee very rarely considers legislation relating to copyright or the U.S. Copyright Office, and therefore there was a significant learning curve for the Committee staff that took up most of the second half of 2017. At the same time, the Librarian agreed to pause her search for the next Register while Congress considers the legislation. With the Committee now sufficiently briefed on the issues by stakeholders, the bills are more likely to be considered going forward in 2018. If that proves not to be the case, it’s likely the Librarian will take her finger off the pause button and select a new Register. If and when that happens, we may very well revisit the turmoil we witnessed during the Fall/Winter of 2016.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017

Another bill that received a lot of attention and support in 2017 is H.R. 3945, the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017, which was introduced in October by Representatives Hakeem Jeffries (D-NY) and Tom Marino (R-PA), as well as Representatives Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA). The bill would create a voluntary small claims board within the Copyright Office to provide copyright owners with an alternative to the expensive process of bringing infringement claims in federal court. This new board, called the Copyright Claims Board (CCB), would cap damages at $15,000 per work infringed and $30,000 total. With strong bipartisan support, little opposition and creators across the country beginning to voice their support for the bill, we expect H.R. 3945 to receive significant consideration in the House in 2018.

Several Music Bills Came to the Forefront

Several music bills, like the Fair Play Fair Pay Act, the AMP Act, the CLASSICS Act and the PROMOTE Act were also introduced. A much more controversial and contentious music bill, H.R. 3350, the Transparency in Music Licensing and Ownership Act, was introduced by Rep. Sensenbrenner (R-WI). This bill, which would seek to establish a government-administered database for music and sound recordings within the U.S. Copyright Office, faced steep opposition from many in the music community, including the Copyright Alliance.

The music bill that is most likely to move in 2018 is actually one that wasn’t introduced until the end of 2017 (December 21 to be exact). For several months, Rep. Collins had been working with stakeholders on a bill called the Music Modernization Act that will change the way on-demand streaming services pay mechanical royalties and would create an organization to collect and distribute those royalties. That organization would create a database to make it easier to identify, locate and pay rights holders and reform Section 114 to improve the rate court process for ASCAP and BMI. The bill is co-sponsored by Congressmen Hakeem Jeffries (D-NY), Marsha Blackburn (R-TN), Diane Black (R-TN), Joe Crowley (D-NY), Steve Cohen (D-TN) and Ted Lieu (D-CA).

Keith Kupferschmid

Author: Keith Kupferschmid

Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters. He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases. Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office (PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.

For inquiries related to this blog, email: sweston@copyright.com