Copyright Legislation in 2018: 4 Pending Bills to Know About

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Copyright Legislation in 2018: 4 Pending Bills to Know About

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Back at the start of 2018, I reviewed several copyright bills pending before Congress and tried to predict which legislation might move forward this year. As we hit the mid-year mark and the legislative days remaining on the Congressional calendar dwindle, it makes sense to revisit these bills with an eye toward what may or may not move forward in the coming weeks and months.

H.R. 5447 and S. 2823, Music Modernization Act

Status: On Track

In January, I made the bold prediction that the bill “most likely to move forward in 2018 is actually one that wasn’t introduced until the end of 2017,” called the Music Modernization Act (MMA).

The MMA combines the previously introduced Music Modernization Act (MMA) of 2017, CLASSICS Act, and the AMP Act, and will, among other things, result in the most significant improvement of music copyright law in more than a generation. When passed, the bill will make it easier for creators across the music industry to earn a fair living through their creativity and will positively impact how music is licensed. It will enable legacy artists (who recorded music before 1972) to be paid royalties when their music is played on digital radio, and provide a consistent legal process for studio professionals – including record producers and engineers – to receive royalties for their contributions to music that they help to create.

The MMA has made its way through Congress steadily throughout 2018. There have been several bumps along the way, resulting in changes to the bill in the spirit of compromise, but none of these obstacles have proven fatal. Ultimately, the many diverse supporters in the music and technology industries, academia and the public continue to push Congress to repair a music ecosystem in need of fixing.

The diversity and breadth of support for the bill is so unheralded that it has resulted in unanimous passage in every instance it has been considered by Congress. Here’s a look at the timeline:

  • In April, the bill flew through the House Judiciary Committee by a vote of 32-0.
  • Riding that wave of support, two weeks later, the bill then passed the House of Representatives by a monumental 415-0 vote.
  • From there, it moved to the Senate, where it was considered along with its Senate counterpart S. 2823 by the Senate Judiciary Committee, which (following a May 15 hearing) passed a manager’s amendment to the bill by a unanimous voice vote in June. During the vote, a few issues were raised by Senate Judiciary Committee members that have now been, or are in the process of being, addressed by the stakeholders. While some of the issues are significant, as of the writing of this blog, most were either resolved or on a trajectory to being resolved in the coming days or weeks.

The bill continues to move toward a floor vote. With close to 50 Senate co-sponsors and more likely to join, it seems certain the full Senate will pass a revised version of the MMA when given the opportunity.

Because this legislation is different than the version that passed the House, if the Senate passes the revised bill, the bill must go back to the House for a vote. Given the results when the bill was first considered by the House, it seems certain that it will pass the House and then land on the President’s desk to be signed into law at some point later this year.

H.R 1695 and S. 1010, the Register of Copyrights Selection and Accountability Act of 2017

Status: Slow Progress

In April 2017, the House passed 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 confirmable by the Senate, by an overwhelming 378-48 vote. At the time, 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). Of course, now this feat is somewhat less impressive when compared to the tremendous support received for the MMA in the House.

After passing the House, H.R. 1695 headed to the Senate for approval where it was joined by companion bill S. 1010. 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 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.

In April, the Rules Committee was continuing to consider the bill when Senator Thad Cochran, who chaired the Senate Appropriations Committee, retired. This sent a ripple through Congress that would result in Senator Shelby moving from the Chairman of the Senate Rules Committee to become Chairman of the Senate Appropriations Committee, and Senator Blunt taking his place as the new Chairman of the Senate Rules Committee. As with any change in leadership, it takes time for the new Chairman and the Committee staff to get up to speed. But now, with staff in place and several months to consider the bill, it appears that that S. 1010 is primed to move forward by the Committee. Accordingly, time permitting, the Committee may act on the bill later this summer, and hopefully the full Senate can consider and pass the bill before the end of the year.

H.R. 3945, the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017

Status: Holding Pattern

Another bill that received a lot of attention and support in 2018 is H.R. 3945, the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017. This proposed bill would create a small claims board within the Copyright Office to provide copyright owners with an alternative to the expensive process of bringing infringement claims to federal court. This new board, called the Copyright Claims Board (CCB), would cap damages at $15,000 per work infringed and $30,000 total.

During the House Judiciary Committee markup of the MMA, Chairman Goodlatte and Ranking Member Nadler expressed support for marking up the CASE Act. Despite this strong bipartisan support, little opposition and support from tens of thousands of creators across the country, the bill has yet to be considered by the House Judiciary Committee. It is possible that the Committee may take up the bill when the House returns from its August recess, but there are so few legislative days remaining on the calendar that this is becoming more unlikely. Instead, it is more plausible that the CASE Act will be reintroduced next year as one of the first copyright bills to be considered by the Committee in early 2019.

S. 2559, Marrakesh Treaty Implementation Act

Status: Full Speed Ahead

In March, S. 2559, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled — which would amend U.S. copyright law to allow the U.S. to implement its obligations under the Marrakesh Treaty — was introduced in the Senate.

Both the Senate Judiciary and Foreign Relations Committees held hearings and unanimously passed the bill. Then, in late June, the full Senate passed S. 2559 by unanimous consent (and also provided its advice and consent for ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled).

After more than ten years without any copyright legislation being passed, it now seems like Congress is on the verge of passing as many as three copyright bills. And with the copyright legislative draught apparently over, and the Small Claims bill being teed up for next year, this momentum shows no sign of stopping.

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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.
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