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Vol. 31 No. 10 — December 2017

Who Will Appoint the Register of Copyrights?

Perhaps the most notable copyright legislation is the Register of Copyrights Selection and Accountability Act of 2017 (HR 1695), which was introduced in early March and passed the House of Representatives on April 26. Since then, it has been sitting in the Senate Committee on Rules and Administration. This bill would amend U.S. copyright law to make the Register of Copyrights a presidential appointee based on the “advice and consent of the Senate” and chosen “from a list of at least three individuals recommended by a panel” comprising the speaker of the House, the president pro tempore of the Senate, the majority and minority leaders of the House and Senate, and the Librarian of Congress, according to the bill’s summary.

The summary continues, “To be eligible for appointment, the individual must be a citizen of the United States with a professional background and experience in copyright law and must be capable of identifying and supervising a chief information officer responsible for managing modern information technology systems. The bill limits the term of office for the Register of Copyrights to 10 years, but the individual may be reappointed subject to the same requirements established in this bill. The President may remove the Register of Copyrights from office and must notify both chambers of Congress of any such removal.”

The bill is not a slam dunk, and it is opposed by much of the library community, including the Library Copyright Alliance, which comprises ALA, ACRL, and the Association of Research Libraries (ARL). The library community strongly believes that changing the appointment of the Register of Copyrights from the Librarian of Congress’ purview to the president’s would overly politicize the position in an already polarized political environment.

Will this bill pass in 2018? Keith Kupferschmid, CEO of the Copyright Alliance (copyrightalliance.org), the “unified voice of the copyright community,” believes it will:

In 2017, the primary focus in Congress was modernizing the U.S. Copyright Office. 2018 is likely to bring more of the same. In 2017, we saw the House take the first step toward modernizing the office when it considered and overwhelmingly passed HR 1695. A Senate companion bill, S 1010, was introduced shortly thereafter. Normally, bills having to do with copyright are referred to the Senate Judiciary Committee, but in this case, both bills were referred to the Senate Rules Committee (SRC). Since the SRC very rarely considers legislation relating to copyright or the U.S. Copyright Office, there was a significant learning curve during most of the second half of 2017. With the SRC now sufficiently briefed on the issues by all stakeholders, the bills are much more likely to receive significant consideration in 2018. With the vast amount of support in the House and the Senate, the bill stands a great chance of being passed by the end of the year.

Will the CASE Act Pass?

Another new bill, focused on copyright infringement disputes, was introduced in the House on Oct. 4. The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017 (HR 3945) aims “to establish an alternative dispute resolution program for copyright small claims, and for other purposes.” This small claims forum would reside in the U.S. Copyright Office and comprise a board with three copyright claims officers and two copyright claims attorneys. Considering that the average cost of copyright litigation via the federal appeals process amounts to more than $250,000 per case, this bill would allow individual creators who cannot afford the high cost of a federal lawsuit to pursue infringing parties. They would still need to pay attorneys’ fees, and remedies are capped at no more than $30,000. “This bill is in the first stage of the legislative process,” according to GovTrack.us. “It will typically be considered by committee next before it is possibly sent on to the House … as a whole.”  

What Will Change With Fair Use?

Another legislative considera- tion is based on the U.S. Copyright Office’s involvement in efforts to revise Section 108, Title 17 of the U.S. Code, which covers copyright exceptions for libraries and archives (this is related to fair use, described in Section 107). In September 2017, the U.S. Copyright Office released a discussion document covering proposed changes (copyright.gov/policy/section108/discussion-document.pdf). The review process began in summer 2016, when “the Office held nearly forty in-person and telephone meetings with interested persons regarding possible updates to section 108, representing a wide variety of views, including libraries, archives, universities and law schools, authors, and other rights- holders.” The discussion document “examines the issues raised during recent review and in previous revision work, such as adding museums to the statute; allowing preservation copies to be made of all works in an eligible entity’s collections; and replacing the current three-copy limit with a ‘reasonably necessary’ standard when making copies for preservation and research,” according to the U.S. Copyright Office (copyright.gov/policy/section108).

Jim Neal, university librarian emeritus at Columbia University and the 2017–2018 president of ALA, comments on the proposed revisions: “Some rightsholders will continue to push to ‘modernize’ section 108, the library exception, of the Copyright Act over the objection of major library associations as a means of legislatively stripping libraries of the ability to rely on both section 108 and fair use (section 107) for valuable preservation, replacement copying and inter-library loan activities. They will do so even though the Copyright Office’s recent Discussion Document on section 108 could not have been clearer that its fair use ‘savings clause’ must remain part of the statute.”

Timothy Vollmer, manager of public policy for Creative Commons, weighs in on the fair use issue:

Advocates will continue to ask for national copyright reform that includes flexible limitations and exceptions, like fair use. And in addition to arguments about supporting creativity and fundamental rights like freedom of expression, they should start pointing to more economic research about the positive impacts of fair use, such as finding that industries that depend on fair use constitute one-sixth of the U.S. economy (in 2014 fair use industries accounted for 16 percent of the economy, employed 1 in 8 workers and contributed $2.8 trillion to the GDP). The powerful content industries will, obviously, continue to oppose such moves.

All three of these proposals ultimately require congressional action to become law. Given the state of today’s Congress, they may all linger for some time before any action is taken.

What Will This Congress Accomplish?

Jonathan Band, who runs an eponymous company focusing on technology law and policy (policy bandwidth.com) and is the 2017 winner of ALA’s L. Ray Patterson Copyright Award for contributions to balance in copyright policy, predicts that “much of the action in the copyright space will remain in the courts. Any legislation relating to Copyright (and the Copyright Office) is too contentious to be resolved by Congress. The Copyright Office will administer the section 1201 [of Title 17] rulemaking process in a more manageable way, resulting in simpler, broader, more rational exemptions to the prohibition on circumvention.”

Roy Kaufman, managing director of new ventures at Copyright Clearance Center (copyright .com), echoes this prediction, saying, “Gridlock in Washington will prevent any meaningful change to the US Copyright Act.” He also believes that the current administration is going to be “in favor of robust IP protection and that this will be reflected in US trade policy.”

What’s Up With Trade Agreements?

The North American Free Trade Agreement (NAFTA) is currently being renegotiated, and the outcome may not bode well for copyright policymaking. Vollmer reflects on agreements such as NAFTA, the Trans-Pacific Partnership (TPP), and the Regional Comprehensive Economic Partnership (RCEP): “Civil society organisations continue to raise awareness of the problematic nature of the ‘policy laundering’ done through unaccountable and secretive ‘free trade’ (read: investor rights) agreements.” He continues:

[Civil society organizations] call for immediate reform of the trade negotiation process to make the proceedings more transparent, inclusive and accountable. [They] believe it is unacceptable that binding rules on intellectual property, access to medicines, and a variety of other trade-related sectors will be reworked within a process that is inaccessible and often hostile to input from members of the public. We warn against making changes to the existing rules around intellectual property, noting that in most recent multilateral trade negotiations there has been a significant push to drastically increase copyright enforcement measures, lengthen copyright terms, and demand harsh infringement penalties without corresponding provisions to protect the interests of users of copyright works. If copyright and IP are to be included, the terms should be radically reformed in order to ensure balance between the rights of creators and the public.

Neal says, “As recently reported, rightsholders will continue in the NAFTA renegotiation discussions just begun behind closed doors to continue to press United States negotiators to ‘export’ copyright rights as strong as or even more restrictive than those in our law while including none of the balanced, fair use-inspired provisions previously negotiated relating to the Trans-Pacific Partnership. Libraries have consistently backed such balanced provisions and predict that, as best we can, we’ll have to continue to fight for them.”

More Predictions

Other predictions from copyright and intellectual property experts include Vollmer’s on scholarly publishing and OA:

Traditional commercial journal publishers will continue to attempt to corner the open access space. They’ve set themselves up to profit no matter what, either by embargoed green OA or hefty-priced gold OA—not to mention double-dipping hybrid. Researchers will get access in whatever way they can (and increasingly, in whichever way is most convenient). With rogue sites like Sci-hub, major commercial publishers see the writing on the wall regarding access. And threats of massive copyright infringement lawsuits won’t deter Sci-hub. With just a few people who donate their credentials to Sci-hub (or worse, have them stolen), the site (or whichever one pops up next) can provide near ubiquitous access to the majority of content people are looking for. This will prompt commercial scholarly publishing to continue its move toward a service model in which they will position themselves to provide indispensable services like data analytics, etc. and that this (and not control of access) will be their main form of currency for subscribers. We already see this in publishing companies buying up lots of related ancillary product and service companies.

Vollmer adds that “libraries will continue to cancel ‘big deal’ agreements with big publishers, because they can’t afford it anymore (and because there are other ways for their researchers to get access). Preprints will become more important in scholarly communications, and could reflect an interesting (and somewhat obvious) innovation in the scholcom environment: that early publishing helps the scientific enterprise by speeding up access to research, can work to improve research by incorporating feedback earlier, and with proper downstream peer review can lead to better results, supporting the fundamental purpose of scientific research in the first place.”

Lesley Ellen Harris, CEO of Copyrightlaws.com, comments on the U.S. Copyright Office’s discussion document on fair use as well as pending international trade agreements:

We’ve been waiting a long time for this, and it will be very important with respect to the government’s ongoing review of the current US Copyright Act. Fair use is a fluid principle and always dependent upon the circumstances and those interpreting it. I think the Copyright Office’s fair use index has been a tremendous help for all of us who are continuously studying how it applies in our own circumstances. Personally, I see more and more librarians as gatekeepers to using copyright protected materials and more of them active in making their constituencies aware and educated about copyright law and terms and conditions in licensing agreements—an ongoing project. Another thing to keep watch on is discussions at the international level on any sort of treaty of agreed upon principles for libraries and archives (and perhaps museums).

Kaufman believes that technology companies’ push for stronger copyright measures may weaken. “The drive against copyright has been led in large part by tech companies (although certainly not all of them) through business models, direct lobbying, and the funding of Astroturf organizations. As these companies come under increasing regulatory pressure over matters ranging from taxes to income inequality to ‘fake news,’ the reputation of the tech industry has started to suffer. Expect their ability to work against copyright in an effective manner to diminish and for their priorities to shift.”

2018 promises to bring some welcome—and maybe some unwelcome—changes to the copyright landscape. In either case, it portends to be an extremely interesting year.