Review Of US IP Enforcement, Copyright Reform Process Stir Interest

The United States government is undertaking substantive review of, and strategy for, its intellectual property system, with an eye toward a major overhaul of aspects such as copyright. And stakeholders are leaping at the opportunity to comment.

The Green Paper on Copyright Policy

On 31 July, the US Commerce Department released a “green paper” on “Copyright Policy, Creativity, and Innovation in the Digital Economy” in order to move forward discussion on policies.

The paper is “the most thorough and comprehensive analysis of digital copyright policy issued by any administration since 1995,” according to a Commerce Department press release.

The report came from the Commerce Department’s Internet Policy Task Force (IPTF) with input from the US Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA). Through the IPTF, USPTO and NTIA will solicit further public comments and convene roundtables and forums on a number of key policy issues, the release said.

The paper highlighted “the goals of maintaining an appropriate balance between rights and exceptions as the law continues to be updated; ensuring that copyright can be meaningfully enforced on the Internet; and furthering the development of an efficient online marketplace,” according to the release.

Proposals from the ITPF included:

• Establishing a multistakeholder dialogue on improving the operation of the notice and takedown system under the Digital Millennium Copyright Act (DMCA).
• Soliciting public comment and convening roundtables on:
o The legal framework for the creation of remixes;
o The relevance and scope of the first sale doctrine in the digital environment;
o The application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement;
o The appropriate role for the government, if any, to help improve the online licensing environment, including access to comprehensive public and private databases of rights information.

The paper also highlighted legislation already supported by the Obama administration, such as “creating a public performance right for the broadcasting of sound recordings and enabling prosecutors to seek felony penalties for unauthorized streaming to the public.” It also mentioned “congressional or regulatory attention to determine how best to rationalize rate-setting standards for different types of music services; reform [of] music licensing, particularly the mechanical license for musical compositions; and ensur[ing] consumers can unlock their cell phones, subject to applicable service agreements,” the release said.

Other mentions are that the paper supports the US Copyright Office’s “work to address the problems of orphan works and mass digitization, consider possible small claims procedures, update the statutory exception for libraries, and improve public registration and recordation systems.” And the paper encourages enhancing public education and outreach efforts.

“We see a digital future in which the relationship among digital technology, the Internet, and creative industries becomes increasingly symbiotic,” Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Lawrence Strickling said in the release. “In this digital future, the rights of creators and copyright owners are appropriately protected; creative industries continue to make their substantial contributions to the nation’s economic competitiveness; online service providers continue to expand the variety and quality of their offerings; technological innovation continues to thrive; and consumers have access to the broadest possible range of creative content.”

In a post to the USPTO blog, Chief Policy Officer and Director for International Affairs Shira Perlmutter encouraged more public feedback on the green paper. And judging by the dozens of comments from readers to her blog post (and elsewhere), the public is taking up the call.

“In recent years, the debates over copyright have become increasingly contentious,” Perlmutter wrote. “Too often copyright and technology policies are seen as pitted against each other, as if a meaningful copyright system is antithetical to the innovative power of the Internet, or an open Internet will result in the end of copyright. We do not believe such a dichotomy is necessary or appropriate.”

“The goals espoused in the paper – ensuring a meaningful and effective copyright system that continues to provide the necessary incentives for creative expression, preserving the technological innovation and free flow of information made possible by the Internet, and delivering creative content in the broadest possible fashion to consumers – are ones that we think can, and must, be accomplished in tandem,” she said.

The paper, she said, “seeks to provide a thorough and objective review of the lay of the land – describing changes that have already occurred, identifying areas where more work should be done, and setting out paths to move that work forward.”

There have been dozens of comments to Perlmutter’s interactive blogpost, many emotional, and most thoughtful, with the majority seemingly critical of the status quo in the name of more effective laws and practices. Many comments call for shorter periods for copyright and more promotion of the right to access knowledge. There are numerous warnings that IP protection is interfering with creativity and inventing, that it is perceived as serving mainly corporations. But there are also calls for longer copyright terms and stronger protection to address rising theft and encourage innovation.

Strategic Plan for IP Enforcement

In a separate process, USPTO received 23 comments on its 20 June request for comments regarding “voluntary initiatives to reduce online intellectual property infringement.”

The comments, available here, came after a Federal Register notice for comments entitled “Joint Strategic Plan for Intellectual Property Enforcement Voluntary Best Practices Study.” The deadline (which had been extended) was 21 August.

According to the Federal Register notice [pdf], in the strategy, “[T]he Administration encourages the private sector to help reduce intellectual property infringement that occurs online – such as copyright piracy and trademark counterfeiting – by developing and implementing cooperative, voluntary initiatives that are practical, effective and consistent with due process, free speech, privacy of users and competition. The administration encourages all participants in such voluntary initiatives to continue cooperating with all interested stakeholders to ensure that the initiatives are as effective and transparent as possible.”

The strategic plan, issued in June, is available here [pdf].

Commenters were the major stakeholders on both sides of the IP enforcement issue, including leading industry trade associations for film, music, publishing, computers and pharmaceuticals, as well as top public interest and knowledge access advocates.

Representatives of copyright holders mentioned the effectiveness of existing voluntary mechanisms, including for a payment processors agreement, a copyright alert system, and best practices for online advertising networks. They also took aim at the dramatic expansion of internet domains currently being implemented, and at search engine aggregators (like Google) that gather and redistribute copyrighted works. Encouragement also was given to measures encouraging the takedown of websites peddling fraudulent and substandard goods, or to making it more difficult and less profitable for them to thrive. Copyright holders also said voluntary measures must work in tandem with other, legal, anti-piracy measures.

The group overseeing the Copyright Alert System – a joint effort of content holders and internet service providers – encouraged the government not to act hastily to judge results nor to set in place overly firm restrictions or measurements.

Public interest advocates encouraged the IP enforcement office to pursue balanced approaches, making sure to consider all rights, perspectives and possibilities in developing new measurements or policies, and to maintain a high level of transparency, and carry out evaluations. A key focus will be on types of data used to make decisions. And any mechanism also should contain measures to remedy errors, collateral damage or disproportionately strong measures. They also urged caution in accepting statistics on piracy on face value.