The U.S. Patent and Trademark Office (USPTO) announced this month that they will be engaging with stakeholders through public comments and roundtables to study a variety of policy issues highlighted in the Department of Commerce’s Internet Policy Task Force (IPTF or Task Force) Green Paper, titled “Copyright Policy, Creativity, and Innovation in the Digital Economy.” The Green Paper provides a comprehensive analysis of digital copyright policy and underlines imbalances in the system in need of solutions without making substantive policy recommendations. The Department of Commerce is seeking input from the full range of interested copyright stakeholders including those who create works, those who distribute them, and those who enjoy them.
Copyright protection is a foundation for creative services and products that drive much of the U.S. economy. According to a 2012 Commerce Department economic study, copyright-intensive industries contributed 5.1 million jobs and grew by 46.3 percent between 1990 and 2011, outpacing all other IP-intensive industries as well as non-IP-intensive ones. U.S. national copyright policy and global Internet policies work in tandem. Copyright needs to provide effective protection, balanced by permitted uses of copyrighted works in the public interest. New enforcement mechanisms may be required by the digital environment, and cybersecurity, privacy, and freedom of expression are global Internet concerns.
Digital distribution and a proliferation of devices have given consumers more choices than ever in how they access and use copyrighted works. The tools available in the digital environment have changed the nature of what creators are able to produce and how they share their works with the public, and the ways the public can access that content and interact with it. Individuals can now access creative works through an increasing variety of online platforms, legitimate or otherwise. Improvements can be made to promote further development of distribution platforms and business models that can reward content creation and use, and to amplify the Internet’s power to facilitate licensing transactions.
The Task Force makes note of certain issues already the subject of further interpretation by the courts:
· the meaning of “public performance” in the context of new video streaming technologies;
· the treatment of temporary reproductions;
· the scope of the distribution right as applied to works available online;
· the meaning of the DMCA’s safe harbors for service providers (the knowledge standard and termination of repeat infringers’ accounts); and
· how old contracts apply to new uses in the digital environment.
In addition the Task Force has identified other issues as needing Congressional or regulatory attention:
· the appropriateness of different rate-setting standards by different types of digital music services;
· music licensing, particularly the mechanical license for musical compositions; and
· consumers ability to unlock their cell phones.
The Task Force supports certain efforts by other actors to address the following issues:
o Updating the Section 108 exception for libraries;
o Reviewing copyright issues related to higher education, including distance education;
o Updating the Chafee Amendment to ensure access to copyrighted works by individuals with print disabilities in the context of current technologies;
o Examining the issues of orphan works and mass digitization to develop potential legislative solutions;
o Improving the DMCA database of designated agents;
o Examining the use of possible small claims procedures that can assist individual creators and SMEs in enforcing their rights online;
o Improving the public registration and recordation systems, including through public-private partnerships; and
o Educating the public on fair use through creation of an index of major court cases, as proposed in the IPEC 2013 Joint Strategic Plan.
o Helping to foster voluntary best practices for online enforcement between stakeholders, including right holders, ISPs, payment processors, and online advertising networks.
o Developing interoperable and connected online databases of ownership information and online licensing platforms;
o Creating inclusively developed fair use guidelines for various user communities; and
o Establishing voluntary cross-industry initiatives such as the Copyright Alert System.
Lastly the Task Force will be soliciting public comment or establishing multi stakeholder dialogues on the following issues, which it has identified as requiring attention:
· the legal framework for the creation of remixes;
· the relevance and scope of the first sale doctrine in the digital environment;
· the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement;
· improving the operation of the Digital Millennium Copyright Act’s (DMCA) notice and takedown system;
· evaluating the effectiveness of private sector initiatives for enforcement of rights online;
· enhanced incentives for using the public registration and recordation systems administered by the Copyright Office;
· public education and outreach to curb online infringement; and
· the role for government to improve the online licensing environment.
The full Green Paper report, and other information and comments are available at this link: