Draft Legislation Is a Promising Step in DMCA Reform

The Authors Guild is pleased to announce that today Senator Tillis (R-N.C.), Chairman of the Senate Judiciary Committee’s Intellectual Proper Subcommittee, unveiled the draft legislation “Digital Copyright Act of 2021.” The draft bill comes on the heels of a year-long series of hearings and discussions with stakeholders from the creative and internet industries in which the Authors Guild actively participated. The Authors Guild has been advocating for many of the changes proposed in the legislation for over five years.

The Authors Guild applauds Senator Tillis for his stewardship of the reform process despite the many unforeseen challenges created by the pandemic. We also thank Senator Tillis and the Senate IP Judiciary subcommittee for inviting us to testify at the hearing held on June 2, and for considering our comments and suggestions throughout the year on how the law can better serve small creative entities and individual creators like the 10,000 members of the Authors Guild, struggling against the ever-growing tide of online piracy that is causing great damage to their livelihoods.

The draft Digital Copyright Act is a salutary step in the direction of a balanced online copyright law. It contains a number of laudable changes from the current system, many echoing our suggestions and those of other creator organizations, including:  

1. modifying the knowledge standard so that a service provider is ineligible for the safe harbor if it does not take action against infringement despite awareness of facts and circumstances where infringement is “likely,” remains willfully blind to infringement, or receives a financial benefit from the infringement;
2. a notice and stay-down process for complete or near-complete works to ensure that infringing copies are kept down once the service provider receives notice of infringement;
3. clarifying that representative lists of infringed works for purposes of a notice need not be exhaustive, that copyright owners are not required to identify each infringing copy by URL in the notice for the provider to have an obligation to take action, and that identification of at least one infringing item and at least one location constitutes notice to the provider with respect to other instances of infringement on locations within the provider’s control;
4. adoption of an Orphan Works Act based on legislative text recommended by the Copyright Office;
5. addition of a new section 1202A to provide authors with a right to bring action against someone who alters or removes rights-management information from a work, regardless of whether the author has transferred copyright to a third party; and  
6. limiting the information service providers can ask for in their “notice” webforms rules issued by the Register of Copyrights.

We look forward to continuing to work with Senator Tillis and his staff and the relevant congressional committees to further refine the bill as it makes its way through the legislative chambers next year.