Industry & Advocacy News
October 5, 2018
Last week, Congress held hearings on two separate pieces of copyright related legislation for which the Guild has been actively lobbying: the Copyright Alternative in Small-Claims Enforcement Act of 2017, or CASE Act, and the Register of Copyrights Selection and Accountability Act of 2017.
Despite the chaos on the Hill right now, especially in the Judiciary Committees where some tempers have been running hot, both bills appear to be moving forward. Copyright may be a divisive subject—and it does feel like copyright is needlessly under attack these days with creators being asked to bow and provide tribute in the form of free content to stuff the already rich coffers of the internet—but at least copyright is not partisan along party lines. That means that even our present Congress was able to hold productive hearings on these two bills and progress is possible.
As many of our members know, the Authors Guild has been working on the CASE Act for four years and has been actively advocating for the concept for over a decade! Our involvement in lobbying for its passage makes us especially eager to see it become law, hopefully early in the next Congressional session.
Our legal blogger Melinda Kern covered both hearings, which you can read about below. We will keep you updated on developments as these two important pieces of legislation move forward.
House Judiciary Committee Hearing on the CASE Act
On September 27, the House Judiciary Committee held a hearing on the CASE Act. For those not familiar with the CASE Act, it provides an alternative forum for creators to enforce their copyright claims. It will create a more efficient and less expensive alternative to litigation in federal courts (under current law, intellectual property disputes typically fall under the jurisdiction of federal courts), which can cost creators, on average, over $350,000.
Several Representatives expressed their support for the bill and the beneficial effect it would have on individual and small creators, emphasizing that small creators are often “on the losing end of intellectual property theft” because of insurmountable costs of litigation. Representative Nadler (D-NY), one of the sponsors of the bill, explained in his opening remarks how the bill seeks to address these problems and how many of its provisions, such as the ability to bring a claim without representation by a lawyer and the ability of defendants to opt out of the small-claims process, make the small-claims court “an appealing venue” for both copyright owners and copyright users.
Representative Jeffries, (D-NY), the chief sponsor of the bill, spoke about the impact of copyright infringement on the livelihoods of small creators. “Copyright infringement is not a victimless crime,” Jeffries told the Committee, reiterating how every instance of copyright theft takes away opportunities from creators.
Rights Without Remedies
The Senators also heard from industry leaders about the potential effects of the law on individuals and businesses that rely on copyright law. Keith Kupferschmid of the Copyright Alliance, David Trust of Professional Photographers of America, and Jenna Close of the American Society of Media Photographers all noted in their testimonies the “inherent inequity in the law that routinely leaves individual and small creators with rights but not remedies” and reiterated the many ways by which the bill would encourage disenfranchised creators to regain confidence in the copyright system. Close, a professional photographer, testified that creators don’t see a “positive return” on the money they spend on registrations because of the unrealistic costs of litigation. Underscoring the connection between the CASE Act and the Copyright Office’s mission to maintain a robust and complete record of creative works, Close suggested that creators will be more likely to register their copyrights knowing that they would have affordable legal recourse in the event they have to enforce their rights.
Matthew Schruers, VP of Law & Policy for the Computer & Communications Industry Association (CCIA) and Jonathan Berroya, VP of Legal Fairs for the Internet Association were invited to share concerns expressed by their groups about the bill. They discussed the potential for copyright trolls (those in the hypothetical business of filing multiple frivolous copyright infringement claims) to abuse the small-claims process. They also urged Congress to consider an opt-in process, as opposed to the opt-out process that is currently set out in the bill, noting that some copyright users who receive opt-out notices may not know to respond to them, which would lead to default judgments.
Supporters of the bill refuted criticism as a way for the internet industry to once again shirk their responsibility to protect the intellectual property of the creators who sustain their business. Trust strongly opposed an opt-in provision as infringers would be very unlikely to opt in, rendering the law toothless, just like the current DMCA take-down notice regime. Discussing the potential for copyright trolls, Kupferschmid noted that the bill contains safeguards such as penalties for bad faith and frivolous claims and limits on the number of claims that can be brought before the small-claims court within one year.
Overall, the bill garnered resounding support among the committee’s members and witnesses.
Hearing on S. 1010: Register of Copyrights Selection and Accountability Act of 2017
In the Senate, the Senate Committee on Rules and Administration held a hearing on September 26 to discuss S. 1010, the Register of Copyrights Selection and Accountability Act of 2017. (The House’s version of the bill, H.R. 1695, was passed by a vote of 378-48 on April 26, 2017.) The bill would make the Register of Copyrights a presidential appointee, requiring confirmation by the Senate, who would serve a ten-year term with the possibility of renewal. Currently, this power of appointment, and also removal, belongs to the Librarian of Congress.
The purpose of the bill might seem obscure to those not privy to copyright policy goings-on in D.C., so a little background is in order. The reason that the Authors Guild, along with most of the copyright/creator community, supports the bill is because in recent years groups lobbying on behalf of libraries have been advocating effectively for reduced copyright protection, especially for written works. No doubt libraries are struggling financially, which has been pushing them to adopt measures that are increasingly skirting the rights of authors in order to maintain and expand their collections. The Librarian and Library staff are not immune from the views of their colleagues, treating copyright protection as an after-thought and accusing the Copyright Office of being one-sided simply because it supports the copyright law. It does not make sense then to have the Copyright Office report to a person and institution with interests opposite that of creators with respect to copyright law; we want to ensure that decision-making on the rights of creators should come from people who put those rights first.
By way of background, the Copyright Office was placed in the Library of Congress over a century ago to allow the LOC to include books deposited for registration into the Library’s collection—an administrative convenience that is no longer relevant. Prior Librarians of Congress largely left copyright policy to the Copyright Office, which allowed the Office to develop a direct and close working relationship with the relevant congressional committees. The current Librarian—a former president of the ALA—immediately after her appointment, dismissed the popular Register without congressional consultation, an action that, while taken within the purview of the Librarian’s authority, signaled a departure from the past.
Executive Appointment of the Register “Makes Good Sense”
During the hearing, Keith Kupferschmid, CEO of the Copyright Alliance described the reasons why it “makes good sense” for the Register to be a presidential appointee. For one, it would ensure a direct line of communication between Congress and the Copyright Office for “expert, impartial advice” on copyright matters. Kupferschmid emphasized that by adopting a neutral and transparent process of presidential nomination followed by congressional confirmation similar to the one that exists for the Director of the U.S. Patent and Trademark Office would signify “the growing importance” that copyright plays to America’s economy and culture.
Most importantly, the new selection process would give the Copyright Office necessary independence from the LOC’s administrative oversight that has hampered the modernization process critical to the Office’s functioning in the 21st century. Kupferschmid underscored the importance of this independence by pointing out that the Library and the Copyright Office have divergent missions: While the Library’s mission is to increase access to different works for the public, the Copyright Office is concerned about security and protecting creative works. Kupferschmid suggested that since the Copyright Office can’t guarantee the security of copyrighted works under the Library’s IT system, which is inadequate in many ways, a security breach would deter creators from registering their works, resulting in an overall detrimental effect on the creative community. The Authors Guild voiced similar concerns when the House Judiciary Committee approved H.R. 1695, emphasizing that the Register needs to “be responsive to [and understand] the needs of the creative community,” including those pertaining to IT.
Others present at the hearing voiced doubts about the proposed changes to the selection process. Jonathan Band, Counsel to the Library Copyright Alliance, dismissed the rationale behind the bill as “elusive” and cautioned against politicizing the position. When asked why a one-person selection process works better than the bill’s proposed process, Band responded by saying that the Committee might approve an inexperienced nominee, which would indeed be unlikely considering the rigorous vetting and confirmation hearings executive nominees face before Congress.
The Committee members expressed support for the bill, but noted that work still needs to be done to address the different legal and technological issues at play.