Copyright

An Update on Copyright Review and Copyright Office Modernization

Copyright Act
Aerial View of the U.S. Capitol Building

A little over a year ago Chris Reed wrote about the multi-year copyright review process then underway in the U.S. House of Representatives (see: The Next Great Copyright Act? A View from Washington). At the end of the piece, he mentioned that the Congress “appears poised to continue to discuss Copyright Office modernization issues sometime during the next Congress set to begin in January 2015.”

The first session of the 114th Congress has now drawn to a close. So where are we with the copyright review, and more specifically, what progress has been made on the issue of Copyright Office modernization?

Where We Are Now

Congress was less focused on copyright issues during 2015 than it has been over the past couple years, but it was still a busy time for copyright policy. In February, the House Judiciary Committee held a hearing on Copyright Office modernization issues, and in April it heard from the director of the Copyright Office, Maria Pallante, as she discussed her perspectives on the past two years’ worth of hearings. The Committee then embarked on a series of roundtable discussions in several cities – Nashville, Santa Clara, and Los Angeles – to hear copyright perspectives from outside the Beltway.

The Copyright Office also kept itself busy during 2015. Serving in its capacity as principal advisor to Congress on copyright related issues, it has undertaken (or concluded) a number of studies and reports. In June it issued a long-awaited report on orphan works and mass digitization (an update to its earlier study on the same topic) in which it again called for legislation to remedy the so-called “orphan works problem,” and proposed an extended collective licensing scheme for certain copyrighted works. It  also launched several new studies, including one on copyright issues for visual artists, another on software embedded in consumer devices, and separate studies on each of the two major portions of the Digital Millennium Copyright Act: the notice-and-takedown provisions, and the anti-circumvention provisions.

The Office also turned its attention inward, issuing two reports relating to information technology challenges in the Office, something which has long been regarded as a critical issue for copyright stakeholders.

The CODE Act

 Recognizing that the Copyright Office’s antiquated IT infrastructure is attributable at least in part to the fact that the Office is part of the Library of Congress, an agency which has been plagued by its own challenges in recent months, Representatives Marino (R-PA), Chu (D-CA), and Comstock (R-VA) introduced H.R. 4241, the Copyright Office for the Digital Economy (CODE) Act. The Act, introduced on December 11, 2015, would establish the U.S. Copyright Office as a separate independent agency within the legislative branch. Right now the Office is part of the Library of Congress, and its director, Register of Copyrights Maria Pallante, must report to the Librarian of Congress.

Under the proposed measure, the independent Copyright Office director would be appointed by the President, and confirmed by the Senate, just like most other political appointments. A commission consisting of certain Senate and House leadership would recommend candidates for the director position to the President who would then appoint the director. The director would serve a 10 year term, presumably to isolate him or her from political pressure, since the term would extend beyond the two potential terms of a presidential administration. The director could be removed from office, but only for cause.

The bill articulates a number of powers and duties of the new agency, drawn mostly from the authority of the current Copyright Office already found in the Copyright Act (specifically, Section 701). To ensure the new agency operates as an impartial advisor to Congress, just as the current Copyright Office does, the proposed legislation would prohibit the President’s administration from requiring review of legislative recommendations, testimony, or policy reports that the new agency would produce.

The CODE Act would also vest in the new agency’s director complete control over the administration of the new agency, including relatively mundane things such as managing office space. While such matters may seem relatively banal given the overall scope of the legislation, questions about the physical space of the Copyright Office, and which agency has authority over which aspects of its operations have long plagued the relationship between the Copyright Office and its parent institution, the Library of Congress.

Copyright Office Deposit Requirements

Perhaps one of the most significant operational changes contemplated by the CODE Act relates to deposit copies.

Currently, applicants for copyright registration are required to send deposit copies to the Copyright Office. These copies serve two purposes: they allow the Office to review the material to confirm that it qualifies for copyright protection; and to build the Library of Congress’s collection.  Because of that second point, the formats that copyright owners have been required to submit to the Office are based largely on what the Library desires, not what is necessary for the Copyright Office’s examination.

The CODE Act might change all that. First, it would the name “deposit copy” to “examination copy,” in recognition of the fundamental purpose of the deposits. But second, and more importantly, it would give the director more direct authority over the formats that the Office might require (right now the “best edition” list is promulgated by the Librarian of Congress). The law would still allow the Library to demand a higher-quality deposit for its collections, but the default would very likely end up being a lower quality (read: cheaper, or less susceptible to piracy) copy in the initial instance to facilitate the Copyright Office’s review.

The Act doesn’t pull the rug out from under the Library entirely, however. It requires that the new copyright office undertake a study on “the future administration of mandatory deposit provisions” to include the history of the mandatory deposit provisions, the Library’s preferences regarding format or quality, the concerns of copyright owners relating to the Library’s retention of works (especially critical in the context of digital works), how Congress might transition oversight of the mandatory deposit provisions from the Copyright Office to the Library of Congress, a discussion of foreign experience on mandatory deposit issues, and ultimately, the Copyright Office’s recommendation for the future of the mandatory deposit scheme in the digital age.

What’s Next

While there is nearly unanimous agreement that something needs to be done with the Copyright Office, there is some dissention among copyright stakeholders about how best to address the challenges. Some assert the CODE Act approach – creating a new legislative-branch agency – is the way to go. Others, namely those in the tech sector, assert that copyright functions would be better placed in the executive branch, under the Commerce Department, where the U.S. Patent and Trademark Office presently resides. There are rumors that a competing Copyright Office modernization bill might be introduced soon, but details remain scant.

With respect to the larger copyright review, staff for the Judiciary Committee are quick to point out that the CODE Act is not part of the broader copyright review process, but rather, a separate proposal intended to recognize the dire circumstances of the Copyright Office today. There’s more to come from the copyright review, says Congress.

But what exactly is to come, and when we might see it, remains very much uncertain. Some assert that 2016 being an election year, we’re not likely to see anything of note out of Congress; but others point out that copyright is a much less prominent issue than healthcare, immigration, foreign relations, and the like, and that an election year may make for a political opportunity to legislate in that space as politicians seek to avoid divisive issues.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]

  • Planning for the Copyright Registration Process

    It has become a common refrain among lawyers who represent photographers and other artists that it is important to register your work with the U.S. Copyright Office. Although registration is not required for copyright protection, it is a […]

  • The Basics of Insurance for Artists

    There are many legal aspects of running an art-related business that could be fairly characterized as less than interesting, but few topics inspire more blank stares, or glazed-over eyes, faster than insurance. Like a lot of legal topics, thinking […]

  • Do You Know How to Protect Your Creative Business From a Devastating Lawsuit?

    Running a successful creative venture often involves understanding business just as keenly as you learn your craft, and for artists and gallery owners facing the threat of a lawsuit, it’s important to understand the steps you can take to […]

  • Videographers Must Obtain Music Licensing Rights

    Obtaining music licensing rights for videos is difficult but those that don't receive them are putting themselves and their customers at risk of a copyright infringement lawsuit. The post Videographers Must Obtain Music Licensing Rights appeared […]

  • Art Dealers Should Make Full Disclosures When Selling Artist Multiples

    New York’s Art and Cultural Affairs Law offers some pretty extensive protections to purchasers of artist multiples, defined as any fine print, photograph, sculpture cast, collage, or similar art object produced in more than one copy. […]