On the last week of July 2013, the Department of Commerce Internet Policy Task Force released a green paper on copyright.
The Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy is a somewhat comprehensive assessment of current copyright & internet related policies. Shira Perlmutter, Garrett Levin, Molly Torsen Stech, and Ann Chaitovitz at USPTO are the principal drafters, and John Morris, Aaron Burstein, Jade Nester, and Ashley Heineman at NTIA are contributors. The Green Paper also acknowledges contributions from Symposium Panelists and Notice of Inquiry Respondents such as Jonathan Band, Policybandwidth, Susan Cleary, Independent Film & Television Alliance Rick Cotton, NBC – Universal Sarah Deutsch, Verizon Ken Doroshow, Entertainment Software Association Keith Epstein , AT&T Joshua Friedlander, Recording Industry Association of America Marianne Grant, Motion Picture Association of America Leslie Harris, Center for Democracy and Technology Thomas Hesse, Sony Lance Kavanaugh, YouTube Scott Martin, Motion Picture Association of America Corynne McSherry, Electronic Frontier Foundation Peter Menell, UC Berkeley School of Law Gene Mopsik, American Society of Media Photographers Brian Napack, MacMillan Thomas Rubin, Microsoft Piotr Stryszowski, Organisation for Economic Cooperation and Development and Harlan Yu, Princeton University.
Created in 2010, the Internet Policy Task Force started “a comprehensive review of privacy policy, copyright global free flow of information and cybersecurity, and their respective relationships to innovation in the Internet economy. To advance the dual public policy imperative of “combat[ing] online copyright infringement more effectively and sustain [ing]innovative uses of information and information technology.”
In brief, the green paper makes mostly well-known and limited points (28 pages) on -among other hot topics- TPMs, DMCA, exceptions, orphan works, mass digitization or fair use and of course the general need to find “an appropriate balance.” I was happy to read a good paragraph on the work on fair use done by American University and a mention of the WIPO treaty for the blind. But there are many more pages (38) about enforcement in the online environment (from new tools to international initiatives or remedies). Some findings are almost strange: for example there is a paragraph or two on individual file sharer that seem to describe action against consumers in court as counter productive for the music industry. Instead the task force supports a “graduated response” as the policy “model” in place in France among other countries today. This seem quite odd or outdated since that kind of “solutions” has not worked at all in France and is being highly criticized if not totally discredited. But there are also a few quite practical pages (22) on licensing, contracts and access to ownership information. “Legal offerings” as described in the paper have clearly increased content industries revenues and thus there is progress. But obviously not much in the paper is written from the point of view of consumers or users.
Evidently, the 105 page paper does not provide an exhaustive catalog of all issues relating to copyright in the online environment but aims to outline “the major issues that are making their way through the courts, merit further attention, or require solutions. The paper proposes next steps — some involving potential legislative changes, but many are based on voluntary private sector initiatives.”
A footnote on page 3 specifies that the paper does not address (more interesting issues for this blogger) newly “emerging topics” such as the term of copyright protection; jurisdiction and choice of law issues; implied license; the scope of statutory licenses for cable and satellite retransmissions; certain limitations and exceptions not specific to the Internet environment; and the copyright implications of data mining and 3D printing.
To quote the summary, the green paper recommendations fall into 3 categories:
1) Updating the balance of rights and exceptions [pp 9-37]
a) The Task Force urges Congress to better rationalize the public performance right for sound recordings and supports extending the right to cover broadcasting
b) The Task Force will solicit public comment and convene roundtables on issues related to the creation of remixes and the first sale doctrine in the
digital environment; and
c) The Task Force will support and provide input to the Copyright Office as it moves forward with its work on updating the library exception in Section 108 and examining the issues of orphan works and mass digitization.2) Assessing and improving enforcement tools to combat online infringement and promote the growth of legitimate services while preserving the essential functioning of the Internet [pp 38-77]
a)The Task Force repeats the Administration’s prior call for Congress to enact legislation adopting the same range of penalties for criminal streaming of copyrighted works to the public as now existsfor criminal reproduction and distribution
b) The Task Force will solicit public comment and convene roundtables regarding the application of statutory damages in the context of individual file -sharers and secondary liability for large – scale online infringement;
c) The Task Force will establish a multistakeholder dialogue on how to improve the operation of the DMCA’s notice and takedown system
d) The Task Force supports the Copyright Office’s improvement of the DMCA database of designated agents, as well as its examination of possible small claims procedures that can assist individual creators and SMEs in enforcing their rights online;
e) The Task Force supports and encourages the development of appropriate voluntary private sector initiatives to improve online enforcement, and
will monitor and evaluate the effectiveness of such initiatives to determine whether additional action should be considered ;
f) The Task Force encourages enhancing public education and outreach efforts to inform consumers about both rights and exceptions and to encourage the use of legitimate online services3) Realizing the potential of the Internet as a legitimate marketplace for copyrighted works and as a vehicle for streamlining licensing [pp77-99]
a) The Task Force will provide input into any Congressional review of music licensing, particularly with respect to the mechanical license for musical compositions;
b) The Task Force supports the Copyright Office’s work in improving the registration and recordation systems and supports the provision of enhanced incentives for using these systems;
c) The Task Force will solicit public comment and convene roundtables regarding an appropriate role for the government , if any, to help to improve the online licensing environment. As the Task Force continues to examine these policy areas.”
Most interesting is the Appendix A, a summary of “Recommendation and Issues for Further Discussion and Comment”
The Task Force calls for 1) Extending the public performance right for sound recordings to cover broadcasting and 2) Adopting the same range of penalties for criminal streaming of copyrighted works to the public as now exists for criminal reproduction and distribution.
However, additional issues such as rate-setting standards for public performance of sound recordings, music licensing, unlocking of phone by consumers are to be considered by Congress but the Task Force does not specify solutions.
The Task Force also specify that more work and public comments are needed for remixes, digital first sale doctrine, statutory damages for individual file-sharers, DMCA’s notice and take down system (improvements), private sector initiatives to improve enforcement, public registration, public education about online infringement, and the role of the government.
For issues addressed by other actors (Copyright Office, IPEC and Private Sector), the Task Force will provide input as appropriate. Finally there are issues “in the process of being further interpreted by the courts” such as the meaning of “public performance” temporary reproductions, the scope of the distribution right as applied to making works available, the meaning of DMCA’s safe harbors and provisions on termination of repeat infringers’ account and application and contracts in the digital environment.