The Commerce Department Green Paper on digital copyright is soft on action, kicks cans down the road

In July 2013, the Department of Commerce Internet Policy Task Force published its awaited Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. It is over 100 pages long and 540 footnotes and a good read for anyone interested in copyright and the online environment. The Task Force that produced the paper was created in 2010 by then Secretary of Commerce Gary Lock “to provide policy coordination across the Department of Commerce, and to conduct initially a comprehensive review of privacy policy, copyright global free flow of information, and cybersecurity and their respective relationships to innovation in the Internet economy.”

At the time of the creation of such broad Task Force that included the United States Patent and Trademark Office (USPTO), the National Telecommunications and Information Administration (NTIA), the International Trade Administration (ITA), the National Institute of Standards and Technology (NIST), and the Economic and Statistics Administration (ESA), most people were already well aware that there could be tension if not conflict between focusing on “combating online copyright infringement” and maintaining “innovative uses of information and information technology.”

However, most copyright experts, whether in the IT industry or in various public interest groups (many of who participated in more than a dozen listening sessions, a symposium, and sent hundreds of public comments–there are actually 7 pages of names of contributors at the end of the Green Paper) still welcome the idea that the administration was actively looking for administration wide policy positions as well as more consensus on the issues related to copyright and innovation.

As described in the introduction, the Task Force’s job was to understand better stakeholder perspectives, review and evaluate existing related laws and examine new initiatives either implemented or proposed. The plan was to issue a Green Paper that would “stimulate further public discussion on a number of specific topics that were either raised through those avenues or that have emerged subsequently.”(p.3)

The paper provides a long but non exhaustive list of issues in the online environment and is supposed to outline the important issues 1) being discussed in courts, 2) needing more studies or 3) requiring a solution. Here is the long but non exhaustive list:

  • The Digital Performance Rights in Sound Recording Act of 1995
  • The Right of Reproduction In Temporary Copies
  • The Making Available Right
  • Technological Adjuncts to Copyright Rights (Technological Protection Measures (TPMs), Rights Management Information (RMI))
  • New Challenge: The Meaning of “Public Performance”
  • The Fair Use Doctrine
  • Library Exception
  • Distance Education
  • Blind, Visually Impaired and Other Persons with Print Disabilities
  • DMCA AntiCircumvention Exceptions
  • Remixes
  • Orphan Works
  • Mass Digitization
  • The First Sale Doctrine
  • Existing Legal Tools for Online Copyright Enforcement
  • Government Actions
  • Coordination and Oversight
  • Civil and Criminal Enforcement
  • International Initiatives
  • Private Action and Available Remedies
  • Direct Infringement Suits
  • Individual File Sharers
  • Digital Services
  • Secondary Liability
  • Judicial Remedies
  • Injunctions
  • Statutory
  • Damages
  • The Role of ISPs under the DMCA
  • Notice and Takedown Issues
  • Knowledge Standard
  • Burdens of Compliance
  • Database of Designated ISP Agents
  • Additional Enforcement Tools: Termination of Repeat Infringers’ Accounts
  • and Subpoenas
  • Potential New Tools
  • Website Blocking
  • Content Filtering
  • “Follow the Money” Approach
  • Payment Processors
  • Online Advertisers
  • Search Engines
  • Graduated Response
  • Public Education and Outreach
  • Ensuring an Efficient Online Marketplace
  • Delivering the World’s Creativity to Consumers Legally
  • Today’s Legal Offerings
  • Impediments to Licensing for Online Distribution
  • The Complexity of Music Licensing
  • Licensing Musical Compositions
  • Licensing Sound Recordings
  • Practical Impact on Licensing
  • Old Contracts, New Uses
  • Licensing Across Borders
  • Moving Licensing Online
  • The Basic Building Blocks: Global Rights Information
  • Access to Ownership Information
  • Public Registries
  • Private Databases
  • Membership Organizations
  • Connecting the Dots: Integrating Databases Across Borders and Sectors
  • Global Information Resources
  • Standards
  • Role of Government

Appendix A:
Summary of Recommendations and Issues for Further Discussion and Comment
Appendix B: Acknowledgements, Symposium Panelists and Notice of Inquiry Respondents

Obviously, the members of the Task Force know very well and have discussed most of these interesting and important issues and diligently cites studies, often going back years. However, there are very few clear recommendations for specific actions and most item end up being (still?) subject of more reviews and more studies as the Task Force clearly avoids to take sides on any issue that is controversial.

For example, regarding digital technologies in general (p.20), they have, according to the Green Paper “given rise to a need to update copyright exceptions. Such updates must be approached against the backdrop of the general obligation to comply with the “three -step test” of international law: exceptions to copyright must be limited to certain special cases, and must not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the right holder At the same time, it is clear that existing exceptions can be extended into the digital environment, and new ones as appropriate (see agreed statement on article 10).” Ok, we have an “on the one hand and on the other hand,” but what is the point?

Another example is the comment on the TEACH ACT 2002. The Green Paper notes the fact while distance education has increased “very few institutions are taking advantage”of the Act.” (p.25). The Paper then refers to the Register who has recently urged for congressional review of copyright issue including distance education but it seems as if the Task Force, once again does not “take sides” nor ask for much more.

The Green Paper is also disappointing regarding the exceptions for blind, visually impaired and persons with print disabilities (pp25-26). The Paper acknowledges “The Register of Copyrights recently noted that some aspects of Section 121 “appear ill-suited to the digital world and could benefit from comprehensive review by Congress.” but falls short from recommending any real actions on the matter. Do the authors of the Green Paper still believe that the exemption that was first proposed in the 2003 rulemaking, and has been adopted in some form by the Library of Congress in each subsequent rulemaking, should be discussed again and again every three years? Do they want the exception made permanent, as the Marrakesh Treaty for the blind seems to require?

Regarding orphan works (p.30), the Green Paper quotes the former Register Marybeth Peters noting in 2008, “This is not a new issue, but the extent of the problem has surely grown,given the abandonment of copyright formalities (discussed below at pp. 91-92) and the extension of copyright terms; there are simply more older works, and works without clear ownership, that are protected by copyright.” But, the Department of Commerce was not able to propose any action to eliminate barriers to accessing such works.

The green Paper comes up with 2 recommendations:

– Congress must rationalize the public performance right for sound recording and reiterate the Administration’s support for extending the right to cover broadcasting
– Congress must enact legislation adopting the same range of penalties for criminal streaming of copyrighted works to the public as now exists for criminal reproduction and distribution.

In the end, the Green Paper is mostly about a process of soliciting more public comments on a variety of issues which the Obama Administration finds interesting but confusing: remixes, first sale doctrine, application of statutory damages for individual file sharers and secondary liability for large-scale online infringement.

The Green Paper is “supporting” the work of the Copyright Office in “updating” the library exception and examining orphan works, improving the DMCA database, its work on small claim. The Task Force also “supports” the Copyright Office work in registration and recordation systems. The Task Force will create a stakeholder dialogue on how to improve the DMCA notice and takedown system.

Now the Task Force is asking for MORE comments about their review of prior comments….The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) announced today the October 30, 2013 public meeting on copyright policy issues will be postponed due to complications arising from the federal government shutdown. The meeting will now be held on December 12, 2013.

The initial November 13, 2013 deadline for comments remains, and comments are due on or before that date. There will also be an opportunity to provide reply comments after the December 12, 2013 event.

Any new or updated information related to the rescheduling of this event and comment period or other USPTO operations during the government shutdown will be posted on the USPTO Operations Status page at