The White House and The Copyright Office Release Draft Positioning the United States Copyright Office for the Future
In early September, the White House published a Federal Register notice asking interested parties to give their ideas on advancing the Nation’s intellectual property enforcement priorities. Branded goods, copyrighted material, patented inventions and trade secrets require the investment of significant time and resources to create, but they are often misappropriated for commercial gain at a minimal to no cost, resulting in a significantly high profit margin for a criminal actor. Indeed, according to one estimate, the worldwide market for counterfeit and pirated products alone could be as high as $1.8 trillion this year, and growing at rate of 22% per year. The Obama Administration is committed to continuing to be vigilant in addressing threats to intellectual property — including corporate and state sponsored trade secret misappropriation — that jeopardize our status as the world’s leader for innovation and creativity, pose a considerable threat to public health and safety, undermine legitimate business, and harm other national interests.
The Office of the Intellectual Property Enforcement Coordinator (IPEC) has been assessing the U.S. Government’s domestic and international IP enforcement efforts with respect to copyrights, patents, trademarks and trade secrets, including specifically the nature of national efforts to combat commercial piracy, counterfeiting, trade secret theft and other related intellectual property crimes.
The U.S. is in the last year of the existing Joint Strategic Plan on Intellectual Property Enforcement (issued in 2013). A new three-year strategic plan advancing our intellectual property enforcement and policy priorities for 2016-2019 is needed for presentation to the President and to the Congress within the next year. The Administration’s Intellectual Property Enforcement Coordinator, Danny Marti, has re-constituted and now chairs two interagency committees for developing and implementing the national Joint Strategic Plan. These committees, the Senior Advisory Committee and the IP Enforcement Committee, seeks input from all stakeholders in crafting the 2016-2019 Joint Strategic Plan. The recently published notice in the Federal Register asked interested parties to give us their ideas on advancing the Nation’s intellectual property enforcement and policy priorities.
Through continued dialogue with a full range of interested stakeholders−such as IP rights holders, trade and professional associations, public interest groups and academia−we can best provide the legal, regulatory, and policy environment appropriate for a rapidly evolving intellectual property landscape. This discussion with stakeholders will also help advance a thoughtful, strong and effective approach to the promotion and protection of the Nation’s intellectual property rights.
The story of intellectual property, after all, is a story about the power of innovation and creativity, of American jobs, of U.S. economic growth and national competitiveness. We are a country of risk takers and entrepreneurs, innovators, artists and creative thinkers. Intellectual property is everywhere, and every industry either produces IP or relies on it. As the Department of Commerce outlined in a recent report, the creativity and ingenuity of the American people have served as our national engine for creating and supporting tens of millions of jobs, contributing trillions of dollars in value, and representing nearly 35% of our Nation’s GDP and over 60% of U.S. exports.
In an organized and interested response to the Federal Register notice, the Copyright Alliance filed comments on the development of the 2016 Joint Strategic Plan on Intellectual Property Enforcement. The Copyright Alliance recommendations highlight the concerns of individual artists, creators, innovators, and small businesses. The CA strives to give voice to these individuals and small businesses for the benefit of the IPEC. Pointing to individual creators such as prop-maker and author Eric Hart, actor Richard Masur, and musician Maria Schneider, the CA offered an account of the struggles they face regularly due to inadequate protection of their copyrights.
Additionally, the CA takes the view that private-sector voluntary agreements are a critical tool for addressing online infringement. Accordingly, the organization encourages IPEC to continue its role in facilitating, encouraging, and monitoring these efforts. Since the last Joint Strategic Plan was released in 2013, there have been a number of developments among advertisers, ISPs, and payment processors that have helped fight online copyright theft. Work remains to be done with regard to DMCA notice and takedown, domain name registrars, and web optimization services, says the CA, that believes the time is ripe for new initiatives.
The CA takes the view that inadequate compliance with agreements made with the Internet Corporation for Assigned Names and Numbers (ICANN) is a major area of concern, and has asked IPEC to work more closely with registrars to ensure compliance, and promote this issue, as well as enforcement of intellectual property, before ICANN.
The CA further holds that IPEC can play a larger role in is supporting the harmonization of criminal penalties for copyright infringement. Specifically, while criminal infringement through unauthorized reproduction and distribution can result in felony charges, criminal infringement through an unauthorized public performance currently carries a misdemeanor charge at the most. At a time when online streaming is gaining popularity and overtaking downloading, misdemeanor penalties are simply no longer sufficient for deterring those engaging in large-scale infringement through online streaming.
The CA also encourages IPEC to consider the experiences of other countries in enforcing copyright laws, as it gathers data and other information to identify and address enforcement challenges. Developments in the UK and Australia, for instance, have been highly effective in blocking websites devoted to copyright theft.
In addition to the above, the CA recommends that the IPEC take the following actions:
Consider the views of individual artists, innovators, and small businesses, as their unique perspectives are essential to developing fair and effective intellectual property (IP) enforcement policies that work for all creators.
Continue to encourage, monitor and facilitate voluntary, private-sector agreements addressing specific IP enforcement challenges.
Safeguard transparency and accountability in the domain name system by urging domain name registrars to abide by their contractual obligations for preventing the use of their services to support sites that are engaged in infringing activities, working with ICANN where appropriate.
Continue to support the harmonization of criminal penalties for infringement of public performances with those for infringement of reproduction and distribution.
Analyze the effectiveness of the notice and takedown process under the Digital Millennium Copyright Act (“DMCA”) and how its effectiveness can be improved.
Examine IP enforcement related laws that have been adopted and implemented in foreign jurisdictions to determine whether the United States should consider adopting similar initiatives.
Support the establishment of a copyright small claims process.
Giving a voice to individual artists, creators, innovators, and small businesses—who are often unable to participate directly in efforts to improve the protection of intellectual property rights—is among our core missions. Preserving a vibrant, trusted, and legal online marketplace is crucial to the ability of these creators and innovators to promote their work and to build their businesses. Many individual creators face enforcement challenges to their livelihood and are simply unable to respond in a meaningful way. For example:
In its recommendations, the CA stated that creators struggle to enforce their work with the mechanisms available to them. Infringement actions are particularly troublesome for visual and literary artists because of the nature of transactions, and the volume of their work. One reason for this problem, says the CA, is the excessive litigation costs required for bringing a claim in federal court. A survey of members of the American Bar Association Section of Intellectual Property shows the median value of recovery for an attorney to take a copyright case is in the $40,000–$49,999 range.
In the last Joint Strategic Plan, the Administration joined the CA in welcoming an examination of a small claims alternative. Since then, the Copyright Office has proposed a streamlined voluntary dispute resolution system for claims up to $30,000. We hope that the Administration continues to support the implementation of such a system with the following characteristics:
Appropriately limit the scope and nature of claims;
Encourage the creation of new copyrighted works and authorized derivative works;
Provide effective remedies to plaintiffs, and incentivize participation by defendants;
Deter copyright infringements, and encourage licensing of copyrighted works;
Be cost-effective and efficient for all parties; and
Discourage frivolous or “nuisance” claims.
The Copyright Alliance, which is the largest membership organization in the U.S. representing the interests of creators and owners of copyrighted content, works and products, is coordinating with the IPEC to guide adoption of federal enforcement strategies in the Joint Strategic Plan that protect and serve the interests of tens of thousands of individual copyright owners, as well as the interests of large companies who may be better represented in Washington.