By Nancy E. Wolff
On January 30, 2017, a coalition of visual artists comprised of the American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, Graphic Artists Guild, National Press Photographers Association, North American Nature Photography Association, and Professional Photographers of America provided comments in response to the House Judiciary Committee’s first policy proposal on U.S. Copyright Office Reform, submitted on December 8, 2016.
As background, around four years ago, the House Judiciary Committee, with Bob Goodlatte as Chairman and John Conyers, Jr. as Ranking Member began a comprehensive review of U.S. copyright law, announced in a speech given at the Library of Congress on April 24, 2013—World Intellectual Property Day. As part of its copyright review, the Committee held 20 hearings with testimony from 100 witnesses. Following the hearings, the Committee staff met with many of the prior witnesses and other interested stakeholders on copyright policy issues, and held listening tours in various locations around the country, where they heard from a wide range of creators, innovators, technology professionals, and users of copyrighted works.
The coalition of visual artists associations first began meeting around the time Congress was attempting to pass orphan works legislation in 2008 that, if passed, would have had a significant impact on those that own and license visual art. The associations became aware of the impression that visual artists were not organized and did not speak with any cohesive voice. As a result, the associations have worked collaboratively in responding to requests from the Copyright Office and Congress for information on issues involving visual arts. In the past number of years, the focus as been on registration practices, copyright small claims, and copyright office modernization. These trade associations of professional photographers, graphic artists, videographers, and their licensing representatives meet at least once a year in person and currently have weekly phone discussions.
The Judiciary Committee’s proposal determined that the U.S. Copyright Office statutory framework was not sufficient for the needs of a modern, 21st-century copyright system. The four subjects addressed by the proposal included 1) The Register of Copyright and Copyright Office Structure; 2) Copyright Office Advisory Committees; 3) IT Upgrades; and 4) Copyright Small Claims.
First, the committee concluded that changes should be made to the structure of the Copyright Office, although the Copyright Office should remain part of the Legislative Branch to continue to provide advice to Congress. Significantly, the Register of Copyright would be appointed for a ten-year term subject to potential re-nomination. The Copyright Office would have autonomy over its budget and technology needs. The committee also recommended that there be a combination of permanent and ad hoc advisory committees to advise the register on critical issues for more efficient knowledge transfer from the private sector to Federal agencies.
The committee acknowledged that the Copyright Office requires information technology upgrades and recognized the recently published Copyright Office IT modernization plan calling for funds of $165 million over 5 years. The proposal supports the need for a digital database of historical and current copyright ownership information and the ability for copyright owners to add additional metadata, among other suggestions.
Finally, the Committee’s proposal supports a copyright small claims system consistent with the report released by the Copyright Office to handle low value infringement claims.
Years of experience with the Copyright Office has made it clear that the Copyright Office requires autonomy over its budget and its information technology needs. The coalition of visual artist associations worked hard to reach consensus and provide comments with a united voice. The members of all the associations depend on effective copyright protection and enforcement for their livelihood. In sum, the coalition supported the Judiciary Committee’s call for greater autonomy for the Copyright Office.
The coalition also agreed that the Register of Copyrights not be appointed by the Librarian of Congress to ensure that the Register can continue to provide Congress independent and timely advice on copyright law and policy. As libraries are one of many stakeholders in the copyright discussion, the need for the Copyright Office to be independent from the Library outweighs the initial purpose of providing the Library with deposit copies of registered books.
The Coalition also strongly supported information technology upgrades to the Copyright Office to improve registration and search functions, provided the cost of the upgrade would not disproportionately affect creators wishing to register works of visual arts.
Finally, the coalition was firmly behind a small claims system to be hosted by the Copyright Office that provides the Register of Copyrights with authority to promulgate regulations to ensure that the system works efficiently. The need for a cost-effective and streamlined venue enabling visual artists and their licensing representatives to enforce high volume, low value copyright claims has been long overdue. The coalition provided the Judiciary Committee with key components of what would make a successful copyright small claims system.
A full copy of the Coalition of Visual Artists comments can be found here.
The Judiciary Committee just initiated its first legislation in response to its proposal on the selection of the Register. On March 23, 2017, House Judiciary Committee Chairman Bob Goodlatte and Ranking Member John Conyers, Jr. introduced the Register of Copyrights Selection and Accountability Act, which makes important changes to the selection process for the Register of Copyrights. Specifically, the legislation requires the Register to be nominated by the President of the United States and subject to confirmation by the U.S. Senate. It would also limit the Register to a ten-year term, which is renewable by another Presidential nomination and Senate confirmation. The Committee wants quick action on this legislation, which is reported to be only a first step in copyright modernization and reform.
While it is never easy to predict whether any legislation will pass Congress and be made into law, copyright is one area that may be bi-partisan. Certainly Congress has a strong interest in working with a Register who will provide timely and thoughtful advice. I would think this initial, very narrow bill will go forward. Hopefully the other areas of modernization will follow. In particular, improving the IT system and a copyright small claims court is critically important to the visual artists community. Two house representatives circulated copyright small claims bills last session and we hope that small claims legislation will be introduced shortly. By working together and meeting with Congress, we hope that bills relating to these efforts will pass in the near future. Meanwhile the associations will keep working together and speak with a clear voice.
Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard LLP in New York. She practices copyright, trademark, and digital media law and offers full legal support to a wide range of clients. Ms. Wolff is the treasurer of the Copyright Society of the United States of America, a member of the Media Law Resource Center, chair of the ABA Intellectual Property Law Section on Copyright Legislation, and member of the Task Force on Piracy and Copyright Reform.
This article is intended as a general discussion of the topic and not as professional advice. Readers should secure appropriate advice before taking action on the topic discussed. Nothing in this article should be construed as legal advice relevant or applicable to any particular situation, nor does this article create any sort of attorney-client relationship or engagement between the reader and the author.