From the FSF Blog
March 6, 2019
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IP Enforcement Coordinator's Report Spotlights Copyright Protection Progress
by
Seth Cooper
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In late February, the Intellectual Property Enforcement Coordinator (IPEC) released its Annual
Intellectual Property Report
to Congress. The Report provides "an overview of the Trump Administration's intellectual property enforcement strategy and policy efforts" across multiple agencies. IPEC's coordination and development of U.S. IP policy is intended "to promote innovation and creativity, and to ensure effective intellectual property protection and enforcement, domestically and abroad."
Although the Trump Administration's enforcement policy "includes all areas of intellectual property and innovation policy," its policy activities regarding copyright protections merit attention. In 2018 progress was made in better securing copyrights. But there is plenty more that the Trump Administration and the 116th Congress can do to modernize and strengthen protections for Americans' creative works.
One achievement touted in the Report is the passage of the Music Modernization Act of 2018. In an
op-ed
for
The Hill
and in
several
blog
posts
, Free State Foundation President Randolph May and I urged Congress to adopt reforms contained in that legislation. The Act (1) secured federal copyright protections for public performances via digital audio transmission of pre-1972 sound recordings; (2) established a streamlined process for producers, mixers, and sound engineers to directly receive royalty payments; and (3) facilitated more timely and accurate payment of songwriter "mechanical license" royalties and also provided blanket licenses for digital streaming services. As I explained in a February
blog post
, the widely endorsed MLC Coalition will be submitting to the U.S. Copyright Office a proposal for creating a collective entity to administer mechanical license royalties pursuant to the Act.
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An appendix in the IPEC Report highlighted the Copyright Office's expected release of its public study report on the "moral rights" of authors. Moral rights provisions in foreign nations typically restrict or prohibit sales or transfers of authors' rights to be acknowledged as creators of their works as well as their rights to control the integrity or future use of their works. In a
Perspectives from FSF Scholars
, Randolph May and I made the case that "current U.S. copyright law as well as contract law protect authors' and creative artists' rights to control whether they receive credit for their copyrightable works and whether their works are adapted into new media or transformed." We concluded: "Importing additional foreign-based moral rights restrictions into U.S. copyright law would create legal uncertainties, destabilize existing voluntary contract arrangements, reduce market freedom, and threaten the market value of copyrighted works."
The IPEC Report also referenced the Copyright Office's ongoing public study of Section 512 of the Digital Millennium Copyright Act of 1998 (DMCA). Section 512 contains the so-called "notice-and-takedown" provision under which copyright holders are entitled to give notice to an online service provider when infringing content is posted on its network or website. A provider receives immunity if it "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing."
Unfortunately, owners of copyrighted sound recordings, movies, and other creative works suffer steep financial losses from mass online infringement. They also experience difficulties navigating the DMCA's outdated legal processes. The DMCA was adopted before user-upload sites such as YouTube became prevalent. In a
Perspectives
paper
, Randolph May and I called attention to the urgent need to update the law, and we highlighted ways that Congress can reduce notice-and-takedown compliance burdens for copyright holders and improve protections from online infringement. That same paper also called on Congress to adopt a voluntary small claims court for resolving disputes over alleged online infringement involving copyright owners of modest means.
Additionally, the IPEC Report identifies ongoing criminal copyright investigations and prosecutions by federal law enforcement. A Report appendix noted that the U.S. Justice Department "continues to pursue significant, large-scale piracy and counterfeiting operations."
It cited the March 2018 sentencing for criminal copyright infringement of the owner of Sharebeast.com, which "operat[ed] a massive file-sharing infrastructure that distributed approximately 1 billion copies of copyrighted musical works through Internet downloads." Indeed, the Report cited the Recording Industry Association of America's (RIAA) description of Sharebeast.com as "the largest online file-sharing website specializing in the reproduction and distribution of infringing copies of copyrighted music operating out of the United States." The RIAA estimated $6.3 billion in total loss to its members. Furthermore, according to the Report, the FBI had pending "23 investigations of copyright infringement related to software," "41 investigations of other copyright infringement," and "8 investigations of copyright infringement related to signal theft" of video programming at the end of fiscal year 2018.
Randolph May and I published a
Perspectives
paper on how Congress ought to
modernize criminal copyright
law to combat online piracy. For starters, Congress should make online piracy via Internet streaming a felony. Prosecutions for criminal copyright infringement are not numerous, and they are limited to willful infringement of protected works. However, civil copyright enforcement is oftentimes inadequate for curbing large-scale online piracy operations like Sharebeast.com. In another
Perspectives from FSF Scholars
, we emphasized the need to
modernize international agreements
by requiring foreign nations to step up criminal copyright enforcement against large-scale online piracy.
The
IPEC Report
is valuable in spotlighting key achievements and ongoing initiatives by the Trump Administration to strengthen protections for IP, including copyrighted works. In 2019, the Trump Administration and the 116th Congress ought to commit to building on that progress to better secure Americans IP rights and to advance our economy in the Digital Age.
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Don't miss the Free State Foundation's Eleventh Annual Telecom Policy Conference on Tuesday, March 26, 2019. It promises to be the best ever! Information regarding the conference and speakers is
here,
and you can register
here
.
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By the way, when you are shopping for books or other items on Amazon, please login through
AmazonSmile here
. If you do so, Amazon will donate 0.5% of the price of your purchases to the Free State Foundation. We know that it is a small donation, but every little bit helps to support our work!
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