New Copyright Corner Q&A Series Features Shira Perlmutter As First Guest

Re:Create is launching a new “Copyright Corner” Q&A series to feature conversations with leading policymakers, academics and thought leaders to break down complex copyright issues and examine how copyright interacts with American jobs, creativity and innovation. Anyone reading this blog understands just how complex copyright law is. While a core reason for this series is to foster a better understanding of copyright law and its impact, it is also why we won’t always agree with the opinions and policy positions shared here. 

For our first post, we are pleased to feature Register of Copyrights and Director of the U.S. Copyright Office Shira Perlmutter, who was appointed to the position in October 2020. In her comprehensive and detailed responses, Register Perlmutter takes up a wide range of pressing copyright topics including their upcoming strategic plan announcement, social justice and efforts to engage underserved communities, and highlights from this year’s ongoing modernization efforts. 

Q: What are the Copyright Office’s goals for 2022?

A: At the big-picture level, we will be announcing a new strategic plan, to extend through 2026. The plan is built on four high-level goals:

  • Continuous modernization: Once we complete our current modernization initiative, we don’t want to wait until the technology is outmoded to look at it again. Instead, we will continuously review our systems and services to ensure that they are kept up-to-date, and also to identify new applications and new features using cutting-edge technologies.
  • “Copyright for All”: We will focus on opening up the copyright system further to everyone, individuals as well as businesses of all sizes. This means making copyright more accessible and understandable and reaching out to previously underserved communities.
  • Impartial legal and policy advice: The Copyright Office will continue to play the important role of providing impartial expertise to Congress, the courts, and other federal agencies on issues of copyright law and policy.
  • Enhancing the use of data: The Office will enhance our development and use of data, including by adding in-house economic expertise.

In terms of specific 2022 projects, I would identify three: launching the operations of the Copyright Claims Board; making further progress on our modernization initiative; and completing the various policy analyses that have been requested by Congress.

Copyright Claims Board: The Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), passed at the end of last year, requires the Copyright Office to set up the new Copyright Claims Board (CCB) to hear disputes for a low monetary value by December 27, with some flexibility to extend the deadline by a few months.

We have been working hard on this project and it is well underway. All three Copyright Claims Officers are now on board, and we are in the process of hiring the additional staff. We are developing the needed IT, including an electronic case management system. And we issued a notice of inquiry to solicit public comment regarding all aspects of the CCB’s procedures and operations, and are now in the midst of a series of rulemakings taking that input into account. 

Modernization: We expect to make considerable progress again this year on modernization. This will include testing a new prototype registration application for at least one group registration option; moving the new and improved Copyright Public Records System out of pilot into full production; and opening up our pilot online recordation system to all members of the public. 

Policy Analyses: Last but not least, we will be taking forward a number of policy projects that have been requested by Congress. Notably, these include further attention to the development of standard technical measures and voluntary measures for protecting copyrighted works online; examining the sufficiency of copyright protections for news publishers; analyzing the meaning of “publication” in the online environment; and looking at the best edition requirement for deposits.

Q: What does your vision of balanced copyright look like?

A: The concept of balance is central to a high-quality and well-functioning copyright system. U.S. copyright law does a good job of incorporating an appropriate balance, combining meaningful and effective rights with robust and reasonably scoped exceptions and limitations. In fact, many other countries have looked to us over the years as a model in this respect.

Of course, no balance can remain static; it must be adjusted to remain vital as technologies and markets evolve. Both the origin and the history of the Copyright Act have been driven by continued responses to such changes. There are several areas where adjustment may currently be called for, and I would point in particular to section 512 of the DMCA, the safe harbor for internet intermediaries, and section 108, the specific exception for libraries and archives. The Copyright Office has issued reports and held hearings in recent years to develop some recommendations for recalibrating the balance on those issues.

Another important aspect of balance relates to process. We can only achieve an appropriate balance if we understand how the law affects all stakeholders and the public generally. For that reason, the Copyright Office is committed to an open-door policy and to ensuring input from all sides on the issues before us. This will also benefit from work toward our goal of “copyright for all,” by opening the copyright system to a wider range of participants.

 Q: When you testified before the House Judiciary Committee in May, you stated you want to open the copyright system to more participants and focus on underserved communities. What steps does the Copyright Office need to take to advance these goals?

A: We are committed to advancing these goals in every way we can. First, I’ll note that we have recently presented several relevant events. In 2020, we hosted a Copyright and Social Justice event as well as one celebrating Barbara Ringer, the first female Register, and her championing of civil rights. In addition, we have worked with Take Creative Control (TCC), an educational and advocacy group on social justice and IP. We will soon be hiring a staffer who will focus on reaching out to underserved communities in the music space.

We’ve expanded our promotional efforts to reach out to new audiences and have produced a variety of educational resources intended to be accessible to those with all levels of copyright knowledge and experience. These new materials provide plain-language explanations of copyright law, as well as information relating to the Music Modernization Act (MMA) and copyright issues for musicians. This outreach is particularly beneficial for self-administered or “DIY” songwriters who may not have a strong music business background. To reach underserved communities, the Office has begun translating these materials into Spanish, and we have given presentations to a wide range of groups, including songwriters in different genres, independent publishers and record labels, music managers, and public radio stations. Before the pandemic required a focus on virtual outreach, Copyright Office staff gave MMA-related presentations in fifteen states across the country.

We are hiring a new chief economist, and one major item on the research agenda is to learn more about what groups are underrepresented in using Copyright Office services. Meanwhile our current Kaminstein Scholar, Professor Joel Waldfogel, has been doing research specifically on gender issues. Gathering relevant data on other areas of diversity may be more challenging but can help us in working to broaden the copyright community.

Q: In recent years, we’re finally having long-overdue conversations about copyright and social justice, including biases based on race, sexual orientation and gender identity. Are there concerns that many of these injustices are entrenched because copyright term protects them for more than a century in most cases? Should steps be taken to address copyright term in cases of social justice? 

A: These are certainly important conversations and the Copyright Office is concerned about social justice and the avoidance of bias at any stage in the copyright term. If any aspects of the system might produce injustice, we need to examine how they can be improved. And of course any inequities or imbalances in the system could be exacerbated by a longer term.

It is important to recognize, however, that the copyright system itself serves to level the playing field among haves and have-nots in many respects. Because protection is automatic and the standard of originality is low, every individual creator is able to benefit from copyright. Unlike other forms of intellectual property, there is no need for legal or technical expertise, use in a business, or a complex and expensive application or maintenance process.

Q: What role do you see the Copyright Office playing to support individual digital-first creators and the overall growth of the new creative economy? 

A: We are working on several fronts to support digital-first creators and the creative economy generally. First, we believe that digital-first creators will greatly benefit from the development of the Office’s new Enterprise Copyright System (“ECS”). ECS will provide an integrated, user-friendly platform for registering works, recording documents, accessing public records, and using other Office services.

We have requested and received public input on ways to maximize the system’s efficiency, including several topics of interest to digital-first creators. For example, we are taking into account public comments in our exploration of potential uses of application program interfaces (“APIs”) for ingesting and extracting data, adoption of alternative pricing models, and the provision of greater flexibility in deposit formats. We also invite members of the public to participate in our bimonthly webinar series on various aspects of our modernization process.

Apart from ECS, a number of other Office initiatives should help support creators of born-digital works. We recently created new group registration options for works on an album of music (“GRAM”) and for short online literary works (“GRTX”). The GRAM option allows group registration for an album of musical works or sound recordings, including albums published as a digital unit and distributed over the internet. A GRAM registration could include an album published only on a streaming service. The GRTX option allows registration of up to fifty short online literary works—for example, blog entries, social media posts, and short online articles—published within a three-month period.

We also are continuing our efforts to make creators and other stakeholders aware of the benefits of the Music Modernization Act (MMA). Since the law was enacted, the Office has engaged in more than 50 education and outreach activities, including educating songwriters and others about the process by which they may claim ownership of musical works and receive royalties for their use. We have released an educational website and informational guides directed to the DIY music community. 

Q: What would you say to consumer groups who have concerns about the potential abuse of notice-and-takedown systems, concerns that were in both the Office’s 512 report and in your testimony in May?

A: I hope our Section 512 Report and my testimony in May make clear that the Office takes these concerns seriously. Precise numbers are hard to come by—individual platforms and the Lumen database give only a partial picture of how often people may be misusing the system. But we have read the public submissions and followed reports of individuals using notice-and-takedown to undermine a competitor or to remove speech they dislike.

The DMCA does contain a section, § 512(f), which penalizes misuses of the notice-and-takedown system involving misrepresentation. In practice, however, as we acknowledge in the Report, it is difficult to obtain § 512(f) damages. Proving that the notice sender knew its representations were false can be difficult and expensive. Moreover, some misuses of the notice-and-takedown system do not involve any misrepresentation. The statements in the notice are accurate; the problem is that the sender is not seeking to protect copyright but to achieve some other objective.

In the Section 512 Report, the Office noted that Congress could consider modifying § 512(f) to introduce a penalty for “reckless” misrepresentations that is lower than the penalty for those that are “knowing.” This could, however, pose risks to users as well, as they would face a greater threat of potential liability in sending counter-notices and might be discouraged from doing so.

Another option for Congress that we identified would be to address the issue through competition policy. For example, Congress could say that § 512(f) does not preempt state unfair competition claims based on abusive takedown notifications. But there are risks there too, including the burdens that come from conflicting state approaches.

Given the importance of these concerns, we continue to look for ways to mitigate abuses of the notice-and-takedown system that do not cause unintended problems.

Q:  How do you address concerns from groups like us that the Copyright Claims Board will not be neutral? 

A: The CASE Act includes important safeguards to ensure that the Board renders neutral, fair decisions. It provides that the Copyright Claims Officers must have represented or presided over cases involving a diversity of copyright interests, including those of both owners and users of copyrighted works. We are pleased to have selected Officers whose combined expertise will ensure that the Copyright Claims Board is a viable and fair option for all parties. Other statutory safeguards include barring Officers from engaging in inconsistent duties; requiring that they recuse themselves from participating in proceedings where they have a conflict of interest; and prohibiting ex parte meetings with parties except as permitted by applicable law. Congress also ensured that CCB decisions will be transparent by requiring that final determinations be publicly available on its website.

More broadly, it is important to emphasize that use of the CCB is optional for all parties and was designed to incentivize participation by both copyright owners and users. Parties will only take advantage of this option if they have confidence in the Board’s ability to render fair and expert decisions. To promote that confidence, we have initiated several rulemakings inviting public comment on a variety of topics, including notice, opt-out procedures, filing responses and counterclaims, and the designated service agent directory. We encourage members of the public to provide comments, to help us ensure that the CCB’s procedures reflect a diversity of viewpoints from a broad spectrum of interests. 

Q: What are the Copyright Office’s plans surrounding Section 512 and how to address abuse of 512 by rightsholders? 

A: Since publishing the Report, we have continued to engage with stakeholders and Congress on these issues, and to look for ways to improve the functioning of the notice-and-takedown system. We updated our DMCA webpage to add educational materials for users, ISPs, and copyright owners, including FAQs and an easy-to-understand video. We welcome additional suggestions on how to help the public make effective and appropriate use of the system. The Section 512 Report did identify several areas for potential legislative reform, and if Congress chooses to legislate, we are ready to assist. 

Q: Is there specific copyright-related legislation you’d like to see Congress take up?

A: I do not have a specific bill in mind, but would note several issues that I believe merit attention. The Office continues to support certain legislative initiatives that have long been in our sights.

To note a few: we support the enactment of a public performance right for the over-the-air broadcasting of sound recordings. Our recent report on state sovereign immunity also recommends that Congress find effective and appropriate ways to address the problem of intentional infringements of copyright by state entities.

In my oversight hearing earlier this year, I indicated my support for Congress to consider adopting a resale royalties system to allow visual artists to share in the financial rewards of their success. In addition, we would like to see the section 108 exception for libraries and archives expanded and clarified to ensure that the digital era does not compromise their mission of preserving and sharing knowledge. We also continue to seek greater fee flexibility so that we can continue to operate in the event of a lapse in appropriations and use certain prior year funds for ongoing projects.

Q: Is there significant progress or updates you would like to share on your modernization efforts? 

A: Yes, we’ve made significant progress in modernization activities. Some of the highlights from the past year include:

  •  Recordation System — A public pilot of an electronic version of our system for recording documents was launched in April 2020 and continues to expand functionality and add waves of participating users. It has been very successful in greatly reducing process time, which is now measured in weeks rather than months for electronically filed submissions.
  •  Public Records System — A pilot of an improved interface for the public records web application launched in late 2020, which includes enhanced functionality such as allowing users to track recently viewed records.
  •  Registration — In Spring 2021, we conducted user testing on a limited prototype of a new standard application, which provides detailed guidance and is much easier to use for individuals without specialized copyright expertise.
  • Licensing — Initial development began in late fiscal 2020 on user experience design and automated workflows.

The Library of Congress has also established a Copyright Public Modernization Committee (CPMC), with thirteen members appointed by the Librarian. The CPMC, which is intended to enhance communication with stakeholders about the Copyright Office’s modernization initiative, held its inaugural meeting this past July.