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A Primer on Proposed Changes to U.S. Copyright Law for Content Creators

Phillip Brooks

In 2013, lawmakers in the U.K. passed the Enterprise and Regulatory Reform Act. The controversial law shields content aggregators and archivists from costly legal repurcussions from authors of so-called "Orphan Works" if an unsuccessful "diligent search" was conducted in order to locate the original creator.

The law is somewhat vague, however, in the language used to denote what exactly a "diligent search" entails. It is also not popular with content creators for a myriad of other reasons, but most notably for the limits it places on damages in situations where a creator may wish to sue for infringement.

The U.S. has attempted to pass similar laws in 2006 (died in Committee) and 2008 (died in the House of Representatives).

However, the U.S. Copyright Office recently proposed changes to the Copyright Act of 1976 which would re-open the debates from 2006 and 2008 using similar justifications to the laws passed in the U.K. in 2013 and containing similarly troubling edicts concerning Orphan Works.

I wanted to get a better understanding of how the potential changes could affect content creators and aggregators in the digital marketing space, so I reached out to Daniel Devine, Esq., Attorney for Florida Law Firm Santucci Priore, P.L. and expert in the field of intellectual property.

[caption id="attachment_23527" "alignright" width="132"]Daniel Devine, Esq. Daniel Devine, Esq.[/caption]

Phillip Brooks: In lay terms, what are the proposed changes to the U.S. copyright law? What are the key points?

Daniel Devine, Esq.: The term "Orphan Works" refers to works where the copyright owner cannot be identified or located. One of the main problems with Orphan Works is that it prevents a potential user of the work from seeking permission to use the work because it is unclear who to contact. This subjects a user of an Orphan Work to the risk that the previously unknown copyright owner will surface after the use has occurred and file a lawsuit for monetary damages against the user.

The main proposed change to the Copyright Act is to introduce a limitation on user liability for those users who conduct a good faith diligent search for the identity of the copyright owner prior to using the work and have been unable to located him or her.

Proposed Changes to Copyright Law

The limitation on user liability is proposed as a limit on the potential remedies that can be sought in a copyright infringement lawsuit and to limit monetary relief to "reasonable compensation," which is likely to be comparable to a reasonable license fee.

There is also a proposed bar on monetary relief for eligible nonprofit organizations. The proposed changes would apply to every category of copyrightable works, and all types of uses and users, with the exception of "fixations of works of visual art in or on commercial available useful articles."

The term "Mass Digitization" involves "making reproductions of many works, as well as possible efforts to make the works publicly accessible." The main problem with Mass Digitization is that it is very difficult to obtain permission due to the significant amount of individual permissions required, which is likely to cause the cost of securing permissions to exceed the value to the user.

The proposal recommends that Congress create a five year pilot program where collective management organizations ("CMO") are authorized to negotiate the terms of licenses under government supervision.

The proposal also recommends that criteria for eligibility and oversight of the CMOs be implemented. The CMOs represent copyright owners in particular categories of works, such as literary works, pictorial or graphic works, and photographs.

Basically, the proposed changes seek to establish organizations that are responsible for determining copyright ownership, obtaining permissions and negotiating compensation for mass digitization projects.

Copyright owners are given the option to opt out from this program.

PB: Would these changes affect existing content or only content created after a certain date? Critics claim that the new procedures make the Internet less democratic. The assumption is that if you have to pay to copyright all published materials, only the rich will see their materials properly copyrighted. Is this the case? How can content creators prepare themselves for any changes?

DD: The proposal states that a good faith diligent search for the owner of an Orphan Work would require "at a minimum, searching Copyright office records; searching sources of copyright authorship, ownership, and licensing; using technology tools; and using databases."

Further, the proposal would require a user to file a Notice of Use with the U.S. Copyright Office.

Good Faith Proposal

PB: Is it possible that this proposed legislation could help content writers? Will these changes possibly impact Google SERP rankings? Is it possible that Google will eventually incorporate this into algorithms to comply with the law? What do we need to know about the "Google Books" settlement?

DD: This case involved a dispute over Google’s "Google Books" project which provided digital copies of millions of books held by several major libraries which were made available online. Online users were permitted to view only "snippets" of the books that were protected by copyright and could download full copies of those that were not.

One of the important rulings to come out of the Google Books case was that the Google Books project was considered fair use because the display of snippets was transformative in nature. See, Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 291-94 (S.D.N.Y. 2013).

However, it is still unclear as to whether a Mass Digitization project involving uses beyond the display of snippets would qualify as fair use.

Further, the fair use ruling is currently on appeal to the United States Court of Appeals for the Second Circuit.

PB: Since the Internet can be accessed internationally, how are copyright laws in general enforced on the Internet? The general understanding is that it's difficult to enforce copyright law when the offender lives in another country. Under current law, what is the best way for content writers, bloggers, and self-published authors to protect their intellectual property?

DD: The term "intellectual property" is a broad term which can cover patents, trademarks, copyrights, and trade secrets. The best way to protect content that may be subject to patent, trademark, or copyright protection is to apply for a federal registration with the United States Patent and Trademark Office (for patents and trademarks) and with the United States Copyright Office (for copyrights).

In regards to copyright protection specifically, it is recommended that a registration be sought within three months of publication of the work.

A copyright registration is a prerequisite to filing a lawsuit alleging copyright infringement.

Further, if the registration is not obtained timely then the available remedies to a copyright owner in a lawsuit will be limited.

No Copyright Law Changes are Imminent

PB: Is it likely this will become law?

DD: Currently the U.S. Copyright Office has submitted a report in which it proposes changes. There is no legislation currently pending before Congress.

Daniel Devine, Esq. concentrates his practice primarily in the areas of intellectual property, civil litigation, appeals and bankruptcy. Daniel has experience representing clients in Federal and Appellate cases relating to patent, copyright, and trademark infringement, counterfeiting, fraudulent transfers, and has experience handling trademark opposition proceedings before the United States Patent and Trademark Office’s Trademark Trial and Appeal Board.

Phillip Brooks

Provides valuable insights and adds depth to the conversation.

Phillip Brooks is SEMrush's Content Marketing Manager.
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Michael Stricker

Provides valuable insights and adds depth to the conversation.

Warning: TL:DR ! Copyrights were established to foster creativity by enabling original creators to benefit from their works... an awesome model that most would agree has fueled innovation and creativity, especially when taken together with Patent and Trademark.

Balance is required, to serve the needs to serve a "Big Data" world, where mass digitization meets the search expectations of the connected public, with the necessity of protecting individual creators so that creativity is always a viable means of support, not just satisfaction of the soul.

CMOs start to sound like an intellectual property "land grab" by transferring rights from the creator to a (government?) agency or authority who will be empowered to negotiate licensing fees for the creator(s). Then, I suppose the agency would be responsible for the distribution of said fees to the creators. When this kind of bureaucracy is built, efficiency plummets. Rights are accumulated by business interests and bidders.

If RIAA music licensing, iTunes and the music industry are any indication, artists are the least-well compensated in this model, and the rights accumulators take the lion's share, under the guise of "innovators”. The irony is that the rights holders seize the works of the actual innovators and create a distribution model from which they profit — at the expense of others. Witness Taylor Swift’s pushback when Apple sought to promote Apple Music without just compensation for artists whose works they used to entice listeners.

Efficient databases kept up-to-date could enable searchers to find content generators, so that negotiation for rights could begin. More cognizant of unique value, less profiteering. And, anyone who understands search, (can you Google?) could handle it.

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