New recommendations on digital copyright policy

In 1998, Bill Clinton was President, Google had just formed, Britney Spears released her first single, Titanic was taking theaters by storm, and Europe adopted the Euro. It was also the year of the last major revision of U.S. copyright law. Needless to say, a lot has changed since 1998.
 
Today, creative artists and entrepreneurs are producing engaging works and advancing consumer-friendly innovations at a rate never before seen in our society and across mediums that could never have been contemplated in 1998. So it is critical that we continually review our copyright system and laws to make sure they reflect the times in which we live and innovate. In an effort to examine, explain, and suggest policies to reflect today’s digital age, the Department of Commerce’s Internet Policy Task Force recently issued a report entitled: “White Paper on Remixes, First Sale, and Statutory Damages.”
 
{mosads}The White Paper takes on important policy issues such as the proper calibration of statutory damages, the legal framework for the creation of remixes, and the appropriate scope of the first-sale doctrine online.
 
In reviewing these areas over two years of study and consultation, the Task Force was able to make certain recommendations on major issues of copyright law.
 
First, as to damages. Under current law, the damages available to a successful plaintiff are set within a range per work infringed. We heard concerns that this structure could lead to excessive or inconsistent awards, particularly in certain cases involving individual file-sharers or mass online services. Accordingly, we propose that Congress amend the Copyright Act as follows: (1) to establish certain criteria for courts to consider when determining the award of statutory damages; (2) to remove the existing bar to invoking the “innocent infringer” reduction in cases where the work was published with a notice of copyright; and (3) to give courts the discretion to depart from the strict “per work” calculus in certain instances. We also noted the benefits of establishing a new forum to adjudicate small copyright infringement claims, with a cap on damages amounts.
 
Second, as to the issue of “remixes”- creative combinations of portions of preexisting works. We heard near consensus that the fair use doctrine – permitting limited use of copyrighted materials in certain cases without the owner’s permission – is the appropriate standard for determining the legality of remixes. Moreover, the market seems on its way to developing more and better licensing options. Thus, we concluded that existing law should not be amended to address remix uses but recommended clarifying how fair use applies to remixes and expanding the availability of licenses.
 
Finally, the first-sale doctrine—which permits the owner of a lawfully made copy of a work to resell or give away that copy without the copyright owner’s consent. Over the years, there has been continued debate as to whether the law should be changed so that such transfers could be made not just in the physical world, but also by means of digital transmission.
 
Given an array of considerations and competing viewpoints, the Task Force concluded that the first sale doctrine should not be expanded at this time.  It did, however, recommend the development of best practices to better inform consumers as to what they can legally do with the copies they purchase online. The Task Force will continue to monitor marketplace and technological developments to see whether further action is needed, particularly with respect to library e-book lending.

Creators and users of copyrighted content face many challenges and opportunities online. Our goal is to ensure that creativity and innovation grow—and thrive—today and into the future. We believe the White Paper helps point a path toward that objective.  We hope Congress will make our legislative recommendations a reality, and we will continue to work with stakeholders on the other recommendations.

Lee is the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, one the largest intellectual property offices in the world with almost 13,000 employees and an annual budget of over $3 billion.