April 26, 2016 | By Corynne McSherry

The Misguided Plan to Expand a Performers’ Veto: More "Copyright Creep" Through Policy Laundering

A proposal to rewrite parts of copyright law being pushed by the U.S. Patent and Trademark Office would create new restrictions for filmmakers, journalists, and others using recordings of audiovisual performances. Against the background of the the Next Great Copyright Act lurching forward and the Copyright Office convening a new series of roundtables on the Digital Millennium Copyright Act, few have noticed the USPTO push happening now. But these proposals are a classic instance of copyright creep and are dangerous for users, creators, and service providers alike.

Copyright CreepThe root of this effort is a new international treaty, adopted by WIPO in 2012, that promised to add another layer of legal restrictions on audiovisual performances by giving the performers—actors, musicians, dancers and others—a new veto power over the use of recordings via a copyright-ish right in their performance. At the time, supporters of the treaty (called the Beijing Treaty) insisted it would require only “technical” amendments to U.S. law. Now we are seeing what those “technical” amendments might look like, and it’s not pretty.

In draft legislation submitted to Vice President Joe Biden (in his capacity as President of the Senate), the USPTO proposes that U.S. anti-bootlegging law, which currently applies only to live musical performances, be revised to include all audiovisual “performances.” In addition, the legislation would impose a term limit of 95 years (right now there’s no term limit in the anti-bootlegging law) and clarify that performers’ legal rights are subject to the limitations of the fair use doctrine as well as exceptions for libraries and archives.

There are many problems with this plan. Here are a few:

  1. Definitions: The definition of “performance” is unclear. Does it include lectures? Political speeches? An a cappella group singing a song that’s in the public domain? A flash mob? This matters a lot, especially for the professional and amateur creators and journalists who will need to obtain a license to capture and share any of these activities, and the even larger group of users who might want to repurpose that material.
  2. Term: 95 years?  Really? Admittedly, that’s better than no term at all, but even better would be, say, 14 years—or even the 50 years term that seems to be contemplated in the Treaty.
  3. Damages: The current anti-bootlegging statute says that violators are subject to the same penalties as copyright infringers. Depending on that language is interpreted, anyone who records and shares a “performance” and doesn’t get consent from the performer could be on the hook for up to $150,000 (or more depending on how damages are calculated, another messy question) and potentially attorneys’ fees as well.
  4. Safe Harbors: Currently, it is unclear at best whether the DMCA safe harbors apply to bootlegging claims. That means service providers will worry that any content they host or transmit could subject them to secondary liability if, as will often be the case, the user did not (1) guess correctly about what kinds of consent might be necessary; and (2) obtain that consent.
  5. Potential for abuse: But even if a court concluded that Section 512 applies to these new rights, we have a decade of experience to show that the Section 512 takedown process will be abused to take down lawful content.
  6. What about other limitations? It’s great that the our bootlegging provisions will now be explicitly subject to fair use and the library exceptions. But what about the many other limits on the reach of copyrights? Why not import them all?
  7. Deception: Trade deal supporters often insist that trade agreements involving IP won’t require changes to US law, or only minimal changes. This proposal should serve as a useful demonstration, if such a demonstration were needed, that we can’t trust such claims.

In other words: this is a dangerous proposal. Performers (or, in many cases, the companies to which they transfer their rights) could create new roadblocks to the creation of parodies, mash-ups or new versions of their performances, independent of copyright. It would further complicate the process of clearing rights to audiovisual works, and cast a new legal cloud of uncertainty over the activities of creators, producers, and journalists who build on audiovisual works in compliance with copyright law.

Indeed, we had a perfect example of what’s potentially at stake here less than two years ago, in the infamous case of Garcia v. Google, Inc. The case involved a controversial video—the notorious "Innocence of Muslims" trailer—that was also the center of a political controversy. Actor Cindy Lee Garcia, who appears in the film for five seconds, insisted she has a copyright interest in her performance and, based on that interest, claimed to have a right to have the video taken offline. After Google rejected her DMCA notice, she filed a lawsuit. The Ninth Circuit Court of Appeals ordered Google to take the video down, and keep it down on all of its platforms, effectively editing the online historical record.

After months of legal wrangling—and thousands of pages of briefing from journalists, civil liberties’ groups (including EFF) and service providers—the order was rescinded. But Judge Alex Kozinski wrote a spirited dissent pointing to the Beijing Treaty and concluding it would require recognition of Garcia’s claim.

Garcia v. Google was an object lesson in the power of copyright claims to undermine political debate and expression. We should learn from it. This proposed legislation is a mess that could wreak havoc on our already skewed copyright regime. It needs to be challenged, now, before it goes any further.

We can act today to tell Congress to reject this fundamentally flawed proposal. Write your members of Congress today and urge them to oppose it.

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