This Year in U.S. Copyright Policy: 2016 in Review
Three years into Congress's copyright review and it's still more talk than action.
The talk: at the start of the year, the Commerce Department released its long-awaited recommendations for copyright reform, and in the spring, the Copyright Office moved forward with three major copyright policy studies. President Obama sent two international copyright treaties to the Senate for ratification, and the White House called for more shadow regulation.
The action: there were high-profile personnel changes at both the Library of Congress and the Copyright Office, the Copyright Office made a dangerous new rule for website owners, and some anti-circumvention exemptions came into effect.
We still don’t know whether any big changes to copyright law are imminent, but 2016 sure set the table for an interesting 2017.
Three years into the “Next Great Copyright Act” review process
2016 marked the third year in Congress’ review of U.S. copyright law – a process that began in 2013 when then-Register of Copyrights Maria Pallante called on Congress to overhaul copyright law in “The Next Great Copyright Act.” This year, that review continued to move forward, with the Copyright Office undertaking three policy studies on contested areas of copyright law. While copyright law has long been shaped by a few powerful industries, EFF is working to make sure that if Congress proposes further changes to the law, the public won't be left out of the process.
Fighting for your freedom to tinker
EFF kicked off 2016 by urging the Copyright Office to make sure that its recommendations to Congress protect users’ ability to truly own their own devices – to use, tinker with, modify, repair and sell the software-enabled products that are commonplace in our daily lives. EFF encouraged the Copyright Office to support changes to the law that would fix major problems with how the law treats software, to reform the broken process the Office uses to grant limited exceptions to the DMCA’s blanket prohibition on DRM circumvention, and to support real reform of Section 1201’s unconstitutional limits on users’ freedom of expression. And this fall, EFF and 11,000 supporters urged the Copyright Office to support strong, meaningful permanent exemptions from liability under 1201 for security research, repair, and accessibility.
The Copyright Office released the results of its study on software-enabled consumer devices on December 15 (the 1201 study is ongoing as of publication) and it's clear they failed to adopt the proposals suggested by EFF and other public interest groups. We’re disappointed that the Copyright Office missed an opportunity to support reforms that would benefit the public, but we’ll keep up the fight in 2017, in Congress and in the courts, for a copyright law that makes sense for today’s software-driven world.
Security research and vehicle repair exemptions take effect
The Librarian of Congress’ Section 1201 exemptions for security research and vehicle repair finally came into effect in October. Unlike the other exemptions issued in 2015, the rules for security research and vehicle repair were (unlawfully, unnecessarily) delayed by a full year. The exemption gives people some protection against legal threats when they repair, modify, or tinker with their vehicle, or perform security research on consumer devices - including medical devices and vehicles - at least until the next rulemaking period.
Preserving critical Internet safe harbors
EFF also urged the Copyright Office to protect safe harbors for online intermediaries in the Office’s study on Section 512 of the DMCA. Those safe harbors have allowed the Internet to develop as a platform for innovation and free expression and provide crucially important protections for users. Without them, users’ ability to freely express themselves online, to share ideas, information, and to create and innovate would be severely curtailed. EFF advised the Copyright Office against adopting entertainment industry-backed recommendations to undermine those safe harbors by requiring service providers to monitor or filter online content.
At the same time, EFF educated the Copyright Office on how abuse of the DMCA’s notice and takedown process harms users and keeps important speech offline. We outlined steps the office should take to prevent those abuses and protect users from bogus takedowns. That study is ongoing.
Under protest from EFF and a broad coalition of public interest groups, library associations and industry groups, the Copyright Office moved forward with an ill-advised new rule that could undermine safe harbors for millions of service providers. The rule, which went into effect in December, requires all Internet services, including websites that host user-posted content, to renew their DMCA agent registrations every three years, or risk losing the safe harbor’s protections against copyright liability. Internet services now have until December 31, 2017 to re-register.
The Copyright Office is in a library for a reason
Over the last two years we’ve seen a couple of high-profile, entertainment industry-backed proposals to "yank the Copyright Office out of the Library" of Congress, where it’s been since 1870. These proposals have only gained momentum after the public resignation of Register Maria Pallante. But as Public Knowledge explained in its blistering report on the agency, the Copyright Office displays a bias towards the entertainment industries. Why should we give an agency that’s already shown itself vulnerable to industry capture more of an opportunity to cater to those interests, with even less oversight? Like copyright law, the Copyright Office should serve the public as a whole, not just the entertainment industries. As we’ve said before, we think it’s best able to do so under the guidance of someone dedicated to promoting the public’s access to knowledge and culture – a librarian.
The U.S. dawdles in ratifying Marrakesh, and there’s still time to halt Beijing
Beyond the purely domestic, President Obama sent two international copyright treaties to the U.S. Senate for ratification in February. Depending on whether and how they’re implemented, those treaties could affect U.S. copyright law.
The first, the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons With Print Disabilities, reached its ratification threshold and came into effect for countries that had ratified it in June. The United States is not yet one of these. The treaty requires member countries to adopt broad exceptions to copyright law for print-disabled persons, and makes it legal to import and export accessible works without the need to seek permission from the copyright holders. Overly restrictive copyright laws around the world have contributed to a shortage of works in accessible formats. The Marrakesh treaty is a significant step in improving print-disabled persons’ access to accessible books, and there is no excuse for Congress to delay any further in ratifying it.
The Senate has also not yet ratified the second treaty, the Beijing Treaty on Audiovisual Performances. If ratified, this treaty could grant new copyright-like rights to performers—including not only actors, musicians, and dancers, but a potentially broad swath of loosely defined performers—that allow them to restrict access to their performances for decades into the future. This could have serious consequences for journalists, musicians, artists, and anyone who wants to capture and repurpose documentation of live events. EFF and our supporters urged the Senate not to ratify Beijing, and to reject the USPTO’s even more extensive implementation proposal. In 2017 the Senate will have another chance; it’s not too late to tell your member of Congress to reject the USPTO’s proposal and refuse to ratify the treaty.
The White House “IP Czar” gives the nod to shadow regulation
Shadow regulation, the attempt by private companies and government officials to regulate the Internet using secretive, backroom agreements, earned a ringing endorsement from the Obama administration at the end of the year. The U.S. Intellectual Property Enforcement Coordinator (IPEC)—an office inside the White House tasked with developing the administration’s intellectual property enforcement policy—released its new Joint Strategic Plan [PDF] in December. While it acknowledges the importance of limitations and exceptions to copyright, including fair use, the report commends existing agreements, like this one between the MPAA and domain name registries, and calls for increased participation across sectors of Internet services. As we’ve said before, these agreements place substantial power over users’ online behavior in the hands of a few powerful companies, and create opportunities for abuse. They’re especially problematic when government officials encourage such agreements as a way of bypassing normal democratic processes. If the federal government is supporting these agreements, then it should make sure they adequately protect their users’ rights and are accountable to those users.
After Congress’s listening tour in 2015 and several rounds of comments and public roundtables with the Copyright Office, there’s still little to show in terms of concrete legislative proposals for the “Next Great Copyright Act.” But the entertainment and content industries haven’t let up in their pursuit of more draconian copyright laws, and there’s a risk that the copyright reform process could really go off the rails in 2017. If it does, we’ll all need to be ready to let Congress know how powerful Internet users really are.
This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.