Senate IP Subcommittee to Form Copyright Office Modernization Group

The Senate Intellectual Property Subcommittee will form a bipartisan, bicameral working group to aid the Copyright Office’s modernization effort and introduce related legislation before year-end, Chairman Thom Tillis, R-N.C., said Tuesday. Ranking member Chris Coons, D-Del., and Sens. Marsha Blackburn, R-Tenn., and Mazie Hirono, D-Hawaii, are interested in joining, Tillis told us. House members will be invited.

Tillis' comments came during an oversight hearing with Register of Copyrights Karyn Temple, who discussed the Music Modernization Act’s mechanical licensing collective (MLC) (see 1907080032) and the ASCAP and BMI consent decrees (see 1906060017). Temple also explained the CO's decision to again recommend Congress not reauthorize the distant signal statutory license provision in the Satellite Television Extension and Localism Act after Tillis asked her what she would "say to those who would be opposed” to letting the language expire. The CO made the recommendation in June (see 1906030065). The distant signal language is a leading issue in Capitol Hill’s debate over STELA renewal, with NAB repeatedly citing it in its argument for Congress to let the statute sunset at the end of this year (see 1906050083). The issue also came up during a June House Judiciary Committee CO oversight hearing (see 1906260071).

The number of subscribers that rely on that license has dropped drastically in recent years, with the CO finding that related royalties reduced by 85-99 percent between 2014 and 2018, Temple said. That shows a “dramatic decline” in use of the license. The “market has developed such that we will be able to adequately provide for those subscribers in the actual marketplace,” she said. Five recreational vehicle industry groups urged Senate Judiciary leaders Monday to retain the distant signal language (see 1907290063).

The CO doesn’t want the government to disrupt business practices built around the consent decrees, Temple testified. The office reviewed the decrees from a copyright perspective in 2015, she said, noting DOJ’s current antitrust examination. The decrees are from the 1940s, and there are questions whether they’re outdated, she said. The CO wants to review the decrees closely with Congress, she said.

The CO expects to issue a study in July 2021 on best practices for the MLC to reduce incidents of unclaimed royalties. Expect a CO recommendation to Congress from its Digital Millennium Copyright Act Section 512 study before the end of the year, Temple said. The CO has studied the issue for the past two years, and collected more than 90,000 comments, she said.

Hirono relayed concern the MLC lacks incentive to identify small, independent artists within the statute’s three-year window. The worry is that the MLC will sit back and wait for royalties to revert to larger publishers, she said.

Entities designated to the MLC -- the Digital Media Association and the National Music Publishers Association -- said locating and paying such artists is their No. 1 priority, Temple said. The CO and the MLC are required to engage in royalty outreach and engagement, she said.

Temple said the CO has long supported the establishment of a small claims court to handle copyright complaints, so independent artists aren’t forced to take cases to federal court. That’s the main thrust of the Copyright Alternative in Small-Claims Enforcement Act, from Sens. John Kennedy, R-La.; Dick Durbin, D-Ill.; Tillis and Hirono (see 1907180029). The cost burden on individual creators and marginalized communities precludes them from fully protecting their rights, she said. It’s critical that copyright law is up to date and effective for everyone, she said.

Internet streaming is an important medium, but copyright infringement laws haven’t kept up, Temple said. Unlike other infringement violations, illegal streaming can be charged only as a misdemeanor, she said, noting more stringent penalties for illegally downloading. She suggested illegal streaming is an area Congress should explore.