Nadler Renews Interest in DMCA S. 512 Revamp

Chairman Jerry Nadler of New York and other House Judiciary Committee members drilled down Wednesday on how to structure potential legislation to revamp Digital Millennium Copyright Act Section 512 (see 2009300068). They cited the need to bring back balance to how DMCA prioritizes interests of content creators, consumers and major tech platforms. Senate Intellectual Property Subcommittee ranking member Thom Tillis, R-N.C., hopes to introduce DMCA revamp legislation soon that places a heavy emphasis on addressing Section 512 (see 2103080053).

Nadler noted his continued interest in advancing a coming version of the American Royalties Too (Art) Act, which would give visual artists a percentage of proceeds when their work is resold. He and other Judiciary members eyed Copyright Office work on IT modernization and implementation of the 2018 Music Modernization Act and Copyright Alternative in Small-Claims Enforcement Act (see 2012220061). Republicans interspersed questions with criticisms of Nadler prioritizing a CO oversight hearing over what they consider more pressing, unrelated matters.

Nadler emphasized the need for a Section 512 revamp since the CO found last year the statute’s balance “has been tilted askew” since DMCA’s 1998 enactment. This law has generally “proven to be a success,” though updates are needed, said Rep. Zoe Lofgren, D-Calif. She wants to "make sure that the little guys don’t get squashed” because of changes in the market. House IP Subcommittee ranking member Darrell Issa, R-Calif., believes an update should allow AI and other new technologies to automate takedown of content previously subject of the notice-and-takedown process, so it can occur “in milliseconds.” Reps. Ted Deutch, D-Fla., Sheila Jackson Lee, D-Texas, and Greg Steube, R-Fla., also eyed the issue.

Judiciary ranking member Jim Jordan, R-Ohio, signaled interest in pursuing a Section 512 revamp, also wanting to examine “other areas” of DMCA “that can be improved.” Copyright is an issue “ripe for bipartisan work,” and “I hope that [Nadler] will finally start to pay similar attention to other issues that Americans want us to deal with,” including immigration, Jordan said. Other Republicans criticized Nadler's committee priorities. There's a “time and place” for discussing copyright law, said Rep. Steve Chabot of Ohio: “The building is one fire, and we’re talking about rearranging the furniture.”

Register of Copyrights Shira Perlmutter emphasized that she wasn’t in that role when CO last year recommended adjustments to the statute (see 2005210057). She agrees “with its conclusions and recommendations.” The law original goal “was to find the right balance” between stakeholders in the online ecosystem, so owners make “very specific” legislative recommendations, but all sides noted ways Congress can “restore” the originally intended balance, she said.

Nadler argued that Congress needs to enact the type of resale royalty right the Art Act envisions because it “addresses the disparity that arises in the field of visual arts because such artists do not benefit from the copyright system in the same way as other creators since they generally do not sell many copies.” The bill “is a matter of basic fairness and would put us in the company of more than 70 other countries,” he said. “It would also ensure that Americans receive royalties when their works are sold abroad in those other countries.”

Issa signaled his interest in the Art Act and is concerned about the language: “We want to get this bill right.” The measure appears to propose “a retroactive taking” of royalties for existing art that wasn’t included in sales agreements when an artwork was originally. That's the “biggest challenge” in advancing the bill, Issa said. Rep. Louie Gohmert, R-Texas, was concerned the Art Act could result in “new quasi government bureaucracies collecting royalties on some art market participants but not others.”

Lofgren believes CO IT modernization should be its “No. 1 top priority” because “if we manage to do that,” copyright holders “will actually be empowered in a way that they never have before.” Chabot urged the office not to make copyright registration a “one-size-fits-all process.” Perlmutter said IT modernization is “absolutely” a top agency priority and will be “critical for the future of the office.” The CO’s hit “a number of major milestones” and aims to “meet our goal of retiring” its legacy copyright registration system by Dec. 31, 2024, she said.

Other lawmakers signaled other priorities. Deutch wants a terrestrial radio performance royalty right, ensuring a radio broadcaster “plays by the same rules as satellite and internet radio” stations. Seventy-seven lawmakers refiled Tuesday the Local Radio Freedom Act, which NAB touts as a measure of congressional opposition to a terrestrial performance right. Perlmutter said CO backs a terrestrial right, citing need for reciprocity with other countries to ensure U.S. musicians receive overseas royalties.

Rep. Tom Massie, R-Ky., raised concerns of “a sneaky attempt by Congress to” again extend copyright terms beyond 70 years after the author’s death. This term is far out of balance with the existing 20-year expiry for patents and doesn’t reflect that patents are becoming “harder and harder to enforce,” he said. Perlmutter responded that she has “not heard anyone pushing for a further extension” of the copyright term and she has “no intention of supporting” one.