Enactable House Judiciary Copyright Bill Unlikely in 2016, Aide Says
There is little chance the House Judiciary Committee's Copyright Act review will result in legislation that can pass both the House and Senate before the end of the 114th Congress, House IP Subcommittee GOP Counsel Joe Keeley said during an American Bar Association event Thursday. House Judiciary has been going through a comprehensive Copyright Act review since 2013, concluding its formal meetings with stakeholders last year with a series of roundtables to supplement earlier hearings (see 1509220055 and 1511100063). House Judiciary members must now “figure out where they'd like to go” on legislation to address the myriad copyright issues the committee explored in hearings, Keeley said.
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Keeley said the general election cycle is one of the main reasons for the likely lack of copyright legislation this year, though the complexity of the issues involved in writing a major copyright bill are also a factor. The “approach that you take to moving these issues could have as much bearing” on a viable copyright bill's success as the issues themselves, Keeley said. “Several dozen topics at least” would need to be included in a viable copyright bill for it to get necessary support from stakeholders, he said: “I don't automatically subscribe to the notion that a smaller package of issues” would be easier to move through Congress than would a major omnibus copyright bill.
Stand-alone bills that would address specific music licensing issues or other copyright issues would have a very low chance of making it through even House Judiciary because some stakeholders are likely to lobby strongly for addressing multiple issues via an omnibus bill, Keeley said: “The reality is that it could be decades” before Congress revisits copyright legislation again after the current review ends. Keeley said the 1976 Copyright Act took two decades to enact, while even the America Invents Act took multiple Congresses to complete. Drinker Biddle IP lawyer Janet Fries told Keeley that many stakeholders would favor “some fine-tuning” of copyright law over another “complete overhaul.” Fries cautioned against a legislative process that could take decades to complete. She said stakeholders may seek to “make our goals more modest” if it results in a shorter time frame.
Register of Copyrights Maria Pallante supported House Judiciary's approach to its Copyright Act review, saying the committee is “handling it the right way.” Pallante, a strong proponent of CO modernization, said the Copyright Office for the Digital Economy Act (HR-4241) reflects House Judiciary's information gathering process and is likely to be “the basis of further discussions” and additional legislation. HR-4241 would make the CO a legislative branch agency separate from the Library of Congress, but the White House would appoint the office's leader. The bill would also require the CO’s director to regularly study the office’s IT systems to ensure they meet copyright stakeholders' needs (see 1512140029).
The CO is actively examining copyright issues both to aid the House Judiciary review and to address issues under its own authority, Pallante said. The CO's ongoing studies of the Digital Millennium Copyright Act's sections 512 and 1201 have produced substantial stakeholder feedback, she said, saying the office received an estimated 95,000 total comments (see 1604040051) on the Section 512 study. There are “abuses [of Section 512] on both sides, everybody knows that,” Pallante said. Comments on the Section 512 study have revealed that the CO may need to make recommendations to address both bad faith takedown notices and the section's inability to keep content from remaining offline after an initial takedown occurs, Pallante said. The CO's Section 1201 study is likely to focus on its goal of determining whether to allow presumptive renewal of existing exemptions to the section's ban on circumvention of technological protection measures when there's no formal objection to renewal, she said.