Few Early Signs on Copyright Policy in Clinton, Trump Campaigns

It's early to definitively say how either presumptive Democratic presidential nominee Hillary Clinton or presumptive Republican presidential nominee Donald Trump would handle copyright issues as president. An early reading points to neither deviating from the status quo, copyright lobbyists told us. Clinton's tech policy agenda, released Tuesday (see 1606280071​), mentions copyright policy. Trump's campaign pointed us to its existing policy statements, which reference intellectual property policy only in the context of U.S. trade relations with China.

The U.S. copyright system “has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age,” Clinton's campaign said in its tech policy fact sheet. Clinton “believes the federal government should modernize the copyright system by unlocking -- and facilitating access to -- orphan works that languished unutilized, benefiting neither their creators nor the public.” The campaign said Clinton will “promote open-licensing arrangements for copyrighted material and data supported by federal grant funding” in education and other fields. Clinton also favors Copyright Office IT modernization efforts aimed at “digitization, search, and repositories of such content.” The campaign said Clinton also favors stakeholder collaboration on removing barriers to “seamless and efficient” content licensing.

Trump favors “forcing China to uphold intellectual property laws and stop their unfair and unlawful practice of forcing U.S. companies to share proprietary technology with Chinese competitors as a condition of entry to China's market,” his campaign said in a position paper. “China's ongoing theft of intellectual property may be the greatest transfer of wealth in history. The theft costs the U.S. over $300 billion and millions of jobs each year. China's government ignores this rampant cybercrime and, in other cases, actively encourages or even sponsors it.” Trump referenced China's IP theft during a speech Tuesday in Monessen, Pennsylvania.

Neither a Clinton nor a Trump administration appears likely to “change the status quo that much” on copyright policy, though “we haven't heard much from either campaign” on IP issues thus far, said Digital Media Association General Counsel Greg Barnes. Neither candidate has the same “close relationship” with Silicon Valley that President Barack Obama's administration does, though there's always the possibility that such a relationship could develop, Barnes said. Either administration is likely to have the greatest impact by influencing the copyright legislative debate in the House Judiciary Committee, he said.

Trump's campaign may face some pressure from the tech sector to release a specific policy agenda to address the positions Clinton staked out Tuesday, but it's likely to “fall on deaf ears,” an industry lobbyist told us. Library Copyright Alliance counsel Jonathan Band said he doesn't “see why it would at all be in [Trump's] interest to get into detail on any specific issue that deviates from his core message.” Trump is likely to be most interested in trademark policy since his business interests have been so closely tied with his brand, Band told us: “One could imagine that his instinct would be to be very pro-trademark protection,” but it's less clear that Trump would stake out a particular position on copyright policy. Much of the responsibility for shaping copyright policy in a Trump administration would likely be delegated to federal agencies rather than being centralized at the White House, Band said.

It's difficult to directly compare the copyright policy positions of Clinton and Trump without a more detailed tech agenda from the Trump campaign, said Computer and Communications Industry Association Vice President-Law and Policy Matthew Schruers. Clinton's copyright policy statement indicates a Clinton White House would at least maintain the same stances as the Obama administration but may go further in some areas, he said. Clinton's policy “acknowledges that copyright should be an incentive-based system that rewards creativity” while also saying that “enforcement mechanisms that would impede the flow of information like [the failed 2012 Stop Online Piracy Act] are a bad idea,” Schruers said. He noted that Clinton's proposal for open licensing of federally funded research has the potential to even “go beyond” the Obama administration's position.

Clinton's copyright policy position indicates her administration likely would “be pretty consistent” with the Obama administration on copyright policy, favoring a balance between the tech sector's interests and those of content creators, Band said: “Her tech agenda shows there's a growing awareness that it's important to respond to the needs” of industry stakeholders on copyright. Band said Clinton also favors reducing excessive patent litigation and strengthening Patent and Trademark Office operations. Barnes pointed to Clinton's response Tuesday to a question about revenge porn, the unauthorized publication of someone's naked or scantily-clad images by a spurned sexual partner. Clinton told YouTube star Chrissy Chambers during a town hall event that she would “do everything I can as president to try and figure out how we can give victims like you the tools you need, and the rest of society should support, to be able to protect yourself and, by doing so, protect others.” Clinton's response may be indicative of her stance on the Digital Millennium Copyright Act's safe harbor provisions, Barnes said. The debate over addressing revenge porn involves Communications Decency Act Section 230, which is a “close cousin” to the DMCA's Section 512, Barnes said. “The same rules that apply to Section 230 apply” to DMCA safe harbors, which is important given the music industry's ongoing push for Congress to revamp the safe harbors, Barnes said: “I can't imagine that issue won't come up” during a Clinton campaign event if the music industry chooses to make it an issue.