Congress Must Weigh International Obligations in Copyright Legislation, Stakeholders Say
Congress will need to be mindful of the U.S.'s IP-related treaty and trade obligations as it considers copyright modernization legislation, government officials and stakeholders said Friday during a Columbia Law School Kernochan Center for Law, Media & the Arts event. House and Senate Judiciary committees are expected to extend their existing Copyright Act review into the next Congress by moving forward with work on potential legislation (see 1607150022). House Judiciary Chairman Bob Goodlatte, R-Va., is expected to release a white paper outlining the committee's copyright legislative priorities (see 1605110059).
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The U.S. has taken a leading role in driving IP-related provisions in treaties and trade agreements in the decades since the 1976 Copyright Act and U.S. ratification of the Berne Convention in 1989, Associate Register of Copyrights Karyn Temple Claggett said. U.S. officials previously sat on the sidelines for more than 100 years of international copyright law harmonization, she said. Now, the U.S. clearly has “learned its lesson” that “copyright isolationism doesn't work” in an increasingly global world, Claggett said. The U.S.'s leading role in copyright law harmonization allowed the government to influence agreements to favor American laws, such as a provision in the controversial Trans-Pacific Partnership that mirror the U.S.-favored copyright term covering an author's lifespan plus 70 years, Claggett said.
Association of Research Libraries Director-Public Policy Initiatives Krista Cox warned against making copyright-related language in agreements overly prescriptive, saying a lack of flexibility in agreements' language could “constrain” Congress from making changes. The country would need to renegotiate any trade agreement with a rigid IP provision after passing copyright legislation if the trade agreement contained language that reflected outdated U.S. law, Cox said. She pointed to language in many bilateral U.S. trade agreements that allows for only narrowly drawn exemptions to a ban on circumvention of technological protection measures (TPM), reflecting language in the Digital Millennium Copyright Act. The Copyright Office is considering recommendations to revamp DMCA Section 1201, which deals with TPM exemptions. It's “unclear” whether bilateral agreements would allow for any new exemptions created in a Section 1201 revamp, Cox said.
International Intellectual Property Alliance Counsel Eric Schwartz said copyright law harmonization “works both ways,” with U.S. policies coming to the forefront in treaties when they're “effective in an ineffective world.” If a policy is ineffective, nations “wouldn't be asking for it” to be included in a trade agreement, Schwartz said. Much of the substantial norms-setting is now done for the foreseeable future following enactment of the 1996 World Intellectual Property Organization Copyright Treaty and WIPO Performances and Phonograms Treaty, Schwartz said. “That's why bilateral agreements are important” since they “pick up where [the treaties] left off,” he said.