CO Offers DMCA Copyright Change, Other Alterations in Moral Rights Report
Congress can strengthen the U.S. moral rights framework through legislative amendments and other changes, the Copyright Office said in its long-awaited report on attribution and integrity protections (see 1703300036). The office offered specific amendments for improving the framework, and listed copyright elements it believes are working well and shouldn’t be changed. It began a study in January 2017 of potential changes for protecting moral rights as defined in the Berne Convention (see 1701230061). Tuesday’s report is the first comprehensive look at the U.S. moral rights framework in 30 years.
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Congress should consider adding a cause of action to Section 1202 of Title 17, allowing creators to recover civil damages when an offender knowingly removes or alters copyright management information (CMI) “with the intent to conceal an author’s attribution information,” the CO said. Enacted as part of the Digital Millennium Copyright Act, 1202 prohibits the removal, alteration or falsification of “certain categories of information regarding a copyrighted work.” A cause of action would “protect against liability for innocent or good faith removal of CMI, while giving creators a new tool to prevent deliberate efforts to conceal their authorship of a Work,” the CO said.
The office recommended not altering the copyright law’s derivative work right, state moral rights statutes and contract law, which it said are “generally working well.” Any changes to the current framework should be “harmonized” with other “critical elements” of U.S. law like the First Amendment, the CO said.
A blanket moral rights statute isn't needed now, the report said. Such a statute could protect photographers in new ways but would “likely produce only an overlay of duplicative attribution protection for directors, screenwriters, and performers who are already substantially protected by industry-specific collective bargaining agreements,” the CO said. A blanket statute might also under-protect creators like freelance journalists and commercial visual artists who lack collective bargaining power, said the 172 pages.
The CO offered three “relatively minor legislative improvements” to the Visual Artists Rights Act, which provides “limited moral rights of attribution and integrity to authors of qualifying ‘works of visual art.’” The CO suggested clarifying that VARA’s “exclusion for ‘commercial art’ is limited to artworks both created pursuant to a contract and intended for commercial use.”
The office recommended clarifying how courts interpret the “recognized statute,” requiring courts to “consult a broad range of sources.” The CO also recommended not allowing a joint author to waive “another joint author’s moral rights under VARA without the written consent of each affected author.”
Another recommendation was to expand unfair competition protections in the Lanham Act “to include false representations regarding authorship of expressive works.” The act regulates commercial use of trademarks. Such an amendment should be “narrowly crafted to protect only against consumer confusion or mistake as to authorship or attribution of such works, and not to provide copyright protection or afford the author any additional control over permissible uses of the work,” the CO said.
Congress should consider adopting a federal right of publicity law to reduce uncertainty created by a patchwork of state laws, the CO said, recommending the federal statute as a non-pre-emptive floor. Such a law should “ include an exception for First Amendment-protected activities,” the study said.