The discussion draft, which is intended to bring revolutionary changes to online copyright law, is a proposed DMCA modernization reform released to solicit comments from stakeholders and other interested parties.
Today, Senator Thom Tillis (R-NC), the Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property released a discussion draft of a Digital Millennium Copyright Act (DMCA) reform bill titled the “Digital Copyright Act of 2021” (the discussion draft). The discussion draft, which is intended to bring “revolutionary changes to online copyright law,” was developed based on recommendations in “six hearings of the Subcommittee on Intellectual Property focused on reforming copyright law in the digital environment, … two staff briefings, and … four extensive Copyright Office studies.” The draft DMCA modernization was released in order to solicit comments from stakeholders and other interested parties. Those familiar with Tillis’ approach to patent reform will recognize this approach as similar to his effort to achieve consensus on patent eligibility reform earlier in this Congressional term.
Senator Tillis has requested interested stakeholders, including “large and small, individuals and companies, YouTubers, and independent creators,” to submit redline edits and comments of the discussion draft to the Subcommittee by March 5, 2021. Those wishing to submit comments should send them via email to Intellectual_Property@tillis.senate.gov.
The Need for Reform
There have been many technological advancements and changing business practices since the enactment of the DMCA in 1998 and “copyright law today is ill-suited for the needs of most copyright owners and individual users.” As noted by Senator Tillis in the June Subcommittee hearing, “the grand bargain of the DMCA is no longer working and not achieving the policy goals intended.” Tillis also stated that there may be a “need to design an entirely new system” in order to achieve the goals of “encourag[ing] the creation of copyrightable works and [protecting] users and consumers who are making lawful uses of copyrighted goods and software-enabled products.”
The bill is intended to modernize U.S. copyright law by amending the key provisions of the DMCA for addressing online infringement, modernizing circumvention measures, providing a means whereby authors can be properly credited, establishing the Copyright Office as an executive branch agency of the Department of Commerce, and by creating a copyright small claims tribunal. Other goals of the bill are to “ensure that our copyright system provides both sufficient incentives for creators, important certainty and guidance for OSPs, and necessary protections for individual users and consumers.”
The discussion draft includes several significant revisions to the DMCA, including:
- Increasing roles for various federal agencies in establishing regulations to better protect copyright owners and individual users and to increase certainty for OSPs regarding obligations under section 512, such as establishing standard technical measures that OSPs must accommodate or adopt and best practices that account for differences in size, service, and scale of infringement;
- Clarifying knowledge requirements for OSPs, lowering the specificity with which copyright owners must identify infringing material in certain circumstances, and replacing the notice-and-takedown system in existing law with a notice-and-staydown system for complete and near complete works;
- Utilizing a copyright small claims tribunal, as envisioned by the CASE Act, to resolve disputes between copyright owners and counter-notice senders, as well as for pursuing enhanced penalties under section 512(f);
- Creating a limitation on liability for good faith users who, following a diligent search, are unable to locate the copyright owner and decide to still use the orphan work;
- Establishing the Copyright Office as an executive branch agency within the Department of Commerce, led by a presidentially appointed Register of Copyrights;
- Modernizing the existing permanent exemptions that allow for TPM circumvention for security testing and encryption research, and adding new permanent exemptions;
- Streamlining the triennial rulemaking process for temporary exemptions;
- Expanding the possible scope of temporary exemptions by authorizing the Copyright Office to permit third-party assistance “at the direction of” an intended user and to adopt temporary exemptions for trafficking of circumvention tools when the tool would be used to facilitate an exempted circumvention;
- Providing the author of the copyrighted work with a right of action when someone removes or alters copyright management information on digital or analog copies with the intent to conceal an author’s attribution information.
Stakeholders Weigh In
Following the release of the discussion draft, several stakeholders have already expressed their gratitude and support to Senator Tillis for the changes proposed. Keith Kupferschmid, the CEO of the Copyright Alliance issued a statement thanking Senator Tillis and noting that the discussion draft “represents the first step in what will likely be a long road toward a workable compromise.” Several Copyright Alliance member organizations also issued comments in support of the discussion draft, including the American Association of Independent Music (A2IM), American Society for Collective Rights Licensing (ASCRL), Authors Guild, Graphic Artists Guild, National Press Photographers Association (NPPA), News Media Alliance, SAG-AFTRA, and the Software & Information Industry Association (SIIA). For example, the Author’s Guild thanked Tillis for “his leadership of the process to reform section 512 of the DMCA, and especially for his commitment to ensure that the law responds to the needs of small, individual creators whose livelihoods are being devastated by rampant online piracy” and noted that the “draft reform bill incorporates changes into the law that will help [small copyright owners and individual] creators, as well as improve the ability to have redress against dishonest takedown notices.” In addition, the SIIA commended Senator Tillis for the transparency in the development of his discussion draft and welcomed further deliberation to “the extent that the discussion draft contains provisions relating to the administration of the U.S. Copyright Office …, such as modernization of the registration and deposit requirements.”
Further, a joint statement released by 22 music community organizations noted that it “is long past time to restore the balance that was originally intended by Congress in which rightsholders and Internet platforms work together to promote fairness and efficiency in the digital distribution of copyrighted works” and the discussion draft has started an “important discussion about how best to provide incentives for success.” In agreeing with the conclusions in the U.S. Copyright Office’s report, the statement noted that with respect to “the safe harbor provisions contained in the DMCA (including the inefficacy of the notice-and-takedown system), ‘Congress’ original intended balance has been tilted askew.” The organizations represented by the joint statement noted that they are looking “forward to working with Chairman Tillis and his colleagues from both parties across both houses of Congress, and … partners across the creative ecosystem, to find workable, effective solutions to the serious and ongoing problem of online infringement.”