IPTF Proposes New Look at Copyright, Fair Use Online

Report Calls for Reviewing DMCA Takedown System, Remixes/Mash-ups, Secondary Liability

The Obama Administration is proposing that government and the private sector take a fresh look at balancing both copyright protection and online creativity and copyright exceptions given the rise of new ways to distribute and creatively manipulate content. The goal, said one senior administration official, is to "strike a balance between complex opposing forces."

The Department of Commerce's Internet Policy Task Force (IPTF) Wednesday released a Green Paper analysis of the current state of copyright policy in the digital economy, but it also seeks comment on several proposals, including: improving, or at least talking about improving, the notice and takedown system under the Digital Millennium Copyright Act;  "the relevance and scope" of the first sale doctrine "given technological developments since the issue was last examined by the Copyright Office in 2001," and looking at the legal framework for remixes. "The question is whether the creation of remixes is being unacceptably impeded," the report says.

Other proposed actions include examining "the application of statutory damages in the context of individual file-sharers and secondary liability [ISPs who knowingly permit infringement, for example] for large-scale online infringement" and "the appropriate role for the government, if any, to help improve the online licensing environment, including access to comprehensive public and private databases of rights information."

It also reiterates the administration's support for legislation creating a performance right for broadcasting sound recordings -- something broadcasters are strongly opposed to -- and for making unauthorized streaming for unauthorized online streaming.

A senior administration official speaking on background said the report takes no policy positions other than those that the Obama administration has already established, like the support for a performance right and making unauthorized streaming a felony, as is unauthorized downloading of copies of copyrighted works.

Another official said they hope the paper would help frame current congressional debates over copyright legislation, but that the answers are not all achievable through legislation.

They said that copyright has always evolved in light of technological changes, from the piano role, to TV to the computer, which has an impact on copyright of a magnitude that is arguably unprecedented, they said.

The officials emphasized that a multistakeholder model is the best way to address copyright issues. "We hope to engage with stakeholders, and want them to engage energetically," said one official. That could be an ongoing forum on issues that arise, similar to the recent stakeholder process that produced suggested mobile app data sharing guidelines, said one official.

They are looking to avoid contentious debates, like that over IP protection legislation in the last Congress, that they argue obscured the practical issues and made a constructive process difficult.

"We see a digital future in which the relationship among digital technology, the Internet, and creative industries becomes increasingly symbiotic," said NTIA chief Lawrence Strickling of the new Green Paper. "In this digital future, the rights of creators and copyright owners are appropriately protected; creative industries continue to make their substantial contributions to the nation's economic competitiveness; online service providers continue to expand the variety and quality of their offerings; technological innovation continues to thrive; and consumers have access to the broadest possible range of creative content."

Driving the Green Paper are the tens of millions of jobs and trillions of dollars in GDP represented by intellectual property-driven industries like content producers, according to new Secretary of Commerce Penny Pritzker, but also to "nurture creative resources" that are the nation's "lifeblood."

The paper encourages ongoing voluntary efforts against infringing websites, like the joint ISP/studio "Six Strikes" initiative, and extends the Patent and Trademark's request for comment on how to measure and assess the effectiveness of such voluntary agreements, which the Administration called for as part of its Joint Strategic Plan for Intellectual Property Enforcement it announced last month. 

The paper is a product of IPTF, whose cochair is former cable attorney Cameron Kerry, with input from the Patent and Trademark Office and NTIA. Among those providing feedback for the report or comment on the process or participated in symposia related to it were the National Cable & Telecommunications Association, the Motion Picture Association of America, NBCU, AT&T, Google, YouTube, the Screen Actors Guild, The Independent Film & Television Alliance and the Consumer Electronics Association.

The report also seeks congressional or regulatory action -- without saying what that action should be -- on rate-setting standards for digital music, supporting music licensing reform, and supporting consumers' ability to unlock cell phones subject to applicable service agreements.