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Copyright Office Issues Its Priorities and Those of Interest to Higher Education

Register of Copyrights Maria A. Pallante recently made public her office’s priorities and special projects through October 2013. The document articulates 17 priorities in the areas of copyright policy and administrative practice, as well as 10 new projects designed to improve the quality and efficiency of the U.S. Copyright Office’s services.

The following are five excerpts from the report that are of potential interest to the higher education community.

Rogue websites

Typically, these websites make money either by directly selling pirated copies to the public, often accepting payment by means of major credit cards, or by selling advertising on the sites. Potential legislative solutions would make it possible for the United States Attorney General (and possibly copyright owners) to obtain various court orders including: injunctions ordering operators of the sites to cease their infringing activity; orders to credit card companies and Internet advertising agencies to cease providing services to the websites; and orders requiring domain name server operators and search engines to cease directing end users to websites. In March 2011, the Register of Copyrights testified about the problem before the House Judiciary Committee, recommending that Congress design legislation to “follow the money,” while also considering the role of all players in the website ecosystem (www.copyright.gov/docs/regstat031411.html).

Illegal streaming

In 1997 and 2004, Congress updated the criminal remedies for copyright infringement to take into account the increasing harm from evolving forms of infringement on the Internet. The focus of those amendments, however, was on the unlawful distribution of “copies” (addressing the rights of reproduction and distribution). Since that time, streaming (which primarily implicates the exclusive right of public performance) has become a major form of dissemination for copyrighted work and illegal streaming has become a more serious threat to copyright owners and legitimate U.S. businesses.  Streaming legislation has been introduced in the Senate; the House is expected to address the issue in a comprehensive intellectual property enforcement bill to be introduced in October 2011. The Register of Copyrights testified on the issue before the House Judiciary Committee in June 2011, highlighting the importance of streaming in the legitimate marketplace and calling for an increase in criminal penalties for egregious cases (www.copyright.gov/docs/regstat060111.html).

Prohibition on circumvention of measures controlling access to copyrighted works

The Copyright Office has commenced its fifth triennial rulemaking (the initial rulemaking occurring in 1998) in accordance with provisions of the Digital Millennium CopyrightAct (DMCA) that may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works when the circumvention is undertaken for certain non-infringing uses. Initial public comments on the current (de novo) rulemaking process are due December 1, 2011. Reply comments will be due in February 2012 and hearings will be conducted in the spring of 2012 (www.copyright.gov/1201).

Orphan works

One issue that has been very widely discussed in recent years is how to create a legal framework to facilitate the authorized use of so-called “orphan works.” Orphan works are defined, in this context, as works for which authors cannot be identified and located by prospective users in situations that would otherwise require permission and licenses. The House and Senate worked extensively on orphan works legislation in the 109th and 110th Congresses. The topic then stalled after the parties to litigation involving the Google Book Search program announced a proposed settlement agreement in part because it had implications for orphan books. However, in 2011 the court rejected an amended version of the settlement, expressly ruling that the disposition of orphan works belongs with Congress, not the courts. The Copyright Office will continue to provide analysis and support to Congress on this important issue.

Research partnerships with academic community

In recognition of the importance of scholarly research, the Copyright Office will develop opportunities for law schools and universities interested in collaborating with the Office on research projects, subject to the highest standards of scholarship. This work will build upon fundamental principles of copyright law and include emerging issues. A core objective is to publish joint scholarly papers on copyright topics of national and international importance that will be helpful to the work and mission of the Copyright Office and Congress. Additionally, the Office will explore fellowships or other scholar-in-residence programs to produce scholarly research on matters of copyright law and policy. These partnership opportunities (and the topics of interest) will be announced publicly and will be awarded using a standard government selection process. The Office will begin seeking proposals in 2012.

EDUCAUSE will be meeting with members of the Copyright Office next week to explore areas of mutual interest and concern.

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