DMCA review moves on with Thom Tillis' draft Digital Copyright Act of 2021

 By Emmanuel Legrand

Following a consultation process and hearings with stakeholders in 2020, Senator Thom Tillis (R-NC) (pictured, above), Chairman of the Senate Judiciary Subcommittee on Intellectual Property, published at the end of last year the "first discussion draft" of the Digital Copyright Act of 2021 (DCA), a new piece of legislation that would reform and update 1998's Digital Millennium Copyright Act (DMCA).

  If passed by Congress, the DCA would address some of the issues that rights holders have been facing with the DMCA, in particular with Section 512 of the DMCA which provides shelter from liability to internet platforms if they remove infringing content when notified by rights holders.

  The office of Senator Tillis said that the DCA would "amend key provisions for combating online copyright piracy, improves the exemptions available to users for circumventing technological protection measures (TPMs), increases attribution protections so that authors can be properly credited, and makes the Register of Copyrights a Presidential appointee and places the Copyright Office under the Department of Commerce." Interested parties have until March 5 to submit their comments on the draft bill.

Ill-suited copyright law

  In a statement, the office of Senator Tillis wrote that the current law "shows the strain of a statute that has not adapted well to the technological advancements and changing business practices" that have occurred since the DMCA was enacted. It added that "copyright law today is ill-suited for the needs of most copyright owners and individual users."

  Therefore, rather than "tinker around the edges" of existing law, the position of Senator Tillis is that modernising US copyright system would be better achieved through a complete overhaul of the framework. Senator Tillis commented: “This discussion draft is the result of a year-long series of hearings and months of feedback from creators, user groups, and technology companies. This is just the first step in a long and lengthy process, and I look forward to receiving feedback from stakeholders and releasing a second discussion draft in April. We will then bring all interested parties to the table and work on negotiating a compromise piece of legislation that looks out for the equities and interests of copyright owners, content users, and consumers."

Defining online service providers

  As part of the process, Senator Tillis has asked the National Telecommunications and Information Administration (NTIA) to draft a study of online service providers (OSPs) and recommendations for how to characterise them. The NTIAs study will be "crucial" to the Senator "as he considers which online service providers should be subject to these new requirements, and whether requirements should vary across service providers based on size, scale, and service type."

  Revisions of the DMCA in the bill include:

  > 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;

  > Utilising 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 who would serve for a five-year term;

  > Modernising 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.

A long and thorough process

  Tillis said he anticipated that it will be a "long and thorough process, but I look forward to my colleagues and I being able to vote on compromise legislation at some point during my second term. I hope each and every person who has a stake in copyright law will engage in this process in good faith and work with me to modernize copyright law for the 21st century.”

  Copyright Alliance CEO Keith Kupferschmid said the review process launched in 2020 by Senator Tillis was "comprehensive and thoughtful" and "helped shine a spotlight on critical concerns and shortfalls of Section 512 of the DMCA." He elaborated: “If the internet platforms would negotiate in good faith with the copyright community, many of our concerns with Section 512 could be addressed voluntarily. Unfortunately, since they have not done so, we must now consider potential legislative solutions."

  The American Society for Collective Rights Licensing, which represents some 16,000 individual illustrators and photographers, expect that the reform will result "in a fair, balanced, and equitable solution for all of the stakeholders concerned with Section 512. It is an effort critical to the rights and the livelihood of this business community."  

Restore the balance

  Some 22 music organisations issued a joint statement in which they commend Senator Tillis for his proposal "to restore balance to the Digital Millennium Copyright Act." They wrote: “Through a thoughtful, deliberative process, Senator Tillis has developed an important proposal. By digging deep into the substance, engaging a broad universe of stakeholders and experts, and confronting the issues, Senator Tillis and his team have started an important discussion about how best to provide incentives for success. It is long past time to restore the balance that was originally intended by Congress in which rights holders and Internet platforms work together to promote fairness and efficiency in the digital distribution of copyrighted works."

  Consumer advocacy group the Electronic Frontier Foundation (EFF) said the bill, if passed, "would absolutely devastate the Internet." In a blogpost, Katharine Trendacosta, EFF's Associate Director of Policy and Activism, wrote: "We want to be clear about our opposition from the start: this bill is bad for Internet users, creators, and start-ups. The ones with the most to gain? Big Tech and Big Content."