US Congress new stimulus package includes copyright bills and relief measures for the creative sector

 

By Emmanuel Legrand


The end of the year delivered an avalanche of measures and bills that will have a significant impact on the creative communities and industries in the USA, with the signing into law by outgoing President Donald Trump on December 27 of the 5,600-page Consolidated Appropriations Act, 2021.

  The $900 billion Covid-19 relief package, negotiated between the House and the Senate, includes several copyright provision as well as measures that will directly benefit the creative sector, in particular the Save the Stages Act, which will inject $15 billion into the live music sector and other creative businesses. The package also gives access to freelancers and gig workers (known as "mixed-earners") to some financial support, up to $100 a week, which they did not have access to in the previous package voted in March 2020.

  On the copyright side, the package includes the Copyright Alternative in Small-Claims Enforcement (CASE) Act and the Protecting Lawful Streaming Act (PLSA). In addition, at the end of last year, Senator Thom Tillis has published a "discussion draft" of the proposed Digital Copyright Act, which has the ambition to update the Digital Millennium Copyright Act (DMCA) of 1998. 

Important provisions for the creative sector

  Discussions on the stimulus package included a mobilisation of the entire music sector to ensure that the new package would include measures benefiting the creative community. Dozens of organisations joined forces and sent to the leader of the House and Senate a letter urging them to include in the bill provisions such as the Mixed Earner Pandemic Unemployment Act, the CASE Act and the Save Our Stages Act.

  Reacting to the news that the stimulus package made it through, David Israelite, President and CEO of the National Music Publishers' Association (NMPA), wrote on Twitter: "Four important provisions here for songwriters: CASE Act to establish copyright small claims courts, Felony Streaming to go after thieves, Save Our Stages for live music venues and Mixed Earner fix so songwriters can receive unemployment benefits. Music industry came together as one to fight for these."

  Creators' advocacy group Artist Rights Alliance welcomed the inclusion in the Covid relief bill and omnibus appropriations act provisions to provide economic assistance for venues and unemployment programmes "that determine benefit amounts by taking into account the multiple sources of income many songwriters and artists rely upon to earn a living wage." ARA also praised the inclusion of "measures to create a better music economy for the long term," such as the CASE Act and bill on piracy in the streaming age.

A much-needed lifeline

  For Harvey Mason jr., Chair & Interim President/CEO of the Recording Academy, by passing the stimulus package, Congress has "ensured that both music creators and those who act behind the scenes to bring music to life are given the support they need during this difficult time."

  
  In a joint statement, the American Association of Independent Music (A2IM), Artist Rights Alliance (ARA), Music Artists Coalition (MAC), Nashville Songwriters Association International (NSAI), Recording Academy, Recording Industry Association of America (RIAA), SAG-AFTRA, and Songwriters of North America (SONA), said the legislation offered "a much-needed lifeline for so many in the music industry who have faced loss and uncertainty for far too long through no fault of their own."

  They added: " We are very grateful for the extension of vital CARES Act benefits including Pandemic Unemployment Assistance, and the inclusion of the Save Our Stages Act, which will make billions of dollars in grants available to venues and live entertainment workers who have been unable to do their jobs for months. We are also thrilled by the inclusion of a dedicated $100 weekly benefit for mixed earners. Simply put, these relief provisions will save lives and livelihoods, and they are a substantial step on the road to recovery. 

A fairer digital environment
 
  It continued: “We also welcome the inclusion of consensus-driven intellectual property reforms in the omnibus bill. The Copyright Alternative in Small-Claims Enforcement (CASE) Act and Protect Lawful Streaming Act (PLSA) will strengthen creators’ ability to protect their works against infringement online, and promote a safer, fairer digital environment, which are particularly needed as the arts struggle to survive the pandemic. We look forward to continuing our work to provide greater relief for the American creative community.”   

> The CASE Act
  The CASE Act, which was first introduced in 2016, creates within the US Copyright Office a “small-claims” tribunal to rule on copyright disputes that do not need to go through the federal court system. A three-member panel, made of copyright experts appointed by the Copyright Office, will rule on cases of copyright infringement filed by rights holders.

  The system allows for alleged infringers to "opt out". Damages will be limited to $15,000 maximum for each infringed work and $30,000 for all of the works infringed. Statutory damages in federal court can reach up to $150,000 per infringed work.

  “The Copyright Office has long supported a solution for the challenges posed for asserting small copyright claims and is pleased that Congress has passed the CASE Act," said Shira Perlmutter, Register of Copyrights and Director of the US Copyright Office, said. "We are looking forward to implementing the Act and providing access to dispute resolution for the parties involved in such claims.”  

  The Copyright Alliance, which has been an advocate of the bill, has argued over the past two years that the CASE Act would provide an affordable option for the class of creators that does not have the means to go through federal courts but are seeking remedies when their copyright is infringed. “The CASE Act has been a critical legislative priority for hundreds of thousands of photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers and many other creators and small businesses across the country," said Copyright Alliance CEO Keith Kupferschmid. 

  He added: "For far too long, these individual creators have had rights but no means of enforcing them due to the expense and complexity of federal court. With today’s passage of the CASE Act, creators will have a voluntary, inexpensive and streamlined alternative — a small claims tribunal that will be housed within the US Copyright Office — enabling them to defend their copyrighted works from infringement."

   The bill was welcomed by organisations representing creators such as the Authors' Guild whose President Doug Preston said the the CASE Act was "a very important win for authors." He added: "It gives them a practical channel for seeking remedies for the violation of their rights. Until now, authors and other creators have had no way to enforce their rights except to bring expensive federal lawsuits. This has left writers with no ability to fight pirates or big companies, who can out-litigate them, for stealing their work.

”
   Maria A. Pallante, President and CEO of the Association of American Publishers, and former Register of Copyrights, said the CASE Act “represents years of reasoned analysis, public feedback, and bipartisan leadership on Capitol Hill.”  

  NMPA's Israelite said the CASE Act will "help creators" by providing "a reasonable and needed pathway to justice for everyone from songwriters to photographers whose work is being used unlawfully."

  Consumer advocacy group the Electronic Frontier Foundation has opposed from the outset the CASE Act. In a recent blog, the EFF wrote: "The CASE Act is supposed to be a solution to the complicated problem of online copyright infringement. In reality, it creates a system that will harm everyday users who, unlike the big players, won’t have the time and capacity to negotiate this new bureaucracy."

  Fight for the Future, another organisation opposing the CASE Act, said via its deputy director Evan Greer, that the CASE Act was "a terribly written law that will threaten ordinary Internet users with huge fines for everyday online activity. It’s absurd that lawmakers included these provisions in a must-pass spending bill."

  > Save Our Stages
  This provision in the stimulus package injects $15 billion into live entertainment venues, from movie theaters to concert halls, with a focus on small, independently owned companies. The initiative, which was supported by Senators Amy Klobuchar, John Cornyn and Minority Leader Chuck Schumer, is also open to theatrical producers, live performing arts organisations, and museums.

  To qualify, applicants much not tick more than two of these categories: Publicly traded companies; Multinational companies; Companies that operate in more than 10 US states; Companies that have more than 500 full-time employees; Companies that have received at least 10% of its revenue from government sources.

  Billboard explained that venue operators, promoters, music managers and talent agencies can apply for non-repayable, two-part grants covering as much 45% of a venue’s 2019 revenue, with a $10 million cap. A second in spring 2021 could increase the allocation of funds. To qualify, applicants must have been in business on Feb. 29, 2020, and show 2020 revenues decreased by at least 25% on a quarterly basis compared to 2019.

  For cinemas, The Wrap noted that the rules will prevent national movie theater chains like AMC, Cinemark and Regal Cinemas, along with many regional chains, to apply for grants, but the bill "will offer relief for hundreds of independent movie theaters that the National Association of Theater Owners has warned for months will fall into bankruptcy if aid is not provided."

  For the first two weeks, the Save Our Stages grants primarily be allocated to companies whose revenue from April to December were down more than 90% compared to 2019, then for two additional weeks to those who lost between 70 and 90% of their revenues. 

 > Protecting Lawful Streaming Act
  The bill introduces harsher penalties for commercial streaming and digital transmission services that willfully provide access to unlicensed streamed content. The PSLA makes illegally streaming of copyrighted material by “commercial, for-profit streaming piracy services" a felony, instead of a misdemeanor in the current law. The bill makes the distinction between the operators of such sites, who can be subject to prison sentences of 3 to 10 years and hefty fines, and the users of such sites, who are not targeted by the legislation.

  The bill states: "It shall be unlawful to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that (1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; (2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or ‘‘(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law."

  Senator Tillis said the PLSA reflected changes in the marketplace, noting that “the shift toward streaming content online has resulted in criminal streaming services illegally distributing copyrighted material that costs the US economy nearly $30 billion every year and discourages the production of creative content.”

  Copyright Alliance's Kupferschmid said that by updating criminal copyright law, the PLSA "will provide prosecutors with an effective tool to deter harmful criminal activity and protect the rights of creators and copyright owners."

  For NMPA's Israelite, the PLSA is "crucial to enforcing copyrights by fixing the streaming ‘loophole,’ which has allowed rogue enterprises to run rampant and profit without the necessary law enforcement tools to prosecute them." He added that thanks to the bill, criminal penalties for illegal streaming "will be aligned" with illegal downloading and distribution.