The US Copyright Office has released an important new report titled Section 12 of Title 17, A Report of the Register of Copyrights, which summarizes an evaluation of the Digital Millennium Copyright Act of 1998.
It documents a wide variety of inadequacies in the DMCA toward protecting the rights of content owners and rights holders in cases of piracy. It also reports shortcomings in regulatory frameworks and in legal reporting processes intended to mitigate piracy.
How the report came to be
“Changes in technology and business models used to create and disseminate copyrighted materials continue to grow in ways that could not have been imagined (when the DMCA was passed),” according to the report’s preface. This study was one of several that arose from hearings led by the House Judiciary Committee over two sessions of Congress, ending in 2015; to help ensure that copyright regulation stays abreast of current issues.
Lack of balance
In its findings, the report says that online service providers are pleased with the DMCA. During the comment period, Amazon said that the “careful balancing among stakeholders’ interests has proven to be a durable, and workable framework that has facilitated the unprecedented dissemination and availability of creative works, increased innovation and content creation, and dramatic economic growth.”
Rights holders didn’t agree, saying that online providers like Google, Facebook and YouTube act as unintentional facilitators of pirate activity; and that Section 512 “has failed to protect against infringement.”
Other commenters reported huge increases in piracy alerts, take-down notices, and significant declines in revenue. One reason cited was Section 512’s inefficient reporting process – which require a notice for each instance of infringement. The millions of takedown notices that result have had “little impact toward reducing the volume of infringing material available.”
Read the US Copyright Office press release
Download the full report. (This landing page also links to public comments, notices of inquiry, and public roundtables)
Why it matters
The new report recognizes more than twenty years of change brought by the Internet to content delivery models, rights infringement, copyright regulation and society at large, to arrive at recommendations toward amending DMCA. It also provides guidance for the US Intellectual Property Enforcement Coordinator’s Joint Strategic Plan for IP enforcement, which is released every three years and last released in 2018.
In response to the Copyright Office report, CreativeFuture CEO Ruth Vitale commended the Office on its even-handed summation. “Individual and small business creatives completely understand the gross imbalance of today’s notice and takedown system,” she said. “… It is long past time for these huge global internet platforms to modernize, simplify, and amplify their approaches to protecting the value of copyrighted works against rampant piracy.”
This new report identifies how well-intended initiatives have become ineffective or outdated. It also identifies efforts by other countries to combat infringement – including agencies and regulatory frameworks, notification systems, and blocking practices.
In comments submitted to the US Senate Judiciary Subcommittee on Intellectual Property, multiple commenters, including the Co-President of Millennium Media and the President & Managing Director of the Motion Picture Association (EMEA), cited cases in which other countries utilize no-fault injunctive relief aimed at blocking access to the market by known, adjudicated pirate sites, also known as “site blocking,” to fight piracy; a countermeasure that is not used in the US.