Obama's IP Advisor Talks Reform Efforts and a New Administration

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A Joint Session of Congress at the US Capitol on Jan. 12, 2016 in Washington, DC.

It's easier than ever to distribute creative works and ensure art is seen — but it's also easier than ever for those works to be shared illegally — and the Copyright Act that protects authorship was written in a time when the technology that people now use to access content didn't exist.

As we continue in the digital revolution, copyright reform remains a key focus for Hollywood and others who own intellectual property rights to things that are shared on the internet. 

The Hollywood Reporter had an in-depth conversation with Michelle Lee, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, about the current reform efforts, her biggest areas of concern and how things will move forward under a new administration.

How could the change in the administration affect the ongoing copyright reform efforts announced by House Judiciary Committee Chairman Bob Goodlatte?

Copyright has never been a partisan issue, and there is no reason to believe that the results of the recent election will signal a change of course in copyright policy. Of course, legislation is in the first instance a matter for Congress, and the leadership in Congress will not be changing. I expect that Chairman Goodlatte will continue to lead the Judiciary Committee in a bipartisan effort to update our copyright laws. Since the founding of our nation, the United States has recognized the importance of copyright in encouraging creative expression by incentivizing people to produce and share the works that contribute to America’s leading role as a cultural and economic powerhouse. I am confident that USPTO will remain engaged in copyright policy to ensure that our copyright system continues to adapt and thrive, furthering the Constitutional goal of “promoting the Progress of Science and useful Arts."

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What’s your sense of the scale of the changes we’re going to be seeing and what the priorities are?

Our copyright system is really designed to play a critical role to promote and incentivize the creators of artistic works, while also promoting their dissemination and use. The internet has significantly transformed how copyright policy and copyright works are being distributed nowadays. Computers can make an identical copy instantly. There is a tension between promoting and incentivizing that innovation and permitting free dissemination and fair dissemination. The two have to work in tandem in order for us to have a system that works.

The Copyright Act hadn’t been changed for a really long time. No one had studied it since the Clinton administration. This was the first comprehensive look at copyright issues related to the digital economy. The USPTO took the lead, and the National Telecommunications and Information Administration both worked on it, and we came up with a white paper. It’s on remixes, first sale doctrine and statutory damages. We looked at everything and got a lot of stakeholder input. We then produced the white paper that focused on those three topics.

Let me first focus on the issue of damages, because that’s one area where we did make a recommendation for legislative change. Right now damages are available to a successful plaintiff and they’re set within a certain range and we were concerned that this structure could lead to excessive and inconsistent rewards, particularly involving individual file sharing and also mass online services. So we proposed that Congress amend the Copyright Act in three ways. One is to establish certain criteria for the courts to consider when determining the award of statutory damages. Second is to remove the existing bar to invoking what we call the innocent infringer defense. Third is to give the court discretion to depart from the strict per work [standard] on the statutory damages, to give a little more flexibility.

We also noted the benefits of a new forum to adjudicate small copyright infringement claims below a certain dollar amount not as encumbered by district court litigation with all the costs and all the discovery to provide an alternative avenue to adjudicated small amount copyright infringement cases. So those were concrete legislative recommendations that we made to Congress.

This is an excerpt. The full article can be found on THR.com.

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