June 24, 2021

Copyright: New From U.S. Dept. of Commerce: “White Paper on Remixes, First Sale, and Statutory Damages”

From USPTO/Dept. of Commerce News Release:

The report issued today by the U.S. Department of Commerce recommends amendments to copyright law that would provide both more guidance and greater flexibility to courts in awarding statutory damages. The recommended amendments would ensure continued meaningful protection for intellectual property while preserving the dynamic innovation that has made digital technology so important to the American economy.

The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF). The IPTF is made up of representatives from the United States Patent and Trademark Office (USPTO), the National Telecommunications and Information Administration (NTIA) and other Commerce Department agencies.

In the report, “White Paper on Remixes, First Sale, and Statutory Damages,” the Department’s Internet Policy Task Force sets forth its conclusions on three important copyright topics in the digital age: (1) the legal framework for the creation of remixes; (2) the relevance and scope of the “first sale doctrine”; and (3) the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement. In making its recommendations, the Task Force was mindful of the need to protect copyrights effectively while also promoting innovation on the Internet.

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The White Paper recommends amending the Copyright Act to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award. In addition, it advises changes to remove a bar to eligibility for the Act’s “innocent infringer” provision, and to lessen the risk of excessively high statutory damages in the context of secondary liability for online service providers. The report also notes that some concerns raised about damages levels in cases against individuals could be alleviated if Congress were to establish a small claims tribunal with caps on damages awards.

With respect to remixes and the first sale doctrine, the report concludes that the evidence has not established a need for changes to the Copyright Act at this time. The Task Force makes several recommendations, however, to make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. It also recommends the development of best practices by stakeholders to improve consumers’ understanding of the terms of online transactions involving creative works. Finally it notes the need to continue to monitor legal and marketplace developments to ensure that library lending and preservation concerns are addressed.

The new report follows up on issues first discussed in a 2013 IPTF Green Paper, “Copyright Policy, Creativity, and Innovation in the Digital Economy,” and is the product of two sets of written comments and five public meetings and roundtables conducted through the following year. The Green Paper provided the most thorough and comprehensive analysis of digital copyright issued by any administration since 1995 and noted the need for further analysis of the three policy issues that are the focus of the new report.

Resources

Direct to Full Text White Paper: “White Paper on Remixes, First Sale, and Statutory Damages” (117 pages; PDF) and Also Embedded Below

Direct to White Paper Summary Doc (2 pages; PDF) and Also Embedded Below

Additional Resources, Background, Roundtable Materials, Links

Direct to 2013 Green Paper: Copyright Policy, Creativity, and Innovation in the Digital Economy

IPTF/U.S. Dept. of Commerce White Paper on Remixes, First Sale, and Statutory Damages

IPTF/U.S. Dept. of Commerce Copyright Whitepaper Summary

About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.

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