IPTF Proposes New Look at Copyright, Fair Use Online

The Obama Administration is proposing that government and
the private sector take a fresh look at balancing both copyright protection and
online creativity and copyright exceptions given the rise of new ways to
distribute and creatively manipulate content. The goal, said one senior
administration official, is to "strike a balance between complex opposing

The Department of Commerce's Internet Policy Task Force
(IPTF) Wednesday released a Green Paper analysis of the current state of
copyright policy in the digital economy, but it also seeks comment on several
proposals, including: improving, or at least talking about improving, the
notice and takedown system under the Digital Millennium Copyright Act; 
"the relevance and scope" of the first sale doctrine "given
technological developments since the issue was last examined by the Copyright
Office in 2001," and looking at the legal framework for remixes. "The
question is whether the creation of remixes is being unacceptably
impeded," the report says.

Other proposed actions include examining "the
application of statutory damages in the context of individual file-sharers and
secondary liability [ISPs who knowingly permit infringement, for example] for
large-scale online infringement" and "the appropriate role for the
government, if any, to help improve the online licensing environment, including
access to comprehensive public and private databases of rights

It also reiterates the administration's support for
legislation creating a performance right for broadcasting sound recordings -- something
broadcasters are strongly opposed to -- and for making unauthorized streaming
for unauthorized online streaming.

A senior administration official speaking on background said
the report takes no policy positions other than those that the Obama
administration has already established, like the support for a performance
right and making unauthorized streaming a felony, as is unauthorized
downloading of copies of copyrighted works.

Another official said they hope the paper would help frame
current congressional debates over copyright legislation, but that the answers
are not all achievable through legislation.

They said that copyright has always evolved in light of
technological changes, from the piano role, to TV to the computer, which has an
impact on copyright of a magnitude that is arguably unprecedented, they said.

The officials emphasized that a multistakeholder model is
the best way to address copyright issues. "We hope to engage with
stakeholders, and want them to engage energetically," said one official.
That could be an ongoing forum on issues that arise, similar to the recent
stakeholder process that produced suggested mobile app data sharing guidelines,
said one official.

They are looking to avoid contentious debates, like that
over IP protection legislation in the last Congress, that they argue obscured
the practical issues and made a constructive process difficult.

"We see a digital future in which the relationship among
digital technology, the Internet, and creative industries becomes increasingly
symbiotic," said NTIA chief Lawrence Strickling of the new Green Paper. "In
this digital future, the rights of creators and copyright owners are
appropriately protected; creative industries continue to make their substantial
contributions to the nation's economic competitiveness; online service
providers continue to expand the variety and quality of their offerings;
technological innovation continues to thrive; and consumers have access to the
broadest possible range of creative content."

Driving the Green Paper are the tens of millions of jobs and
trillions of dollars in GDP represented by intellectual property-driven
industries like content producers, according to new Secretary of Commerce Penny
Pritzker, but also to "nurture creative resources" that are the
nation's "lifeblood."

The paper encourages ongoing voluntary efforts against
infringing websites, like the joint ISP/studio "SixStrikes" initiative, and extends the Patent and Trademark's request
for comment on how to measure and assess the effectiveness of such voluntary agreements,
which the Administration called for as part of its JointStrategic Plan for Intellectual Property Enforcement it announced last

The paper is a product of IPTF, whose cochair is former
cable attorney Cameron Kerry, with input from the Patent and Trademark Office
and NTIA. Among those providing feedback for the report or comment on the
process or participated in symposia related to it were the National Cable &
Telecommunications Association, the Motion Picture Association of America,
NBCU, AT&T, Google, YouTube, the Screen Actors Guild, The Independent Film
& Television Alliance and the Consumer Electronics Association.

The report also seeks congressional or
regulatory action -- without saying what that action should be -- on
rate-setting standards for digital music, supporting music licensing reform,
and supporting consumers' ability to unlock cell phones subject to applicable
service agreements.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.