[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE U.S. COPYRIGHT OFFICE
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, MAY 5, 2021
__________
Serial No. 117-20
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
48-301 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
PERRY APELBAUM, Majority Staff Director & Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
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C O N T E N T S
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Wednesday, May 5, 2021
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 2
The Honorable Jim Jordan, Ranking Member of the Committee on the
Judiciary from the State of Ohio............................... 3
WITNESS
The Honorable Shira Perlmutter, Register of Copyrights and
Director, U.S. Copyright Office, Library of Congress
Oral Testimony................................................. 5
Prepared Statement............................................. 7
QUESTIONS AND ANSWERS FOR THE RECORD
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Jerrold Nadler, Chair of
the Committee on the Judiciary from the State of New York for
the record..................................................... 56
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Darrell Issa, a Member of
the Committee on Judiciary from the State of California for the
record......................................................... 57
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Andy Biggs, a Member of
the Committee on Judiciary from the State of Arizona for the
record......................................................... 59
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Sheila Jackson Lee, a
Member of the Committee on the Judiciary from the State of
Texas for the record........................................... 60
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Mary Gay Scanlon, a Member
of the Committee on the Judiciary from the State of
Pennsylvania for the record.................................... 62
Questions to the Honorable Shira Perlmutter, Register of
Copyrights and Director, U.S. Copyright Office, Library of
Congress, submitted by the Honorable Scott Fitzgerald, a Member
of the Committee on Judiciary from the State of Wisconsin for
the record..................................................... 64
Responses to questions from the Honorable Shira Perlmutter,
Register of Copyrights and Director, U.S. Copyright Office,
Library of Congress, submitted by the Honorable Jerrold Nadler,
Chair of the Committee on the Judiciary from the State of New
York, the Honorable Darrell Issa, a Member of the Committee on
Judiciary from the State of California, the Honorable Andy
Biggs, a Member of the Committee on Judiciary from the State of
Arizona, the Honorable Sheila Jackson Lee, a Member of the
Committee on the Judiciary from the State of Texas, the
Honorable Mary Gay Scanlon, a Member of the Committee on the
Judiciary from the State of Pennsylvania, and the Honorable
Scott Fitzgerald, a Member of the Committee on Judiciary from
the State of Wisconsin for the record.......................... 64
OVERSIGHT OF THE U.S. COPYRIGHT OFFICE
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Wednesday, May 5, 2021
U.S. House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 10:11 a.m., on Zoom
Video Webinar, Hon. Jerrold Nadler [Chair of the Committee]
presiding.
Members present: Representatives Nadler, Lofgren, Jackson
Lee, Cohen, Johnson of Georgia, Deutch, Jayapal, Demings,
Scanlon, McBath, Stanton, Dean, Escobar, Jones, Ross, Bush,
Jordan, Chabot, Gohmert, Issa, Buck, Gaetz, Johnson of
Louisiana, Biggs, Steube, Massie, Bishop, Fischbach, Spartz,
Fitzgerald, Bentz, and Owens.
Staff present: John Doty, Senior Advisor; Cierra Fontenot,
Chief Clerk; Moh Sharma, Member Services and Outreach Advisor;
Jordan Dashow, Professional Staff Member; John Williams,
Parliamentarian; Jamie Simpson, Chief Counsel for Courts & IP;
Rosalind Jackson, Professional Staff Member for Courts & IP;
Tyler Grimm, Minority Chief Counsel for Policy and Strategy;
Katy Rother, Minority Deputy General Counsel and
Parliamentarian; Ella Yates, Minority Member Services Director;
Ella Yates, Minority Member Services Director; Andrea Woodard,
Minority Professional Staff Member; Kiley Bidelman, Minority
Clerk; and John Lee, Minority USPTO Detailee.
Mr. Nadler. Good morning, everyone. The House Committee on
the Judiciary will come to order. Without objection, the Chair
is authorized to declare recesses of the Committee at any time.
We welcome everyone to this morning's hearing on oversight
of the U.S. Copyright Office. Before we begin, I would like to
remind Members that we have established an email address and
distribution list dedicated to circulating exhibits, motions,
or other written materials that Members might want to offer as
part of our hearing today. If you would like to submit
materials, please send them to the email addresses previously
distributed to your offices and we will circulate the materials
to Members and staff as quickly as we can.
I would also like to ask all Members to please mute your
microphones when you are not speaking. This will help to
prevent feedback and other technical issues. You may unmute
yourself any time you seek recognition. I will now recognize
myself for an opening statement.
Copyrights have played an integral part in driving this
country's standing as a leader in creativity and innovation.
The idea that creators should reap the rewards of their hard
work dates to the country's founding in article 1, section 8 of
the Constitution, the founders granted Congress the authority
to promote the progress of science and useful arts while
securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries.
While copyright laws evolved over the years, our goal is to
remain true to the underlying aim of promoting and
incentivizing creators' hard work while protecting their
intellectual property. This has largely been a success. Today,
core copyright industries account for millions of jobs and have
contributed more than $1 trillion to the U.S. economy. The U.S.
Copyright Office, the focus of our hearing today, plays a vital
role in upholding this copyright system.
I would like to extend a warm welcome to the Register of
Copyrights, Shira Perlmutter, who is at the helm of this
important institution. Register Perlmutter is six months into
her tenure as Register and we look forward to hearing from her
today and to working with her on the many issues before the
office and in the copyright space.
This past year, as the Nation adjusted under the
coronavirus pandemic, the Copyright Office likewise had to
adapt. In March of 2020, the office transitioned most of its
staff to remote work and offered electronic options to services
that were previously paper-based. The office also used its
authority under the CARES Act to extend the deadlines of
certain actions. I commend the office for its work in
transitioning smoothly.
This past year also has highlighted the importance of an
effective and robust copyright system. Just as the Copyright
Office had to close its physical doors, music concerts
vanished, theaters shuttered, and movie sets were inactive.
This has had a devastating impact on creative industries and
has made it even more evident how critical it is that we
maintain a strong copyright system to bolster the creative
community as it seeks to recover in the face of the pandemic.
This Committee held its last Copyright Office oversight
hearing in 2019. There have been some notable changes since
then.
In December, for example, Congress passed a Copyright
Alternative in Small-Claims Enforcement Act, or CASE Act, led
by our colleague, Representative Jeffries, and our former
colleague, Representative Doug Collins. The CASE Act addressed
the prohibitive costs of pursuing a copyright infringement suit
in federal court by establishing a small claims tribunal in the
Copyright Office called the Copyright Claims Board. The Board
is expected to be operational by the end of the year, and we
look forward to hearing about the office's progress in
implementing the CASE Act and standing up the Board.
The Copyright Office has also been integral in the
implementation of the blanket license that digital music
providers established under title I of the Music Modernization
Act. The blanket license became available this January, and the
mechanical licensing collective has already distributed its
initial round of royalty payments. We look forward to hearing
more about how the first few months of the blanket license have
unfolded so far.
Turning to what may lie ahead, this is the Committee's
first opportunity to hear from the office about the report on
section 512 of the Digital Millennium Copyright Act that it
published last year. The office reviewed whether in today's
environment section 512 notice and takedown regime properly
balanced the growth of the internet against the protection of
intellectual property rights. The office concluded that this
balance was tilted askew. The office put in a tremendous amount
of work over the course of its multi-year study, and we look
forward to discussing the office's conclusions and
recommendations.
I am also interested to hear Ms. Perlmutter's views on the
ART Act legislation I introduced responding to the office's
recommendation in a 2013 report that Congress consider creating
a resale royalty right to visual artists that would give
artists a percentage of the sales when their work is resold
under certain conditions. This addresses the disparity that
arises in the field of visual arts because such artists do not
benefit from the copyright system in the same way as other
creators since they generally do not sell many copies of their
works. This legislation assures that if their works become more
valuable over time, they are able to share in that increase in
value.
Accordingly, I believe this legislation is a matter of
basic fairness and will put us in the company of more than 70
other countries around the world. It will also ensure that
Americans receive royalties when their works are sold abroad in
those other countries, which will not happen until we offer
them such a right ourselves.
Moving away from the law, the Committee is also following
the Copyright Office's effort to modernize its IT systems and
business processes. The office made a number of updates last
year, including launching an electronic recordation pilot and
releasing a new public records interface.
The Library of Congress is also convening a Copyright
Public Modernization Committee to be led by the Library of
Congress' Office of the Chief Information Officer. The
Committee looks forward to hearing about these and other
developments at the office and in the copyright system.
I thank Register Perlmutter for her appearance today, and
again, I congratulate her on her appointment.
I now recognize the Ranking Member of the Judiciary
Committee, the gentleman from Ohio, Mr. Jordan, for his opening
statement.
Mr. Jordan. Thank you, Mr. Chair. Mr. Chair, it is May 5th
and this is our first Full Committee hearing. There is a crisis
at the border. The President is talking about abolishing ICE.
Our local communities are being threatened by the left movement
to defund the police. You are trying to pack the Supreme Court.
The teacher's union are stopping kids from going to school.
President Biden is bankrupting the country one omnibus bill at
a time. A virus continues to threaten our civil rights. The
House Judiciary's first Full Committee hearing this Congress is
oversight of the Copyright Office.
I mean no offense to Register Perlmutter and the important
work her office is doing. In fact, copyrights are a critical
part of the U.S. economy, and it is an area ripe for bipartisan
work. America's creators and distributors deserve our attention
to make sure this is a well-functioning marketplace. We are all
proud of the major pieces of copyright legislation that were
signed into law in recent years, some that the Chair just
talked about including the Music Modernization Act, and the
CASE Act, and hopefully, this is just the beginning.
Last Congress, we began important work looking into section
512 and other areas of the DMCA that can be approved, and it is
our hope that consensus legislation can be identified and
actually signed into law. We must keep a watchful eye over the
collection and distribution of unclaimed royalties under the
Music Modernization Act to ensure that trade associations and
big publishers and wealthy artists are not profiting on the
back of those without the means or access to money that they
are owed.
Rampant online piracy of copyrighted movies, TV shows,
music, and other content that criminals in China, Russia, and
elsewhere must also be stopped and bold steps taken to fight it
such as the felony streaming law we passed late last year. We
must continue to look for ways to improve and modernize the
copyright system so that it can continue to be the engine for
job creation and economic growth for decades to come.
I look forward to working with the Copyright Office. We
have had a nice conversation with Ms. Perlmutter to take action
on all these vital issues and appreciate that this hearing is
an opportunity to help that alone. I hope, I hope that the
Chair will finally start to pay similar attention to the many
urgent problems facing Americans today, problems I hear about
every single time I am out in our district, as I am today, as
many of our colleagues are, problems that Americans want us to
address, want us to deal with. I hope we get to them soon, Mr.
Chair. With that, I yield back.
Mr. Nadler. Thank you, Mr. Jordan. Without objection, all
other opening statements will be included in the record.
I will now introduce today's Witness. Shira Perlmutter is
the Register of Copyrights and Director of the U.S. Copyright
Office. She was appointed to the position effective October
25th, 2020. Prior to her appointment as Register, Ms.
Perlmutter had served since 2012 as Chief Policy Officer and
Director for International Affairs at the United States Patent
and Trademark Office.
Before joining the USPTO, she was Executive Vice President
for Global Legal Policy at the International Federation of the
Phonographic Industry. Prior to that, she was Vice President
and Associate General Counsel for Intellectual Property Policy
at Time-Warner. Previously, she served as the first Associate
Register for Policy and International Affairs at the Copyright
Office.
Ms. Perlmutter received her bachelor's degree from Harvard
University and her law degree from the University of
Pennsylvania. We welcome our distinguished Witness and we thank
her for participating today.
I will begin by swearing you in. If you would please turn
on your audio, make sure I can see your face, and you raise
your right hand while I administer the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief so help you God?
Ms. Perlmutter. I do.
Mr. Nadler. Let the record show that the Witness has
answered in the affirmative. Thank you. Please note that your
written statement will be entered into the record in its
entirety. Accordingly, I ask that you summarize your testimony
in five minutes. To help you stay within that time, there is a
timer on your screen. You may now begin.
TESTIMONY OF SHIRA PERLMUTTER
Ms. Perlmutter. Chair Nadler, Ranking Member Jordan, and
Members of the Committee, thank you for the opportunity to
discuss the many activities and accomplishments of the U.S.
Copyright Office. I am pleased to report that the office has
shown remarkable resilience during this challenging year. We
continued to provide high-quality services to the public and
expert advice to Congress and Executive Agencies, and achieved
several milestones in our modernization efforts.
We also moved forward in implementing recent legislation
and have even improved processing times for electronic
submissions. I will describe our major current initiatives,
report on ongoing work, and outline our high-level priorities
moving forward.
First, we have made great strides in implementing the
landmark Music Modernization Act, or MMA. The office completed
the initial regulatory framework required for the Mechanical
Licensing Collective, MLC, to administer the new blanket
license. We have also fully implemented title II, which
provides protection for pre-1972 U.S. sound recordings. We are
concluding a study on best practices for the MLC to locate
copyright owners and encourage the claiming of unmatched
royalties.
Second, we are working intensively on implementing the CASE
Act, which establishes the Copyright Claims Board, which will
be the first ever IP small claims tribunal in the United
States. The office has issued a notice soliciting public
comment on features of the new system and a proposed Rule
establishing a process for expedited registration for claims
pending before the Board. We are close to making
recommendations to the Librarian for the appointment of the
three copyright claims officers. We are collaborating with
other units in the library to ready the technology and office
space that will be needed for the board to launch, and we have
developed a dedicated webpage which sets out the key facts
about the tribunal and its status.
Finally, we have made significant progress on office
modernization. In Fiscal '20 we met objectives on three major
workstreams: The launch of an electronic recordation pilot, the
release of a new interface for the copyright public records
system, and the internal release of a clickable prototype of
the planned new registration application. We are in the process
of digitizing our historic public records, and we moved into a
new warehouse, where we will be consolidating all our copyright
deposit materials.
Let me turn to other ongoing work. The Office quickly
adapted to the pandemic, transitioning 98 percent of the staff
to full or partial telework within just a few weeks. The bulk
of our operations has been largely unaffected by the
transition.
In Fiscal 2020, we registered nearly 450,000 claims to
copyright involving millions of works. Even with the pandemic,
we significantly reduced our processing time for examining most
claims. We maintained an effective e-deposit program for the
library, with the value of deposits just shy of the previous
year's total. The Office continued to provide legal and policy
advice, including the report on section 512. We have issued
numerous rules and regulatory proposals since the start of the
fiscal year, participated in several high-profile litigations,
and continued our international work in multiple venues.
After a virtual listening tour with a wide range of
stakeholders, I have identified several high-level priorities
going forward. First, we will ensure that Office modernization
is not a one-off event, but a process of continuous
improvement. Once we have fully digitized our collections and
records, we will leverage that trove of data for the public's
benefit and utilize new platforms and new technologies.
Second, we will work to open the copyright system further
to more participants. We want copyright to be as accessible as
possible; that will include broadening our outreach in
education efforts and focusing on underserved communities to
expand diversity.
Third, we will enhance the office's development and use of
data by adding economic expertise. We will be hiring a chief
economist to assist in producing and analyzing factual evidence
for decision making on both policy and financial matters.
In sum, the office's 150th year has been exceptionally
busy, challenging, and productive. I want to thank our
dedicated staff for all their work to serve the copyright
community and the public, especially during the pandemic. We
appreciate this Comittee's continued support of the office and
its mission. Thank you.
[The statement of Ms. Perlmutter follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you for your testimony. We will now
proceed under the five-minute Rule of questions. I will begin
by recognizing myself for five minutes.
Last May, the office released its report on section 512's
notice and takedown regime, which preceded your appointment as
Register. Now, that you are the Register, do you concur in the
report's ultimate conclusion that the balance Congress intended
to strike in section 512 has been tilted askew? Is there
anything you would add or change in the section 512 report?
Ms. Perlmutter. The Copyright Office Report was a
comprehensive and thoughtful analysis after five years of
gathering input and looking at judicial interpretations and
data. I agree with its conclusions and recommendations.
As the report set out, the original goal of section 512--
and I should add that I was at the Copyright Office assisting
Congress in drafting the initial legislation--the goal was to
find the right balance between the stakeholders in the online
ecosystem to ensure that copyright owners could effectively
enforce rights in the online environment, but also at the same
time ensure that service providers had legal certainty to be
able to offer innovative platforms without facing crippling
liability for the actions of all their users. Then, of course,
users' interests were reflected in various ways, in part
through the put-back provisions for content that was improperly
taken down.
Now, in many ways, section 512 has achieved those goals,
but more than 20 years later, there have been a lot of changes
in practices, markets, and technologies, and of course, as the
courts' interpretations have evolved and been applied.
So, the result is that, as the Copyright Office outlined in
its report, at least for the copyright owner community, the
expected results today are not what were hoped to be, and it
has become more difficult to assert rights than was originally
anticipated.
So, what we hear primarily is what is often being referred
to as a whack-a-mole problem--that as soon as content is taken
down under the system, it may be immediately re-posted. Then
there are challenges for small copyright owners in monitoring
the huge amount of content on the internet and being able to
locate and address infringements of their work.
On the other side, while service providers and consumer
groups, in general, think the system is working well, they also
have noted some concerns, including about potential abuse of
the system and what the impact might be of automation as it is
increasingly utilized, in particular, on free speech interests.
So, I do think there is room for adjustment. The Copyright
Office did not make very specific detailed recommendations but
pointed to areas where Congress could profitably Act to restore
the originally-intended balance, or potentially to change it in
some ways to adapt to new circumstances. I think all those
proposals are well worth continuing to discuss and to pursue.
Mr. Nadler. Thank you. In 2013, the Register at the time,
Maria Pallante, submitted to this Committee an updated analysis
of the resale royalty issue in which she stated, ``that
Congress may wish to consider a resale royalty for supporting
visual artists.'' I believe you have been studying this issue
since your time as a law professor. Do you agree with Register
Pallante's assessment?
Ms. Perlmutter. I do. I do. As you have noted, I have been
personally supportive of the concept of resale royalties since
early in my career. I believe there are very good policy
arguments to adopt such a right, and since I first studied the
issue, more and more countries have adopted such a right--I
think now around 70, as you noted in your opening comments.
There is also more evidence about the impact of such a right,
showing that some of the concerns about its adoption and some
of the potential negatives have not materialized. So, I do
support continuing to look at this.
I note that the ART Act from the 115th Congress reflected a
number of the points made in the Copyright Office's report, and
especially given the office's recent experience with
implementation of the MMA and the CASE Act, we would be happy
to contribute technical assistance drawing on those experiences
to work with the text and be of assistance.
Mr. Nadler. Thank you. Recognizing that the Copyright
Royalty Board operates independently from the Copyright Office
in terms of its rate and distribution and adjudication
proceedings, I am concerned about reports from the creative
community about a backlog in commencing proceedings and
ordering distribution of royalties payable to claimants.
How can Congress and the Copyright Office work together to
ensure the CRB reduces the backlog and distributes royalties in
a timely fashion moving forward?
Ms. Perlmutter. Yes, that is an important question. Thank
you.
The main thing that Congress can do to help the CRB, I
believe it has already done, and that is to remove the previous
statutory cap of three people on the CRB staff, and the
approval of the CRB funding request to enable it to add those
additional staff Members. So, that should help a lot with the
workload going forward, but it will take some time for those
effects to be fully felt.
I think it is important to note that the current caseload
of the CRB is really unprecedented. It is dealing with two
remands from the D.C. Circuit, which means that the judges are
handling three of their most complicated rates setting
proceedings simultaneously, and there has also been some impact
of the pandemic which has caused some delays because of
adjustments needed in process. For example, some of the
hearings were delayed a number of months because they had to be
conducted virtually, and the CRB was not equipped for that
previously.
I do think that it is worth mentioning that--I understand
from the judges--they have actually authorized a greater sum of
royalties for distribution in FY 2021 to date than the amounts
that were authorized in any of the last 6 years. So, there are
some positive changes. We will continue to monitor the
situation and consult with the judges to see whether there are
any additional structural changes or adjustments that could be
helpful in improving efficiency.
Mr. Nadler. Thank you. My time has expired. Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chair. Before I ask a few
questions of our distinguished Witness here today, I would like
to make a point as the Ranking Member, Mr. Jordan, did
previously, that this Congress was sworn in over four months
ago and the Democrats, and you, Mr. Chair, have had complete
control of this Committee for all that time and this Nation has
faced a number of crises, perhaps most significant, the crisis
at our southern border which it has been completely self-
inflicted by the Biden Administration, I might add.
The so-called kids in cages issue which was used to
bludgeon the previous Administration and it turned out the
photographs that were released were actually taken during the
Obama Administration, all those policies and the kids in cages
continued through this Administration, the Biden
Administration.
Now, they are trying to peddle the story that it is better.
These kids and thousands and thousands of adults, too, they
have merely been put on buses, in planes, and shipped around
the country. Some have been given court dates, but as it turns
out statistics show that over 90 percent of the people never
show up for their court dates, so they are basically released
into the population. This border crisis is a huge problem,
something that is actually within the jurisdiction of this
Committee, yet not one hearing in four months. Instead, we are
here to talk about copyright law.
Now, don't get me wrong. As Mr. Jordan said, there is a
time and a place to discuss copyright law, but the building is
on fire. We are talking about rearranging the furniture. The
ship is sinking. We are talking about what tune the band ought
to play.
Mr. Chair, you get to decide what we are going to talk
about. We are talking about copyright law, so I will ask some
questions of Ms. Perlmutter. We do appreciate her being here
today.
Ms. Perlmutter, in addition to serving on this Committee
with oversight of the Copyright Office, I spent the last six
years as the lead Republican on the House Small Business
Committee. In that role, I heard from countless from small
businesses and individuals across the country and in my
congressional district who register creative works with your
office, from books and music to software, and photographs, your
office handles it all. As you know, Congress as you already
mentioned, gave you a bit more responsibility late last year
when we passed, and the President signed into law, the
Copyright Alternative and Small Claims Enforcement Act,
otherwise known as the CASE Act.
I co-sponsored that and voted in favor of that, because in
my view, it represented a way for copyright owners,
particularly the smallest creators, to enforce their rights and
receive compensation for their hard work when someone
essentially copies it and rips it off and traditional
litigation in Federal court would be too costly to pursue.
So, Ms. Perlmutter, let me ask you if you expect the
Copyright Office to fully implement the CASE Act and have the
Copyright Claims Board up and running by the end of this year.
Ms. Perlmutter. Thank you for that question. We are working
very hard to make sure that we have everything in place for the
Copyright Claims Board to start hearing cases by the end of the
year. That involves work on hiring. It involves work on getting
the regulations that are needed in place. It involves
developing the technology tools for the Board.
So, we are optimistic that we will be able to do it. We
have already, in April, received a number of applications for
the claims officer positions, and I expect to provide a
recommendation to the Librarian for appointments to those
positions in the coming weeks.
We are working closely with the Library's Office of the
Chief Information Officer to identify the IT needs, which will
include a case management system and the technology needed to
conduct remote hearings, which is an important part of making
the Board as accessible and easy to use as possible.
Mr. Chabot. Thank you. Let me stop you there, if I can. We
have got the time to squeeze in one last question. I assume
that you agree that the registration of copyrights cannot be a
one-size-fits-all process, and it should take into account and
protect the works of creators, large and small, including those
who probably can't afford the assistance of legal counsel. So,
I hope that you will be taking that into consideration as well.
Ms. Perlmutter. Absolutely, thank you. We need to make this
new system as totally inexpensive and usable and user friendly
as we possibly can, and that is our goal.
Mr. Chabot. Thank you. I yield back, Mr. Chair.
Mr. Nadler. The gentleman yields back. Ms. Lofgren.
Ms. Lofgren. Thanks very much, and thanks to you, Mr.
Chair, and to the Register for being here today. There are a
lot of important things that your office must do, but I think
the number one priority, and they are all important, is to
finish the modernization of the office. Because, if we manage
to do that and have that transparency, copyright holders will
actually be empowered in a way that they never had before, to
have the protections that they seek in a way that is seamless
and inexpensive.
So, I know you have very important obligations implementing
the CASE Act and the like, all that I respect. I want to hear
from you that you will not allow anything to divert you from
the goal of complete modernization of the office. Are we on
track in that modernization?
Ms. Perlmutter. We are on track, and it is absolutely a top
priority. I couldn't agree with you more that this is critical
to the future of the office and the future of our ability to
serve the American public.
So, we are moving forward. We have had, as I mentioned, a
number of major milestones just this past year. As you know,
and as the Chair mentioned, we are forming a public
modernization Committee to consult with on the IT issues. We
are working closely with the library on all the IT
modernization activities that include the project time lines
and budget. I do want to say that we are still aiming to meet
our goal of retiring our legacy systems by the end of 2024 and
replacing them with the new Enterprise Copyright System which
will be much more accessible to the public.
Ms. Lofgren. That is great. Now, I know, there's been
discussion of the DMCA. I think only three of us were on the
Committee when we drafted the DMCA and, obviously, the
technology was very different at the time.
Certainly, in a lot of ways, this has proven to be a huge
success. For example, the Motion Picture Association reported
global industry revenues of more than $100 billion for the
first time ever in 2019. The music industry, in 2019, reached
over $11 billion for the fourth straight year in a row, double
digit growth, and it's powered by online services. Video games
also through the roof.
The numbers, we don't have them yet. During the pandemic,
we're pretty sure are even going to be higher. So, there's
concern about technology and protecting rights. It's also a
platform that has allowed for exponential growth for the
distribution of creative content and the collection of funds
for those creative contents.
So, we do want to make sure that the little guys don't get
squashed, and I did support the CASE Act, although some in
America were concerned that there was the potential for abuse
or trolling on that system. I thought it was important to move
forward to make--to give an avenue for small, not the big
studios, but the little guys to get access.
How are you going to keep track to make sure that there is
not abuse of this system as there was at one time before our
reform of the patent system with trolling?
Ms. Perlmutter. Yes, thank you for that question. It's a
very important issue. We are taking very seriously the
importance of controlling abuse as the system goes into effect.
So, first, of course, the statute itself--and we thank you
for that--includes a number of safeguards to protect against
abuse. So, for example, a claimant can't serve a respondent
until the board approves the claim.
Ms. Lofgren. If I could--I understand the law, but I just
want to know that you are paying attention to it, so you can
raise alarms to us if it goes off the rails. Hopefully, that
will not occur.
Ms. Perlmutter. Yes, we absolutely are, and in the notice,
we recently issued asking for public comment, we asked people
to talk about how we make sure we avoid abuse, including
looking at the conduct of attorneys and parties.
So, we will be very much on top of that.
Ms. Lofgren. I have time for one more question. There's
section 1201 rulemaking this year, and one of the issues--I
actually helped draft that section--and we don't want to
circumvent when we're protecting content.
We saw the growth of protection for non-content, for
example, in the famous John Deere tractor case where they
slapped a piece of code so that the people who bought the
trucks couldn't actually repair them themselves.
That's a misuse of the circumvention provision because it's
not protecting content. It's protecting a monopoly. I'm
wondering in the rulemaking how are you going to address this
issue?
Ms. Perlmutter. Yes, that is an important issue, and I know
we have looked at issues having to do with using copyrighted
software as a back door for other goals having to do with
especially consumer products.
We have a couple of exemptions that touch on those issues.
We are recommending some legislative change as well. So, stay
tuned.
We have just conducted two weeks of virtual hearings in the
current Rule making process and are looking at issues that
relate to this topic, in addition to having recommended
permanent exemptions to allow diagnosis, repair, and
maintenance of computer programs and allowing the librarian to
adopt exemptions that allow third party assistance. So, I think
all those things may go toward your goal.
Ms. Lofgren. Thank you very much. My time has expired. I
yield back, Mr. Chair.
Chair Nadler. The gentlelady yields back.
Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chair. Appreciate you being
here, Ms. Perlmutter.
Having spent so much time on our southern border, we have
got to do something to address that issue. That's wholly within
our authority and there's so much suffering of those coming.
We're continuing to pour billions of dollars to the drug
cartels, and fentanyl, things that are killing Americans, are
coming, sex trafficking at levels never seen. We really need to
address that. That's nothing to say about the job you're doing,
ma'am.
I do have a number of questions. With regard to the
Satellite Television Community Protection Promotion Act, are
you seeing an effect that would restrict local news
transmission? I hear a lot of complaints about that.
Ms. Perlmutter. We're in the process of developing a report
on the effect of the recent amendments. We held hearings on
this. We expect to issue the report by the deadline, and I'm
checking what the deadline is exactly, and, hopefully, we will
be addressing all those issues.
Mr. Gohmert. So, you don't even have an observation at this
point?
Ms. Perlmutter. Not at this point. I would be happy to
follow up with a further response.
Mr. Gohmert. Well, that is rather critical to many of us.
It should affect all of us. So, I hope that we'll get those
responses sooner rather than later.
With regard to the resale royalty issue, I'm concerned
about new quasi-government bureaucracies collecting royalties
on some art market participants but not others. What is your
observation to this point regarding some art market
participants and not others?
Ms. Perlmutter. I think the statute has to strike an
appropriate balance, and that's one of the issues that we
talked about in the report and would be happy to give further
advice on the exact lines that are drawn in the statute. You're
right, it has to be appropriate to the level of sophistication
and commercial activities of the participants.
Mr. Gohmert. Well, it seems like the government is often
the last to come along and utilize the most recent
developments, and so I would hope that would be more a role of
a nongovernment entity when it comes to royalties.
We have seen that with the music industry. They seem--if we
just give them the tools, they seem quite capable of addressing
the royalty issues even better than government or quasi-
government bureaucracies.
Ms. Perlmutter. I know the statutes have considered the use
of a collecting society as a way to handle that.
Mr. Gohmert. Yeah. Of course, with regard to the patent, I
know we were told repeatedly that oh, this bill will yet
finally deal with the trolling issue, and it seemed to be a way
to keep smashing and whacking all the individual inventors.
You mentioned whack-a-mole previously. It seems like we
have been whacking our individual inventors to the benefit of
the largest corporations and I sure don't want to see that
occur in the Copyright Office.
What do you see from your position that you can be doing to
assure the propriety and the protection of individual copyright
owners? I know you had mentioned the problem when you take some
inappropriate material down it gets put back up. What do you
say can be done on those things?
Ms. Perlmutter. Are you talking about, Congressman, the
small claims court or, in general, the online infringement?
Mr. Gohmert. In general. Right.
Ms. Perlmutter. We need to make the system work so that not
just big entities representing major commercial interests can
use the notice and takedown system but also individuals.
So, that's one of the concerns and one of the issues that
led the Copyright Office in its report to recommend that
Congress focus on clarifying the red flag standard for service
providers, to figure out a way to make sure that individuals
weren't completely left to their own resources to locate each
individual Act of infringement.
So, I do think that's something that needs further
attention.
Mr. Gohmert. Thank you. My time has expired.
Thank you, Mr. Chair.
Chair Nadler. The gentleman's time has--the gentleman
yields back.
Ms. Jackson Lee?
Ms. Jackson Lee. Good morning. Thank you very much,
Director Perlmutter. I appreciate your testimony.
I noticed in your testimony that you stated one of the
overarching goals of the U.S. Copyright Office is to further
open the copyright system, involving more participants.
We want the law and our services as easy to understand and
as accessible as possible for individuals as well as businesses
of all sizes, and this will include broadening our outreach and
education efforts with a focus on underserved communities.
Copyright, of course, is the engine of our economy, giving
more people the opportunity to be innovative and exciting, and
create businesses and new ideas. How have certain communities
been under served by the current copyright system, and what
communities are you focusing on to ensure that we have this
kind of expanse or expanding?
Can you expand on the current status of U.S. Copyright
Office's outreach and education efforts?
I do have other questions. Thank you.
Ms. Perlmutter. Yes. This is a very important priority, and
one that I'm very committed to. So, there are a number of
things the office has already been doing in this respect and I
want to expand further.
So far, the office has focused very much on improving its
outreach and doing a lot of promotional work to reach out to as
many audiences as possible and make the copyright system as
understandable as possible. So, that should help in itself.
Second, the office for a while now, has been engaged in
putting on events that focus on getting historically
marginalized communities more involved in copyright
discussions, including working with a group called Take
Creative Control, which is an educational and advocacy group on
social justice and IP.
In connection with the MMA, in addition to outreach with a
lot of different organizations representing under-resourced
communities, we also are hiring--thanks to Congress' funding--
one particular position that would focus on reaching those
underserved communities.
Then, what I want to do, going forward, which really goes
to your first question, is to have our chief economist, once he
or she is on board, really do a study of what groups are under-
represented in using copyright services and in using the courts
to bring their claims. So, I think we will have a lot more
information then.
The last thing I would mention is that we have just started
participating in the National Commission on Expanding American
Innovation, which the Patent and Trademark Office set up--while
I was there I worked on it--and we are talking about expanding
the focus on innovation to include creativity as well as
technical innovation.
Ms. Jackson Lee. Well, I'd like to work with you on that
and invite you as we proceed to be involved in communities
across America.
Let me quickly talk about section 512 report where you
concluded that the Congress, when we intended to strike--when
it enacted--strike a balance, when it enacted the DMCA has been
tilted askew.
That balance seems to have not been where we'd like it to
be, and so rather than maybe a complete overhaul, the office
highlights some areas that Congress can work on. I'd be
interested in how you came to those conclusions.
My last question is, to deal with the different legislative
approaches that foreign countries have taken to combat online
infringement, and are there any international approaches that
would translate well to the U.S. copyright system that Congress
should look at? Conversely, are there approaches that we should
not align ourselves with?
Thank you.
Ms. Perlmutter. Well, of course, I was not at the Copyright
Office when the report was written, but having read it and
discussed it with people, clearly the conclusions and the
recommendations were based on the idea that the system as a
whole has worked in many ways and should not be thrown out
completely and reimagined.
Rather, there are ways that improvements can be made to
deal with the problems that have been raised. The nature of
those improvements that were recommended or at least
highlighted as potential were very much based on the input that
we received from all sides to try to identify those things
where we could make the most difference, or where Congress
could make the most difference, without leading to other
problems. It's a complex statute that does the job of really
setting a balance that is not easy to set.
In terms of international approaches, it's interesting
because the U.S. approach in enacting the DMCA in 1998 has been
hugely influential internationally, and countries around the
world have based systems on it. Perhaps with some tweaks, but
primarily on it.
What we have seen, particularly recently, is the European
Union moving ahead with new approaches and new sets of
obligations in their digital single market directive.
Member States are supposed to implement that by, I believe,
June. It seems unlikely they all will. They're all following
quite varying approaches to implementation, and U.S. businesses
are quite involved in looking at that and trying to decide how
they will react to the different implementations that will take
place around Europe. Some of those implementations may require
changes in the nature of how service providers structure their
services.
So, we will be watching with great interest and talking to
stakeholders including, of course, the service providers
themselves to see how that affects their views going forward
and what they think might be done all differently in the United
States, whether through voluntary measures or through
legislation.
Chair Nadler. The gentlelady's time has expired.
Mr. Issa?
Mr. Issa. Thank you, Mr. Chair.
I think the two areas I want to concentrate on is the DMCA
modernization potential, and the ART Act. So, starting with
DMCA, I think we could all agree that before the digital age,
when somebody simply ran a printing press on your work, and
then you would find copies being printed, it was very possible
that you wouldn't be able to find where they were printed or
who was the person who was selling them. If you did, they could
close their corporation, get a new printer and a new company
and go do the same thing again.
So, would you agree that, in a sense, we're dealing in a
digital world with a model that is not really too different
from what the bootleggers of music and books were doing in the
'60s and before?
Ms. Perlmutter. I would agree it's not different in that
respect. I think the main difference is in sheer volume and
geographic dispersion.
Mr. Issa. In that sense, as we look to, perhaps, further
modernize the DMCA, would it be fair to say that the whack-a-
mole problem, if you will, is a problem that artificial
intelligence, in cooperation with the Copyright Office, would
be able to allow, through the notice and takedown, but then
automating the second, third, fourth and twelve-hundredth time
that somebody moves, to be able to do them in milliseconds
rather than in a longer period of time that allows for it to be
profitable for the copyright violator?
Ms. Perlmutter. Yes, I am optimistic that there are
solutions that technology can find to this problem. The
question is how you do it in a way that is not too heavy-handed
and doesn't sweep up things that shouldn't be swept up, what
exactly are you preventing being reposted where.
I believe that stakeholders could come together and find
ways forward using technology that's appropriately tailored.
Mr. Issa. Well, thank you, and I look forward to this
Committee and your office's being involved in that negotiation
to, hopefully, a successful conclusion.
Moving on to the proposed ART Act, I have just a couple of
quick questions, as you understand the Act. The first one is,
we all understand that a sale is a contract between a willing
buyer and willing seller.
Today, is it fair to say that when you sell an art, a piece
of art, a carpet, whatever it is, you have no expectation of a
further revenue?
Ms. Perlmutter. Yes.
Mr. Issa. Under this bill in its current form, wouldn't
there be, effectively, up to a hundred years of new revenue for
existing works of art that have already been sold from a
willing buyer to a willing seller at a price?
Ms. Perlmutter. Yes. I'm not sure what the term is for the
bill. But that is true. I think the goal is to allow visual
artists to participate in the future popularity of their work
and enhanced popularity of their work in a way that they can't
now, and that, for example, an author of a book can through the
sale of further copies.
Mr. Issa. Well, and I agree with you, and we want to find a
way to make this happen in our modernization. The question is,
although, historically, we have increased copyright lengths and
that has been retroactive, it's more a term, not an actuality,
meaning if somebody doesn't have a copyright obligation they
don't get one as a result of past legislation throughout the
history of Congress.
The term again might be extended but not others. So, if we
were to enact it in its current form, isn't it, in fact, a
retroactive taking in that a willing buyer, willing seller,
very possibly would have a different price for passing on who
gets that future royalty potential, because the future royalty
can be sold by the artist along with the painting or other
artwork?
It could also be sold to a third party. So, the question
is, are we considering creating a right or a value that was not
in the existing contract?
Ms. Perlmutter. That's an interesting question. That is one
way of looking at it. I do think that a lot of the additional
value that gets added over time is not something that anyone
could have predicted.
So, it's a little bit difficult to say that it was foreseen
at the time of the initial sale.
Mr. Issa. Well, but whoever holds the piece of art when
it's sold, it will come out of the revenue they would receive.
So, the person who made the investment--
The reason I'm asking it--I appreciate your indulgence, Mr.
Chair--is we want to get this bill right and, to me, the
existing art is the biggest challenge to the change in the law.
Mr. Chair, I thank you for your indulgence, and I yield
back.
Chair Nadler. The gentleman yields back.
Mr. Cohen?
Mr. Cohen. Thank you, Mr. Chair.
First, Ms. Perlmutter, you've got an excellent resume an
excellent history, and I compliment you on your work for the
copyright division, and the Music Modernization Act is
certainly important to Tennessee, Nashville, and Memphis with
all the music that's been written here.
I do want to say, Mr. Chair, I agree with some of the
things the Republicans have said earlier today--Mr. Jordan, Mr.
Chabot--that they're right. There are issues of more importance
than copyright.
We do need to look at copyright, and they're right that the
house is on fire and it's our southern border. It's not quite
in our southern border. It's down in south Florida.
What we saw yesterday in an opinion from Judge Amy Berman
Jackson about the President's conduct that was hidden from us
by the attorney general who lied to the Congress and lied to
the American public about the Mueller report is the house being
on fire.
Are our colleagues on the other side concerned about that?
No. They're concerned about immigration. Immigration is
important and the Biden Administration is working on it. The
previous attorney general contemptuously avoided appearing for
our Committee, and then when he finally did he arrogantly
answered questions and he lied to us, and Judge Jackson has
seen information that shows he lied to the American public when
he released the Mueller report, or he released this synopsis,
his summary of the Mueller report, four pages summarizing a
400-page report and said that he could not indict the
President, that Mueller said that.
That was not true. Judge Jackson has ordered that the paper
that was used to support his mendacity should be released to
the public.
Merrick Garland is an outstanding attorney general; I
believe. He was a great judge. I hope the Chair will write him,
as I plan to, and urge him not to appeal this case and to let
the American public in the spirit of transparency and democracy
see what happened and what was done in justice--to pervert
justice and to not allow the American people in Congress to
know what went on with the Mueller report, why the President of
the United States was not charged with obstruction of justice
when there were 10 counts in the second section of the Mueller
report where Mr. Mueller said there appeared to be obstruction
of justice, that it was up to Congress to decide, that we had
to remedy and to go into those issues, and to see why the most
unredacted Mueller report that does take into consideration
sources and contacts, as much as it can be unredacted is
released to our Committee and possibly at some point later to
the public so the public knows what the Mueller report had in
it.
The American public needs to know about the illegalities,
the lies, the contempt, the disregard for democracy, and the
continuation of it. The southern border problem in Florida
still goes on.
On Monday, the former President said that the election was
fraudulent, that it was not a legal election. As Liz Cheney
properly said, ``it's a continuing attack on democracy.'' The
election was the most honest, the most thorough, the most
investigated, the most reviewed by courts. I think 62 or 64 all
said everything's fine. Threw away all the Trump challenges and
thrown away by Trump judges.
Yet, the former President is still trying to put out to the
American public the idea that this was not a valid election of
Joe Biden and make him out to be a President without papers.
That's what Donald Trump might have been if we'd have seen
the Mueller report and seen it. We now know that Kilimnikov was
given papers by Manafort, the campaign manager--given polling
data that he took to Russian intelligence. Direct connections.
So, Mr. Chair, I would ask you to look at Judge Jackson's
statements, to look at what we have done with Don McCain
refusing to testify before us, to pursue these issues, to get
the truth out to the American public and to our Committee, and
to protect our Constitution and to look into the lies and the
misdeeds of the previous president.
True, the Senate did not impeach him, which they should
have, two times. The American public still needs the
information and, if possible, if they won't go along with the
study of January 6th, the American public needs to know what
went on there.
Insurrection is coming in and beating policemen. Not just
innocent Americans wanting to protest, not people just wanting
to exercise their rights though the President said, ``go
peacefully and politically.'' He wouldn't say go to the Capitol
peacefully and politically if you knew they weren't going
peacefully and politically.
So, maybe our Committee should look into what went on
January 6th when our country had the biggest threat since the
Civil War and the Capitol had its biggest offense and damage
since the War of 1812.
It's not anything to be forgotten. We take an oath. We, as
judiciary Members, need to see to it that the Constitution of
the country is preserved and protected.
Mr. Chair, thank you for your work. God bless the United
States of America. Let's put the fire out. I yield back the
balance of my time.
Chair Nadler. I would simply point out that the Committee
is still pursuing Mr. McGann. The subpoena that we issued, I
think, almost two years ago, we're still pursuing that in
court.
The gentleman yields back.
Mr. Massie?
Mr. Massie. Thank you, Mr. Chair. Thank you for having a
hearing on something where I think we could work across the
aisle.
I want to start at a high level, Ms. Perlmutter, and then
go down from there. I'm going to start with the directive that
the Founders gave us in the Constitution for establishing the
office that you lead.
It said in the Constitution, still does, to promote the
progress of science and useful arts by securing for limited
times to authors and inventors the exclusive right to their
respective writings and discoveries.
I think it's wonderful that the Founders saw fit to put
that in there. I'm glad that you're a strong defender of
intellectual property and copyrights.
I want to ask you about the length or the term of
copyrights in relation to patents, for instance. So, in the
beginning of our country, 1790, the term for copyright was 14
years and the term for a patent was 14 years, and now you can
get extensions, in one case 14 years, in another case seven
years.
Now, patents last for 20 years from the date of filing, and
copyrights have grown to be the life of the author plus 70
years. In fact, there have been over 10 extensions since 1970.
Can you talk about how we got to this period of time that--
over a century really, in most cases for copyrights, whereas
patents are still at 20 years?
Ms. Perlmutter. Yes, thank you for the question. It's
difficult to compare copyrights and patents in terms of
duration because the nature of the right is so different. A
patent is the ability to exclude others entirely from using
your invention for the period of time that the patent endures.
For copyright, you are not allowing others, to copy your
expression. So, the copyright does not prevent people still
from using the ideas and facts in the work and, in fact, it
doesn't even prevent them from using the exact same expression
if they came up with it originally without copying from you.
So, for example, while it seems like it would be unlikely,
you could have two people come up with the same melody for a
popular song without having copied, or perhaps a design for a
textile pattern.
So, the protection itself is much weaker than for patents.
So, I think it's difficult to compare them--
Mr. Massie. The Founders started--sorry to interrupt. The
Founders started them both out at 14 years apiece, and some
would argue that patents have zero term now because the courts
have eroded injunctive relief which the right to exclude.
So, patents--I find it interesting. Hopefully, we'll have a
hearing on patents, too, and I know you're head of the
Copyright Office, not the Patent Office.
Patents are harder and harder to enforce these days. How
did we get to what is 70 years plus the life of the author and
how does that serve the constitutional directive to promote
progress by securing for limited times?
Ms. Perlmutter. Well, over the years, the thought was that
copyrights should provide a livelihood to authors so that an
author who wrote books for a living would be able to continue
to create, and the author and his family would be able to be
provided for.
So, there has been some discussion over the years of the
copyright term approximating the term of someone's life and the
life of their children. That's, I think, gradually how it got
to that point.
The most recent extension, which was in 1998, which was the
only extension during the time that I've been working on
copyright, was a deliberate decision by Congress to respond to
an extension of copyright term in the European Union where
Europe was only going to give that extra 20 years to American
works if we provided a similar term.
So, at the time, the then Register of Copyrights testified
that while there might or might not be strong arguments
domestically for extending further, from an international
perspective and a balance of competition and payments
perspective, there were reasons to do it.
That's, essentially, how we got to where we are today.
Mr. Massie. Okay, and we got 20 seconds left here so I want
to get in another question.
My concern is that there will be a sneaky attempt by
Congress to extend this beyond 70 years, like, let's say
another nine--make it 90 years plus life for the author, which
could end up being a century and a half, which I think does
violate the constitutional directive.
Can you tell us today that you will not advocate for an
extension to extend that beyond the current period of time?
Ms. Perlmutter. I have not heard anyone pushing for a
further extension, and I would find it very surprising if that
were to happen.
Mr. Massie. Okay. You would not support it?
Ms. Perlmutter. At this point, I can say I have no
intention of supporting it.
Mr. Massie. Okay. Thank you very much for answering the
question. Most people don't do that when they come before us. I
yield back.
Chair Nadler. The gentleman yields back.
Mr. Johnson of Georgia?
Mr. Johnson of Georgia. Thank you, Mr. Chair, for holding
today's hearing, and welcome, Register Perlmutter. I join in
congratulating you on your appointment to this very important
position at this critical time, especially for creators as well
as other stakeholders in the copyright ecosystem.
As Chair of the Intellectual Property Subcommittee, I'm
particularly concerned with the runaway rise in online IP
infringement. The office's report on section 512 notice and
takedown has prompted some important discussions about the
future of online enforcement.
One common theme that we have heard from stakeholders, and
that the office also mentioned in its report, is that the level
of cooperation between online service providers and rights
holders that Congress envisioned has not come to fruition.
Given how much technology has advanced in the last two
decades, it's clear that a consensus-based approach to taking
down is not viable for creators.
Last fall, the office convened a series of discussions with
stakeholders about standard technical measures.
What insights did the office glean from those discussions,
and what is the office's view on how Congress should be
encouraging progress in developing these measures?
Ms. Perlmutter. Thank you. I think that is a very important
discussion. Part of the balance, as you suggest, in the
original DMCA was the idea that online service providers would
accommodate and not interfere with standard technical measures
that could be used to protect copyrighted works.
Those standard technical measures have never been
developed, in fact, in the 20-some years since then. So, our
roundtables were intended to explore what such measures might
exist, how they might be developed, and how they might be used.
We did not hear a lot of--not to overuse the word
consensus--we didn't hear a lot of consensuses about how to
achieve consensus. I think there was general openness to the
Copyright Office staying involved and assisting in continuing
the conversations.
I think it's a valuable route to continue. It may be that
at some point Congress will need to look at how to define what
is a standard technical measure for purposes of the dialogue
because, for example, it may be that there won't be standard
technical measures that will operate across all areas of
copyright creativity and there needs to be separate rules, or
maybe it won't be possible to achieve 100 percent consensus.
We do think this is an important and fruitful area to
continue work in, and we look forward to working with the
Committee.
Mr. Johnson of Georgia. Thank you. Recent reports, such as
the U.S. Trade Representative's 2020 review of notorious
markets for counterfeiting and piracy, showed the devastation
of unauthorized streaming of all sources of copyrighted content
both here and abroad.
Do you believe that the current copyright laws are robust
enough to effectively handle this increasing problem, and if
not, what are some of the adjustments you would recommend
Congress consider in restoring balance to the system?
Ms. Perlmutter. Well, one very important step was the
Protecting Lawful Streaming Act that was passed last year. This
issue about having appropriate criminal penalties for unlawful
streaming has been something that the Copyright Office has long
advocated for.
So, that was, clearly, a step in the right direction. We're
monitoring what's going on with streaming and other types of
piracy, both in the United States and abroad, and working
within the interagency to talk about what could be done going
forward, and we hope to continue to work with Congress as you
look at those issues.
Mr. Johnson of Georgia. Okay. Thank you.
I also support your efforts to bring on a chief economist
and have seen through the USPTO what great value those
positions can bring.
What will be the chief economist's primary initial
priorities, and how will the chief economist function be
supported?
Ms. Perlmutter. The initial priority will really be to
develop an appropriate research agenda. I think there is a
plethora of issues that would be extremely valuable to have
analyzed.
One of them will surely be looking at the question about
the representation of women and minorities in the copyright
system. That's a role that the chief economist at the PTO has
played very importantly.
In terms of support, we, of course, are going to start
relatively small. We're going to hire just a chief economist
and have them be supported by the existing staff at the office.
We also anticipate that the Copyright Office chief
economist will be able to work closely with the chief economist
at the PTO, whose remit also includes copyright policy issues,
and that they can be force multipliers for each other in the
initial stages. Then as things move on, we will see what
additional support might be needed.
Mr. Johnson of Georgia. Thank you, and I yield back.
Chair Nadler. The gentleman yields back.
Mr. Gaetz?
Mr. Gaetz. Thank you, Mr. Chair. I want to follow up on a
thread of questioning from Congresswoman Jackson Lee regarding
foreign entities and foreign interests.
Director Perlmutter, could you comment on the role of any
foreign entities and, really, the extent to which the Copyright
Office has to focus on that versus any type of domestic
infringement?
Ms. Perlmutter. Well, as you suggest, Congressman, a lot of
the infringement that copyright owners face these days comes
from abroad, and that is, clearly, a major issue.
For that reason, one of the things we spend a lot of time
on is working with the U.S. Trade Representative, including in
their notorious Market Report and their Special 301 Report, to
identify and call out those sources of tremendous foreign
infringement, and then the Administration takes various types
of action to try to address those sources.
Mr. Gaetz. Are there additional tools that you think the
Copyright Office can have to combat that foreign malign
influence?
Ms. Perlmutter. That's a good question. We, of course,
don't actually have enforcement powers ourselves, but we do
advise on enforcement issues, on policy and on drafting, and we
do work with counterparts in other countries to try to improve
their laws to allow them to address some of these issues in
their own territory.
Mr. Gaetz. So, it seems that your job is to inform the U.S.
Trade Representative and other entities within the government
where this action occurs and then they really have the hammer.
You provide the data and the information, but they have the
hammer.
So, could you provide us the information? Where in the
world do we see this foreign malign influence coming from,
principally?
Ms. Perlmutter. Well, I would refer you primarily to the
Special 301 Report that USTR just released, which identifies
very clearly where the main areas of concern are and actually
ranks them in terms of the level of danger.
Mr. Gaetz. Do you worry that there are any increasing
trends, particularly from China, to violate U.S. copyright
laws?
Ms. Perlmutter. On the issue of infringement and infringing
product coming into the United States, certainly China is a
major player.
I think it is something that the government as a whole
continues to keep a very close eye on and that includes, of
course, looking at how and to what extent China is implementing
phase one of the trade agreement struck with the United States
in the last Administration.
Mr. Gaetz. Thank you very much, Mr. Chair. I yield back.
Chair Nadler. The gentleman yields back.
Mr. Deutch?
Mr. Deutch. Thank you, Mr. Chair. Welcome, Register
Perlmutter. It's a pleasure to hear from you today and to work
with you in your role as Register.
I'd like to start with a report that predates your time at
the Copyright Office, but it's an issue that I'm sure you know
well.
In 2015, the U.S. Copyright Office released a report
entitled, ``Copyright in the Music Marketplace.'' The office
identified shortcomings of the existing music marketplace and
made recommendations for policy fixes.
One of the recommendations was the creation of a full sound
recording performance right, which would include terrestrial
radio. The report highlights the lack of a performance right as
inequitable to rights holders and curtails reciprocal flow of
such royalties into the United States.
It also pointed out what seems obvious to so many of us,
that the failure to require terrestrial radio to pay performers
for their works, while internet and satellite radio do pay
performers, the report--to quote the report, ``harms competing
satellite and internet radio providers.'' The report went so
far as to say that the market-distorting impact of the
terrestrial radio exemption probably cannot be overstated.
Is this still the position of the Copyright Office,
Register Perlmutter?
Ms. Perlmutter. It is absolutely still the position of the
Copyright Office. That has been, actually, the position of the
office for a very long time.
Immediately after I joined the office, I actually cosigned
a letter with Andrei Iancu, who was at that time the Director
of the U.S. Patent and Trademark Office, urging that Congress
extend the public performance right for broadcasting to sound
recordings.
Mr. Deutch. The report, that 2015 report, discusses the
negative impact that the lack of the traditional performance
rate has on international royalties for U.S. performers. Can
you just explain that to the Committee, please?
Ms. Perlmutter. Yes. Under international law, countries are
not required to extend protection to performers and record
producers from other countries if their laws don't provide a
similar protection. It's called reciprocity.
What is happening is that because American sound recordings
are so popular in other countries, a lot of money is being
collected for their broadcast abroad, but there is no
obligation under this principle of reciprocity for the money to
actually be paid out to Americans.
So, we are losing, I don't have the exact figures at my
fingertips, but we are losing a tremendous amount of money each
year from the enjoyment of American music in other countries.
Mr. Deutch. I appreciate that explanation. The Committee,
this Committee has a strong and bipartisan record of supporting
performance rights. The Chair has been a leader on this issue,
a leading voice on this issue for years. I look forward to
working with my colleagues to finally establish a performance
right across all radio platforms.
From a basic fairness perspective, it's well past time to
respect the rights of U.S. performers and ensure that
terrestrial radio plays by the same rules as Internet and
satellite radio.
I thank you very much for your insight, Register
Perlmutter.
I also want to ask about, I want to follow up on Mr.
Johnson's question on section 512 of the Digital Millennium
Copyright Act and the standard technical measures that were
intended to be used by a broad consensus of stakeholders. As
you point out, that consensus was never reached.
It could be a powerful element of the notice and takedown
system and make it work more effectively. It would give both
creators and online service providers a set of common tools and
standards. This seems like small, a small and obscure change,
but if those measures were in place, rights holders would
benefit from these simpler tools.
You said there's--you pointed out there's no consensus at
this point. You're open to continuing the conversation. You
also talked about perhaps having separate rules for different
kinds of technology. Can you expand on that a little bit? How
would that look?
Ms. Perlmutter. What I was referring to is not so much
different rules for different types of technology, as different
technologies that would work in different sectors. So, perhaps
different technologies for motion pictures than for music,
books, or software.
It seems as though one-size-fits-all might not be the most
effective way to move forward, both in terms of how the actual
negotiation process of the development would work and who was
at the table, but also in terms of what the technical measures
would look like.
Mr. Deutch. Very well, Register Perlmutter, we appreciate
your being here. I look forward to working with you on these
issues and so many others. Grateful for your service, and Mr.
Chair, I yield back.
Chair Nadler. The gentleman yields back. Mr. Johnson of
Louisiana.
Mr. Johnson of Louisiana. Thank you, Mr. Chair. I have to
start off by echoing what many of my colleagues have already
pointed out today, that this is the first hearing of the Full
Judiciary Committee in nearly five months, and it really is
outrageous that we're not focusing on the growing humanitarian
crisis at our southern border and the policies of the Biden
Administration that are causing that dangerous surge.
This Committee has a duty, as has been said, to address
this crisis. We're derelict in that duty by not doing it.
Instead, today we're talking about how we can fine-tune
copyright law. I'm not saying copyright law is not important,
but it's not an excuse to ignore the border, but here we are.
So, let's address the issue. As many on this Committee are
aware, we are locked in struggle with China right now to remain
the preeminent global economic superpower. One of the great
strengths that's allowed our Nation to defeat the Soviet Union
and to maintain our status on the globe is our American
ingenuity and our ability to spread American ideas throughout
the world.
Today, America remains the ideas factory of the world, and
thanks to a legal ecosystem for protecting IP that enables us
to be the global destination for commerce. In the last congress
I chaired the Republican Study Committee. It's the largest
caucus of Republicans on the Hill.
We published a lengthy task force report detailing how to
effectively deter China's attempts to surpass us economically.
A lot of that focus was on critical items centered around
continuing to build legal frameworks capable of protecting the
intellectual property of Americans. We have to do that if we're
going to maintain our status and be the hub of ingenuity as
we've always been.
The Copyright Office's effectiveness plays a big role in
that, of course, protecting America's status in that way. Laws
such as the Music Modernization Act take similar steps to
achieve that much larger end.
So, with that, Director Perlmutter, I just wanted to ask
you about the status of the Mechanical Licensing Collective,
that database, in terms of its completeness to date, its
accuracy, accessibility, usability. What would you say about
that?
Ms. Perlmutter. Well, we're still in early days. Of course,
the new license only went into effect on January 1. The MLC has
started to operate and to administer the blanket license and
just made its first distribution just a few weeks ago.
We are monitoring the progress; we are looking at how the
system is going to operate. Of course, in five years we will be
called on to make a decision again about whether to re-
designate the MLC.
So, there's that ongoing review process, and we're open to
receiving comments from users of the system all along. We've
established a few regulations regarding what the MLC has to
disclose and make available in its reports.
So, it's still an ongoing process, but I agree with you
completely that it's critical that that database be as accurate
and reliable as possible, and that is the goal of the
legislation, of course.
Mr. Johnson of Louisiana. Well, I'm glad to hear that
you're engaging directly with the MLC. We did have one question
about that database. It's currently limited to information
about mechanical rights, as you know.
So, some of the discussion has been should we, or could we,
improve the database to include information about performing
rights organizations as well. Then the next question is does
the MMA, the Act itself, provide sufficient authority to do
that. Do you have thoughts on that issue?
Ms. Perlmutter. Yes, that's a good question. It's my
understanding that there have been some discussions along that
line, but I don't think it's happened. I'd be happy to get back
to you with more information.
Mr. Johnson of Louisiana. That would be great, because I
think we all agree it's an important tool and we want to fine-
tune that and make it as useful and effective as possible. So,
we'd appreciate your input on that.
With that, Mr. Chair, I'll yield back the remainder of my
time.
Chair Nadler. The gentleman yields back. Ms. Jayapal.
Ms. Jayapal. Thank you, Mr. Chair. Director Perlmutter,
thank you so much for being with us. Your office is very, very
important in my Seventh District of Washington, home to the
rich history of the Seattle music scene and musicians like Jimi
Hendrix, Ernestine Anderson, Nirvana, Bing Crosby, Sir Mix-a-
Lot, Pearl Jam, Brandi Carlile, ShabazzPalaces, and so many
more, as well as nearly 17,000 people directly employed by the
music industry, most of whom earn their money playing gigs,
teaching music, and recording music.
The Copyright Office's report on section 512 affirmed what
musicians and songwriters have known for years, which is that
the current system has been failing music creators and those of
us that love music and the musicians in our communities. Now,
because of the pandemic, these creators are even more reliant
than ever on online revenue streams.
Can you speak to what the Copyright Office has done to
respond to the needs of creators during the pandemic?
Ms. Perlmutter. Yes. It's been an interesting time, and
we've spent a lot of time making sure that we are being as
responsive as we possibly can.
So, we've certainly, among other things, used the
flexibilities given to us in the CARES Act to give relief for
certain deadlines where people might have difficulty pulling
together the material they needed. We've used the flexibilities
to modify procedural requirements so that they can deposit
electronic copies rather than physical copies during the
pandemic.
There have been a number of--and we keep looking at ways
that we might need to adjust as we get information from people.
I have been extending the flexibilities and will continue to do
so until such time as it's clear they're no longer needed. So,
we're certainly trying to do things to help.
Ms. Jayapal. I really appreciate that. I wanted to pick up
on something that Representative Deutch was starting to focus
on, and that is some of these small, independent artists, like
the musicians in my district, they really do face very
different challenges than what a large copyright owner like
Universal Music Group or Sony Music faces.
They lack the resources, these smaller independent
songwriters, lack the resources to track infringements on the
internet because it's so big. Even when a takedown notice is
sent, the material can pop right back up again on the very same
platform, with the burden on the musicians to track themselves.
In the two decades since Congress passed the DMCA, large
companies like YouTube have developed their own infringement
detection tools that they make available to larger companies,
but not always or consistently to independent musicians or
other small creators.
What is your office doing to help ensure that these small
creators have access to some of the voluntary tools that larger
creators have access to on YouTube or other large platforms?
Ms. Perlmutter. Yes, that's a good question and a real
concern. We certainly, one of the things we are doing on a
regular basis on all issues is trying to reach out and provide
good educational materials and be available to answer
questions.
Absolutely one of the tensions is that it is technology
that will enable a lot better use of the system from everyone's
perspective, including for small creators who find it difficult
to scour the entire internet on a regular basis.
Yet, at the same time, to the extent that that technology
is developed, it may not be easily within the reach of smaller
users. In fact, whether they're copyright owners or small
service providers, for that matter.
So, this is definitely an issue that we need to look at.
Our report did make the point that one-size-fits-all just
doesn't work in today's system. While I don't think we yet have
all the answers, we are very focused on this problem and will
continue to be so.
Ms. Jayapal. Well, I hope you'll keep our office informed
on that, because it's just something that keeps coming up over
and over again, and we need to address it as quickly as
possible.
Of the suggested changes to the law on the office's section
512 Report, which ones would do the most to help create parity
among all content creators, including small creators?
Ms. Perlmutter. I think one of the main recommendations,
which is to clarify what the red flag knowledge standard means
and how it relates to actual knowledge, would be extremely
helpful.
We also focused on the fact that there's no standard
requirement for how to notify a service provider. There may be
some extra burdens being placed on individuals in terms of what
providers require in the form of the notice.
We are concerned about that. We do think maybe having more
of a standardized form could be useful. On our website now we
do have model forms for notice and counter-notice, and we think
it could be useful for people to use those.
So, I think those are among the things that could really
help.
Ms. Jayapal. Well, I really appreciate this. It's so easy
to get lost in the technology and the bureaucracy of copyright
discussions, but really this is about making sure that
creatives are justly compensated for their work.
Thank you so much, Director Perlmutter. Mr. Chair, I yield
back.
Chair Nadler. The gentlelady yields back. Mr. Steube.
Mr. Steube. Thank you, Mr. Chair. First, I'd like to join
my colleagues in expressing disappointment that several months
into this congress this is the first time that the Full
Committee is holding a hearing and holding a hearing on
copyright. While today's topic is important, so is the crisis
at the border, attacks on the Second Amendment, court-packing,
and countless other issues coming from the Biden
Administration.
So, I hope to see the Committee hold an oversight hearing
with actual officials from the Biden Administration to discuss
these pressing issues facing our country.
Ma'am, thank you for being here today and for your service
to the Copyright Office. I have a question related to your
position in general. The Register of Copyrights is appointed by
the Librarian of Congress and not the President. The Librarian
of Congress, while appointed by a President, serves a ten-year
term that crosses over administrations.
So, this means that your position is very insulated from
political pressure and from voters. Given the important
functions of your office, is this level of insulation
appropriate? Besides occasional hearings such as this, how is
your office held accountable?
Ms. Perlmutter. I've followed and am aware of the
discussions of this issue over the past years and some of the
bills that have been introduced. My view is that there are both
pros and cons to the idea of making a change and having this
position be a presidentially appointed position.
In my experience in, certainly in six months on the job, it
is working well as it is. I do think that we have a Librarian
who's presidentially appointed who I report to. We work very
closely with the Hill, with this Committee and also with the
Senate of course. We work closely with other agencies in the
Executive Branch that are focused on IP policy issues.
We report regularly, including an annual report, to
Congress. I believe there are plenty of opportunities to make
sure that there's adequate oversight. To the extent that there
was a perception of a problem, of course that is always
something to discuss.
It has to be borne in mind that any change comes with both
positives and negatives that would need to be thoroughly
considered.
Mr. Steube. It is my understanding that very few make use
of the counter-notice provisions of section 512 of the Digital
Millennium Copyright Act. What do you believe is the main
reason for that, and what do you believe should be done about
it?
Ms. Perlmutter. I would have to be speculating about the
main reason. It is possible that most of the notices that are
received do not involve any mistake or misidentification but
are just very blatant cases of infringement, and so there's no
need for a counter-notice.
There's also a possibility that those whose content is
taken down may not be aware of the full rights that they have
to use the counter-notice process.
Then, as our 512 Report pointed out, there's also some
concern that the time period set out for the counter-
notification process may be both too long and too short.
Perhaps too long in terms of how long one has to wait to get
content re-posted, and too short in terms of the fact that the
right holder is required to take steps to initiate a Federal
litigation to counter the counter-notice.
We would like to make sure that people know how to use
their ability to submit a counter-notice. Again, on our website
we now have model forms for that, which we hope will help, as
well as a lot of information.
Mr. Steube. Okay, on the topic of the DMCA, should there be
different ways to handle different types of content, such as
livestreaming of sports or other such events? If so, how would
that be accomplished?
Ms. Perlmutter. At present in the DCMA, there has not been
an attempt to specify, at least through statute, different
routes, and different methods for different types of works. I
am not aware of any areas where that would be necessary. If it
were, then I certainly think we should be looking at that.
Mr. Steube. The Mechanical Licensing Collective was created
by the Music Modernization Act and was in some ways the focus
of that legislation. How is your office making sure that the
MLC exercises fiscal responsibility with respect to the
royalties it collects and distributes, both matched and
unclaimed?
Ms. Perlmutter. We don't have general oversight into all
the activities of the MLC, but we are responsible for
designating and redesignating. That process will include
ensuring that the entity is doing a good job at what it's
supposed to be doing.
So, we are accepting comments, and we will be looking at
that. As well as, of course, our work in generally setting out
regulations governing how it operates and how it reports.
Mr. Steube. Well, thank you for being here today. My time
has expired.
Chair Nadler. The gentleman yields back. Ms. Demings.
Ms. Demings. Thank you so much, Mr. Chair. Thank you, Ms.
Perlmutter, for being with us today.
I know a couple of my colleagues have addressed this issue,
but I'm not sure, I may have missed it, some of the questions
dealt with the approaches that we are taking to address foreign
online infringement. I would like to know if there are any
international approaches that translate well.
I know Ms. Jackson asked a similar question, and I know
we're monitoring. Have you identified any international
approaches that translates well to the U.S. copyright system?
Ms. Perlmutter. Well, we are constantly looking at that. I
think it is extremely important to always be aware that other
countries may come up with ideas that we can adapt here, if we
find them useful, just as much--well, in addition to our work
in advocating for the U.S. policy positions outside the
country.
I think there's a lot of work being done now, which is
somewhat unproven in terms of how well it's going to work. So,
we're still in a watch-and-see mode when it comes to things
like the European Union's article 17, which some have
interpreted to require filtering or notice and staydown.
So, we want to see what it means, how it can be
accommodated from a technological perspective and what the
impact will be before we would be ready to say that we would
recommend any part of it here.
Ms. Demings. So, we have not seen anything coming out of
the European Union that we are quite ready to adopt?
Ms. Perlmutter. It's still early days. They're still in the
process of implementation.
Ms. Demings. Thank you so much. I know that COVID-19 has
hit us all hard; we've all had to make some adjustments. Can
you elaborate on the measures your office implemented to
continue operating and serving the public virtually over the
past year?
Ms. Perlmutter. Yes, we've done a number of things.
Certainly internally, we've moved to telework, and we tried to
adjust our processes because some of our processes deal with
physical material. Whether it's physical deposits or
certificates of registration or mail, there are certain things
that we have suffered from not having people onsite to be able
to handle.
In terms of the public, we've put in place a number of
flexibilities, either through authorities that we already had
or under the CARES Act.
That's included finding ways for people to submit payments
that in the past they did through checks and money orders to be
able to do it electronically, and ways to be able to not have
to submit best editions in physical form in order to get a
filing date and to start the clock running on their copyright
registration.
Ms. Demings. You also extended some of the deadlines, is
that correct?
Ms. Perlmutter. We extended deadlines, and we're continuing
to do so. I'm extending all the flexibilities, or most of the
flexibilities as they are still needed.
Ms. Demings. Do you believe Congress should be considering
a permanent version of these emergency powers for future
emergencies?
Ms. Perlmutter. I think it could be useful, yes.
Ms. Demings. Thank you. Finally, what new legal or policy
issues does the office foresee becoming important over the next
few years?
Ms. Perlmutter. I think the overall issue of the roles and
responsibilities of Internet intermediaries is going to
continue to percolate. Obviously, that's true not just in the
copyright area.
There's also a lot of discussion about artificial
intelligence and the related issue of text and data mining.
Then we keep looking at the existing specific exceptions and
limitations in the Copyright Act, and some of them we believe
need updating.
Then of course fair use and how it's applied by the courts
keeps evolving, most notably with the recent Supreme Court
decision in Google v. Oracle.
So, I think those are some of the highlights that I would
mention.
Ms. Demings. Okay, great. Thank you so much. Mr. Chair, I
yield back.
Chair Nadler. The gentlelady yields back. Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chair.
I appreciate the comments of a number of Members who've
come before about how the priority has been set for this
hearing amid the many issues that that are pressing. In
particular, maybe the irrepressible gentleman from Tennessee,
who certainly couldn't resist taking the bait for
understandable reasons.
Many of the questions, Ms. Perlmutter, you've already
answered--asked covering the issues of refinement of the
Copyright Office operations. That's already been done well.
I thought I'd just offer one other perspective on the issue
of the priority-setting by the majority here. There are 12
Members of this Committee who have not been Members in the
116th Congress, or not initially, 29 percent of the Membership
of this Committee.
Here are, it's a list that I can think of as I sat here of
major pieces of legislation within the jurisdiction of this
Committee that were brought on the floor this year without ever
having a Committee hearing to address them.
H.R. 1, the bill to federalize all election regulations and
ban voter ID. The two immigration mass amnesty bills. The bill
for DC statehood. The PRO Act, which would nullify right-to-
work laws in 20-something states and substantially destroy the
independent contractor model.
The bill to simply defund or cripple police forces
masquerading as a police reform bill. The so-called Paycheck
Fairness Act, having the government scrutinize the pay
practices of the employers all over the country. The Violence
Against Women Act extension or reauthorization to cover
transgender ideology. The ERA deadline extension. The crime
victims funding amendments.
I'm probably leaving out some big ones. Even the
impeachment matter at the beginning of session and the urging
of the House of the Democrat majority--for the Vice President
to exercise the power of the 25th Amendment.
None of that came before this Committee, none of it
afforded an opportunity for the 12 new Members to participate
in the Committee process that would be normal.
I agree with the gentleman from Tennessee and others that
there are other issues, that it's inconceivable to have them
subordinated to this hearing. We have preliminary data; we'll
see more date from the Customs and Border Protection within the
next several days.
It appears that following the 174,000 apprehensions of
illegals at the border last month, we're going to be at or
slightly above that level for another month. Having no
precedent within the past 20 years.
We see that there are issues concerning irregularities in
the election that occurred that have not been examined by this
Committee. The fact that there were 400 lawsuits approximately
filed to attack basic elections regulations by a democrat, by
the Democratic National Committee in the hands of Marc Elias.
There was Big Tech suppression of information like the
Hunter Biden laptop in advance of the election. We haven't even
had a hearing to address the court-packing scheme Democrats
have rolled out.
It's just astonishing that the press--the priorities that
are set here by the majority are, in terms of the hearing time
of this Committee, are a reflection on the regard that the
majority has for the functioning of this Committee and its role
in this congress. The American people should take note.
I yield back.
Chair Nadler. The gentleman yields back. Ms. Scanlon.
Ms. Scanlon. Thank you, Chair Nadler.
The issue of copyright infringement and enforcement is a
big one in my district. I regularly meet with our artists and
small businesses who struggle to effectively use the notice and
takedown system to enforce their copyrights online.
The system is arranged in a way that makes accuracy and
efficiency difficult for our smaller creators, who often have
trouble enforcing their intellectual property online.
So, while larger content creators have some solutions and
resources with which they can navigate the notice-and-takedown
system, the solutions offered to smaller creators are
burdensome and prone to error. It's resulted in a system that
really isn't fair.
We need to create a system that works for even the smallest
of solo content creators, one that doesn't sacrifice the
variety of internet content, while also protecting rights
holders.
So, Ms. Perlmutter, we had a hearing in September, and I
spoke then about the burden on small businesses and solo
content creators in navigating the notice and takedown process.
As it stands right now, I'm hearing that the process doesn't
seem to be working for creators who lack large financial
resources or access to automatic infringement detection tools.
I understand that the Copyright Office's May 2020 five-year
study on section 512 found similar discontent among individual
rights holders navigating this process.
Now, I wanted to dig a little into the knowledge part of
section 512. So, section 512 contemplates that if a service
provider has actual knowledge or red flag knowledge of an
infringement, then its obligation to take that material down is
triggered.
We've seen in application, the balance is tipped away from
the needs of the creative community and in favor of the large
internet platforms.
We know, for instance, that the creative community sent
over 900 million takedown notices each year to Google and
YouTube alone. The Copyright Office found that one of the
issues we're contending with here is that the courts have
blurred the lines between actual knowledge and red flag
knowledge.
So, I understand from the report that the office believes
that maybe Congress could pay some attention to clarifying the
distinction between actual and red flag knowledge. Can you
discuss that a little bit?
Ms. Perlmutter. Yes, I wanted to start by saying I
completely agree that the system has to work for individuals as
well as for large companies. That was always intended, and
that's one of our goals.
I was at the Copyright Office and involved in crafting the
language on red flag knowledge in the DMCA. I know the intent
at the time was something that was less than constructive
knowledge but more than actual.
So, the idea was there was both a objective and a
subjective element. So, there had to be actual awareness, but
only of facts and circumstances from which infringement was
apparent.
The intent was not for it to be that every individual Act
of infringement had to be specified and specified in a notice.
So, I think this is an area where the courts have interpreted
the law in a way that is different from what was originally
intended, and some clarification would be useful.
Ms. Scanlon. I was also interested in the report finding
that the application of the willful blindness standard is also
problematic in this space. We certainly know that these Big
Tech platforms have developed algorithms which enable them to
do an awful lot of things.
So, putting their use, their widespread use of algorithms
to make a profit next to the fact that they seem willfully
blind to the fact that there's all this copyright infringement
going on, sometimes even in their favor. That seems like an
area that should be ripe for congressional action.
Ms. Perlmutter. Yes, and there needs to be a balance. It's
a difficult area, because clearly the statute says there should
be no requirement of monitoring, and so you want to avoid a
general monitoring obligation, but also not countenance the
deliberate turning of a blind eye.
Ms. Scanlon. Do you think we should move to some kind of
monitoring? Because we certainly see with the big platforms,
and maybe it's just with respect to those OPSs or whatever,
that you know, they're monitoring everything else we do. Could
it be fair to impose some level of monitoring duty?
Ms. Perlmutter. I think there's a way to achieve our goals
without requiring general overall monitoring, which could be
quite prohibitive.
Ms. Scanlon. Right, and I understand that there's dangers
in going too far that way as well, which we're combating in
other sectors as well.
I think my time is expired. Thank you very much.
Chair Nadler. The gentlelady yields back. Ms. Spartz.
Ms. Spartz. Thank you, Mr. Chair. Thank you for the
testimony.
I wanted to really echo my colleagues and mention that we
had some discussion on immigration in the Immigration
Subcommittee, but this Committee need to have discussion on
border security. Very important issue, and hopefully we can
come together and do it.
I also wanted to thank you for really talking about this
issue and also wanted to echo some of the concern with Big Tech
and section 512 issues. I would like to ask you to work with
Librarian of Congress and just to see how we can really address
it in effective way.
I think President Obama, when he made that office to limit
it to ten years, he wanted to make sure that we can have this
issue addressed and changes in technology being addressed by
the office more effectively. I think that was a good way to do
that.
I have a question for you about something that President
Biden in his address to Congress last week. He said that he
will continue to stand up to unfair trade practices that
undercut American workers and American industries, like
subsidies to state-owned enterprises, and the theft of American
technology intellectual property.
Intellectual property is very important issues. Have you
met with the President and really have a plan? What are you
planning to do to implement some of these policies?
Ms. Perlmutter. I have not met personally with the
President, but we work very closely within the interagency
group that works on all these issues, including with the IP
Enforcement Coordinator once that position is filled again.
So, we are quite cognizant of how critical these issues
are. I think in the government everyone is very much in the
same place on the importance of controlling the infringement of
American products abroad, the piracy and counterfeiting side of
the equation.
Ms. Spartz. Do you believe you have a plan that you would
be able to give periodic updates on the results and kind of
where on the progress this, what you're going to be working on?
The is a big issue and it's building. Presidents and
[inaudible], because we talk a lot but when shows if we have
policy.
So, is that something you already have a plan and some of
the key steps and would be able to share, or are you still
working within office?
Ms. Perlmutter. Yes, there are plans and steps in process.
We don't have the lead on this, it is more a matter for the
U.S. Trade Representative. We are certainly involved and happy
to answer any question at any time.
Ms. Spartz. Right, and so you would be able to, next time
we talk, you will be able to update on some of the progress and
accomplishments and results of that plan. Would you be able to
do it for us?
Ms. Perlmutter. Yes, happy to give a report to supplement
and add to anything that the U.S. Trade Representative is
reporting.
Ms. Spartz. Okay, well, I would like for us to work very
closely with Congress and with the Executive Branch as we
actually done, because this is a big issue, and it really
effects a lot of companies in our country and a lot of
constituents in our district, and we need to make sure that we
have policies and not just talking points, but actual results
and plans how we're going to implement.
So, thank you for being here, and I yield back.
Chair Nadler. The gentlelady yields back. Ms. McBath.
Ms. McBath. Thank you so much, Chair. Thank you so very
much, Director Perlmutter, for being with us this morning. We
really appreciate your testimony.
I'm glad that we've actually had this opportunity to
discuss how we can continue to promote the arts and make sure
that we're really thinking very carefully about how we protect
the rights of our musicians and our writers, our visual
artists, and other creators.
This is no easy feat in our modern technological era, in
which we must also be really thoughtful about how information,
music, art, and our very culture is shared.
Something that I don't think was really touched upon
today--and I've been also trying to be on another hearing as
well--but like, I would like to talk a little bit about what's
been happening under COVID.
Like many of workplaces, the Copyright Office had to adapt
to the COVID-19 pandemic, including the need for telework,
which now of course all of us have been teleworking. Then also
the use of temporary extensions of deadlines and allowing for
more electronic submissions.
So, what has the office learned from these adaptations? For
example, could more processes be moved to electronic
submissions?
Ms. Perlmutter. That's an excellent question and one that
I'm spending a lot of time thinking about. I think for some of
our processes we will be able to take advantage of what we
learned and move to more electronic submissions.
In some ways, the experience in this year of the pandemic
has enabled us to speed up what was already in process and what
was already planned in that respect. So, I think that will all
be to the good.
So, the question is just, in those areas where we can't do
things fully electronically, how we make it more efficient and
more effective.
Then a lot of our processes that were paper-based in the
past, we're really quite rapidly moving to electronic systems,
like in particular the recordation system, which was almost
entirely paper-based until now.
So, there's a lot of new developments. In terms of the
workforce, we've been able to be quite productive teleworking.
We now have about a quarter of our staff coming on site at
least part-time because of the physical needs of the job.
I am sure we are going to end up doing more telework and
relying more on those abilities, both in terms of day-to-day
work and in terms of events and outreach and programming than
we have done in the past.
Ms. McBath. So, thank you for that. The Music Modernization
Act directed the Copyright Office, in consultation with the
Government Accountability Office, to conduct a study to
recommend the best practices for the Mechanical Licensing
Collective to implement for identifying and locating copyright
owners that have unclaimed royalties, for encouraging copyright
owners to claim their royalties, and for reducing the incidence
of unclaimed royalties.
I've spoken to many, I live here in Georgia, so I've spoken
to many individuals that have posed that same problem to me.
When will this study be completed, and what have you learned so
far about how we can make sure that royalties get to the
musicians who've actually worked really hard to earn them?
Ms. Perlmutter. It's a very important study, and we've
heard a lot of ideas from a lot of different sources. We have
held hearings and round tables and gathered a lot of
information in written form as well.
We are fully on track to complete the study by the
deadline, which is July 8. So, we're talking about only, if I
can calculate correctly, two months from now.
Ms. McBath. Okay, well, thank you so much, I appreciate
your time. I yield back the balance of my time.
Chair Nadler. The gentlelady yields back. Mr. Fitzgerald.
It looks like Mr. Fitzgerald stepped away, so we'll go to Mr.
Owens.
Mr. Owens. First, thank you for this hearing, I find it
very informative. I have no questions at this time, and I yield
back my time. Thank you very much.
Chair Nadler. Mr. Stanton.
Mr. Stanton. Thank you very much, Mr. Chair, for holding
this important hearing. Can you hear me okay?
Chair Nadler. Yes, we can.
Mr. Stanton. Thank you, Ms. Perlmutter, for the outstanding
information. I wanted to direct my questions to issues as it
relates to the CASE Act and making the Copyright Office more
accessible to small- and medium-sized copyright owners.
You addressed it a little bit earlier, but I want to
reiterate the December 27, 2021, date for getting the copyright
[inaudible] up and running. How's that going?
Ms. Perlmutter. It's going well. It's a short deadline for
getting a lot of work done, but we are operating on all--firing
on all cylinders at the moment.
So, we are working on the regulatory side. We've issued a
notice asking for comment on how the regulations should be
drafted and what issues they should address. Then we will be
issuing draft regulations based on those comments for further
comment.
We are deep into the hiring process for the three judges,
and we are engaged in developing the technology that they will
need for case management and for conducting remote hearings.
So, things are moving along. Our hope and our plans are to
have it done by the end of December. I know the statute gives
me a little bit of flexibility if needed, but we are certainly
hoping not to need that flexibility.
Mr. Stanton. That's great. Well, we are excited to get the
board up and running as soon as possible to make the system as
accessible as possible for less sophisticated actors, those not
represented by counsel, many needing a little more help.
How do you plan to make the Copyright Claims Board
accessible to Members of the public who are not as
sophisticated in copyright law and not represented by counsel?
Ms. Perlmutter. Yes, equally important to all the work
setting it up is the work in making sure that people know about
it and know how to use it or choose not to use it.
So, we have already set up a website, a dedicated website,
with information about the CCB and Q&A, and we'll be updating
that as the regulations start to take form and the processes
and structure start to take form.
We're doing a lot of outreaches with different groups and
organizations, and we're making sure that it is all of these
processes are as understandable and clear and usable as they
possibly can be. That includes both for people who have claims
they want to bring, and people who may want a declaration of
noninfringement before they start some sort of activity.
For people who have claims about misrepresentations under
the DMCA notice and takedown system. We also need to make sure
that people know not only that they can bring claims, but for
respondents, that they know what the costs and benefits are of
deciding to opt out and how they can do it.
Mr. Stanton. One of the innovative things about the CASE
Act was provisions allowing for representation by law students,
not Members of [inaudible] of the bar. I think that's a great
advancement, and it will help some of the claimants. It will
help the law students themselves as they prepare for legal
careers in this important area.
How is the office planning to work with law schools to help
begin this process, help begin the facilitation of law student
representation?
Ms. Perlmutter. We have a lot of good connections with law
schools around the country. We partner with them on a lot of
different issues. So, I'm sure we're going to be using those
connections.
Of course, the more people we can get who can help those
who want to use the CCB, the better. So, this will be also a
focus of attention.
Mr. Stanton. Okay, I really appreciate that. As when I was
a law student, I had a chance to work with a Child and Advocacy
Law Clinic and represent children [inaudible] terminate their
parental rights. It was great training for a legal career, so
I'm delighted that was included in the CASE Act.
So, we are really looking forward to working closely with
you to get that claims board up and running. Anything you need
from us here in Congress to make the Claims Board successful,
please let us know. With that, Mr. Chair, I yield back.
Chair Nadler. Ms. Dean, I think you're on mute.
Ms. Dean. I'm sorry, I didn't hear. Thank you, Mr. Chair,
and thank you, Register Perlmutter, for being with us today.
I wanted to follow up relatively quickly on your three
priorities, which I champion along with you. The continuation,
as Representative Lofgren said, of modernization, that it can't
be a once-and-done, that it has to be continuously updated.
I just wonder, from your experience, you said that 98
percent of your staff went to full or partial virtual at the
same time you're trying to effect modernization. How was that
path? What bumps and obstacles were in the way, particularly
for those seeking copyright protection?
Ms. Perlmutter. I think it's been, as I said, a challenging
year because people are doing their regular full-time jobs and
adapting to doing them remotely at the same time as they're
also working on the modernization initiative, because we need
subject matter experts to work with the IT experts all along
the way.
Things are moving along well. People have adapted and
adjusted well. We have not seen a decline in registration, in
the use of our services. People have been using the
flexibilities that we've put into place.
So, I'm tremendously gratified to see, in fact, how
smoothly things have gone from the perspective both internally
in the office, and from what we're hearing from stakeholders.
Ms. Dean. Do you have any guess as to how much you might
retain virtual employees?
Ms. Perlmutter. Well, of course we work within the library,
which has centralized responsibility for HR. They are currently
in the process of determining what the library-wide policy will
be for remote work. It will undoubtedly give a fair amount of
flexibility to the Copyright Office and the other service units
within the library to determine what makes sense for us.
What I have been saying to staff is that I am sure we will
have more flexibility for telework than we've had in the past,
although probably not quite as much as we've had during the
pandemic.
We're trying to figure out the right balance to give people
flexibility but also not to lose some of the benefits from in-
person interactions that we've missed during the past year.
Ms. Dean. Yeah, we all have missed those. Adding to the
conversation, I too think it's fantastic that you will be
hiring a Chief Economist to collect data to do greater
research. Let's talk about your initiative regarding diversity.
I know Representative Jackson Lee talked about this. Could
you be a little more specific? I know you have not yet hired
the Chief Economist, but certainly you can see the gaps, or
have identified, assessed gaps in diversity.
Can you tell use specifically where are those gaps most
chronically? I know you're going to be doing outreach and
hiring a person for outreach. Can you identify where those gaps
are in the creative world?
Ms. Perlmutter. I think one of the big questions right now
is finding out where those gaps are, and that is something that
the Chief Economist will be very helpful with.
Just to give as one example, I had always assumed, just
based on my personal experience, that women were extremely well
represented in the copyright world. In fact, within the
Copyright Office, approximately 60 percent of our employees are
female.
It turns out that about ten years ago, an informal study
was done of copyright applicants, which concluded that actually
women were significantly underrepresented among copyright
applicants. I want to update that data.
I was at the PTO when the Chief Economist did a major
research project on women in patenting, which showed even lower
rates of participation than in the copyright system. So, we
need to get a better handle on what the current reality is,
both for women and for minority groups. Also, look at possible
geographic underrepresentation. There may be a lot of
creativity all around the country that is somewhat untapped
because people aren't aware of what copyright is.
Ms. Dean. I think that's really valuable information that
we should have. Maybe other areas of diversity as well, for
example, folks who are disabled or differently-abled or however
we want to say it. LGBTQ, and others. What barriers are there
to a real depth of diversity in the taking advantage of the
protection of copyright.
So, I honor the work that you do. Congratulations on your
assignment. With that, I yield back.
Chair Nadler. The gentlelady yields back. Ms. Bush.
Does anyone else wish to speak? There seem to be no other
Members currently. Does anyone else seek recognition? Well, see
anybody?
Well, in that case, this concludes today's hearing. We
thank Ms. Perlmutter for participating. Without objection, all
Members will have five legislative days to submit additional
written questions for the Witness or additional materials for
the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:13 p.m., the Subcommittee was adjourned.]
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