December 14, 2016

2017 Policy Priorities: A Copyright Regime for the Digital Age

Over the past few weeks, I’ve detailed technology and innovation issues that will be of pressing concern in the new year: airspace and commercial space launch reform, artificial intelligence, the Internet of Things, and data innovation. This week, I’ll touch on the final area of potential bipartisan opportunity in 2017: intellectual property and copyright reform.

To Reform, Or Not To Reform?

Intellectual property and copyright are tricky issues that have a long history of evoking strong emotional undercurrents, especially in conservative and libertarian ideological circles. Is intellectual property the same as physical property? Do we possess a natural right to “own” our ideas once we produce materially reproducible incarnations of them? Can such ownership be passed on indefinitely, or is a “life plus X number of years” regime better situated to capturing the benefits of artistic creation?

I don’t have a particularly good answer to any of those questions, though I certainly have personal opinions on some of them. However, we need to ask ourselves whether the current system is working well enough to accommodate the changes wrought by the emergence of the Internet—such as music and video streaming services and online content creation. To answer that question, it will be important to unbundle the patents and trademarks issue—which impacts a much broader array of industries—from the copyright issue. To that end, 2017 could be the year in which copyright sees some larger reforms.

Intermediary liability protections continue to be a valuable means of promoting and defending free speech online, ensuring that service providers and Internet “backbone” operators are not deputized as content police for cyberspace. The Niskanen Center discussed these and other benefits in a recent comment filing to the U.S Trade Representative focusing particularly on content delivery networks (CDN). Problems of online piracy are difficult to disentangle from the complex web of Internet users, content creators, hosting platforms, Internet service providers, CDNs, and others. And while the notice-and-takedown provisions of the DMCA can potentially serve as a reasonable tool for remedying some of those piracy issues, there are avenues for improvement.

Some recommendations for improvements were the topic of a robust—and lengthy—recent White House report: the U.S. Joint Strategic Plan on Intellectual Property Enforcement. In particular, it discusses some of the issues with using the notice-and-takedown provision of the DMCA:

For some platforms, the sheer number of takedown requests received, many of which are automated, have required a shift toward automated review and adjudication, resulting in some notices and takedowns of questionable validity. The misidentification of non-infringing content as infringing risks affecting the integrity of the notice-and-takedown regime for rights holders, Internet intermediaries, and users. Left unaddressed, these range of problems risk undermining the benefits of the notice and takedown system.

This seems to be a reasonable concern, and one which could potentially be addressed by the “continued development of private sector best practices:”

These best practices may focus on enhanced methods for identifying actionable infringement, preventing abuse of the system, establishing efficient takedown procedures, preventing the reappearance of previously removed infringing content, and providing opportunity for creators to assert their fair use rights. These efforts would provide valuable assistance to existing enforcement tools as they confront large volumes of infringing activity occurring online.

While best practices, especially for content delivery networks and other online service providers, can be valuable, there are other potential mechanisms for appeasing some of the concerns over online infringement. Online content creators and the traditional entertainment content industries may benefit from a system that shifts the automated enforcement of copyright from a post- “review and adjudication” process to a prior review system.

Automating Copyright Enforcement

As Niskanen Center adjunct fellow Regina Zernay discussed, technology can be a powerful ally in the fight against online infringement, while protecting the interests of individual content creators. “Automated copyright enforcement systems,” Zernay argues, “could help reduce the number of infringement occurrences, provide a more effective means of presenting and resolving infringement claims, and offer a useful tool to assist courts in performing a more objective analysis when evaluating claims.”

If properly designed, an automated copyright enforcement system could help content creators recognize infringement before releasing infringing material and exposing themselves to liability. Though infringement may be accidental (described by the courts as “subconscious copying”), it is not made less actionable due to a lack of intent. If access and substantial similarity can be shown, liability attaches regardless of the content creator’s intent or knowledge of infringement. An automated system of evaluation could help identify and avoid such a scenario.

Of course, operationalizing such a system is a more difficult task. For starters, court standards of evaluation would need to be far more objective in order to establish specific, codable parameters. It would also require a digital database of existing copyrighted material against which the automation algorithm would be able to check new material before upload.

A forthcoming Niskanen Center paper on automated copyright management will go into these matters in more detail.

Why the Time For Action is Now

Although there hasn’t been much movement on the copyright issue for some time, next year could see some piecemeal reforms.

For starters, the House Judiciary Committee recently shared a memo on reforming the U.S. Copyright Office, which mentioned the need for the it to “maintain a searchable, digital database of historical and current copyright ownership information and encourage the inclusion of additional information such as licensing agents that would be available to the public.” As mentioned, such a database is  one of the necessary components to an automated copyright management system. If the Judiciary Committee is serious about implementing this reform, a copyright management system that relies on automated content identifiers could soon be political reality.

Between the recent Strategic Plan released by the White House and the Judiciary Committee’s proposed reforms to the U.S. Copyright Office, there are real windows of opportunity for substantive reform in the next Congress.

Through 2017 and Beyond

Although intellectual property and copyright considerations aren’t normally considered the purview of technology and innovation policy, the reality is that large swaths of content creation have moved online. On top of that, the decentralized  nature of the Internet is not conducive to an outdated copyright system that can only be maintained with gatekeepers and controlled access points. Times have changed, and our copyright system needs to adapt to the digital ecosystem, not the other way around.