PTO Plans Public Consultation on Internet-Related Copyright Issues

The U.S. Patent and Trademark Office (PTO) plans to “begin a multistakeholder dialogue” in early March on how to improve the notice-and-takedown system instituted as part of the Digital Millennium Copyright Act (DMCA), said PTO Chief Policy Officer and Director of International Affairs Shira Perlmutter during a speech Wednesday. The multistakeholder consultation on notice and takedown was one of several recommendations PTO included in a green paper on Internet-related copyright policy issues it released in July (http://1.usa.gov/1bySZcG).

PTO “heard from all sides that there were some problems in the operation of the system,” Perlmutter said at the Media Institute event. Commerce Secretary Penny Pritzker mentioned the upcoming multistakeholder meetings during a speech Tuesday at the State of the Net conference, saying “Internet service providers, consumer groups, copyright holders and creators themselves” would need to be involved in order to properly fix the notice-and-takedown system. The initial meeting will be in Washington, with additional meetings every six weeks at alternating venues in D.C. and the West Coast, Perlmutter said Wednesday. PTO expects those meetings will continue throughout 2014 and hopes there will be “some positive results, of whatever nature, at the end of the year,” she said. PTO plans to announce further details on the meetings in the next few weeks.

PTO is aware “there’s a lot of anxiety about the possibility of reopening the DMCA on all sides, so it did seem to us that a lot of the issues that people raised about burdens they were experiencing with the system in operation could be dealt with by discussing them and seeing if improvements could be made short of legislation,” Perlmutter said. The initial March meeting will focus on developing a list of important topics for discussion and creating working groups to work on each issue, she said. The PTO expects those issues to include the volume of notices issued through the system, abuse of the system and the reposting of content immediately after a website removes it, but stakeholders had also expressed interest in addressing other issues related to the system, Perlmutter said.

PTO also plans to seek public input on how to address several other copyright issues, including its stance on remixes that use copyrighted work, the first-sale doctrine’s relevance in the digital environment, the application of statutory damages for individual file-sharing and the context of secondary liability for online services, Perlmutter said. That public input process will begin with roundtable discussions to be completed by July in four or five cities, including Los Angeles, Nashville, Silicon Valley and at least one East Coast venue, she said. PTO also wants to examine whether there’s an appropriate government role to help encourage improvements to online licensing, Perlmutter said. The PTO’s green paper had found that online licensing has developed “by leaps and bounds,” but that it has still not reached its full potential, she said.

The planned consultations don’t mean PTO will definitely recommend additional legislation on those issues, “but we do think these are issues that are important and need further discussion and consideration,” Perlmutter said. PTO does not, however, plan to recommend any legislation on the level of the controversial Stop Online Piracy Act and PROTECT IP Act, she said. Remixes are already prevalent online, but PTO would like to examine if there would be more “if we had either an easier-to-use micro-licensing scheme in place or if we had a specific exception rather than needing to rely on fair use” rules, Perlmutter said. PTO wants to identify what the first-sale doctrine accomplishes in the analog world, whether those accomplishments translate into the digital world and how to better translate those benefits into the digital world if they don’t exist, she said.

The Obama administration has long sought to make the same range of copyright enforcement actions and penalties available for all online infringement, Perlmutter said. PTO wants to examine damages for individual file-sharing to see whether the current range of damages is appropriate and whether the U.S. should use the same criteria for that type of sharing, she said. PTO wants to examine whether secondary liability for online services make sense because, given that infringement is calculated on a per-work basis, damages could potentially total into “trillions” of dollars, Perlmutter said. “Some of these services may be making millions of works available,” she said.