Bill Making Technical Copyright Law Changes Is Passed by Lame-Duck House

Bloomberg BNA’s Patent Trademark & Copyright Journal® is the IP industry’s premier news service, offering customizable, objective, timely, and reliable news coverage and commentary from leading...

On Nov. 15, the House of Representatives approved by a vote of 385-0 legislation to clarify certain areas of copyright law and to make technical corrections to the code. A slightly different version of the bill was passed by the Senate in August (80 PTCJ 469, 8/6/10), so the measure must be passed again by the Senate before being presented to President Obama for signing.

The Copyright Cleanup, Clarification, and Corrections Act of 2010 (S. 3689) was approved during an evening session of the House, on its first day back after the election recess. S. 3689 was introduced Aug. 2 by Sen. Patrick J. Leahy (D-Vt.) and Jefferson B. Sessions III (R-Ala.) and quickly passed the same day by unanimous vote (80 PTCJ 469, 8/6/10). It is aimed at making improvements to and streamlining the copyright system. As with the Trademark Technical and Conforming Amendments Act, which was signed by the president in March (79 PTCJ 604, 3/19/10), the bill collects a handful of technical issues including addressing efficiency of the Copyright Office, clarifications required by statutory ambiguities.

For example, the Copyright Office requested statutory changes to help facilitate the transition to digital record keeping and accepting digital submissions from filers. Specifically, one of the changes strikes a requirement that documents be maintained both electronically and on paper. Another allows certified statements to be submitted electronically.

Another provision of S. 3689 clarifies that an exclusive licensee of a work may further license that work, so long as there is no contractual provision limiting such licensing.

House and Senate Bills Differ.

The Senate-passed version included a provision amending 17 U.S.C. §201(d)(2) to specify that the holder of any exclusive right had, in the absence of any agreement to the contrary, the right to transfer or license that exclusive right. The House-passed version omits this provision.

The House version also includes a couple of new provisions. One is a “clarification” that “all regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review …” pursuant to 5 U.S.C. Chapter 7.

Another addition in the House-passed version is an amendment of the Trademark bill passed in March. That law directed the secretary of commerce to submit a report to Congress on, among other things “the extent to which small businesses may be harmed by litigation tacticsby corporations attempting to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner.” A provision in the House version of S. 3689 rewords this to say “the extent to which small businesses may be harmed by litigation tactics the purpose of which is to enforce trademark rights ….”

Conyers, Poe Urge Enactment.

On the floor of the House, Rep. John Conyers Jr. (D-Mich.) rose in support of the bill, stating:  

[T]his measure … is a commonsense, proactive response to unintended errors and confusion in copyright law. This bill updates and improves the way the Copyright Office conducts its business by making some changes, mainly streamlining the copyright registry process by authorizing the Copyright Office to accept electronic signatures when users file documents. It also eliminates the requirement that the Copyright Office keep a hard copy of a directory they already make available to the public online. This hard copy has taken over several shelves in their office but is seldom consulted by the public. 

The measure before us also clarifies some ambiguities in the copyright code. For example, in 1997, Congress amended the copyright code to clarify that copyright owners do not forfeit their rights in a work if they distributed it prior to 1978 without a copyright notice. However, while Congress made this fix for musical works distributed by phonograph, it neglected to specifically identify dramatic and literary works that were also distributed by phonograph. We make that correction in this bill before us. Finally, it corrects in this measure a number of technical errors, just dotting the I's and crossing the T's.

 

 

 

Rep. Lloyd “Ted” Poe (R-Texas) also spoke in support of the legislation.