- David O. Carson
Major events in U.S. Copyright that you need to know about.
Recent major events in U.S. copyright have come in pairs. Last October, Congress enacted two bills amending the Copyright Act in its most significant copyright lawmaking since the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act 20 years earlier.
The Music Modernization Act will bring about major changes in music licensing, streamlining the means by which digital music services obtain licenses that permit them to engage in the activities involved in music streaming and setting up a collective to collect and distribute to songwriters and music publishers the publishing royalties connected with streaming. It also brings pre-1972 sound recordings, which previously had been protected under the inconsistent and mostly inadequate laws of the 50 states, into federal copyright law, resolving issues that had been pending in a number of courts. In the same month, the Marrakesh Treaty Implementation Act was enacted, paving the way for the United States to became the 50th Contracting Party to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
On 4 March, the Supreme Court issued opinions in two copyright cases, something that had not happened in over a century. Both rulings involved construction of procedural provisions in the Copyright Act, but they have significant consequences for copyright litigants and they resolved conflicts in rulings from the courts of appeals. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the court held that section 411(a) of the Copyright Act, which provides that before a suit for infringement of a “United States work” may commence, the work must have been registered with the Copyright Office, requires that the Copyright Office must have acted on the registration before suit may be filed. Two courts of appeals had held that a suit could be commenced once the application, fee, and deposit had been submitted to the Copyright Office.
In Rimini Street, Inc. v. Oracle USA, Inc., the court held that section 505 of the Copyright Act, which permits the court to award “full costs” to the prevailing party in a copyright infringement suit, does not permit an award of costs that fall outside the categories specified in statutes governing costs in litigation in general. As result, the costs awarded to Oracle were reduced from $16.2 million to $3.4 million due to the exclusion of costs for fees paid for e-discovery and paid to expert witnesses and jury consultants.
Between now and June, the Court will also consider whether to hear a number of cases presenting meatier issues, including Google LLC v. Oracle America, Inc. (involving the scope of copyright protection for computer programs and whether it is a fair use to use one platform’s computer code in the creation of an “entirely new” platform); Capitol Records, LLC v. ReDigi, Inc. (another fair use case that also involves the so-called “digital first sale” doctrine); State of Georgia v. Public.Resource.Org, Inc. (whether the annotations in an annotated code of state laws commissioned by the State of Georgia are protected by copyright); and Allen v. Cooper (whether a statute abrogating the sovereign immunity of states of the United States for copyright infringement is constitutional).
We are holding a seminar will take place on the 25th of June 2019 from 1 to 5pm in the British Library’s Knowledge Centre, London.
Our draft programme consists of the topics listed below
1pm Welcome with Dominic McGonigal, Conference Chair
1:15pm Developments in the EU: Digital Single Market and beyond with Mary Honeyball, MEP
1:55pm Developments in the US: Modernizing Copyright with David Carson, former General Counsel, U.S. Copyright Office
2:35pm International Developments: Global Markets with Adam Williams, Director of International Policy, UK IPO
3:15pm Tea and Coffee break
3:30pm Copyright and the Challenges of New Tech: AI and Blockchain with Tanya Aplin, Professor of Intellectual Property Law, King's College
4:10pm The Future Trends of Copyright: A panel discussion and questions with the speakers chaired by Dominic McGonigal
David O. Carson - Has advised on copyright and media law and represented clients in the federal district and appellate courts and the Supreme Court. He has held positions as VP of Global Legal Policy at IFPI