This month the International
Intellectual Property Alliance published its report on the contribution of
copyright industries to the US economy. It demonstrated the major economic
benefits to our society that are attributable to our traditional protection of
intellectual property rights. At the issuance of this report, Congressman Doug
Collins, House Judiciary Committee Subcommittee on Courts, Intellectual
Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st
century economy, and strong intellectual property rights ensure that our
economy benefits from the innovation and pluck of American workers who bring
many of our dreams to life…..Our nation’s founders, in their wisdom, placed
intellectual property rights under the umbrella of our protected Constitutional
rights. From the beginning, Congress has had the responsibility of upholding
and strengthening those rights—which fuel American ingenuity….”
We know that not only are
copyrights grounded in the constitution, but core copyright industries
contribute approximately $1.2 trillion to the U.S. economy annually, and employ
over 5.5 million American workers. At the same time, however, we are acutely
aware that, unfortunately, copyright theft online is rampant, and the Digital
Millennium Copyright Act (DMCA) has increasingly become ill equipped to address
even flagrant, willful copyright infringement in the digital world.
What we don’t know, however,
is how President-Elect Trump and the Trump Administration will view copyright
issues, and whether pro-creator copyright reforms will be on the President’s
agenda come January 20, 2017. We can, however, make some educated guesses based
on Trump’s entertainment industry ties, his potential Supreme Court nominees,
and those he is surrounding himself with on his Transition Team and in a Trump
Administration that is increasingly taking shape.
Trump Entertainment Industry
Ties
People have called Trump
many things, but even his most vociferous critics must admit he is a media
genius. As an entertainment personality, he first became known as an author,
writing: Trump: The Art of the Deal, first published in 1987. Trump has
written other books since, but he became most widely known for his starring
role as the host of the reality TV series The Apprentice. Trump recently
tweeted that he conceived of the idea of The Apprentice with
producer Mark Burnett, and he will continue to receive Executive Producer
credit on the show even after he is sworn in as President. Trump also
owned the Miss Universe beauty pageant from 1996 until 2015. All in
all, Trump has over 30 copyrights to his name, not including any owned by his
companies.
Despite this background, we
cannot be certain that the new Administration will side with copyright owners.
To be sure, the President-elect has been for some time a larger than life media
personality and talent within the industry, and thus might be inclined to
support others in the creative industries Moreover, Trump has had on-again
off-again rocky relationships with broadcast networks over the years (see here
and here) and the Silicon Valley giants that find themselves at cross purposes
with content creators in the digital era did nothing to endear themselves to
Trump during the campaign. In fact, with the exception of Peter Thiel and
to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel)
the Silicon Valley elite snubbed, mocked and ridiculed Donald
Trump and his supporters throughout the election cycle. With all that said,
however, predicting the new Administration’s position on specific copyright
issues is a fool’s errand at this time.
Potential Supreme Court
Nominees
One of the first things
President Trump will likely do is appoint a Supreme Court Justice to fill the
vacancy left by the death of Justice Antonin Scalia. Trump has released a list
of possible nominees for the Supreme Court. Only a few seem to have any
copyright experience or familiarity in their professional past.
Florida Supreme Court
Justice Charles Canady previously served in the House of Representatives from
1993 to 2000. While in Congress, Justice Canady served on the House Judiciary
Committee and its Subcommittee on Courts, Intellectual Property, and the
Internet. He co-sponsored during his time in Congress two bills related to
copyrights: (1) The Copyright Term Extension Act; and (2) The
Intellectual Property Antitrust Protection Act.
Senator Mike Lee (R-UT) has
had some involvement with copyright policy in the music industry as chairman of
the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and
Consumer Rights, but he did not tip his hand about whether he places more value
on copyright as a property right or on a consumer’s ability to access the
copyright. As an example, he summarized his opening statement in a hearing last
congress with the non-committal statement, “As we listen today, we must
remember that we have both a responsibility to encourage creativity by
recognizing the value of copyrights and a duty to ensure that prices for music
remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP
Act, legislation supported by the copyright industries to provide the US
government and copyright holders additional tools to curb access to rogue
websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator
Lee released on January 18, 2012, explaining his opposition to the Protect IP
Act, he explained he was sympathetic to the objectives of the Act, but thought
the bill “would threaten Internet security, stifle the free flow of online
information, and unduly burden third parties.”
Senator Lee’s brother, Utah
Supreme Court Associate Chief Justice Thomas Lee, previously specialized in
intellectual property law while in private practice. Justice Lee also taught
intellectual property law at Brigham Young University. However, Justice Lee
seems to have primarily specialized in trademark law, not copyright matters.
Only two articles relating to copyright law could be located that were authored
by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred
V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003);
and (2) “To Promote the Progress of Science”: The Copyright Clause and
Congress’s Power to Extend Copyrights (2002) (co-authored with Senator
Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court
ruled in Eldred that a term of life plus seventy years was “limited” than they
would be unlikely to rule differently in the case of life plus 100 years. A
thirty year increase is still not a “perpetual copyright.” In the 2002 article,
however, the authors argued in favor of the Copyright Term Extension Act
(CETA). Specifically, they supported their argument using the scarcely
referenced preambular purpose provision of the Copyright Clause, “promot[ing]
the progress of science” and took issue with the then-existing scholarly
literature that asserted “that copyright fulfills its constitutional purpose
only if it increases the quantity or quality of the existing body of artistic
works.” They argued that progress does not inherently equal “more” but rather
the physical movement forward. “The Copyright Clause,” they wrote, “encompasses
the broader notion of encouraging the dissemination and preservation of
existing works. Since the CTEA can be understood to advance those objectives”
it should be upheld as “constitutional.”
Trump, Trump Transition
Officials and Trump Nominee Statements on IP
Perhaps the closest thing
the President-elect has offered as an insight into how he will treat copyright
as President came during an August 8th speech outlining his economic plan. He
stated (with the following underlining added for emphasis):
“At the center of my plan is
trade enforcement with China. This alone could return millions of jobs into our
country. They break the rules in every way imaginable. China engages in illegal
export subsidies, prohibited currency manipulation, and rampant theft of
intellectual property. They also have no real environmental or labor
protections, further undercutting American workers. Just enforcing
intellectual property rules alone could save millions of American jobs. According
to the U.S. International Trade Commission, improved protection of America’s
intellectual property in China would produce more than 2 million more jobs
right here in the United States.”
One of the transition team
members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce
Committee Vice Chair recently stated, “Creativity unleashes endless
possibilities as evidenced by the results of this study. The contributions made
by the creative industry to the US economy are remarkable. It’s imperative that
we continue pushing to protect intellectual property rights.”
Another of Trump’s
transition team members, Congressman Tom Marino (R-PA), a member of the House
Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the
Internet, has been a long-time copyright supporter. He noted upon introducing
the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the
essence that has made America the most prosperous nation in the world.” At an
event for music publishers and songwriters, he said, “I know firsthand what it
is like to work hard for a paycheck and stretch a buck into next week. I
appreciate the painstaking hours you put into your craft. When I think of
songwriters, I think of the extraordinary gifts songwriters create for society.
Music provides the soundtrack to our lives… Call me crazy, but if you work for
hours and hours on a hit that is played around the world, your paycheck ought
to reflect that success and make a good living for you and your family… There
are songwriters in each district in America… If each of these songwriters
reaches out to their members of Congress, we can make a difference. Advocacy is
of the utmost importance.”
The President-elect’s
nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016
saying WTO provides “little or no protection” against IP theft. Moreover, he
stated that future trade deals should have “zero tolerance” for IP theft.
Conclusion
The creative works that are
supported by America’s copyright laws – music, movies, TV, books, software, and
video games – bind us together as a nation. Admittedly, there are far more
questions than answers with respect to how the President-elect and his
Administration will approach specific copyright law issues and potential
copyright reforms, but there is reason to hope that they understand the
critical importance of copyright to our economy, to good American jobs, and to
our global competitiveness.
http://www.ipwatchdog.com/2016/12/18/trump-administration-copyright-law-copyright-reforms/id=75793/
