New Copyright Proposal Addresses Performance Rights

According to the BNA, Rep. Melvin L. Watt (D-NC) introduced the Free Market Royalty Act (H.R. 3219) on September 30, 2013.  See “Rep. Melvin Watt Introduces Bill to Create Performance Right for Recording Artists,” BNA’s Patent, Trademark & Copyright Journal – Daily Update, No. 191 (Oct. 2, 2013).  Rep. Watt stated that this bill provides “a ‘performance right’ that will obligate AM/FM radio stations to compensate performers for the use of their music just as cable, satellite and internet radio are obligated to do.”  Press Release, “Congressman Watt's Statement on the Introduction of H.R. 3219, the Free Market Royalty Act,” October 1, 2013.  (Note that the index of Rep. Watt’s press releases indicates that this was issued on October 1.  The release itself shows no date.  Congress.gov indicates it was introduced on September 30, and has already been referred to the House Committee on the Judiciary.)

Rep. Watt explains that under current law, when an AM or FM station plays a song, the composer and the publisher both receive royalties and the performer does not.  Press Release.  This bill proposes to level that playing field, and put compensation for music broadcasting on par with international counterparts.  Id.

As of this writing, there are no co-sponsors to the bill.  The text of the bill has not been received by the Library of Congress to post on its website, which states instead:

“As of 10/02/2013 text has not been received for H.R.3219 - To amend title 17, United States Code, to provide copyright owners in sounds recordings with the exclusive right to negotiate in the marketplace the performance of their works to the public by means of an audio transmission, and for other purposes.

“Bills are generally sent to the Library of Congress from GPO, the Government Printing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed.”

Undoubtedly, this lack of information is the result of the government shutdown, which took effect on October 1, 2013 at 12:01am.  (The Copyright Office has a notice on its site explaining that the site is down because of the government’s shutdown, and will not be available again until the office reopens.)  Current status, list of co-sponsors and any applicable text of the bill can be found here once it is made available by the Library of Congress.

IPEC Victoria Espinel Steps Down

Intellectual Property Enforcement Coordinator, Victoria Espinel, has stepped down from her position, effective Friday, August 9, 2013. Andrew Ramonas, "White House IP Chief Victoria Espinel Steps Down," Corporate Counsel, Aug. 13, 2013. Until a new IPEC is officially named, Howard Shelanski, administrator of the U.S. Office of Information and Regulatory Affairs, will act as Interim IPEC. Id.
According to Corporate Counsel, "Congress created the intellectual property enforcement coordinator post in the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (text), and the Senate confirmed Espinel as the coordinator in December 2009. She previously was an IP law professor at George Mason University School of Law and the first assistant U.S. trade representative for intellectual property and innovation." Id.
    
It has been suggested that Ms. Espinel will be moving over to the Business Software Alliance, although no formal announcement has yet been made. See, e.g., Alex Byers, "Where will Victoria Espinel land? - NYT: NSA leaks hurt cyber plan's chances - Senators step up Bitcoin scrutiny," Politico Morning Tech, Aug. 13, 2013; The Deadline Team, "Nation's First IP Czar Steps Down," Deadline, Aug. 12, 2013; Jennifer Martinez, "Obama's intellectual property chief steps down," Hillicon Valley (The Hill's Technology Blog), Aug. 12, 2013. 
 
Updates from the IPEC's Office can be found here: http://www.whitehouse.gov/omb/intellectualproperty. Interestingly, this site still lists Ms. Espinel as serving as the IPEC.

Prior Posts on the Privacy and IP Law Blog about the IPEC and its reports can be found here: http://privacyandip.blogspot.com/search/label/IPEC.

USPTO Extends Deadline for Voluntary Best Practices Study

The USPTO recently requested comment from the public on the topic of "processes, data metrics, and methodologies that could be used to assess the effectiveness of cooperative agreements and other voluntary initiatives to reduce intellectual property infringement that occurs on-line—such as copyright piracy and trademark counterfeiting." See Prior Blog Post, White House Releases Second Joint Strategic Plan for IP Enforcement (June 20, 2013). The original deadline for comment was July 22, 2013.

On July 17, 2013, the USPTO extended the deadline until August 21, 2013.

Interested parties should respond to the current regulation (Fed. Reg. No. 2013-17166, see explanation in "Voluntary Best Practices Study; Extension of Comment Period") and include the information itemized in the original request (Fed. Reg. No. 2013-37210).

Online Piracy and Counterfeiting: Ad Networks Adopt New “Best Practices Guidelines”

On July 15, 2013, the US Intellectual Property Enforcement Coordinator (IPEC), Victoria Espinel, announced the adoption of best practices for online advertising, with an aim to reduce the influx of counterfeiting or pirating conduct. The IPEC explained that these practices are aimed at "reducing the flow of ad revenue to operators of sites engaged in significant piracy and counterfeiting." Victoria Espinel, "Coming Together to Combat Online Piracy and Counterfeiting," Office of Management and Budget (July 15, 2013). The participants in this program – at least at the outset, are 24/7 Media, AOL, Conde Nast, Google, Microsoft, SpotXchange and Yahoo! Id.   While supporting and encouraging initiatives like this, the IPEC also cautioned that these activities be undertaken in the context of other interests in the Internet marketplace:

"It is critical that such efforts be undertaken in a manner that is consistent with all applicable laws and with the Administration's broader Internet policy principles emphasizing privacy, free speech, fair process, and competition. We encourage the companies participating to continue to work with all interested stakeholders, including creators, rightholders, and public interest groups, to ensure that their practices are transparent and fully consistent with the democratic values that have helped the Internet to flourish. We also encourage other participants in the online advertising space to consider adopting voluntary initiatives that protect ad networks, publishers, advertisers, creators, rightholders, and above all, consumers."

Id. The IPEC's blog post includes links to the public statements made by AOL, Google, Microsoft and Yahoo! about these best practices. A copy of the best practices themselves can be found here.

Earlier Online Advertising Initiatives

In March 2012, the IPEC announced another best practices initiative: IPEC, "Advertisers and Advertising Agencies Address Online Infringement Through Best Practices," Spotlight at 3 (Mar. 2012). Specifically, the American Association of Advertisers ("4As") and the Association of National Advertisers ("ANA") strongly encouraged their members to take affirmative steps to prevent U.S. advertisers from placing their ads on predatory foreign websites ("PFWs") – those websites based outside U.S. borders that target U.S. consumers and offer predominantly counterfeit products or pirated content. Press Release, "ANA, 4As Release Statement of Best Practices Addressing Online Piracy and Counterfeiting" (undated); Member Bulletin, "Media Matters: Statement of Best Practices to Address Online Piracy and Counterfeiting," (June 1, 2012). 

These affirmative steps include, for example, insertion of language in ad placement contracts that requires ad networks and other intermediaries involved in U.S.-originated advertising campaigns to take commercially reasonable measures to prevent ads from appearing on PFWs.  Member Bulletin (June 1, 2012). Other steps include requiring intermediaries involved in the serving of an advertisement to respond expeditiously to complaints by rights holders or advertisers and to provide remediation to advertisers whose ads have been misplaced on PFWs. Id.

Conclusions

The problem of online counterfeiting and piracy undertaken by PFWs causes serious damage to the U.S. economy and U.S. businesses. See, e.g., StopFakes.com, "Top 10 Ways to Protect Yourself From Counterfeiting and Piracy" (undated). Every initiative aimed at reducing the impact of these activities is welcome, assuming that other rights (such as First Amendment, privacy, competition and fundamental due process) are not sacrificed. Hopefully, we will see more initiatives from other key players in the Internet ecosystem that are not only aimed at reducing online piracy and counterfeiting, but also at effectively eliminating the incentive for PFWs to capitalize on U.S. intellectual property rights. By eliminating the incentive, perhaps the "cost" to offer pirated content and counterfeited goods will simply be too high, and these entities will choose to no longer offer them.

White House Releases Second Joint Strategic Plan for IP Enforcement

Today, the IPEC (Intellectual Property Enforcement Coordinator) announced that the White House has released its second Strategic Plan for IP Enforcement. The IPEC's blog provides more information about what is included in the update: http://www.whitehouse.gov/blog/2013/06/20/intellectual-property-key-driver-our-economy. Among the myriad updates in this report are the following:

• Report on private sector "voluntary" agreements to combat counterfeiting and piracy:
  1) Center for Safe Internet Pharmacies (jointly established by American Express, Discover, eNom, Facebook, GoDaddy, Google, MasterCard, Microsoft, Neustar, PayPal, Visa and Yahoo!);
  2) Joint initiative by AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon along with music labels and movie studios to voluntarily reduce online piracy;
  3) Creation of best practices by payment processors such as American Express, Discovery, MasterCard, PayPal and Visa to withdraw payment services for online sales of counterfeit and pirated goods; and
  4) The Association of National Advertisers' and American Association of Advertising Agencies' joint leadership pledge not to support online piracy and counterfeiting with advertising revenue (see MPAA's report about the issuance of this pledge);
• Of the 20 legislative recommendations made in the Administration's March 2011 White Paper on Intellectual Property Enforcement Legislative Recommendations, seven of them have become law.

The Administration re-articulated its continuing concerns about the following areas: 1) abusive patent litigation tactics that pose "a significant and growing challenge to innovation" and is seeking introduction and passage of various patent reform recommendations; 2) efforts by foreign governments to require the transfer of trade secrets or other proprietary business information as a condition of market access or the ability to do business in that country; and 3) changes in technology, social norms, business models and global distribution models that further complicate IP enforcement concerns (such as cloud computing, mobile computing, data storage, information security and 3D printing). It reports having made strides already to address these concerns, but recognizes that more work remains to be done.

The USPTO simultaneously issued a request for public comment about Voluntary Best Practices to curb online counterfeiting and piracy. A summary of the Notice and its components can be found here: http://www.regulations.gov/#!documentDetail;D=PTO-C-2013-0036-0001; the actual Federal Register Notice is here: http://www.regulations.gov/contentStreamer?objectId=09000064813341ca&disposition=attachment&contentType=pdf. According to the Notice, comments must be submitted by July 22, 2013.

The first Strategic Plan was announced in 2010. Prior Privacy and IP Law Blog posts about the IPEC and other IP enforcement initiatives/updates can be found here: IPEC.