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Government Task Force Recommends Changes to Copyright Act (CDSA)

By Chris Tribbey

The U.S. Department of Commerce’s Internet Policy Task Force has released a set of copyright reform proposals, calling for more flexibility for courts when it comes to awarding statutory damages in copyright cases.

The report recommends that the Copyright Act be updated to include a list of factors for courts and juries to consider when determining how much to award in terms of statutory damages, calling for more caution against “excessively high statutory damages.” Currently, juries can award up to $150,000 in statutory damages per infringement.

While the task force isn’t recommending that the $150,000 figure be lowered, it does want juries to avoid excessive damages when it’s an individual file sharer at work, vs. large-scale, file-sharing infringement. The report also recommends that Congress establish a small claims tribunal, to set caps on damages awarded.

“Ensuring that our copyright policy continues to provide incentives for creativity while keeping up with the world’s technology advancements has been a critical priority for the Internet Policy Task Force” said Michelle K. Lee, under secretary for intellectual property and director of the United States Patent and Trademark Office, in a statement. “These new policy recommendations are the culmination of many sessions hearing from stakeholders — from publishers and producers to artists to digital entrepreneurs and consumers — and will help the United States’ creative sectors continue to unleash new works and technologies that spur our competitive economic growth.”

U.S. Secretary of Commerce Penny Pritzker added: “Through extensive public consultations, the Internet Policy Task Force has produced a detailed analysis of important policy issues raised for copyright in the digital age. Its recommendations will maintain strong and balanced copyright protection while preserving the free flow of information required for innovation and our digital economy to thrive.”

The report earned praise from both copyright protection advocates as well as consumer groups.

“We think that many of the conclusions reached and recommendations made in the White Paper published earlier today help advance these goals,” Copyright Alliance CEO Keith Kupferschmid said in a statement. “The authors … did a thorough job soliciting and considering the many different viewpoints voiced by the interested parties, and the final result reflects a broad consensus.

“In particular, we highlight the … discussions of remixes and the first sale defense and endorse its conclusions that the existing provisions in the Copyright Act, in conjunction with new business models, are effectively meeting the changing demands of consumers and that no change in the law is necessary at this time.”

Raza Panjwani, policy counsel at Public Knowledge, added: “We are pleased to have the Department of Commerce join the chorus of voices calling for copyright reform that restores balance to the law. As Secretary Pritzker so clearly stated, ‘A healthy copyright system strikes important balances between rights and exceptions.’ In particular, we are glad to see the Department recognize the importance of remixes and fair uses of copyrighted works as expressive, political, and entertaining works that are valuable in their own right.

“The Department recognized that copyright’s burdensome statutory damages provisions deter the creation of remixes and investment in innovative platforms and technologies,” Panjwani said. “Although we believe there’s much more to do on this and other copyright related issues, the Department’s recommendations to bring back a degree of economic rationality to damage awards and to provide greater protections to users who rely in good faith on exceptions like fair use are a promising first step towards much needed reform.”