On January 28, 2016, the US Department of Commerce’s Internet Policy Task Force (Task Force) issued a white paper addressing three copyright issues in the online context: remixes; the first sale doctrine; and the assessment of statutory damages.

The Task Force described remixes (eg mashups, sampling) as socially valuable contributions of expressive content.  The Task Force found no need to amend current copyright law with specific exceptions or compulsory licensing for remixing, instead recommending development of guidelines to help remixers tell fair use from use requiring a licence.

The first sale doctrine permits a physical copy of certain works to be resold without the copyright owner’s consent (eg selling a previously purchased book as a used book).  According to the Task Force, application of the first sale doctrine to digital works is not technologically feasible at the moment and extension of the doctrine to digital works now would risk damaging copyright owners’ primary markets.  The Task Force recommended consumer education on the scope of, and restrictions applicable to, licence terms for digital works and hopes for business solutions to this problem to arise in the future.

On the topic of statutory damages, the Task Force drew a focus on the quantum of damages assessed against individual online infringers and against service providers (the latter for secondary liability).  The Task Force recommended amendment of the US Copyright Act to incorporate a list of factors for courts or juries to consider (eg revenues lost, expenses saved, need for deterrence), expanded eligibility for lower “innocent infringer” damages, and discretion to assess damages on other than a strict “per-work” basis.

E-TIPS® ISSUE

16 02 10

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