NWU Comments on Draft of “Digital Copyright Act of 2021”

The NWU has submitted comments regarding changes to the U.S. Copyright Act to Senators Patrick Leahy and Thom Tillis, who are the chair and ranking minority member respectively of the Senate Judiciary Subcommittee on Intellectual Property. Our response addresses Tillis’ discussion draft of the proposed Digital Copyright Act of 2021.

As we noted last year, our concerns with the draft relate primarily to the inclusion of yet another misguided proposal to authorize copying so-called “orphan works” without the authors’ permission. 

The NWU has consistently opposed such legislation as based on ignorance and/or misunderstanding of writers’ business models, especially in new online markets for written work. Copyright law exists to benefit writers and readers — not publishers.

As we explain in our comments and have pointed out in response to  proposals for orphan works legislation, this content includes works and rights that writers are actively exploiting and that generate significant income for them.

Some NWU members earn most of their income from orphan works, which includes all anonymously self-published works—a rapidly growing segment, especially online. Orphan works also include rights that have been assigned under contracts that contain nondisclosure provisions, which are also increasingly common.

As the NWU says in our latest comments to the Senate Intellectual Property Subcommittee:

The fundamental problem with the orphan works provisions of the discussion draft is that the definition of an orphan work includes many works which are being actively exploited and generating revenues for their authors in ways that would be undermined by authorizing “usage” (copying and/or republication) in the manner provided in the draft bill.

The orphan works provisions of the discussion draft would harm writers, especially those of us who are already marginalized, vulnerable, or threatened with harassment or retaliation by those who dislike our work. Less privileged writers who can’t afford to give their work away, and depend on income from their writing to be able to write, would be further disadvantaged.

When someone claims, “We’re not hurting you,” and the victims say, “Yes, you are hurting us,” we think the claim to be doing no harm should be received with great skepticism.

The orphan works provisions of the discussion draft would (1) interfere with increasingly significant modes of exploitation of written work and revenue streams for writers, including those that allow us to maintain our anonymity and protect ourselves from harassment or retaliation; (2) close off some business models and force writers into others, not of our choosing (or out of the business of writing), thwarting innovation and further harming both writers and readers; and (3) as applied to works by non-U.S. authors, violate U.S. obligations pursuant to the Berne Convention (with respect to formalities and permissible exceptions) and the WIPO Copyright Treaty (with respect to effective remedies for all cases of infringement).

The orphan works provisions in the discussion draft should be stricken entirely.

The NWU’s comments also address other provisions that are included in the draft, or that aren’t included but should be included in any “omnibus” copyright bill.

The draft of the “Digital Copyright Act of 2021” includes provisions to partially address the prohibitive cost and barriers to writers when they seek to copyright multiple, short-form works. Building on new regulations issued last year by the US Copyright Office in response to a petition initiated by the NWU, the draft Digital Copyright Act would authorize “group” registrations with a single form and fee, that cover a collection of stories, articles, blog, posts, etc., and includes both published an unpublished works. This is significant because it is often impossible to determine in advance whether Web content will be deemed “published” or “unpublished.”

But as we explained in our comments, the proposed new group registration rules don’t go far enough to encompass many writers’ diverse publication outlets and distribution channels. And they would still, despite years of appeals from writers and broken promises for action by the Copyright Office, leave no clear path for registration of copyright in the contents of most websites, or individual writers’ contributions to them.

Priorities for the NWU that are noted in our comments as missing from the draft include:

  1. Reform of Section 203 of the Copyright Act (17 U.S. Code § 203) on termination of licenses or assignments of rights (rights reversion).
  2. Moral rights of authors of written works, especially the right to attribution (recognized by an international treaty that has been ratified by the U.S. but never implemented in U.S. law).
  3. A Public Lending Right (PLR) funded by the federal government and applicable to library lending of written or graphic work in print and digital formats. (PLR schemes are already in place in Canada, the UK, and all members of the European Union, among other countries.)

The NWU looks forward to working with the new Congress on reform of copyright law to benefit working writers and other creators of copyrighted work.