WASHINGTON, D.C. – Today, U.S. Senator Thom Tillis (R-NC), Chairman of the Senate Judiciary Subcommittee on Intellectual Property, released the first discussion draft of legislation to reform the Digital Millennium Copyright Act (DMCA). The Digital Copyright Act of 2021 (DCA) is revolutionary legislation that would modernize U.S. copyright law for the new millennium. The DCA amends key provisions for combatting online copyright piracy, improves the exemptions available to users for circumventing technological protection measures (TPMs), increases attribution protections so that authors can be properly credited, and makes the Register of Copyrights a Presidential appointee and places the Copyright Office under the Department of Commerce.

Senator Tillis is inviting all interested stakeholders - large and small, individuals and companies, YouTubers, and independent creators - to submit redline edits and comments to this discussion draft by close of business on March 5^th. Comments should be submitted to Intellectual_Property@tillis.senate.gov.

Copyright law has changed dramatically since the DMCA was enacted in 1998. The law today shows the strain of a statute that has not adapted well to the technological advancements and changing business practices that have occurred since then. In particular, copyright law today is ill-suited for the needs of most copyright owners and individual users. Rather than tinker around the edges of existing law, copyright modernization ought to reform the framework to better encourage the creation of copyrightable works and to protect users and consumers who are making lawful uses of copyrighted goods and software-enabled products, respectively.

“The Digital Millennium Copyright Act was passed in 1998, and while it was revolutionary at the time, the law simply hasn’t kept pace with changes in technology. The DMCA is now antiquated and is past-due for modernization,” said Senator Tillis. “This discussion draft is the result of a year-long series of hearings and months of feedback from creators, user groups, and technology companies. This is just the first step in a long and lengthy process, and I look forward to receiving feedback from stakeholders and releasing a second discussion draft in April. We will then bring all interested parties to the table and work on negotiating a compromise piece of legislation that looks out for the equities and interests of copyright owners, content users, and consumers. I anticipate this being a long and thorough process, but I look forward to my colleagues and I being able to vote on compromise legislation at some point during my second term. I hope each and every person who has a stake in copyright law will engage in this process in good faith and work with me to modernize copyright law for the 21st century.”

Senator Tillis sent a letter last week to the National Telecommunications and Information Administration requesting a study of online service providers (OSPs) and recommendations for how to characterize them. The NTIAs study will be crucial to the Senator as he considers which online service providers should be subject to these new requirements, and whether requirements should vary across service providers based on size, scale, and service type. That letter can be read here.

Read text of the discussion draft legislation here.

Read a section by section of the discussion draft here.

Read a one-pager of the discussion draft here.  

Background:

The Digital Copyright Act (DCA) of 2021 is the product of an extensive legislative record developed through six hearings of the Subcommittee on Intellectual Property focused on reforming copyright law in the digital environment, as well as two staff briefings, and it incorporates numerous recommendations from four extensive Copyright Office studies. This discussion draft will ensure that our copyright system provides sufficient incentives for creators, important certainty and guidance for OSPs, and necessary protections for individual users and consumers.

Significant revisions include:

1. Increasing roles for various federal agencies in establishing regulations to better protect copyright owners and individual users and to increase certainty for OSPs regarding obligations under section 512, such as establishing standard technical measures that OSPs must accommodate or adopt and best practices that account for differences in size, service, and scale of infringement;
2. Clarifying knowledge requirements for OSPs, lowering the specificity with which copyright owners must identify infringing material in certain circumstances, and replacing the notice-and-takedown system in existing law with a notice-and-staydown system for complete and near complete works;
3. Utilizing a copyright small claims tribunal, as envisioned by the CASE Act, to resolve disputes between copyright owners and counter-notice senders, as well as for pursuing enhanced penalties under section 512(f);
4. Creating a limitation on liability for good faith users who, following a diligent search, are unable to locate the copyright owner and decide to still use the orphan work;
5. Establishing the Copyright Office as an executive branch agency within the Department of Commerce, led by a presidentially appointed Register of Copyrights;
6. Modernizing the existing permanent exemptions that allow for TPM circumvention for security testing and encryption research, and adding new permanent exemptions;
7. Streamlining the triennial rulemaking process for temporary exemptions;
8. Expanding the possible scope of temporary exemptions by authorizing the Copyright Office to permit third-party assistance “at the direction of” an intended user and to adopt temporary exemptions for trafficking of circumvention tools when the tool would be used to facilitate an exempted circumvention;
9. Providing the author of the copyrighted work with a right of action when someone removes or alters copyright management information on digital or analog copies with the intent to conceal an author’s attribution information.

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