Controversial Provision on Damages Deleted from Copyright Enforcement Bill

Written by David Sohn

On March 6, the House Judiciary subcommittee with jurisdiction over intellectual property issues approved H.R. 4279, a bill aimed at strengthening intellectual property (I.P.) enforcement. But first the subcommittee made an important modification — it agreed to delete a highly controversial section concerning statutory damages in infringement cases involving compilations.

This is a welcome change. As I described in an earlier blog post, raising potential statutory damages in compilations cases is unnecessary and would increase risks for innovators. The Copyright Office hosted a roundtable discussion on this specific issue in January, at which many parties aired concerns. Meanwhile, proponents were unable to point to any actual cases where current law caused damages to be unreasonably low.

The subcommittee made a few other useful tweaks. For example, it offered a clarification of provisions calling for forfeiture of property used to commit infringement, requiring law enforcement authorities to show a “substantial connection between the property and the offense.” The full list of language modifications can be found by clicking this link..

All of this represents significant progress. Going forward, it will still be important to carefully consider the bill’s reorganization of the federal government’s I.P. enforcement structure. The bill would create a new division within the Department of Justice focused solely on I.P. enforcement, and a new “U.S.I.P. Enforcement Representative,” modeled on the existing U.S. Trade Representative (USTR). CDT supports vigorous enforcement of I.P. law, but these kind of major changes warrant more discussion. DoJ, for example, has cautioned against them.

One footnote to the subcommittee meeting is that the Chairman, Rep. Howard Berman, stated that he intends to hold a hearing and then move legislation on the “orphan works” problem. It would be good to see the subcommittee return to this issue.

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