Yesterday the Obama Administration released its updated strategy for intellectual property enforcement. There’s no radical change of course here; in many respects, the new plan follows the initial 2010 plan. Like that earlier plan, the new one wisely steers clear of major landmines, focusing to a large extent on coordinating and improving the mechanics of enforcement initiatives, outreach to foreign countries, and customs and border questions for tangible goods. With respect to the intersection between copyright and Internet policy, however, there are a few items worth noting. (I’ll focus specifically on copyright, even though the plan devotes much space to patents, trademarks, and trade secrets as well).
For one thing, the new plan calls for the Copyright Office to help educate authors (visual artists, songwriters, filmmakers, and writers) about the scope of fair use. That carries the potential for controversy, because guidance on fair use could serve to constrain authors rather than empower them – for example, if the Copyright Office were to adopt a narrow and highly conservative interpretation of what fair use allows. Alternatively or in addition, the guidance itself could be interpreted to support an implication that uses not endorsed by the Copyright Office are presumptively not permitted.
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