“The Next Great Copyright Act”: A Primer
“The Next Great Copyright Act”: A Primer
In early March, U.S. Register of Copyrights Maria A. Pallante visited Columbia Law School and delivered the 26th annual Horace S. Manges lecture. Her full remarks (available here) contained an impassioned plea for Congress to overhaul the existing copyright regime and create “The Next Great Copyright Act.” Much of what she said during her lecture, she reiterated in her testimony on Wednesday before the House Subcommittee on Courts, Intellectual Property, and the Internet. (available here).
What follows is a primer (complete with hyperlinks) for those who lack the time to read the Register’s remarks or watch her testimony. The Register is far more eloquent than I am, so this should not be considered a substitute for her remarks, just the “Cliff Notes.” In any event, I’m hoping the quotes that I included in the summaries of her main points convey her passion for copyright, her commitment to the copyright community, and her unquestionable desire to help usher in “The Next Great Copyright Act.”
The Register begins her remarks by paying tribute to the former Registers of Copyrights who held the office during times of major copyright reform. In her introduction, she cleverly uses the former registers’ accomplishments, trials, and tribulations to highlight the historic role the Copyright Office has played in helping Congress craft copyright law and to remind us of the lessons learned over a century’s worth of copyright law revisions.
The Former Registers
Up first is the “inspired” Thorvald Solberg (1887-1933). Solberg was Register when the 1909 Copyright Act passed into law. The Register credits Solberg with growing the Copyright Office and establishing its staff as the substantive copyright experts within the U.S. government. Here, the Register reminds us that the Copyright Office has had its fingers on the pulse of copyright law and policy for over a century and should play a crucial role in any forthcoming revisions.
Next, is the “knowledgeable” but “impatient” Abraham Kaminstein (1960-1971). Kaminstein played a major role in molding the 1976 Copyright Act. The register uses Kaminstein (whose eleven-year tenure began after the copyright revision process had started, but ended five years before the 1976 Act went into effect) to warn how over-negotiation can compromise or even undermine attempts at reform. Careful not to focus on the negatives, she also highlights how various congressional practices, including: consideration of “roundtables” and policy studies; willingness to create a “new legal framework” that “reinvents compelling policy objectives”; assessment of the statute “as a whole and not just to the immediate interests before it”; and the blending of “world standards and pressures of global copyright law with the particular principles and practices of American democracy” all contributed to the enactment of the last great copyright act.
Third, is the “pensive” Barbara Ringer (1973-1980). Ringer was at the helm when the 1976 Act finally became law. She was involved in resolving last minute negotiations of the new law as well as implementing it. The Register characterizes Ringer as “pensive” and “worried” as a way of stressing how crucial it is that any restructuring of the Copyright Act be both comprehensive and timely. In other words, she is warning against enacting a reform bill that is outdated before it makes it out of committee. She also warns of how failure to enact relevant reform will only increase the public’s perception of copyright as an obstacle.
Finally, she lists the “optimistic” Marybeth Peters (1994-2010). Peters was register when the DMCA was enacted in 1998. The Register uses Peter’s tenure as an example of how administrative expertise, public discourse, and a well-informed Congress can result in bold, innovative change. She also mentions how entrusting the Copyright Office with some rulemaking authority added to the success of the process.
Why It Is Time For Revision
In this section, the Register makes clear her belief that the Copyright Act is in need of a complete overhaul (rather than a series of partial or temporizing amendments). She begins by pointing out how most attempts to merely amend the current law become entangled in the law’s “complex and sometimes arcane provisions” and lose momentum.
Recent Years: The Register claims that despite the numerous discrete adjustments Congress has made to copyright law, its more valuable role has come from reviewing and addressing “large policy themes and developments.” She stresses that, in the age of the internet, large-scale review of this nature may need to happen more frequently.
Preparatory Work: The Register anticipates Congress’ concerns regarding the amount of time and resources necessary to create the “the next great copyright act” and assures Congress that it would not have to “start from scratch.” She explains how, since 1998, the Copyright Office has put in motion a steady stream of preparatory work on core copyright issues. Below is a list of the issues she declares “ripe for resolution” and links to corresponding Copyright Office reports and studies:
- Public performance right for sound recordings
- Digital first sale
- Orphan works
- Reforming or eliminating the statutory licenses for cable and satellite retransmission under sections 111,119, and 122
- Termination provisions in the context of pre-1978 contracts
- Legal and business issues relating to mass digitization
- The federalization of protection for pre-1972 sound recordings
- The propriety of resale royalty for visual artists
- Enforcement of small copyright claims
- Extending copyright protection to fashion designs
- Exempting churches from infringement liability for showing football games
- Adding a fair use exemption to section 1201
- Requiring a nominal fee to retain copyright protection after fifty years,
- Requiring new standards for Copyright Royalty Judges with regard to webcasting
The Courts: The Register next claims that our court system is reflecting the “wear and tear” of the current copyright statute. She notes that courts have been forced to craft their own interpretations of otherwise vague language found in the Copyright Act. For example:
- She references peer-to-peer networks and cites how courts have fashioned the concept of inducement as part of the secondary liability analysis.
- She references the DMCA and how courts have interpreted section 512s knowledge standards.
- She calls attention to the Second Circuit’s 2008 Cablevision holding on public performances and notes that it effectively redefined the “performance right” in the streaming context
She also names several cases in which courts have criticized the current law, or all but asked Congress for clarifications. The cases she names are:
- Authors Guild v. Google Inc. (2011)
- Sony BMG Music Entertainment v. Tenenbaum (2011)
- Golan v. Holder (2012)
Readability: The Register believes it is crucial that those affected by the Copyright Act be able to read and comprehend its provisions – especially in the digital age. She is of the mind that one should not need an army of lawyers to understand the basic precepts of the law.
The bulk of the Register’s remarks focus on the areas of the current Copyright Act that are in most need of reform. She prefaces her discussion of these “major issues” by claiming the central equation Congress should consider is “what does and does not belong under a copyright owner’s control.” She also suggests that Congress consider “the exceptions and limitations, enforcement tools, licensing schemes, and the registration system it wants for the 21st century.” The following summarizes these major issues and her comments on them:
Exclusive Rights: The Register claims that Congress should reconsider the application of “longstanding but evolving exclusive rights.” Of the six exclusive rights enumerated in section 106 of the Copyright Act, she specifically calls attention to the reproduction, distribution and public performance rights. Regarding the public performance right, she reiterates the Copyright Office’s long history of supporting a more complete right of public performance for sound recordings – one commensurate with the rights afforded to other classes of works in U.S law (you can read the Copyright Office’s position on this here). Regarding the distribution right, she calls for congress to clarify the question of what constitutes distribution over the internet. Specifically, whether it entails actual dissemination of a work or whether the act of making a work available online is sufficient.
Incidental Copies: The Register is concerned with whether incidental copies should implicate the reproduction right. She claims new technologies have made it increasingly apparent that not all reproductions are “equal in the digital age” and goes on to say that some copies are “merely incidental to an intended primary use of a work” and “should not necessarily be treated as infringing.” She also calls attention to the Copyright Office’s 2001 report on temporary reproductions of works and its recommendation that Congress enact several exemptions for the creation of copies that are incidental to licensed use.
Enforcement: The Register begins this section by stating: “A 21st century copyright act requires 21st century enforcement strategies.” She then proceeds to make clear her desire to see Congress enact reform that calls for all members of the online ecosystem (including payment processors, advertising networks, search engines, Internet service providers, and copyright owners) to play a role in the enforcement process. She goes on to highlight what she identifies as critical enforcement issues. These include:
- The rising tide of illegal streaming and how it is enforced in the criminal context
- The question of whether Congress should create a “small claims” mechanism – a streamlined adjudicative process to assist copyright owners with claims of small economic value
- Statutory damages and whether they should be tethered to registration
- Statutory damages and whether they are “too high, too low, too easy, or too hard to pursue”
The DMCA: Here, the Register addresses the DMCA and how it has struggled to evolve along with the ever-changing Internet. Aspects of the DMCA that she highlights as ripe for reform include:
- The section 512 safe harbors and the burden of notice and takedown procedures on both copyright owners and intermediaries.
- The legal protections afforded to “technological protection measures” as well as section 1201 and the triennial rulemaking process by which exceptions to anti-circumvention provisions are established.
Digital First Sale: The Register claims that the copyright law could benefit from congressional attention to the role of the first sale doctrine in the digital realm. She characterizes the issue as follows:
On the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies (not dog-eared copies of lesser value) or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue. On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology . . . Or more simply, congress may not want a copyright law where everything is licensed and nothing is owned.
Exceptions and Limitations: The Register claims that “there are many discussions to be had about exceptions and limitations and their place in the next great copyright act.” She then highlights a few areas of reform (which she characterizes as complements to the fair use provision) that the Copyright Office has addressed or is currently addressing by way of public inquiries, symposia, and recommendations. These include:
- Updating baseline standards for libraries and archives,
- Crafting a digital age Chafee Amendment (for print disabilities)
- Addressing the ecosystem of higher education institutions and markets
- possibly considering clarity in personal use activities
Licensing: In her discussion of licensing, the Register notes that “Congress is aware that the development of newer and more efficient licensing models is essential to the digital marketplace and the many submarkets that comprise it.” She then names some areas where licensing should be encouraged, rather than regulated via legislation. These include:
- Direct licensing,
- Voluntary collective licensing,
- Licensing for private and public registries
The Register also names instances where Congress should consider legislating new forms of licensing regimes. These include:
- Updating or in some cases repealing compulsory licenses (such as those in sections 114 & 115)
- Enacting extended collective licensing models
The bulk of the Register’s licensing remarks place particular emphasis on music licensing. Specifically, reforming section 114 (the license for the digital performance of sound recordings) and section 115 (the mechanical license for musical works).
Regarding section 115, she notes that its compulsory license mechanism has remained unchanged for over one hundred years and suggests Congress consider taking a second look at the 2006 Section 115 Reform Act (SIRA). Had SIRA passed into law, it would have changed the section 115 licensing structure to a blanket-style system for digital users.
Regarding section 114 , she notes that the statutory licensing provisions for webcasters, satellite radio, and others seeking to engage in the digital performance of sound recordings have caused a “gridlock” in the music marketplace. She recommends that Congress continue its recent contemplation of royalty rate setting reform.
Deposits for the Library of Congress: The last of the “major issues” the Register discusses pertain to the Copyright Office’s function of managing the Library of Congress’ deposit and registration systems.
Regarding deposit, she claims that sections 407 and 408 complement each other and should both remain, in some form, in the next great copyright act (though she admits that the provisions in section 407 and 408 may require some fresh thinking, particularly taking into consideration the evolving state of the Library’s collection needs).
Regarding registration, she claims “library acquisitions policy should not drive copyright registration policy” and that the registration process could stand to be re-evaluated to ensure it continues to efficiently serve its longstanding certification-related functions.
Thinking a Little More Boldly
In this section of her remarks, the Register makes what she characterizes as “bold” suggestions for reform. She is careful to note that in enacting “the next great copyright act,” Congress can make “recalibrations” that are “workable in the greater legal framework” of the current copyright system, without abandoning the system’s core principles. The following are the examples of “bold” reform, the Register lists in her remarks:
Offsetting Copyright Term: The Register suggests Congress make the copyright term more functional – paying specific attention to the consequences the current “long” term have on all relevant parties. As examples of the type of “pragmatic” term-related reform she favors, the Register mentions the Copyright Office’s orphan works proposal (which would see works with unlocatable owners freed form “the long tail of time”) and section 108(h) (which allows libraries and archives to copy, distribute, display, or perform any published work in its last twenty years of protection, for the purposes of preservation, scholarship, or research).
She concludes her remarks on term reform by stating:
Perhaps the next great copyright act could take a new approach to term, not for the purpose of amending it downward, but for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.
Making Room for Opt Outs: The Register submits that opt-out systems, if appropriately tailored, fairly administered, and created with oversight from Congress, have the potential to “serve the objectives of copyright law in some compelling circumstances.” She seems to favor the introduction of an opt system to the extended collective licensing arena. To illustrate, she explains:
Extended collective licensing allows representatives of copyright owners and users to mutually agree to negotiate on a collective basis and then to negotiate terms that are binding on all members of the group by operation of law. It has the potential to provide certainty for users and remuneration for copyright owners (for example in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement.
Making the Law More Accessible: A major theme in both the Register’s remarks at Columbia and her recent testimony before Congress was that, in order to be respected and valued by the public, the copyright law must be made more accessible and easy to understand. She claims “the copyright law has become progressively unreadable during the very time it has become increasingly pervasive.” To further drive home this point, she states:
When the Copyright Act was enacted, it contained seventy-three sections and the entire statute was fifty-seven pages long. Today, it contains 137 sections and is 280 pages long, nearly five times the size of the original. As former Register Marybeth Peters observed in 2007, the current “copyright law reads like the tax code, and there are sections that are incomprehensible to most people and difficult to me.” This is not merely a paradox; it is damaging to the rule of law.
The Policy Process, Evolution of the Copyright Office,Conclusion
In the closing sections of her remarks, the Register discusses “the policy process,” gives insight into the evolution of the Copyright Office and concludes.
The Policy Process: Regarding “the policy process,” the Register claims it is possible to craft “the next great copyright act” so that it accounts for the interests of the various private actors, but also keeps the public interest “in the forefront of its thoughts.” She states her belief that “authors are not a counterweight to the public interests but are instead at the very center of the equation.” The Register’s refreshingly optimistic outlook is perhaps best summed up by the following statement:
“Although challenging, it is possible that Congress may actually find a world order like this to be more manageable in the long run. If the lines of special interests have blurred, if many actors have interrelated objectives, if many revenue models are decentralized, and if many advocacy or consumer groups are tied to one special interest or another, then the sum of these concerns may well approximate the greater goals of copyright law.
The Evolution of the Copyright Office: Before concluding, the Register takes a moment to reaffirm the importance of the Copyright Office. In this section of her remarks she briefly highlights the functions the Copyright Office performs and the contributions it has made to copyright law over the years. She then cautions that: “it is difficult to see how a 21st century copyright law could function well without a 21st century agency.” And notes the strides the USPTO has taken in conjunction with the enactment of the America Invents Act.
Conclusion: At the close of her remarks, the Register concludes by stating:
It is a point of pride for the United States that our past great copyright laws have served the Nation so well. American experts are fond of pointing out that we have the most balanced copyright law in the world, as well as a robust environment of free expression and an equally robust copyright economy.