via Emily Goodhand, who asks one of the right questions: what happens to unpaid monies? Another right question: who collects the money? And another one: what does this have to do with incentivizing the creation of new works, since no author would be motivated one way or the other by what happens to her work if she disappears?

I suspect the real issue here is revealed by the one supporter of the measure, who is quoted saying that non-orphan rightsholders don’t want to have to “compete” with orphans that are free to use unless/until a rightsholder shows up. This is about raising costs to protect incumbent rightsholders, with no benefit to the public.

By Greg Cram, Rights Clearance Analyst, The New York Public Library

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

1. Incidental Copies

   —Not all copies are the same

   —Perhaps there could be discrete exceptions for certain incidental copies

   —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

2. Public Performance Right for Sound Recordings

   —Copyright Office is a “strong supporter” of a public performance right for sound recordings

   —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

3. Stronger Enforcement

   —The new law must respect the integrity of the internet, including free speech

   —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

   —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

4. Small Claims

   —The Copyright Office is studying this issue

   —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

   —The Copyright Office could, potentially, take a lead role in administering small claims

5. Statutory Damages

   —Review registration requirements

   —Look at statutory damages from all angles

   —Statutory damages are important part of copyright act and should be retained

   —Need to provide guidance to courts about how statutory damages should be applied

6. The Digital Millennium Copyright Act

   —The Internet has evolved since DMCA passage in 1998

   —Congress should review the § 512 safe harbors

   —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

7. Registration and Deposit of Published Works

   —The deposit requirements for registration should remain in next copyright act

   —Congress should review the legal incentives for registration

   —How can the Library of Congress add born digital works to its collection through this process?

   —The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

8. First Sale

   —Digital first sale will be an issue on the table

   —Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

9. Other Exceptions/Limitations

   —The libraries and archives exception in § 108 should be updated

   —Update exceptions for the blind and print disabled in § 121 for the digital world

   —Explore new exception for higher education institutions

   —Personal space-shifting

10. Licensing

    —Need to review growth of licensing schemes

    —Review mechanical licenses

Now the “bold” issues:

1. Term of 50 years, renewable for an additional 20

   —The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

   —However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

   —This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

   —Modeled after § 108(h), something the Copyright Office is very fond of

   —This proposal would be acceptable under various international treaties, including the Berne Convention

2. Opt-Out v. Opt-In

   —Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

The initial comments showed that there is very little consensus around this issue, and hence little hope of a legislative solution. The Copyright Office should focus on supporting fair use, digitizing its records, and other non-legislative solutions. If legislation is pursued, it should be a simple, flexible limitation on remedies where a judge determines that a reasonably diligent search occurred.

On Monday, January 14, 2013, the Library Copyright Alliance (LCA) (whose members are the American Library Association, Association of Research Libraries and Association of College and Research Libraries) filed comments (PDF) with the U.S. Copyright Office in response to their October 22, 2012, Notice of Inquiry about the current state of play with orphan works and mass digitization.

The Office is seeking comments regarding “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.”

In its comments, LCA explains that “significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.” Specifically, two key developments make it possible for libraries to engage in mass digitization and other projects that involve orphan works:

• Court decisions (and the #librarianscode!) have further solidified libraries’ rights under fair use; and

• Libraries have successfully engaged in a range of projects involving orphan works and mass digitization.

While other communities may prefer greater certainty concerning what steps they would need to take to fall within a safe harbor, libraries can rely on their existing rights, including fair use. If Congress does consider legislation, LCA suggests that Congress abandon the overly complex arrangement it arrived at in 2008 and instead make a simple one sentence amendment to the Copyright Act giving courts the discretion to reduce or remit statutory damages in appropriate circumstances.

LCA also submitted to the Copyright Office a stand-alone policy statement on the kind of copyright reform that could benefit libraries. Originally published by LCA in May 2011, the statement emphasizes the same fundamental principles as the LCA comments: confident reliance on fair use and related rights together with the suggestion of simple reform focused on limiting remedies against libraries acting in good faith.

LCA encourages librarians and libraries to submit comments, which are due February 4, 2013, and can be submitted online here.

Last Friday, the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries filed a friend of the court brief to defend the fair use rights of libraries. The brief responds to the Authors Guild’s extraordinary arguments in a lawsuit against the Hathi Trust and several member libraries. The brief demonstrates that if the Authors Guild were to win the day, libraries would be severely curtailed in their ordinary activities, including lending books and providing Internet access to the public.

The Authors Guild has brought a suit against the Hathi Trust and several of its member institutions claiming that these groups violate copyright by accepting, archiving, and making accessible thousands of digitized volumes created by Google in connection with the Google Books project. The libraries have responded that the project is protected by both the fair use doctrine and parts of the specific exception for libraries in Section 108 of the Copyright Act.