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:
—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
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
—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
—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
—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
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
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)
—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
—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
—Need to review growth of licensing schemes
—Review mechanical licenses
Now the “bold” issues:
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
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.