[This
is an extended version of the story initially published
in OneMovement
for Music – Issue 6]
By
Emmanuel Legrand
US
policy-makers have launched what could be the biggest overhaul of
copyright law in the past 40 years in America. The whole creative
community, along with Silicon Valley, advocacy groups and consumer
organizations, are getting their troops in marching order for what
could also be the defining fight of the digital era. And the rest of
the world will be watching with a mix of anticipation and anxiety,
depending on which side of the equation they stand, too see how
things will unfold.
 |
| Maria Pallante |
The
impetus to this ambitious project was given by the US Register of
Copyrights, Maria
Pallante,
who started the process with two carefully and strategically planned
interventions, one un early March via a lecture at Columbia Law
School on the “The Next Great Copyright Act,” the second a few
weeks later at a hearing before the Committee on the Judiciary of the
House of Representatives. “The law is showing the strain of its age
and requires your attention,” said Pallante
to legislators .
She
added, “I think it is time for Congress to think about the next
great copyright act, which will need to be more forward thinking and
flexible than before.” She explained that in the current
environment, “authors do not have effective protections, good faith
businesses do not have clear roadmaps, courts do not have sufficient
direction, and consumers and other private citizens are increasingly
frustrated.”
Most
of America's copyright legislation stems from the Copyright Act of
1976 (which took most of two decades to be discussed and voted
upon!). The law was updated and modernized in 1998 with the Digital
Millennium Copyright Act under the Bill
Clinton presidency,
to take into account the digital developments induced by the rise of
the internet. All parties – pro-copyright or copy-left movements –
agree that the time has come to adapt US copyright framework to the
modern use of content on the internet. But that's probably the only
thing on which the parties agree.
“There
is always room for improvement,” noted Sandra
Aistars,
executive director at the Washington-based cross-industry
organization Copyright Alliance, at the DMW Music conference in New
York in February, before Pallante announced her overhaul. For Casey
Rae,
Deputy Director of the Washington, DC-based Future of Music
Coalition, Pallante did “an admirable job of describing the many
varied interests in American copyright, as well as some of the
tensions. I especially agree with her assertion that, when it comes
to copyright, creators and the public interest aren't odds. Or at
least they shouldn't be. Whether or not we end up with 'the next
great copyright act,' it is crucial that the needs of creators are
taken into close consideration in every debate that impacts their
livelihoods.”
Creative
Commons reacted,
“A strong push for copyright reform is currently occurring around
the world through domestic reviews and in international fora like
WIPO — coming both from those wanting increased recognition of user
rights and those calling for tighter author controls. With the United
States one of the leading nations advocating for stronger copyright
protection through treaties such as ACTA and the TPP, the
international community will be closely observing any movement in
U.S. domestic law.”
But
the creative industries are wary that the process set in motion by
Pallante will open the Pandora's Box of copyright and that advocacy
groups and the tech sector – with Google
at
the forefront – will do their upmost to reduce the scope of
copyright. They stand to lose a lot, and not simply in financial
terms.
What
has changed in DC is the climate toward copyright-related industries.
Since DMCA was passed 15 years ago, advocacy groups and activists
have stepped into the copyright debate and made their voices heard,
as the SOPA and PIPA victories have shown. So any discussion on
copyright will take place in a highly polarized environment.
And
both Congress and stakeholders will have to deal with a vast array of
issues – probably too vast an array. Pallante said that updating
the DMCA has become urgent and that Congress should act
“comprehensively.” She admitted in her statement that the list of
issues she wanted to tackle “is long”: “clarifying the scope of
exclusive rights, revising exceptions and limitations for libraries
and archives, addressing orphan works, accommodating persons who have
print disabilities, providing guidance to educational institutions,
exempting incidental copies in appropriate instances, updating
enforcement provisions, providing guidance on statutory damages,
reviewing the efficacy of the DMCA, assisting with small copyright
claims, reforming the music marketplace, updating the framework for
cable and satellite transmissions, encouraging new licensing regimes,
and improving the systems of copyright registration and recordation.”
For
music publishers, one of the touchiest issues will be the requirement
that a new registration must be made 20 years before the end of a
term, or it falls into public domain. “From our standpoint, it is
awful,” said a source affiliated with publishers. “It's the last
thing heirs of musical work copyrights need to worry about – many
will forget to file.” Publishers will also certainly fight against
Pallante's project of “small claims courts” that are meant to
solve copyright issues without having to go through costly
litigation.
Many
issues are highly contentious, such as the DMCA's takedown notices,
or the possible legislation on orphan works, and the first sale
doctrine applied to digital files, to name but a few. The ReDigi
case, for which a court has found in favour of Capitol against the
digital service that proposed to acquire “used” digital copies,
has opened a debate on the issue of first sale when it comes to
digital files. The court decision regarding ReDigi might trigger a
lot of lobbying action on Capitol Hill. According to a Washington,
DC-based source, “Apple and Amazon have patents or are trying
to get patents on a process to sell digital copies of musical works -
they will most assuredly be going to the Hill to press for
legislation after the ReDigi case.”
For
the recorded music side of the equation, it could well be the
opportunity for labels and performers to finally benefit from
performance rights paid by terrestrial broadcasters, similar to the
one paid online by the likes of Pandora.
But no doubt the National Association of Broadcasters will fight
tooth and nails to prevent that from happening.
So
has Pallante set herself too high of a task? She is not really a
newcomer in the field: When she was appointed by the Librarian of
Congress as the new Register of Copyrights, replacing Marybeth
Peters who
had served in this position for over 16 years, Pallante was already
working at the Copyright Office, last as Associate Register for
Policy and International Affairs. She was appointed Register in June
2011 and started making her mark by setting a series of policy
priorities. She will have further occasion to outline her plans in a
keynote speech she will make at the World
Creators Summit in
Washington DC on June 4.
Two
key players in this Capitol Hill game are the Chairs of the Committee
on the Judiciary at the Senate and the House of Representatives,
respectively Senator Patrick
Leahy (D-Vermont)
and Representative Bob
Goodlatte (R-Virginia).
Goodlatte, who was one of the legislators quizzing Pallante, did not
seem to fully warm up to her plans. One source in Washington believes
that Pallante may "may
have jumped the gun somewhat. She did not
really clear it [the agenda] with Congress, and we know there has
been some pushback because of that – and it is also why some of the
questioning at her hearing was a bit confrontational."
“The
reason they don't like the way this was handled on the Hill is that
the agenda is too grand,” added the source. “They will have to
prioritize some and not others; and it will make them look like they
are a little slack on important issues – not a good position to put
Congress.”
But
for many stakeholders, the process started by Pallante will be a way
to deal with fundamental issues, not least those related to creators.
“On the music side, which is where I live,” Casey
Rae,
Deputy Director of the Washington, DC-based Future of Music Coalition
said, “there's a lot of issues that could stand to be addressed.
Pallante herself remarked that, 'music licensing so complicated and
broken that if we get that right, we can get the whole statute
right.' There's also a need to examine how copyright currently works
for creators in a broader sense. How can we best serve the delicate
balance laid out in the Constitution, given rapidly evolving
technology and shifting consumer expectation? I'm optimistic that
this question can be answered, but it will take sober-mindedness and
a willingness to compromise — qualities too often lacking in
copyright debates.”
[Typed
while listening to Depeche Mode's 'Delta Machine (Venusnote)
and Brandt Brauer Frick's 'Miami' (!K7)]
