Time to Think About 'The Next Great Copyright Act' in the US?

[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)]