In the past month, both Register of Copyrights Maria Pallante and House Judiciary Committee Chairman Bob Goodlatte (R-VA) have publicly announced their desire to begin a general revision process to essentially rewrite the United States Copyright Act from the ground up. As stated by Register Pallante and Chairman Goodlatte, one significant purpose of such a revision is to adapt the copyright law to various technological changes that have had profound effects upon various copyright-intensive industries.
There is little doubt that US copyright law would benefit from another general revision process. Advances in technology and media used in the creation, distribution, and use of creative works have made such ground-up rewrites of the statute necessary several times since the first US Copyright Act was enacted in 1790. Since that time, the Copyright Act has been rewritten every 40 years or so. The last such process, to revise the 1909 Copyright Act, began in 1955 (although attempts to begin the revision process began as early as 1924) and resulted in the enactment of the 1976 Copyright Act.
There have been many substantial changes in the ways copyrighted works are created, distributed, and used that could not have been anticipated during the last revision process, most notably involving computer networks and other digital technologies. Application of the existing statute to these changed circumstances sometimes yields undesirable results that upset the crucial balance of interests inherent in the copyright law and its overarching goal of encouraging the creation and public enjoyment of new works of authorship. Several ad hoc modifications to the 1976 Act have been made in attempts to address some of these changes, including the DMCA in 1998. As time goes on, however, this increasing patchwork of “fixes” renders the statute more complex and less coherent.
In the last revision process the Register of Copyrights worked with Congress and the many stakeholders in the copyright ecosystem, including authors, publishers and other copyright owners, and copyright users, over the span of 20 years to forge a consensus approach to rewriting the Copyright Act. This process involved the creation of an advisory panel of prominent copyright practitioners, as well as many hearings, industry roundtables, and the like. The compromises worked out during that process have governed the many affected industries for almost 40 years.
Chairman Goodlatte disclosed recently that the House Judiciary Committee will hold a comprehensive series of hearings on US copyright law in the months ahead and that “the goal of these hearings will be to determine whether the laws are still working in the digital age.” He has requested that interested parties submit their thoughts to the Committee as part of this process; recognizing that not all stakeholders can testify, the Committee will generally accept submissions as part of a hearing record.
As the new revision process moves forward, it will be crucial for businesses to participate proactively if they are involved in the creation, distribution or use of copyrighted works, whether they are works of music, literature, visual arts, motion pictures, computer software, or some combination thereof. Without active participation, such stakeholders’ interests may not be considered in crafting the new law with long-lasting and potentially adverse results. Successful participation requires a team approach, combining deep technical and historical knowledge of the Copyright Act and the copyright industries with substantial experience helping businesses interact with Congress and the Copyright Office.