The Register of Copyrights, Maria Pallente, has made a series of speeches about the need to modernize Copyright, including offering testimony before Congress on the matter. Her comments are but one sign that modernizing the Copyright Act has become the new catch-phrase in Washington. As the Courts have over the last few months wrestled with a host of copyright issues principally arising from digital media, boundaries that had carefully been set up by established copyright principles have been blurred - like the distinctions between a performance and a reproduction, or a public performance and one that is not. These are distinctions that can have great importance as to who must be paid or whether any payment at all is due under current copyright laws – as in the Aereo case about which we wrote here. The call to modernize the Act is one looking for a copyright act that fits the realities of the 21st century.
In recent months, Aereo is but one of many cases where the Courts have struggled with how to apply laws that were developed for the analog media, where boundaries are relatively clear, to the new digital world, where many copyright concepts don't clearly fit reality. We’ve seen a number of cases interpreting the DMCA safe harbor provisions for user-generated content – including the NY State case about which we wrote here deciding Internet service providers were not excused from liability where pre-1972 sound recordings were included in user-generated content, as well as much more sweeping decisions upholding the protections of the safe harbor in broader applications, including protections extended to YouTube in its long-running dispute with Viacom. We’ve seen a decision determining that there is no right to resell digital copies – finding that the first sale doctrine (that says that consumers can resell physical goods that they buy without compensating the original creator) does not apply to digital goods. And outside the litigation sphere, we’ve seen innumerable stories about rights and royalties – from questions about Internet radio royalties like those that may apply to the new Apple streaming service, to disputes over the rights to video programs taken from one medium (like TV) and used in another (online or otherwise on-demand).
In a speech last week to the World Creator’s Summit in Washington, DC, Register Pallente revisited the topic of Copyright reform, and laid out many of the issues that she felt needed to be addressed in any comprehensive reform that may occur. The list was long, and is bound to be controversial. She noted that the last comprehensive reform of the Act, in the 1990s leading to the Digital Millennium Copyright Act, was 20 years in the making – a delay that can’t occur now given the number of pressing issues. As she noted, the importance of copyright has never been greater to the average person. That, to me is very clear, as digital media has put so many more people in a position to be involved in copyright issues, as doing everything from creating a Facebook or Pinterest page to a YouTube video, or accessing a file on BitTorrent or any other sharing site, can immediately immerse an individual in a copyright dispute with consequences far greater than the improper use of a copy machine or cassette recorder would have had 20 or 30 years ago. So what does she propose to examine?
First, she started with the proposition that copyright owners must have the meaningful ability to protect the content that they create. But the public must also be able to access that content in a meaningful ways. Both creators and users of content have responsibilities to participate in the larger copyright economy to make sure that it functions properly.
Some specific areas that she suggests are important to review include the following:
- The exclusive rights set out by section 106 of the Copyright Act (the rights to publicly perform, reproduce, distribute, display and make derivative works) need to be clarified for the digital world. As we have written before, the distinctions between these rights, that are so clear in an analog world, no longer make sense in many cases (like for music) in a digital world, and the distinctions can have major significance as to who gets paid for any particular use of copyrighted material.
- The notice and take down provisions of the DMCA safe harbor for user-generated content have to be reviewed. While these provisions have allowed for many very popular new services to thrive, many copyright holders believe that they make it too burdensome to enforce their rights, as they constantly have to monitor the entire Internet to see if their rights are being infringed.
- She called for a full performance right in sound recordings – requiring that recording artists be paid whenever their recordings are played in public. This call goes far beyond the broadcast performance royalty (which we have written about many times here), to the potential for imposing royalty obligations on bars, restaurants, stadiums, and all other venues where recorded music is performed. These royalties would be on top of the royalties already paid to songwriters and composers that are currently collected by ASCAP, BMI and SESAC.
- Exceptions and limitations of the rights of copyright holders need to be adapted for the digital world. For instance, how does “fair use” apply in the digital world? Are the other exceptions that are set out in the Act or thorough judicial interpretations (e.g. exceptions for certain non-profit uses and small businesses, or rights like those given to consumers in cases like the Betamax decision finding that an individual making a private recording of a TV show for personal use was not infringing on the rights of the program creators) applicable in the digital world?
- How should orphan works be treated? Orphan works are those copyrighted materials where the owner of the copyright can no longer be found. The public’s access to copyrighted materials, one of the goals of the copyright laws, cannot be facilitated if works can’t be if the owner can’t be found to secure permission for performance, reproduction or distribution. As the digital world allows for more and more availability for certain “long tail” content, the promise of the new media’s ability to make that content available can’t be fulfilled if the rights can’t be secured when the owner is unknown.
- The laws should allow for a diversity of a licensing regime, allowing for transparent collective licensing, but being alert for anticompetitive practices that such licensing may allow. But the law should also permit direct licenses.
- Review enforcement mechanisms for the copyright owner – including potential criminal penalties for copyright infringement.
Register Pallente cited the need for a comprehensive review to make sure that all aspects of an issue are being considered. For instance, she talked about the need for a review of music rights and how they all work together – looking at mechanical licensing and royalties for public performances as well as the DMCA safe-harbor provisions all at the same time to make sure that all of these rules work together.
The Register acknowledged the difficulty of such a review and urged that all parties in the Copyright debate work together in good faith and good humor to craft new rules for the future. She ended her remarks quoting the Rolling Stones (with attribution, though we are unsure as to whether she had permission or was relying on "fair use" principles) by saying “you can’t always get what you want, but if you try some times, you just might get what you need.”
How realistic is such reform, and what are the issues that will arise? We, and many others, will no doubt cover those questions in depth as times goes on.
Correction, 6/11/13 -the Register spells her last name "Pallante", not "Pallente" as I somehow had it in my article as originally posted. And I thought that I had checked spelling before it was published. My apologies for the misspelling, and for having to leave it incorrect in the title to avoid breaking links to the article.