Congress—and in particular the House of Representatives—has been very busy lately, introducing two new pieces of legislation to revise the Copyright Act. The first bill— The Copyright Modernization Act—represents a combination of measures that would, among other things, modernize the current music licensing system (by giving music publishers broader rights over digital music) and allow for limited damages if an alleged infringer of a work made a good faith, but unsuccessful, attempt to locate the owner of the work. The second bill— The Design Piracy Prohibition Act—was introduced in late March 2006 and seeks to create limited copyright protection for fashion designs.

The Copyright Modernization Act

The majority of the text within The Copyright Modernization Act seeks to update significantly the current music licensing system by allowing music publishers to license and collect fees for temporary copies of music, such as buffer or cache copies, which are automatically created by computers. Currently, these copies are considered “fair use” under the Copyright Act. One consequence of this legislation is the prevention of unlicensed recording of satellite radio by its listeners. Due to protests and requested changes from digital rights groups, satellite radio companies and the Recording Industry Association of America, the bill was pulled from the current session’s agenda by its sponsor, Representative Lamar Smith, and will be reintroduced in the next Congressional agenda.

A second revision to copyright law under the The Copyright Modernization Act seeks to limit the liability of users of copyrighted works when the user makes a good faith effort to locate the owner of the copyrighted work prior to its use. This section of the bill is designed to address the problem faced— mostly by publishers and other content users—from so-called “orphan works.” Orphan works are copyrighted works for which it is difficult to find the rightful owner. Under the proposed legislation, a user would only be liable for significantly reduced damages if the owner of an orphan work suddenly resurfaced and would have no liability if it stopped using the orphan work upon notice from the owner. In addition, if a user continued use after notification from an owner, no actual or statutory damages would be owed, but only “reasonable compensation,” provided that the user had made a good-faith attempt to locate the owner. The bill follows the recommendations made earlier by the Copyright Office (at the request of Congress) in 2006. Although many applaud this new legislation, one group in particular— photographers—oppose the bill in its current form. Numerous photographer groups cite the difficulty of photographers to police the use of their images by infringers since their name and copyright notices are easily removed from their images.

Although delayed until 2007, it seems likely that The Copyright Modernization Act will eventually pass, since it has support from members of both the House and Senate.

The Design Piracy Prohibition Act

The other bill getting a great deal of publicity is The Design Piracy Prohibition Act, introduced by Representative Bob Goodlatte in March 2006. The bill proposes giving fashion designs limited copyright protection for three years.

Currently, copyright protection is not available to clothing designs because apparel is considered a “useful article” and not a creative work of art eligible for protection under the copyright laws. The bill is designed to address the “copycat” market in fashion. In addition to the three years of protection, the bill would also establish damages for infringement of a fashion design at $250,000 or $5 per copy, whichever is greater. Although counterfeit merchandise is a substantial problem in the United States, there have been numerous critics to the proposed bill. One argument against copyright protection of fashion designs is that nothing is “original” in the fashion industry and that designers all share or take ideas to create new designs. Others argue that the “knock-off ” market is actually beneficial to high-priced fashion designers, whose designs receive general acclaim because they are copied in designs that are more reasonably priced for average consumers. Proponents of the legislation argue, however, that other countries provide protections for fashion designs and, therefore, designers in those countries have a market advantage over American designers.

Although it is unclear when the proposed bill will be set for a vote in the House, unlike The Copyright Modernization Act, it is unclear whether The Design Piracy Prohibition Act (while a sexy story for the media) will have the “legs” to survive.