Last week, Sandra Aistars, executive director of the Copyright Alliance, stressed that any new federal copyright legislation must protect artists’ rights. Writing in The Hill”s “Congress Blog,” Aistars indicated she was addressing this issue because the head of the U.S. Copyright Office “has suggested that it may be time to start considering ‘the next great Copyright Act.’ ”
Actually, Register of Copyrights Maria A. Pallante has more than suggested it. The phrase “the next great Copyright Act” is, in fact, Pallante’s clarion call for major revisions to copyright law. And these actions can affect the entire public, especially creators of anything visual or aural-including writers, authors, playwrights, screenwriters, artists, designers, publishers, recording artists and companies, filmmakers, photographers, actors, composers, singers, and producers of programming for TV, radio, and the Internet.
Pallante has publicly made this call in two recent appearances. The most thorough presentation was on March 4 at Columbia University: The Twenty-Sixth Horace S. Manges Lecture, a 30-page analysis of the Copyright Office’s history, including why a new copyright law is needed, and what the major issues involve. She offered an abbreviated version of that last week in a March 20 testimony to the U.S. House of Representatives’ subcommittee on courts, intellectual property and the Internet.
In her lecture, Pallante listed major copyright issues Congress must consider. These include exclusive rights, incidental copies, enforcement, the Digital Millennium Copyright Act (DMCA), digital first sale, exceptions and limitations, licensing, deposits for the Library of Congress, offsetting copyright term, making room for opt outs, and making the law more accessible, i.e. readable. Here are some highlights:
Under exclusive rights, Pallante included these areas:
…reproduction and distribution, as well as the application and evolution of the public performance right on the Internet (for example, to authorize the streaming of music, movies, television shows, or sporting events).
Pallante noted that her office has long supported “a more complete right of public performance for sound recordings, commensurate with the rights afforded to other classes of works in U.S. law and provided for in virtually all industrialized countries around the globe.”
Owners of sound recordings are disadvantaged under current law in that they enjoy an exclusive right of reproduction and distribution but not public performance. Moreover, because of the disparity in royalty obligations, there is an increasingly stark economic disadvantage for businesses that offer sound recordings over the Internet. Congress has done quite a lot of thinking on this already. How to craft a final resolution should be squarely on the table of comprehensive revision.
The scope of the distribution right also is a central theme today, as courts work through whether and how it may be implicated and enforced in relation to use of works over the Internet. One key issue in the courts is the degree to which a claimed violation of the exclusive right to authorize distribution of a work requires a showing of actual dissemination of a work or whether the act of making the work available online is sufficient.
Reproducing “copies [that] are merely incidental to an intended primary use of a work, including where primary uses are licensed…should not necessarily be treated as infringing,” Pallante suggested, adding:
Because incidental or transient copies are made by consumers on a daily basis and in a variety of otherwise lawful activities involving consumer electronics and computer programs, there may be room for yet further discussion of this issue. In any event, as the confusion over incidental copies has persisted, this is an area where Congress could provide a voice of reason.
Pallante stressed that enforcement strategies “must respect the technical integrity and expressive capabilities of the Internet as well as the rule of law. It is possible and necessary to combine safeguards for free expression, guarantees of due process, and respect for intellectual property in the copyright law.”
She cited the critical issue of law enforcement being able to prosecute the rising tide of illegal streaming in the criminal context.
Streaming implicates the copyright owner’s exclusive right of public performance: it is a major means by which copyright owners license their rights in sporting events, television programs, movies, and music to customers, who in turn access the content on their televisions, smart phones, tablets, or video consoles. Under current law there is a disparity that may have once been of little consequence but is today a major problem: prosecutors may pursue felony charges in the case of illegal reproductions or distributions, but are limited to misdemeanor charges when the work is streamed, even where such conduct is large scale, willful and undertaken for a profit motive. As a practical matter, prosecutors have little incentive to file charges at all, or to pursue only those cases where the rights of reproduction and distribution are also at issue. This lack of parity neither reflects nor serves the digital marketplace.
She also discussed small copyright claims and statutory damages.
The Digital Millennium Copyright Act
Pallante called DMCA “our best model of future-leaning legislation.” But she added that, with the passing of a decade and a half, and the Internet’s evolution, Congress should be able to gauge the reality of how its provisions have been implemented, and how the courts have applied it. This is particularly true of areas such as “safe harbors” and copyright owners’ technological protection.
Pallante also suggested that the global economy would require Congress to think “a little more boldly,” particularly in the areas of offsetting copyright term, currently set at the life of the author plus 70 years in most cases.
“Copyright term is a global issue and any discussion of U.S. term therefore should acknowledge international norms,” she said.