More Details On Copyright Office's Suggestions On Copyright Reform; Some Good, Some Bad

from the going-to-be-a-mess dept

Earlier today, we broke the story that the head of the US Copyright Office, Maria Pallante is proposing major copyright reforms, including reducing the term to life plus 50 with the ability to proactively renew for another 20 years. While this was a move in the right direction (though not far enough), there were plenty of other proposals that were worrisome. Some more details are starting to come out.

First, I'm at a Santa Clara University conference all about the DMCA (fun stuff!) today, and Rob Kasunic from the Copyright Office mentioned that Pallante's talk at Columbia a couple weeks ago, where most of this information comes from, was merely a "shorter" version of her larger proposal. And that's impressive since her talk covered a lot of different areas concerning copyright. Now, the Association of Research Libraries has posted the notes of an attendees at that lecture, Greg Cram, from the NY Public Library. He points out that these are just his own notes, and may not be totally accurate. However, there are some details. First, the reduction in copyright term is basically what we discussed:
Term of 50 years, renewable for an additional 20

—The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

—However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

—This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

—Modeled after § 108(h), something the Copyright Office is very fond of

—This proposal would be acceptable under various international treaties, including the Berne Convention
This is a small step in the right direction, which is surprising, since pretty much all steps have gone in the other direction, in favor of maximalism. However, there is plenty to be worried about. Here are a few such points:
Stronger Enforcement —The new law must respect the integrity of the internet, including free speech —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads
In other words... perhaps we trade off shorter terms for more criminal prosecutions for "streaming," even as there are serious questions about why basic streaming should be illegal and with so much evidence that greater enforcement does little to help copyright holders' bottom line. That's a problem.
The Digital Millennium Copyright Act —The Internet has evolved since DMCA passage in 1998 —Congress should review the § 512 safe harbors —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones
This is the part that worries me. The entertainment industry has been really itching to ditch the DMCA's safe harbor provisions that protect service providers from liability for the actions of their users. If that's the trade-off for shorter copyright terms, it's not worth it. The safe harbor provisions of the DMCA are a huge part of why the internet has been able to develop so many wonderful services.

The § 1201 rulemaking, however, is the issue concerning anti-circumvention, which should absolutely be re-examined, as it's created a huge mess for all sorts of legitimate uses. But, again, re-opening the safe harbors provision should be a non-starter. Nothing good can come from that.
Incidental Copies —Not all copies are the same —Perhaps there could be discrete exceptions for certain incidental copies —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act
Depending on where this falls out, this could be pretty important. Hollywood has often tried to argue that "incidental" copies should be seen as infringing, and cases like the Cablevision case have raised some issues around that.
Public Performance Right for Sound Recordings —Copyright Office is a “strong supporter” of a public performance right for sound recordings —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models
This is an old battle that's been fought for years and years, and is basically a tax on broadcasters for the benefit of the RIAA. It's silly since it's obvious that the record labels directly value radio airplay, because they pay for it via payola. Arguing that radio stations should have to pay back for the "right" to promote a musician seems kind of silly.
Statutory Damages —Review registration requirements —Look at statutory damages from all angles —Statutory damages are important part of copyright act and should be retained —Need to provide guidance to courts about how statutory damages should be applied
This one could be good, since the statutory damages are so out of whack with reality. However, again, just watch as Hollywood -- with its ridiculous belief that "more punishment" will suddenly get people to buy again -- argues that these rates need to go up not down.
Other Exceptions/Limitations —The libraries and archives exception in § 108 should be updated —Update exceptions for the blind and print disabled in § 121 for the digital world —Explore new exception for higher education institutions —Personal space-shifting
These are important, but are really reflections of problems of a system that has automatic copyright applied to nearly everything and not nearly enough recognition of individual rights. The solutions here are useful, but are basically just patching up evidence of why overreaching copyright law is fundamentally broken. On that issue, however, she apparently believes that more compulsory licensing can be a solution:
Opt-Out v. Opt-In —Extended collective licensing could potentially solve many problems
Of course, this ignores just how screwed up the collective licensing process often becomes, with the focus just being on constantly raising rates, often squeezing out other business models. On top of that, the distribution challenge means a lot of wasted overhead and an all too frequent situation in which big name artists end up getting the money that should go to smaller artists, since they're harder to find and to track.
Small Claims —The Copyright Office is studying this issue —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive —The Copyright Office could, potentially, take a lead role in administering small claims
We discussed this recently, and how it could actually have widespread impact, leading to more infringement lawsuits being filed. This needs to be watched carefully.

There's also the issue of giving herself a lot more power:
Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.
Basically, they want to make the Copyright Office a bigger deal, like the FCC or something. This has a whole host of risks, especially when the Copyright Office has a big revolving door with the entertainment industry.

Once again, this is going to be a very big deal when the full details of these suggestions are put forth -- and we should be quite worried about a number of the ideas above that could make things significantly worse, rather than better.

Filed Under: anti-circumvention, authority, collective licensing, copyright, copyright reform, copyright term, maria pallante, safe harbors, statutory damages

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  1. icon
    tomxp411 (profile), 15 Mar 2013 @ 4:30pm

    Re: Re:

    And therein lies the problem: I don't agree with the RIAA.
    Terrestrial radio, Cable music, satellite radio and Internet radio are not fundamentally any different from each other.

    No one has yet put forth a real answer about why getting music through my computer or cell phone makes it more valuable than when I pull it out of the air on my FM receiver.

    The only argument I've heard is that radio play is exposure for artists. If that's the case, then how is Internet radio play any less valuable a tool for artist exposure?

    Of course, I have also stopped listening to music on the radio altogether; I either download songs from Amazon, listen to Spotify, or listen to podcasts. In fact, I have been exposed to MORE artists as a result of Internet radio than I ever was on FM.

    I find it interesting that satellite Internet radio came to be when royalties were lower. Now that they've gone up, there hasn't been any real innovation in that space.

    (Yes, we've got some music on demand services now, but those aren't relying on the compulsory licensing that radio services do, so that's a whole other conversation.)

    The purpose of Copyright is to spur innovation. What it's being used for in this instance is to prevent competition, and I don't think that's at all the intent of the law or fair to the industry or to consumers.

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