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Four E’s for Copyright Office Modernization: Easy, Efficient, Electronic, and Elimination

July 9, 2012

Copyright Office Procedures Are Outdated, Complex, and Slow

Say
you find sheet music for 13 great songs and want to record them for an album.  Being copyright savvy, you know you need a
compulsory license.  The sheet music has
titles but no listed copyright owners.  You can’t find the copyright owners on the
online copyright registry (works from 1978 to the present). Assuming you can’t
stop by the Copyright Office, you pay $165 (or more) to have staff search pre-1978
registrations.  Since you still can’t
find the copyright owners, you have to “file notice” with the Copyright Office in order
to license the works.  But the Office
provides neither a form nor an electronic system to file.  After creating your own notice form, lugging
out your printer and paper, including a check for royalties, and trekking to
the post office, you complete your mission to file notice for licenses. 

This ordeal—as complicated and painful as a trip to get a
driver’s license at the DMV—is not what you should be able to expect from an
agency in charge of promoting creativity and innovation. 

It seems obvious that the best way to incentivize people to
create is to make it easy for potential licensees to pay royalties to copyright
owners.  The Copyright Office is slowly
reforming some of its procedures and updating the copyright law, and is accepting
comments on two of its proposed reforms this month. 

While both changes are a step in the right direction, they
are still too far away from the ideal Copyright Office that would be easy,
efficient, and electronic. 

Proposal #1: More Electronic Filings

The Copyright Office has proposed to update the notice
filing procedure under section 115 so that potential licensees who would like to
reproduce or distribute multiple musical works by unknown copyright owners can
file notice electronically.  (In other
words, the ordeal above gets easier because you can file notices online.)  

PK filed comments today, and here’s the 411:  Back in 2004, the Copyright Office acknowledged
that it should implement an
electronic filing system but said it wasn’t prepared to do so.  Now (eight years later), the Office has the
means to accept electronically filed notices for multiple musical works.  Hurray! 

But after all this time, the Office still can’t accept
electronic filings from all potential licensees.  If you want to license fewer than twelve
works per year, you will probably still have to file paper notices.  Why? 
The Office doesn’t have the capacity to accept online credit card
payments or verify e-signatures.

To be fair, Pizza Hut, Amazon, and eBay only developed the
capacity to accept online payments in the mid-1990s.  Gosh, even DC’s DMV accepts payments online.  Maybe the Office can start using pay.gov.

Proposal #2: Less Frivolous Statutory Language

The Office has also proposed to clean up some statutory
language defining who could claim copyright royalties.  The statute defined a ‘claimant’ as either 1)
the author or 2) the person or organization that has obtained all the
rights.  This seems straightforward until
you read the footnote that gives claimant status to a person or organization having
obtained “the contractual right to claim legal title” to the copyright.  No one knows what this means, so the Office
wisely proposed to eliminate the footnote to avoid further confusion.  (Look for our comments on this issue on July
16.)

There’s More Work to Do

The proposed changes are good, but most Office procedures,
including registration, database searching, and compulsory licensing, remain
outdated.  As PK has said for years, the
Office needs to quickly speed up its modernization process.  If copyright owners can automatically claim
$150,000 worth of damage for infringement, there has to be an easy way for good
actors to identify the owners of copyrighted works.

Four E’s to Help the Copyright Office Modernize

The Copyright Office should use four principles as a guide
to effectively modernize procedures and laws:

  • EASY: The Office needs to keep in mind that the
    purpose of copyright law is to promote creativity by allowing authors to
    benefit from their works.  People will
    pay royalties if it’s easy to do.
  • EFFICIENT: People want what they want when they
    want it. The Office’s procedures and accounting process are so outdated and
    complex that potential licensees turn to the Harry Fox Agency, which has
    simpler and easier procedures—and usually the added bonus of less expensive
    royalty fees.  Harry Fox doesn’t have
    rights to license all works, so potential licensees must still use the
    Copyright Office’s frustrating system to license works with unknown copyright
    owners.  Fortunately, PK provided many
    suggestions
    for making Copyright Office procedures more efficient.  
  • ELECTRONIC: It’s 2012 and providing online
    services for submitting documents and accepting payments should be the obvious,
    default choice. 
    Paper can be an expensive, space-consuming hassle.  If our Founding Fathers were alive today, they
    would probably expect to file documents and make payments online while ordering
    pizza.
  • ELIMINATION: Some parts of the Copyright Act lack
    meaning.  The Office needs to continue to
    eliminate confusing or outdated statutory language. 

Fortunately easy, efficient, electronic, and elimination can
all go hand-in-hand as the Copyright Office continues its modernization process.