Notes From Today’s Hearing: The Register’s Call for Updates to U.S. Copyright Law

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Maria Pallante, the Register of Copyrights (and thus, head of the Copyright Office) was the sole witness in a hearing today with an ambitious title: "The Register's Call for Updates to U.S. Copyright Law." (An archived copy of the hearing is here) Her testimony provides a guide to the sorts of changes she thinks are necessary in the coming years. They include a long list of objectives:
clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.
She elaborates on these topics further in a lecture she gave at Columbia earlier this month. "The Next Big Copyright Act."

Despite the broad range of topics at play there, the question-and-answer session that occupied the bulk of the hearing's time only touched on a few different areas. Among those, however, were questions about cell phone unlocking, fair use (particularly with respect to the e-reserves lawsuit against Georgia State University), performance rights, and online infringement. The Kirtsaeng case came up once or twice, too.

This isn't to say that the hearing was entirely free of cruft; I'd be lying if I didn't admit that I was somewhat dismayed to see so much time devoted to asking whether or not artists should be protected by copyright laws. This is an all-too-common feature of Congressional copyright hearings, and one with an obvious but unhelpful answer ("yes"). Whenever hearings take this tack, it seems to indicate that members of Congress aren't actually paying attention to what's in the law and how it's working, instead resting on the pat conclusion that the law protects artists, we want to protect artists, and therefore should add more law.

But pat statements and clichés are a standard, and some might say necessary, part of Congressional hearings, and the fact that more than the usual platitudes were covered is a good sign of progress. Once legislators realize that there is a rich source of discussion here, and not merely a war between the defenders of copyright and the hordes who wish to destroy it, we've already made strides towards a productive discussion that has, until recently, largely been confined to academia or particularly specialized areas, like orphan works. I've highlighted a few notable topics below:

Incidental Copies

For example, Register Pallante spent a good amount of time discussing incidental copies. She recognized the fact that digital technologies make copies by virtue of their operation, and that not all of these copies are "reproductions" that need to be covered by the law. The fact that they can be is the source of a lot of power imbalances between, for instance, software manufacturers and users, and it increases the liability and uncertainty that a lot of technology developers face. Recognizing this problem means questioning some of the assumptions that lie at the basis of copyright law.

Criminal Penalties for Streaming

Which is why it's interesting that another major focus of the hearing was on criminal penalties for online streaming. (Compare this bill from 2011) Register Pallante pointed out that criminal penalties for infringing distributions and reproductions of works can result in felony charges, but that infringing public performances (which is likely how streams would currently be classified under the law) can only amount to a misdemeanor. This seemed to be a focus of her enforcement agenda, but it seems to rely upon a distinction that might not always be so clear. From a technological standpoint, a stream is really just a progressive download; the video or audio files is getting buffered and copied onto your computer, and the major difference between the two is frequently one of DRM. If we're taking a closer look at how we're drawing the lines of exclusive rights and how technology changes those, this is a field ripe for discussion. For the time being, it might be enough to say that streaming roughly parallels the process of broadcasting that the public performance right has dealt with to date, but I wonder if there might be a better way of future-proofing these practices.

Digital First Sale

Speaking of parallels, Pallante was asked about digital first sale issues. She apparently disfavors that terminology, since she views first sale as a doctrine dealing with physical copies, which makes it less directly applicable to the digital world. Instead, she left open the question of whether or not the laws could or should be written to create a sort of parallel to first sale within the digital realm. (I would note in passing that physical objects still exist in the digital world; the sectors of my hard drive that contain a particular mp3 are still physical objects, and collectively form a physical copy).

Notice and Takedown

The notice and takedown provisions of the DMCA also were the topic of some discussion, with Pallante noting that there are a variety of complaints from both sides about the process, despite the generally positive nature of the compromise. Small copyright holders have a difficult time issuing takedowns to cover widespread infringement, and yet the process does create "inaccurate" notices. She thus seemed open to the idea of reforms that could cut down on what we've seen as a flood of bogus notices.

How Long Will Reform Take?

Pallante stressed she had no desire for a new copyright revision process to stretch on for twenty years, like the 1976 Act did. She estimated that "a few years of really solid drafting and revision" could produce a new Act. This seems possible, if ambitious. A new act that would be future-proof (i.e. that won't be rendered obsolete or cumbersome as technologies, arts, and businesses change) requires overturning a number of basic assumptions that have been built into the last several comprehensive copyright laws. But I'm encouraged that a number of the topics addressed by the Register are topics we've been concerned about for years, and I, for one, look forward to a day when needing to be able to distinguish, say, 17 U.S.C. 1201(a)(2) from 17 U.S.C. 1201(b) is a thing of the past.

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