On March 20, 2013, US Register of Copyrights Maria Pallante sat in front of the House IP Subcommittee to discuss her call for updates to US copyright law. House Judiciary Committee chairman Bob Goodlatte afterwards announced that his Committee would hold “a comprehensive series of hearings on US copyright law… to determine whether the laws are still working in the digital age.”
Now, two years and twenty hearings later, Pallante returned to the Committee to offer her perspective on the copyright review. The hearing is the last in this stage of the review process.
In her written testimony, Pallante begins by observing some general themes that emerged from the review:
- “The constitutional purpose of copyright law informs all aspects of the debate”;
- “To support this purpose, it is essential that authors are incentivized to contribute to our culture and society at large, and that they be appropriately credited and compensated for the music, art, movies, literature, theater, photography, art, news, commentary, and computer code that we so appreciate and enthusiastically monetize as a nation”;
- “Likewise, a sound copyright law must recognize and promote the many businesses that identify, license, and disseminate creative works”;
- At the same time, “while the rights of authors largely coincide with the interests of the public, a sound copyright law will balance the application of exclusive rights with the availability of necessary and reasonable exceptions, and it will ensure the ongoing availability of a flexible fair use defense”;
- But “where the law is silent or non-specific, interested parties may at times bridge the gaps in limited ways by undertaking best practices or voluntary solutions to defined problems”;
- And finally, “To properly administer the copyright laws in the digital era, facilitate the marketplace, and serve the Nation, the United States Copyright Office must be appropriately positioned for success.”
As she did in her article on The Next Great Copyright Act, Pallante takes some time reviewing the numerous studies and reports that the Copyright Office has worked on, particularly those which have yet to receive Congressional action. Since the copyright review process began, the Office completed four such reports: Copyright Small Claims, Resale Royalty, Transforming Document Recordation, and Copyright and the Music Marketplace. It is also working on two reports that are forthcoming, one on orphan works and mass digitization and another on the making available right under US law.
Pallante also discusses the challenges facing the Copyright Office itself, whether structural, technological, or financial. This is an issue that she has raised consistently throughout the review process and most extensively in her 2014 article The Next Generation Copyright Office: What it Means and Why it Matters, as well as a March 2015 letter to Rep. John Conyers in which Pallante wrote that the “long-term interests of the nation’s copyright system” would be “served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”
But perhaps most attention will focus on the substantive recommendations that Pallante makes to the Committee. These are roughly divided into three categories: policy issues that are ready for legislative process, policy issues that warrant near-term study and analysis, and additional policy issues that warrant attention.
The first category of issues, those that Pallante says “Congress has at its disposal the necessary legal analysis and a clear public record,” include music licensing, small claims, felony streaming, Section 108 library exceptions, orphan works, resale royalty, improvements for persons with print disabilities, and a regulatory presumption for existing exemptions under Section 1201.
Those issues “that are important to a twenty-first century copyright system, but require more foundational study and analysis,” include other Section 1201 issues, Section 512, mass digitization, and moral rights.
Finally, Pallante notes that there are some issues which “lack consensus as to the problem, require preliminary research or consultation to identify issues, or reflect agreement that a legislative solution is premature.” In addition “certain issues are of paramount importance, but in our view should be left to the courts to develop. Among these issues are fair use, the right of making available, copyright registration and recordation issues, mandatory deposit provisions, “statutory damages, the first sale doctrine, compulsory video licenses, term of protection, termination rights, and the copyrightability of public standards and codes.”
During the hearing, House Judiciary Committee members predominantly focused their questions on Copyright Office modernization and music licensing issues, universally recognizing the challenges caused by the status quo for both. Representatives Conyers and Judy Chu specifically indicated their support for a copyright small claims court. Most members also expressed high praise for Pallante and the work of the Copyright Office.
As for what comes next, Chairman Goodlatte said in his opening statement, “Over the next several months, the Committee will be reaching out to all stakeholders to invite them to share their views on the copyright issues we have examined over the course of our review so far, as well as any others.” Meanwhile, along with the forthcoming reports from the Copyright Office mentioned above, the USPTO has a forthcoming report on copyright that will contain possible recommendations for administrative and legislative actions. Not to mention a number of bills that have already been introduced on copyright related issues this Congressional term. While it’s rarely useful to predict the future of policy, it does seem fair to say that the next few months will see a good amount of proposals floating around.
There is one last point to note in closing. During her testimony, Register Pallante said, “I have been especially inspired by the stories of authors across the country, many of whom took time to talk with me personally, including songwriters, recording artists, producers, photographers, graphic artists, book authors, dramatists, and independent filmmakers, all of whom want to be credited and compensated for their work.” Authors of all types have proven integral to ensuring copyright law is responsive and effective throughout US history—from book author Noah Webster, who almost single-handedly was responsible for the first state copyright laws in the 1780s, to composer Victor Herbert, whose efforts helped establish the public performance right as a meaningful source of income for songwriters. It’s thus critical for authors, artists, and creators to remain active and participate in the ongoing copyright review process.