chevron-down Created with Sketch Beta.
From the Hill

The Next Great Copyright Act?

Hayden W. Gregory

©2014. Published in Landslide, Vol. 7, No. 2, November/December 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In testimony March 20, 2013, before the Subcommittee on Courts, Intellectual Property and the Internet of the House Judiciary Committee, Register of Copyrights of the United States Maria A. Pallante called upon Congress to undertake a comprehensive review and revision of U.S. copyright law. Her testimony reprised views she expressed two weeks earlier when she delivered the 26th Horace S. Manages Lecture at Columbia University, which she titled “The Next Great Copyright Act.”

The attention-grabbing title of the Register’s address invites a comparison to what might be called the “Last Great Copyright Act,” the Copyright Act of 1976, which was 20 years in the making.

If the title alone did not suffice to serve notice, Pallante wanted to make clear that she was calling on Congress to go beyond business as usual in addressing needed changes in copyright law and policy. In her Manges Lecture, the text of which was made a part of her congressional testimony, she commented:

In American copyright law, there have been revisions and then there have been revisions. As a general matter, Congress introduces bills, directs studies, conducts hearings, and discusses copyright policy on a fairly regular basis, and has done so for two centuries. But revision of the comprehensive sort is an entirely different matter. It requires a clear and forward-thinking set of goals and a sustained commitment from Congress, most certainly over multiple sessions.

In the intervening year-and-a-half, the House committee that heard Pallante’s plea has devoted an impressive amount of time and effort to reviewing the copyright laws of the United States. To date those efforts have not produced and do not seem to have set a course for reform and revision of the nature envisioned by the Register, and it remains to be seen if they will.

Pallante saw the need for such a fundamental review as manifest in the complexity and utility of copyright law as it has developed and functions today. She noted:

When the Copyright Act was enacted, it contained seventy-three sections and the entire statute was fifty-seven pages long. Today, it contains 137 sections and is 280 pages long, nearly five times the size of the original. As former Register Marybeth Peters observed in 2007, the current “copyright law reads like the tax code, and there are sections that are incomprehensible to most people and difficult to me.”

As noted by Pallante, it is particularly regrettable that copyright law is moving in the direction of incomprehensibility at a time when public interest and need for understanding of this body of law is expanding, an expansion that flows from a myriad of technological advances. A single phenomenon—The Internet—serves as the iconic symbol and embodiment of these advances.

Register Pallante saw an “imbalance” in the copyright statute flowing from the fact that “we have gotten away from that equation that puts the authors as the primary beneficiaries, followed by the public good.” During her congressional testimony, House Judiciary Committee Chairman Bob Goodlatte asked Pallante for her opinion why “the tone of copyrights and debates in our society has become so polarized and hostile?” In response, Pallante expressed the view that copyright has gotten a bad name because concerns about money are controlling, with authors feeling that their interests are being pushed aside, and the public seeing copyright as “really about a bunch of giant corporations with one perspective or another.”

Register Pallante also urged Congress to see and hear from a wider range of interests as it conducts its review of U.S. copyright law, gently suggesting that it might be useful to hear less from Washington lobbyists and more from actual creators and users of copyrighted works:

I think although we love the trade associations that visit us on a daily basis, getting around them sometimes and getting to other kinds of creators, other kinds of users, people who are struggling in schools and higher ed and other places, would really be instructional.

In Pallante’s view, this broader perspective is better gained by not limiting the venue to Washington:

Go somewhere like Nashville, where people make a living from writing songs at their kitchen table, or New Orleans. Go to, you know, schools, that kind of thing.

An exhortation for Congress to hear from a broader range of interests, or to get out of Washington and meet with “the real people” might seem to be innocuous and non-controversial. But, maybe not. “Business as usual” is, by definition, how Congress usually does business, and that includes the range of interest groups that it chooses to hear from and whose interests and views are influential is shaping the final legislative products. Congress as an institution, and its component units and individual members, are familiar with these processes and the results that they produce, and apparently are comfortable with the resulting products. A call to action cast specifically in a need to depart from business as usual is almost certain to get the attention it seeks, but perhaps not the desired result. Pallante’s presentation at least did not miss its mark in the first regard.

House Judiciary Committee Chairman Goodlatte, who calls the shots on any House action on Pallante’s shot over the legislative bow, responded with understandable caution in opening remarks at the opening hearing of his committee’s consideration of the proposal:

Clearly, the Register’s call to revise, rather than update, the Copyright Act is one that is certain to hearten some and, quite frankly, scare others.

Similarly, at the same hearing, IP Subcommittee Chairman Howard Coble noted Pallante’s call for a substantial commitment of legislative time and effort, and indicated “there is no guarantee this Subcommittee will agree to undertake such a big step.”

In his opening statement, Coble noted that he found “most interesting” Pallante’s views on the importance of authors and their interests with respect to the public interest in copyright reform efforts. Those among us whose lives and work revolve around copyright might find it equally “most interesting” that a legislator finds it most interesting that in formulating copyright policy, the head of the Copyright Office places high priority on the interests of authors and the public.

Chairman Coble went on to explain that proponents of such reform will need to clarify how the interests of “other copyright stakeholders fit into this puzzle,” and expressed the view that “these clarifications are critical if we truly intend to move this discussion forward.” It seems reasonable to interpret this exhortation to “clarify” the role of “other copyright stakeholders” to mean “make sure that the interests that we always hear from are taken into account.”

Pallante was urging the Committee and Congress to reach out to and hear from interests that she believes to have increasingly been left out of recent copyright policy-making deliberations. While not a rejection of the Register’s opening call for infusion of new blood into the debate, the Committee’s response was hardly an enthusiastic endorsement. It calls to mind the closing scene in the 1942 film Casablanca, where Vichy Captain Renault’s ordered “Round up the usual suspects” as a response to a killing that he had just witnessed firsthand. However, unlike those in wartime Casablanca, today’s usual suspects are probably all too happy to be rounded up for the task at hand.

In calling for comprehensive review and potential fundamental revision of U.S. copyright law, Register Pallante did not leave Congress without guidance and advice on possible components of such a reform package. She noted a number of issues concerning which in recent years Congress has held hearings and done useful preparatory work for further legislative action. These include matters such as a performance right for sound recordings and reform of licensing of musical works to reflect contemporary market conditions. Pallante also provided a long list of reports, studies, and analyses that the Copyright Office has undertaken at the request of Congress on issues that are ripe for reform. These involve application of the first sale doctrine in a digital environment, solutions to problems relating to orphan works, reform or elimination of statutory licenses for cable and satellite transmissions, providing federal protection for pre-1972 sound recordings, resale royalties for visual artists, and new mechanisms for enforcement of small copyright claims.

In questioning by Subcommittee members at the March 2013 hearing, Pallante was asked to go further and name her own “top three” issues for legislative reform. In identifying the public performance right for sound recording as the first on her list, she noted that Congress had been working on that issue for more than a decade. In next naming orphan works as an issue that is “ripe” for resolution, she noted that when a copyright owner goes missing, the orphan works problem is exacerbated by very long copyright term. Pallante elsewhere in her Next Great Copyright Act recommendations suggested consideration of requiring some form of renewal of registration in the final 20 years of copyright term, a proposal that does not seem to have gained much traction in Congress or in the copyright community generally.

Third on the Pallante priority list was illegal streaming of copyrighted works in violation of the exclusive right to public performance. Noting that criminal infringement of that right is currently punishable only as a misdemeanor, she called for parity with violation of the right of reproduction and the right of distribution, both punishable as felonies.

The Congressional Response

As reflected in the actions of the House Judiciary Committee, to which the Register’s call for development of the “Next Great Copyright Act” was directly sounded, the congressional response has been substantial and impressive. Almost 20 hearings on copyright issues have been held by the IP Subcommittee in the intervening 18 months, a commitment of time and resources that exceeds any since the efforts to develop the last great copyright act almost a half century ago.

However, the recent activity appears more to be an acceleration of the routine piecemeal review and amendment of various copyright laws, and not an indication of a design and commitment to comprehensive reform. As noted earlier, the Committee greeted the Pallante proposal with a number of expressions that disclaimed any commitment or intention to copyright revision or reform of the nature she was calling for. For a number of reasons, this is not surprising. Today’s members of Congress are well aware that the 1976 revision was more than 20 years in the making—a lot of work in the vineyards before harvesting any fruits of the labor, and longer than most of them will be around. Fundamental reform can require members to take positions and vote on politically difficult issues that might not arise in a controlled environment of incremental oversight and amendment. Finally, for several key copyright leaders in Congress, the recent catastrophic collapse of the SOPA/PIPA legislation aimed at off-shore online piracy loomed as a disincentive to taking on bold new initiatives.

Nonetheless, the Committee did appear to show some receptivity to Pallante’s recommendations. The hearings that followed shortly thereafter appear to be designed to provide an opportunity for additional voices to be heard, as she had recommended. Those early hearings presented “open mike” opportunities for interest groups to tell their stories and present their recommendations, a worthy undertaking but not one that seems to contemplate specific legislative reform to follow.

More recent hearings show a sharpened focus on real and substantial issues of copyright law and policy, including single subject hearings on issues fair use, first sale, compulsory licensing, music licenses, moral rights, copyright term, and copyright remedies. This groundwork could be quite useful should the Committee or Congress decide to move in the direction of comprehensive revision.

This is of course a decision for congressional leaders to make. If they have this in mind, it is not yet in sight, at least not to outside observers like us.

Hayden W. Gregory

Hayden W. Gregory is legislative consultant for the ABA Section of Intellectual Property Law in Washington, D.C.