Call this Copyright Coincidence Day here at PK. At about the same time this morning that Gigi was giving a major speech on copyright reform at Boston University, she was also part of a Good Morning America story on copyright reform.
The GMA story was about the woman who got a take-down notice for a video of her toddler she posted to YouTube that had a song by Prince playing in the background. The video version of the story talks about how Prince hires people to search out uses of his music. Gigi is quoted in the video version and, more extensively, on the text story on the Web site, talking about how the recording companies don’t respect copyright law. In the video, Gigi tells GMA that sending out take down notices is a “riskless endeavor” for record companies, which “send out more than need to, and hopefully catch really illegal stuff with stuff that isn’t illegal at all.” Most of the comments posted on the GMA site about the story took our side of the argument.
The theme of the story tied in nicely with the major speech she gave at BU. Saying that copyright law has “become out of touch with our technological reality to the detriment of creators and the public,” Gigi unveiled a new program for copyright reform that will be more responsive to new innovations.
“Pre-VCR copyright policies must be transformed to embrace our new user-generated culture,” Gigi said in a speech to the New Media and the Marketplace of Ideas Conference.
She added: “For the past 35 years, the trend has been nearly unmitigated expansion of the scope and duration of copyright, resulting in a clear mismatch between the technology and the law. Over the past decade copyright reformers like Public Knowledge have stopped the pendulum from swinging even farther away from digital reality. Now it is time to move the pendulum towards the future and away from the past.”
Gigi said that “in an ideal world, we would start from scratch and create a new copyright regime less tied to the printing press model.” But as that isn’t possible now, Sohn proposed six “more modest changes” that will return “some badly needed balance” to the law. The six points are:
Fair Use Reform. The existing four-part legal test for fair use should be expanded to add incidental, transformative and non-commercial personal uses of content. In addition, Congress should provide that making a digital copy of a work for indexing searches is not an infringement.
Limits on Secondary Liability. The 1984 Sony Betamax decision by the U.S. Supreme Court protecting a manufacturer of technology from liability as long as the technology has “substantial non-infringing use” should be codified.
Protections Against Copyright Abuse. The Digital Millennium Copyright Act (DMCA) should be expanded to deter copyright holders from filing frivolous requests that material be taken down from a web site. Congress should provide legal relief for legitimate users of a work should copyright owners overstate their rights.
Fair and Accessible Licensing. Congress should simplify the Byzantine world of obtaining rights to use a musical work, and should require broadcasters to pay performance royalties as satellite and Internet radio do.
Orphan Works Reform. Congress should limit damages for the use of works for which a copyright can not be found after a good-faith search. In addition, competitive visual registries should be established to protect visual artists and photographers.
Notice of Technological and Contractual Restrictions on Digital Media. Copyright holders should be required to provide clear and simple notice to consumers of any technological or contractual limitations on a consumer’s ability to make fair use or other lawful use of a product. There would be legal consequences if that notice isn’t followed.
A complete text of the speech is here.