What to Expect from Today’s Copyright Reform Hearing
What to Expect from Today’s Copyright Reform Hearing
What to Expect from Today’s Copyright Reform Hearing

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    Today’s witnesses for
    the copyright reform hearing in Congress will introduce ideas for improving
    America’s copyright system.

    Today at 2:00 PM EST, the House Subcommittee on Intellectual
    Property is holding a hearing on potential copyright reform.

    The structure of today’s hearing owes a lot to a multi-year
    project organized by Professor Pamela Samuelson called the Copyright Principles
    . Each of today’s five witnesses
    participated in the project, which was an attempt to bring together a number of
    stakeholders from different parts of the copyright debate.

    The five selected today reflect that range, including, in
    addition to Samuelson, two academics, one representative of the content
    industry’s perspective, and one representative of the tech industry’s
    perspective. In addition to their existing credentials, the witnesses also
    share among them institutional ties to copyright policy-making bodies:

    • each
      of the industry representatives has also served within a prominent position
      within the Copyright Office;
    • one
      of the academics was a co-chair of a Copyright Office study group on libraries
      and copyright; and
    • another
      worked at the World Intellectual Property Organization, the World Trade
      Organization, and collecting societies as well. 

    Their testimony has been posted on the House site here.
    Here’s a quick overview of their statements.

    Pamela Samuelson, Professor, Berkley Law School & School of Information

    Samuelson’s testimony focuses on the need for a rational
    discussion on copyright reform and the results of the Copyright Principles
    Project. While a number of ideas (25, actually) for potential reform result
    from the project, the report is quick to note that those suggestions don’t
    represent the full consensus of the group, and some reservations with some for
    the proposals, and the need for further study are noted.

    That being said, the level of discourse and the ideas
    emerging from the project represent progress on these issues that Congress
    evidently thinks a useful model for its own copyright reform efforts. 

    In her testimony, Samuelson names four reasons that reform
    is needed:

    1. The need for a decades-old law to keep up with
      new technologies;
    2. The current Copyright Act is a messy patchwork
      quilt of special-purpose laws that conflict often in odd and inconsistent ways;
    3. The Act is long and often incomprehensible—in
      many places, opaque even to people who have studied it since its passage;
    4. The law was largely drafted at a time when
      people assumed it would only apply to people who worked in the movie, music, or
      publishing industries, not to everyone with access to a computer with a webcam or GarageBand.

    Of the many proposals in the Copyright Principles Project, Samuelson’s
    testimony focuses on two in particular: copyright registration and statutory

    A system that encourages more copyright owners to register
    their works would do a lot to alleviate the problems of orphan works, giving
    would-be users an easier way of finding and licensing works.

    Statutory damages, which let copyright holders claim
    anywhere from $750 to $150,000 per work infringed, regardless of the actual
    amount of money they’ve lost due to infringement, also could use reform. While
    some infringements (like making thousands of copies of an unreleased movie) can
    certainly generate that kind of damage, these penalties also apply to pitifully
    small offenses—a single bittorrented mp3 could just as easily be the cause of a
    $150,000 lawsuit (or, more likely the cause of a settlement offer for “only”

    Laura Gasaway,
    Professor, University of North Carolina School of Law

    Professor Gasaway’s testimony focuses on the needs of
    libraries, archives, and museums under the current copyright law.

    While the Copyright Act gives libraries and archives a
    certain number of protections now, those protections are so outdated as to be
    almost useless in some cases. (For instance, they allow libraries to make up to
    three backup copies of a work to preserve it; this might have made sense in a
    photocopying era; right now, the number of copies made by a modern backup
    system is a bit harder to quantify, given various techniques for data storage
    and compression.)

    Gasaway proposes three broad alternatives to improve
    copyright law for educational institutions, each with more detailed parts:

    1. Create a new Copyright Act that has built-in
      principles that allow for libraries, archives, educational institutions, and
      museums to use copyrighted works in non-commercial ways to give access to those
      works to their users;
    2. Repeal the overly-specific and complicated
      library exceptions that exist today and allow libraries to rely upon a broader sense
      of fair use (Gasaway notes that this may make sense structurally, but could
      cause uncertainty for many librarians and educators on the ground);
    3. Make certain specific changes to update the
      current library exceptions, including modernizing its idea of what
      “preservation copies” are and can be, and including museums within its scope.

    Daniel Gervais,
    Professor, Vanderbilt University School of Law

    Professor Gervais provides the longest and most detailed
    for the hearing—it’s doubtful that his oral testimony could include
    even a fraction of the issues within it. He makes a variety of suggestions for
    copyright reforms; some expanding the rights of copyright holders; other
    expanding exceptions and limitations to copyright.

    As an example of the former, he suggests creating a “right
    of making available” in place of our current rights of distribution and public
    performance. The idea would be to include all of the various ways people access
    material now. New ways of sharing, streaming, and storing media can let certain
    types of commercial exploitation end up in between the various areas of the

    Another proposal to expand authors’ rights would be to
    strengthen protections for moral rights—creating, for example, a right of
    attribution—something that Creative Commons licenses recognized, but that isn’t
    built in to our copyright laws.

    He also proposes better-defined exceptions and limitations
    around libraries and archives, and for educational uses. Another exception he
    proposes is one that would, for instance, allow users to move copies they have
    purchased between devices—a soft of “digital first sale” of the sort that is
    currently controversial under the law.

    He also emphasized the need for licensing of copyrighted
    works to be easy and consistent. The current licensing structures, including
    ones built into the law, are complex, often incomprehensible, and treat
    different technologies in wildly different ways, giving a free pass to some
    while charging others wildly different rates. The more rational and easy to use
    licensing is, Gervais says, the more likely that people will make authorized
    uses of works, paying artists and also spreading their work more broadly.

    Gervais, like Samuelson, also notes the importance of
    registration and other “formalities”—the procedures that copyright owners can
    be asked to go through to get certain benefits for their copyrighted works. He
    suggests beefing up the incentives for people not only to register when they
    create something, but when they transfer its ownership. This would make
    copyright owners easier to find, increasing licensing and reducing the number
    of orphan works.

    Jule Sigall,
    Assistant General Counsel for Copyright, Microsoft

    Sigall is currently a copyright lawyer at Microsoft, but he
    worked for a number of years as Associate Register for Policy and International
    Affairs at the Copyright Office. He notes that, in his current position, he
    represents a company that both owns a vast number of its own copyrights in
    software, as well as a company that makes devices and services that store,
    transfer, and copy others’ copyrighted material (in search engine caches, web
    services, and storage on computers and other devices).

    In his testimony, He emphasizes three main points:

    1. That an evolving copyright law needs to account
      for creators and the new ways in which they reach their audiences;
    2. That ordinary personal uses of copyrighted
      works, like space-shifting and time-shifting, often run up against copyright
      law in ways they probably shouldn’t—he suggests the possibility of a safe
      harbor for consumers, like the one that currently applies to ISPs and online
      hosts; and
    3. Like Samuelson and Gervais, he notes the
      importance of recording registrations and transfers of copyrights more often
      and better.

    Jon Baumgartem, Former General Counsel, Copyright Office

    Baumgarten served as General Counsel of the Copyright Office
    from 1976 to 1979. He has also, both before and after his tenure at the Copyright
    Office, represented copyright holders and copyright trade associations as
    counsel and in litigation.

    His testimony stands somewhat apart from the others;
    emphasizing more the caveats already contained with the Copyright Principles
    Project. He suggests that it contains proposals that seem to be of more use to
    users, rather than copyright holders, and notes that enforcement of copyright
    law can still be improved, as well as noting that the Sony decision that legalized videotaping has been interpreted too

    “At the risk of…introducing suddenly an extra discordant
    note into the discussion,” he suggests that the views of copyright holders need
    to be more present in future discussions about changes to copyright law, and
    remains confident that the Committee will do so, having done so in the past.

    We’ll have to wait another few hours for more indications as
    to how the Committee will take up the call for copyright reform, and the extent
    to which they recognize the need for it.

    I’ll be
    providing additional impressions once the hearing is over.