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
Project. 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:
of the industry representatives has also served within a prominent position
within the Copyright Office;
of the academics was a co-chair of a Copyright Office study group on libraries
and copyright; and
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
- The need for a decades-old law to keep up with
- The current Copyright Act is a messy patchwork
quilt of special-purpose laws that conflict often in odd and inconsistent ways;
- The Act is long and often incomprehensible—in
many places, opaque even to people who have studied it since its passage;
- 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”
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
Gasaway proposes three broad alternatives to improve
copyright law for educational institutions, each with more detailed parts:
- 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;
- 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);
- 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.
Professor, Vanderbilt University School of Law
Professor Gervais provides the longest and most detailed
testimony 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.
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:
- That an evolving copyright law needs to account
for creators and the new ways in which they reach their audiences;
- 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
- Like Samuelson and Gervais, he notes the
importance of recording registrations and transfers of copyrights more often
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.
providing additional impressions once the hearing is over.