Pressure for copyright reform gathers pace

May 2013

All areas


Last month the Register of Copyrights Maria Pallante called for copyright reform and the adoption of “The Next Great Copyright Act” to address issues around licensing, digital first sale, and exceptions

and limitations, including enhancing clarity. During her testimony to the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, Pallante explained “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” and that the US needed  “the next great copyright act”  which Pallante said  is needed as consumers are increasingly “accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.”

It’s not just one issue – digitization is the main driver, but there are other reforms that have been suggested: clarifying the scope of exclusive rights; revising exceptions and limitations for libraries and archives; addressing orphan works; accommodating people who have disabilities when they access content; providing guidance to educational institutions; exempting incidental copies in appropriate instances; updating enforcement provisions; providing guidance on statutory damages; reviewing the DMCA; assisting with small copyright claims; reforming the music marketplace; updating the framework for cable and satellite transmissions; encouraging new licensing regimes; and improving the systems of copyright registration in the USA. The Hargreaves review of copyright in the UK provided a similar if not identical list of issues that needed to be addressed – and progress has already been made on the creation of a “copyright hub” and a Digital Copyright Exchange to promote digital licensing. The UK Government has said that it will support the reform of IP laws ,and highlighted the need to progress this, saying in particular that: copyright exceptions covering limited private copying should be introduced to realise growth opportunities; The  introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ needs to be introduced;  Copyright exceptions to allow parody should also be introduced; the Government would support  introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ and would support establishing licensing and clearance procedures for orphan works.

Now the US House Judiciary Committee Chairman Bob Goodlatte has announced that the Judiciary Committee will conduct a comprehensive review of US copyright law over the coming months.

During a speech delivered during the World IP Day celebration at the Library of Congress, Goodlatte made the following remarks:

“Technology continues to rapidly advance. […] Our Founding Fathers could never have imagined a day in which citizens would be able to immediately access the knowledge and news of the world on their smartphones as they walk down the street.

When I was first elected to Congress in 1993, only 2.5 percent of Americans had Internet access and less than ¼ of one percent of the world population did.  Then, we spoke about the very few who had Internet access. Today, we speak about the few who do not. Technological development has increased at an exponential rate. […]

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners.  Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate [by the way, have you seen the Digital Public Library of America project?]. There are concerns about statutory license and damage mechanisms.

Federal judges are forced to make decisions using laws that are difficult to apply today [speaking of (lack of) digital first sale, in it’s ReDigi decision the US District Court for the Southern District of New York itself pointed out that “the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined … It is left to Congress, and not this Court, to deem them outmoded.”].

Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. […]. There is much work to be done”.

Commentators in countries big and small are entering the debate: In Barbados, Kevin A. Hunte, Deputy Registrar at the Corporate Affairs and Intellectual Property Office, delivered a lecture on “Copyright and the Internet” at the National Library that all digital work tends to have similar characteristics saying

“The fact that all works in digital form have uniform characteristics makes it very difficult to protect the copyright subsisting in such works. Digitisation and networking fundamentally alter the traditional conventions for using existing material which is subject to copyright. Works in this new digitised form can be copied, distributed, transmitted, manipulated, edited and stored with ease. It is very important to note that the reproduction right of the copyright holder of an artistic work also applies in the digital environment, in particular to the use of works in digital form.”

adding that digitisation had added another layer of complexity:

“Traditionally, copyright works are classified into different categories – for example, literary works, artistic works, computer programmes, and so on. In each category, works are afforded certain exclusive rights – in the case of literary works, for example, the right to publish, to make reproductions or adaptations, and so on. Digitisation of information – reducing information to binary bits of 0s and 1s, and the development of common technology standards for text, sound and video, such as html, MP3 and MPEG, enable digital content to be shared – almost instantaneously – by millions of users.”

Therefore, digitisation creates a number of issues that must be taken into consideration when addressing copyright infringement, he said.

“Accordingly, the digitisation of works has the following consequences: the creation of a homogeneous medium of storing and transmitting works; the merging of previously distinct classes of work into multimedia products; difficulty in classifying multimedia products; difficulty in determining exclusive rights for each category of work when, say, a previously distinct musical work, a computer programme and a literary work are combined in a multimedia work; and alteration of traditional use of copyright works by the process of digitisation and networking.”

Digital and the internet are the great new disruptive general purpose technologies that have an enormous momentum for change and a myriad of uses – many of which challenge existing business models – but will undoubtedly create new ones – even beyond what can be imagined now. The likes of Amazon, Google and YouTube, Apple, Twitter and Facebook already dwarf many of the traditional industries they may soon replace – but they themselves face challenges from the next generation of new digital start ups and may soon find themselves relying on the very legislation that they have challenged themselves. The tension between traditional business models and new models here to stay, perhaps againt the backdrop of an ever increasing rate of change – with strong advocates on both sides of the divide and a growing call from consumers for clarity – as well as ever increasing demands for new ways to access data, content, friends and ideas.

Finally, former US President Bill Clinton urged a need for creative thinking about copyright and content distribution, saying that copyright needed “ to give people an appropriate return on their ideas and development of them, and presentation of it, in film and music and in other areas, and the need to give it as quickly as possible to the world.” Clinton’s speech came at the Creativity Conference, a half-day meeting hosted by three content owners, the Motion Picture Association of America, Microsoft, and Time Magazine, where participants included House Majority Leader Eric Cantor and HBO CEO Richard Plepler  who discussed issues in the creative economy ranging from federal research and development investment to copyright. Harvey Weinstein, co-chairman of the Weinstein Company made his position clear saying “So I think a very good business plan [is] here, use somebody else’s content for free, deliver it, don’t pay them anything, and build a $500 billion silicon valley company, and then have cool slogans like ‘We just want to help the world” appearing to refer to YouTube and its parent company Google. “They’re stealing. That’s what they’re doing. My artists, they can’t be artists if they’re hungry. The starving artist, trust me, that’s a myth. When you’re starving you’re starving. It’s hard to be creative in that situation.

Clinton, by contrast, sought to establish a different framework in his remarks, suggesting that the conflict in creating copyright policy was not between who should be allowed to profit from the creation of individual work, from music to pharmaceutical development, but between balancing the interests of content finding a wide audience and making it sustainable to develop. “We have to keep struggling to find the right balance between creativity, broadly and quickly shared, and as widely understood as possible, and making it reasonably profitable for people to be creatives” Clinton argued.

Let the re-balancing begin!

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