Two years ago, Congress announced an initiative to review the copyright law—last refashioned in the decades leading up to 1976—to bring the Copyright Act into the digital age. Twenty hearings later, on April 29, 2015, the House Judiciary Committee called this series to a close with testimony from Register of Copyrights Maria Pallante, who shared her perspective on the review process, including her recommendations for next steps.
The first topic she discussed—at some length—was modernization of the Copyright Office, a threshold issue to meaningful copyright reform. Register Pallante explained the Office’s dire need for an improved, updated, and independent technical infrastructure. She also spoke of the regulatory autonomy necessary to serve the twenty-first century copyright community. As we outlined in our statement to Congress on Copyright Office modernization, that will entail independence from the library of Congress, where it’s currently situated, and increased funding. To that end, Register Pallante insisted in her testimony that “a faster and more nimble Copyright Office must be a priority.”
In addition to discussing the Copyright Office, Pallante made a number of specific recommendations. She identified eight issues the series of hearings revealed to be “ripe for legislation.” Two of those were issues we identified on our own list of legislative priorities for 2015: creating a small copyright claims court and updating the copyright exceptions for libraries. She described two other issues—also top priorities for the Guild—as warranting “near-term study and analysis”: mass digitization and the DMCA “safe harbor” provisions. Here’s a rundown of where those issues stand.
Small Copyright Claims: “Ripe for a Legislative Solution”
Small copyright claims is an issue Congress has been batting around since at least 2006, when the Guild testified to the need for a small claims court. The problem is quite simple, really. Individuals and smaller copyright owners simply cannot afford to file a federal lawsuit to protect their copyrights; lawyers and court fees cost more than their claim is worth. A small claims court—which seems to be one of the most broadly supported issues on the table—would provide small copyright owners with a realistic venue to enforce their rights. It would be a voluntary alternative to federal litigation for cases valued under $30,000, which could be adjudicated via email and phone, with no need for the parties to travel. The Copyright Office issued a 2013 report recommending that Congress should establish a small claims court within the Copyright Office, and the content of its proposal hasn’t changed much since.
Library Exceptions: “Ripe for a Legislative Solution”
Section 108 of the Copyright Act outlines in what circumstances libraries can do the sort of copying that would otherwise be considered infringement. But it’s badly outdated, confusing, and full of references to the analog world. We’d like to see it updated for the digital age. Librarians’ complaints led the Copyright Office to convene a special Section 108 Study Group to report on the problem. But the library community changed its tune when courts began interpreting the exceptions more liberally than Congress intended. The Copyright Office agrees Section 108 needs to be updated. In Pallante’s oral testimony, she noted in no uncertain terms that “while some have opposed amending them because they would prefer to rely upon fair use, there is virtually no dispute that these sections are outdated to the point of being obsolete.… The provisions do not serve the public interest, and it is our view that it is untenable to leave them in their current state.” Pallante revealed that her office is currently preparing a discussion draft of what the rewritten exceptions might look like.
Mass Digitization: “Warranting Near-Term Study and Analysis”
Mass digitization—the wholesale copying and digital reformatting of analog material—has posed a major challenge to copyright law in the last decade. That’s because its proponents seek legal justification for their projects under the guise of fair use. But fair use was developed to analyze copying on a case-by-case basis; it’s simply not suited to consider millions of instances of copying in one fell swoop. “While fair use may provide some support for limited mass digitization projects—up to a point,” Pallante wrote in her statement, “the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution.” Pallante’s statement quoted our April 2014 Congressional testimony, which asked Congress to establish a collective licensing system that could provide “access to … books at every college, university, community college, public school, and public library in the country so those institutions could provide access to the vital communities they serve” while at the same time ensuring that authors and publishers are paid for those uses.
Now it looks like the wheels are beginning to turn. The Copyright Office is completing its report on mass digitization, and Pallante revealed it will recommend that Congress set up a voluntary collective licensing pilot program so that stakeholders can begin to work out the market implications of a licensing solution for mass digitization projects.
DMCA Safe Harbor: “Warranting Near-Term Study and Analysis”
It’s been incredibly difficult for creators, corporations, and legislators to develop a comprehensive solution to Internet piracy. An ideal legislative solution would protect the creative marketplace without standing in the way of technical innovation. Congress sought to strike such a balance when it passed the Digital Millennium Copyright Act in 1998. But, as Pallante pointed out in her statement, “the current online environment is vastly changed from the bulletin-board era in which Congress enacted the DMCA.” Our main concern with the DMCA is that its “safe harbors” allow sites that host or otherwise support pirated content—such as YouTube or Google’s digital distribution platform, Google Play—to claim immunity, even if they have knowledge of infringement. To remedy this, we’d like to see the safe harbor clarified, making these sites and webhosts more accountable for their role in the proliferation of online piracy. Under the current system, known as “notice and take-down,” to receive immunity, service providers are required to take down an infringing copy only if they have knowledge of the actual location and identity of it. As a result, each time an infringing copy is taken down, another pops back up. We’re asking Congress for a “notice and stay-down” system: once a webhost is on notice that a work is being infringed, it should not have continued safe harbor protection unless it takes reasonable measures to take down all infringing copies of that work on the site, and especially any copies of the same work re-posted by the same user. Pallante’s statement acknowledged the many stakeholders involved, and expressed the Copyright Office’s belief that “a formal and comprehensive study … is advisable to assess the Section 512 system and ensure that it is properly calibrated for the Internet as we know it today.”
Summing up the last two years of work, Pallante said the copyright hearings have constituted “the most comprehensive focus on copyright issues in over four decades.” No doubt they have, but it’s also worth noting that the 1976 Copyright Act was the result of nearly two decades’ worth of deliberation. So what’s next for this Congress? “Over the next several months,” said Chairman Goodlatte, “the Committee will be reaching out to all stakeholders to invite them to share their views on the copyright issues we have examined over the course of our review.”
Notwithstanding the difficulties ahead, we’re confident that both the Copyright Office and many members of the Judiciary Committee understand that authorship is more important than ever to both the economic and cultural health of this country. “A connected and intelligent world,” Pallante wrote, “depends heavily upon authors and their creative disciplines.”