Congress Reviews the Copyright Act in the Digital AgeRobert Levine
In the year since online activists and technology companies rallied to kill the Stop Online Piracy Act, members of Congress have been anxiously preparing for the inevitable next showdown between people who make things and people who distribute them online. That may begin today—on Wednesday, March 20—when the U.S. Register of Copyrights, Maria Pallante, is set to testify before a House Judiciary Subcommittee. She will press lawmakers to reform the country’s copyright laws, a huge, couple-times-per-century undertaking that will affect movies, music, books, software, and mobile phones.
“I think it is time for Congress to think about the next great copyright act,” Pallante is expected to say, according to an advance copy of her remarks. Under the existing law, the remarks say, “authors do not have effective protections, good faith businesses do not have clear road maps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”
Any serious changes to the law would probably take years, pitting the lobbying power of traditional media conglomerates against technology companies and the online activists they sometimes fund. Consumer groups (some also backed by the tech industry) will press for greater freedom for customers to own what they buy, easing restrictions on moving movies and music among devices, sharing e-books, or time-shifting TV shows. None of these thorny problems existed the last time the U.S. passed a major revision of copyright in 1976—generations ago in terms of media and technology. Even that law took more than two decades to complete.
Pallante wants to make copyright “more forward thinking and flexible than before,” according to her testimony, and many of her ideas seemed aimed at updating the law for the digital age. One big issue is “digital first sale”—whether people have the right to sell used copies of digital files they have purchased, such as iTunes songs and Kindle books. In the analog world, the “first sale doctrine” allows consumers to sell used books or CDs. The law is less clear when it comes to digital products, partly because many downloaded works are legally considered to have been licensed, not sold.
Media companies are more interested in how they can assert the rights they have against online piracy. The current notice-and-takedown procedure, created as part of the 1998 Digital Millennium Copyright Act, requires rights-holders to monitor sites for infringing content—a process that has become Sisyphean as the Internet has grown. Pallante also raises the possibility of creating a small-claims process that could allow independent creators to sue pirates without the expense of a federal lawsuit.
Another question that could return to Congress is the idea of a public performance right for sound recordings, which would make traditional radio stations pay the owners—usually labels—as well as songwriters. This is already the practice in most other countries.
Some of the issues Pallante would like to see Congress take up are ones courts have already struggled with, such as the legality of scanning books that are out of print but still under copyright, when the author cannot easily be found. Congress already tried to address this “orphan works” issue without success in 2006 and 2008.
Pallante’s testimony was scheduled by House Judiciary Committee chairman Bob Goodlatte (R-Va.), who has shown interest in updating the law, according to several media business lobbyists, and who has a platform to help to steer it through Congress. Even basic updates to copyright can take years because lawmakers must navigate through centuries of statutes, court decisions, and international treaties, trying to close unwanted loopholes without creating more. That’s one reason Congress has been so slow to revisit issues that are long overdue. The 33-year old current law, Pallante will tell Congress today, is “showing the strain of its age.”