The Next Great Copyright Act – A Conference Recap

By TAP Guest Blogger

Posted on May 2, 2014


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This conference summary is written by Patrick Goold.


When Congress passed the Copyright Act of 1976, it hoped to create a copyright law that would withstand the tests of time. To do this, the Act had to be flexible and capable of evolving to deal with new controversies presented by new technologies. Today, there is general agreement that the drafters accomplished this goal and the legislation has maintained a broadly balanced copyright regime since its enactment. Nonetheless, time catches up to all things. In the face of new technology, the Copyright Act is beginning to look dated. In recent years, consensus has been building that the 1976 Act needs an overhaul to better resolve the challenges of the twenty first century. In March of 2013 Maria Pallante, the Register of the U.S. Copyright Office, expressed her interest in working toward a comprehensive revision of U.S. copyright law, which she has optimistically called “the next great copyright act.” Subsequently Congress and the Department of Commerce have opened the debate on thorough copyright reform. To aid the reform process, on April 3 and 4, 2014, the Berkeley Center for Law & Technology gathered together scholars, policymakers, and representatives of various stakeholders to consider what changes would make the next copyright act truly great.


Over the course of the two days, a consensus emerged that any copyright law with aspirations of greatness must surely make sufficient provision for authors. As Professor Wendy Gordon (Boston University) reminded us, by providing authors with a fair reward for their creative labor, society ensures the future production of “texts to educate us, movies to enthrall us, [and] music to make us dance.” Yet authors are facing serious challenges in the twenty first century. Mitch Singer (UltraViolet) highlighted that the Internet has facilitated “rampant digital theft.” It is now possible to upload infringing material and distribute it to millions of people. And while the Digital Millennium Copyright Act permits right holders to request online service providers to remove infringing material from their sites, users may simply re-upload that same material hours later. But it is not only end-users that are exerting pressure on authors. As Brian Zisk (Future of Music Coalition) noted, intermediaries, such as record labels, often have strong bargaining power and can forces authors into contractual terms that unfairly reduce their compensation. The next copyright act must respond to these challenges and ensure that authors receive a reward sufficient to enable them to create new works.


But equally participants agreed that providing authors with a fair reward does not justify granting absolute monopolies to copyright holders. Copyright protection comes at a cost – it makes it harder for end users to access the copyrighted work and results in a sub-optimal diffusion of information throughout society. Society is willing to accept this drawback in cases where copyright is strictly necessary to incentivize creation. But in cases where exclusivity is not necessary to produce this result, copyright imposes a cost that is not outweighed by any benefit. Unfortunately, the 1976 Act creates exclusivity in cases where it is unnecessary to incentivize creation. This was the topic of Professor Anthony Reese’s (UC Irvine) conference-opening presentation. According to Professor Reese, the Act’s decision to allow copyright in “all original works of authorship” means that works such as yoga poses, firework displays, and culinary dishes arguably can be protected by copyright. Nonetheless, there is little reason to think that in the absence of copyright protection, these works would be under-produced. This could be solved if the next copyright act provides an enumerated list of works for which copyright protection is available. Likewise, Professor Christopher Sprigman (NYU) argued that the scope of copyright is similarly too broad. Under the current law, any act of substantial copying is a prima facie infringement of the author’s exclusive rights, regardless of whether that copying actually harms the market for the work. To avoid this problem in the future, the next copyright act must take a more nuanced approach to copying. While cases of wholesale copying should remain as prima facie infringements, in cases of partial copying, the right holder should be required to show how the copying results in market harm before he can claim a remedy.


However, the drafters of the next great copyright act are not only tasked with striking the right balance between over- and under-protection, but must also write the law in a manner that is simple to understand. The 1976 Act today stands at over three hundred pages long and its incomprehensibility has led to analogies with the tax code. Throughout the conference, a number of commentators highlighted the problems this has caused in specific industries. One interesting example of this problem can be seen in the issue of music licensing. Gary Greenstein (Wilson Sonsini Goodrich & Rosati), Zahavah Levine (Google) and Steve Marks (Recording Industry Association of America) all agreed that the music licensing system had to be simplified. Currently licensing a musical work may require the licensee to negotiate multiple different licenses from multiple different right holders. Greenstein suggested this could be accomplished by adopting a unitary music license. Under a unitary license, the licensee would pay one flat fee to one licensor, and the licensor would then be responsible for distributing the money amongst the various right holders. This provides one good example of how the next great copyright act could create a copyright system that is much simpler than the current one.


But the conference was not solely dedicated to discussing the ideal content of the next copyright act. Participants also had to confront a rather more practical question: how do we make this next copyright act a reality? It took over twenty years of negotiation to enact the 1976 Act, and today’s political landscape makes copyright reform an equally daunting task. As Professor Lawrence Lessig (Harvard) discussed in his enthralling keynote speech, underlying flaws in the political system makes copyright reform a difficult process. Nonetheless, this problem can potentially be overcome through the use of compromise. For example, if those who desire stronger copyright protection are willing to condition copyright protection upon the author’s satisfaction of various formalities (which would make gaining copyright protection substantially harder than it is today), perhaps those who wish to see copyright protection reduced should make an equal concession, such as allowing copyrights to be renewed indefinitely. Yet legislative compromise is not the only way to instigate reform. Judge Mary Margaret McKeown (Ninth Circuit Court of Appeals) reminded us that in the course of copyright history, courts have been the vanguard of reform. As judges can cause legal change without the need for long-drawn out negotiation that plagues legislatures, courts may be the appropriate venue for quick copyright reform on some of today’s most pressing issues. Likewise Professor Samuelson (UC Berkeley) emphasized the role that the copyright office, scholars and social norms may have in facilitating reform.


At the end of the two days, none were left with the impression that creating the next copyright act would be easy. We are today at the very beginning of a long and arduous road. Nonetheless, this conference demonstrated how enthusiastic the copyright community is to embark on this project and has provided a kick-start to the debate.


Selected papers from this conference will be published in the Symposium Edition of the Berkeley Technology Law Journal. For more information about this conference, including presentation slides and audio, please see http://www.law.berkeley.edu/16296.htm.


Patrick Goold is the Microsoft Research Fellow at the Berkeley Center for Law & Technology.

 


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