Does the US Copyright Act need revision? Of course it does. It’s a truism but still true that copyright law always lags behind technology. It’s never been more relevant as it is right now. The pace of technology races onward and so much of it about how we access content such as music, images, text, and interactive entertainment. Maria A. Pallante, the Register of Copyrights, has rightfully called for Congress to turn its attention to this task, saying, “It is time for Congress to think about the next great copyright act.”
The Register has highlighted several areas for consideration in a new Copyright Act, including:
- Changing the scope of exclusive rights
- Dealing with “orphan” works
- Public performance rights for sound recordings
- Exceptions and limitations for libraries and archives
- Accommodating persons who have disabilities
- Guidance for educational institutions in copyright policy
- Exemptions for making “incidental” copies
- Guidance on statutory damages
- Review the efficacy of the Digital Millennium Copyright Act
- Reforming the music marketplace
- Improving the systems of copyright registration and recordation
What else should the next copyright act contain and consider in order to be really “great”?
- Copyright law’s legacy of being focused on copying (it’s in the very name, after all) needs a rethinking. Transmission and access are at the head of the copyright table now. Copyright law must squarely deal with these points
- Copyright law must be perceived as being fair to the many copyright constituents (creators, publishers, remixers, consumers, fair users, corporations, universities, and many more)
- Let’s face it: consumers are copyright citizens. What is the Consumer’s Copyright Bill of Rights? Can we establish simple, understandable, coherent dos and don’ts for those of us who post to social media sites and who copy music and other content – in other words, pretty much all of us? Has the copyright law done an adequate job of explaining itself?
- How do we maintain incentives for creativity while recognizing that consumers with the power to copy, distribute, and access copyrighted works without permission are here to stay?
- The DMCA is largely a success – its safe harbor has enabled YouTube and Facebook and other social media to thrive via protection from liability. But the DMCA procedures are cumbersome.
- “Red flags” of knowing copyright infringement on social media should result in liability.
- Willful copyright infringement should be treated more severely.
- Should a copyright owner have the burden of determining if an unauthorized use of its work is a fair use before filing a DMCA claim?
- The rules of fair use must be clearer, while remaining flexible
- Should we codify a certain level of unauthorized use that is de minimis and thus not actionable by copyright owners?
- •The perplexing role and weight of “transformative” uses in fair use determinations must be clarified.
- Can the law provide solutions to the incredibly complex world of licensing content? Right now those people who want to be good copyright citizens are frustrated – with good reason – when they want to obtain licenses to copy and transmit copyrighted content.
- Large-scale piracy is wrong. Despite the failure of some efforts to contain it, the battle must continue.
- How can we accomplish all this while keeping copyright law from becoming even more complicated in an already complicated copyright world?
The framers of the Constitution got it right in Article I, Section 8: providing an economic incentive will work as cause and effect in encouraging vibrant creativity. The next copyright law won’t be great if we lose sight of that.
You may well think of more tasks on this list for the next copyright law — as well as name some that shouldn’t be touched. Undoubtedly I’ll think of more points, too. So, we’ll revisit the topic in the weeks ahead.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.