Edwards Wildman Client Advisory - Register of Copyrights Urges Congress to Undertake Comprehensive Revision of Copyright Act


    In a testimony delivered on March 20, 2013 to the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, Maria Pallante, the Register of Copyrights, urged Congress to “think big” and begin what likely would be a multi-year process aimed at producing a comprehensive revision of the nation’s copyright law.

    Ms. Pallante’s testimony echoed a lecture she recently delivered entitled “The Next Great Copyright Act” (a copy of which can be accessed at http://judiciary.house.gov/hearings/113th/03202013/Pallante%20Lecture.pdf). The thesis of Ms. Pallante’s lecture and of her testimony is that the current copyright law is showing the strain of its age and creating uncertainty and frustration for content owners and content users (including businesses and consumers). Ms. Pallante believes that instead of attempting to “fix” the current law on a piecemeal basis, Congress should seek to develop a comprehensive, forward-thinking framework “for the benefit of culture and commerce alike.”

    In particular, Ms. Pallante recommended that Congress should be guided by certain general principles, including the need “to consider what does and does not belong under a copyright owner’s control in the digital age.” She also stressed the need to “keep the public interest at the forefront.” The challenge, she acknowledged, will be in defining what the public interest is and who may speak for it. The goal should be to achieve balance by combining safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property. Notably, while offering the “uncontroversial” statement that the interests of authors are intertwined with the interests of the public, Ms. Pallante made it clear that she regards the copyright owners as the “first beneficiaries” of copyright law.

    Ms. Pallante’s testimony did not focus entirely on broad philosophical questions; it also identified a number of very specific issues that she believes that Congress needs to resolve. These include clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, accommodating persons with disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of 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 and recordation.

    When asked what her top three priorities are, Ms. Pallante listed illegal streaming, orphan works, and the performance right in sound recordings. She also suggested that some “bold adjustments” to the general copyright law framework may be in order, including “alleviating some of the pressure and gridlock brought about by the current “life plus seventy” copyright term by requiring heirs and successors to take steps at the end of “life plus fifty” to affirmatively register their interest in the additional twenty year term. She even suggested there may be circumstances (particularly involving educational institutions and libraries) in which the general principle of copyright law – that the reproduction and dissemination of an author’s works requires an affirmative grant of permission – might be altered by the adoption of an “opt out” approach in which use is presumed lawful absent an objection by the copyright owner. Finally, Ms. Pallante emphasized that Copyright Office itself needs to evolve into a 21st Century expert agency with the authority needed to help make the copyright law “more functional.”

    As Ms. Pallante acknowledged, revising the Copyright Act is a daunting task – one that history suggests is likely to take a considerable number of years to accomplish. Moreover, the members of the Subcommittee generally agreed with her assertion that the 1976 Act is struggling to keep up with the times, it seemed clear from the questions that most members have their “pet” issues and were not prepared to declare themselves completely on board with the idea of a drawn out effort to revise the current law in its entirety. Nonetheless, it is likely that this hearing is merely the first word, not the last, on the question of when and how Congress should update the 1976 Copyright Act.

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