More Details On Copyright Register Maria Pallante's Call For Comprehensive, 'Forward-Thinking, But Flexible' Copyright Reform

On Friday, we had two stories breaking the news that the Register of Copyright is expected this week to call for comprehensive copyright reform, including both a slight reduction in term as well as some of other changes. It's somewhat surprising that (as far as I can tell), no other publications are reporting on this, considering the magnitude of this bit of news. There was a brief bit of speculation in Billboard, but most other publications have stayed silent so far. Today we have even more details. First, we have Pallante's expected testimony on Wednesday before the IP subcommittee of the House Judiciary Committee. It's a pretty short and simple piece that basically says "let's get this process started, because Copyright Reform is going to be a long and arduous process, but it needs to be done." And, as we noted last week, it sounds like a lot of stuff is on the table.

It has been fifteen years since Congress acted expansively in the copyright space. During that period, Congress was able to leave a very visible and far-reaching imprint on the development of both law and commerce. It enacted the Digital Millennium Copyright Act (“DMCA”), which created rules of the road for online intermediaries (e.g., Internet service providers) and a general prohibition on the circumvention of technological protection measures (so-called “TPMs”) employed by copyright owners to protect their content. The DMCA also created a rulemaking mechanism by which proponents could make the case for temporary exemptions to the TPM provisions in order to facilitate fair use or other noninfringing uses (the “section 1201 rulemaking”). Nonetheless, a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention. Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a “good 1950 copyright law.” I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it. Certainly some guidance could be given through regulations and education. But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

For the most part, I absolutely agree -- especially that last line. I will note that, Pallante, who has been stung repeatedly in the past for displaying a very strong bias towards copyright maximalism, is clearly being much more careful in these remarks -- something that we should all appreciate. In her talk to Congress, a number of the things she suggests should be reviewed are things that many of us here would agree are in dire need of study and updating.

A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws. Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print 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 mar