Could the copyright policy debate be turning another significant corner? For years, the dominant focus of the debate has been enforcement of current law – essentially, a debate about how to catch, punish, and deter “pirates.” The fight over SOPA and PIPA started out as a stark example of the single-minded pursuit of copyright enforcement. It ended up, however, as a powerful demonstration that copyright law has a much wider circle of stakeholders than just rights holders and pirates. Now, Register of Copyrights Maria Pallante has issued a call for Congress to launch a fundamental review aimed at modernizing copyright law for the digital age. In a recent speech and congressional testimony yesterday, she suggests a broad agenda, including possible reforms aimed at challenges facing not just major copyright holders, but other stakeholders and the public as well. There’s no guarantee that Congress will heed the call, but it’s a potentially significant development.
Pallante is not the first to suggest that, in the wake of the public revolt against PIPA and SOPA, copyright policy needs to consider reforms from the user and general public perspective. CDT stressed this point in its comments to the Intellectual Property Enforcement Coordinator last summer. Public Knowledge launched its “Internet Blueprint”, a website to offer and seek input on specific Internet-focused reform ideas. There is currently a flurry of bipartisan legislative activity regarding the impact of copyright law on cell phone unlocking. But Pallante is expressly calling for a comprehensive approach – in her own words, a “more general revision of the statute . . . not merely to update particular provisions of the copyright law, but to put forth a forward-thinking framework for the benefit of both culture and commerce alike.” She’s thinking big, asking Congress to launch what would surely be a multi-year process of developing, to use the title of her recent speech, “The Next Great Copyright Act.”
To be sure, a soup-to-nuts reconsideration of the copyright law would carry some risks for Internet users and innovators. Some rights holders would surely push for inclusion of aggressive new enforcement tools, arguing that the existing framework is too weak to keep pace with the nature and scope of online infringement. In particular, there would surely be advocates pushing hard for imposing active monitoring and policing obligations on Internet intermediaries. CDT and our allies would have our work cut out for us in combating provisions that would be harmful to free expression and Internet openness.
Nonetheless, in both tone and substance, I see much to support in Pallante’s call for reform. She emphasizes the need for balance. She recognizes that, in the Internet age, copyright law is not a specialized topic of interest mainly to a select group of industries: “more and more people are affected by it . . . Because the dissemination of content is so pervasive to life in the 21st century, copyright issues are necessarily pervasive as well.” She succinctly states that the central question Congress must grapple with as “what does and does not belong under the copyright owner’s control,” and expresses the view that such control should be meaningful, but not absolute. And she correctly notes that a key challenge in the legislative reform effort will be “keeping the public interest at the forefront.” (That won’t be easy to do, given the inevitability of intense and sustained lobbying by various entities with large commercial interests at stake.) These are sound basic premises.
There are sound substantive suggestions, too. Pallante would have Congress clarify the treatment of incidental or transient copies – a key nod to the current technological reality that electronic devices of all types make and rely upon transient buffer copies. She would have Congress update the Copyright Act’s limitations and exceptions, possibly including provisions to give more clarity regarding personal use activities. She would consider opt-out, collective licensing solutions for certain mass digitization activities, which (as CDT wrote in connection with the proposed Google Books settlement) could yield some win-win scenarios with great benefit to society. She endorses licensing reform, to promote the development of the lawful marketplace for content. She proposes a mechanism for effectively shortening the copyright term of some works, by allowing copyrights to lapse 20 years earlier unless the owner takes affirmative action to extend coverage. And she calls for revisions to make the statute’s language readable and accessible to real people, instead of the inscrutable, byzantine mess that much of the Copyright Act presents today. That’s important, in a time when copyright is no longer the sole province of a handful of highly specialized companies and attorneys.
Of course, I have some concerns as well. Pallante endorses the notion that “all members of the online ecosystem should have a role.” As I have argued before, that idea may have an appealing “we’re-all-in-this-together” kind of ring to it, but in fact it is just plain misleading. Some parties in an ecosystem may have a direct link or relationship to infringement, while others may have an indirect relationship or no meaningful relationship at all. CDT has written extensively about the dangers of roping various Internet intermediaries into new monitoring and enforcement roles. A fresh look at copyright law should not and cannot take as a given that everyone, including providers of general purpose communications tools, needs to make copyright enforcement part of their business.
In some areas, Pallante’s speech touches on important issues while perhaps glossing over core criticisms of current law. She discusses the anticircumvention provisions of DMCA section 1201, but focuses almost exclusively on the existing rulemaking process under which the Copyright Office considers exceptions; the more fundamental critiques of 1201 go unnoted. She mentions statutory damages, but says nothing about the impact of stratospheric damage calculations on technology innovation. Indeed, the speech as a whole never really grapples with the innovation questions that are at the heart of many of CDT’s copyright concerns. As CDT has catalogued in comments to policymakers, new technologies today routinely include capabilities for data storage and transmission, leading to tricky copyright questions and ultimately lawsuits. The threat of astronomical statutory damages can discourage technology innovation by legitimate companies. Surely this is a dynamic that any broad copyright rewrite must take into account.
Finally, Pallante’s speech says nothing about U.S. trade policy with respect to copyright. You could argue that’s not surprising; her focus is domestic legislative reform. But in an increasing number of free trade agreements, ACTA, and now the Trans-Pacific Partnership (TPP) negotiations, the United States is including detailed mutual commitments regarding the signatories’ intellectual property regimes. U.S. negotiators typically insist that the provisions they are pushing for are consistent with, and indeed largely based on, existing U.S. law. But what if existing U.S. law isn’t such a great model? What if Congress later decides it requires some fundamental changes? Trade policy should not serve to lock in laws and policies that Congress may want to revisit. Pallante’s call for reform makes the potential conflict significantly less theoretical and significantly more urgent. At a minimum, USTR negotiators should take note. When even the Copyright Office says U.S. law is in need of fundamental reform and calls for a full and public legislative debate, it’s time to stop using existing law as a basis for new trade commitments fashioned behind closed doors.