Register of Copyrights Calls for Updates to Copyright Act

The following post is courtesy of Tal Dickstein, of Legal Advisory Board member firm Loeb & Loeb.

Last week, the Register of Copyrights, Maria Pallante, testified before the United States House of Representatives’ Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet, in a hearing entitled “The Register’s Call for Updates to U.S. Copyright Law”. This came on the heels of a speech she delivered at Columbia Law School on March 4th, entitled “The Next Great Copyright Act.” As the names of these events indicate, Pallante’s focus as Register is much broader than the Copyright Office’s budget (although that did come up during the hearing).  She has in mind some fairly significant revision to US copyright law, most of which would seem to strengthen protections and incentives for authors.

During her speech at Columbia, Pallante rattled off a litany of proposed revisions (which can be read in full here). But in her testimony to Congress, she focused on three areas of copyright law most in need of reform:  providing a public performance right for sound recordings; developing a system to facilitate the use of orphaned works; and strengthening enforcement of copyright protections by making the unauthorized streaming of copyrighted content a criminal felony. (The full video recording of Pallante’s testimony is available here.)

The Subcommittee Members seemed quite sympathetic to the damage that copyright piracy (in particular over the Internet) inflicts on authors, content owners and the economy at large. They noted that, by some estimates, the US economy loses $58 billion annually and more than 300,000 jobs to copyright piracy, and that 25% of all Internet traffic involves unauthorized transmissions of copyrighted works. Pallante shared this concern, and to help combat Internet piracy, she proposed upgrading illegal digital streaming from a misdemeanor to a felony, just as is the case with illegal reproduction and distribution of copyrighted works. Because “streaming is the way of the future for digital content”, she viewed this as an effective way to combat hard-core piracy on the Internet.

Pallante recognized, however, that a significant amount of piracy originates outside the US, where federal authorities have limited ability to prosecute offenders. While she did not propose any specific solutions to the internationalization of copyright piracy, she indicated that she advocates a “follow the money approach”, suggesting that she would support penalties on intermediaries who process payments to Internet pirates. Turning to smaller-scale infringement, Pallante also suggested creating a copyright small claims court for authors that may not have the resources or financial motivation to bring infringement claims in federal court.

To aid enforcement of copyright in general, Pallante and several of the Committee members recognized the need to change the “culture of copyright” in order to promote public respect for the rights of authors. Pallante testified that one way to do so would be to more clearly define the bundle of rights that authors own in the digital age, which, according to Pallante, would include exempting the making of certain incidental copies. Pallante recognized, however, that “people do not have a right to have whatever they want for free” and pushed back against those who would advocate broader access to protected works without fairly compensating creators of those works.

As to the sound recording performance right, Pallante agreed with Ranking Member Mel Watt’s comment that the absence of such a right represents a “longstanding inequity.” This disparity has become even greater, Pallante noted, as Internet radio has risen in popularity as a means of consuming music. Pallante also noted that US sound recording owners “get hit twice”, in that they have no right to enforce a public performance right in the U.S., and are unable to collect royalties on performances of their works abroad, because most countries will not grant US authors rights that the US denies to foreign authors. Although no concrete steps for enacting a sound recording public performance were discussed at the hearing, Representative John Conyers (D. MI) indicated that he would be willing to work with other side of the aisle on this issue, perhaps indicating that Congress is preparing to act on this issue.

On the issue of orphaned works, or works whose authors cannot be identified, Pallante testified that the problem is most prominent towards the end of the copyright term, during which the author is long since dead and the rights holders can be difficult to identify or locate. Pallante suggested that, for the last twenty years of copyright protection, the burden of identifying rights holders should be shifted from the from the user to rights holder. The orphaned works issue would seem to be a bit of a tempest in a teapot. It is hard to imagine that the owner of rights to a work of any significant value would be hard to locate through a search of the Copyright Office’s records or the Internet. Moreover, the difficulty of identifying the owner of a copyrighted work will likely diminish over time as we move further into the Information Age where seemingly everything is captured and preserved online, and authors can easily stake out claims to their works.

In sum, while the need for sweeping revisions to the Copyright Act has yet to be fully articulated, and the details of any such revisions have yet to emerge, some of Register Pallante’s suggestions, including heightening criminal penalties for illegal steaming of copyrighted material, seem like effective ways to protect the rights of copyright owners and thereby benefit the public at large.


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