Yesterday, Register of Copyrights Maria Pallante testified before a House subcommittee on potential updates to the Copyright Act. As we mentioned in a previous post, the Act hasn’t been completely overhauled since 1976, though it did receive an addition in the form of the 1996 Digital Millennium Copyright Act (DMCA) — which, in “internet time,” to borrow a Pallante-ism, was also quite a while ago.
Overall, we thought Pallante did an admirable job of describing the many varied interests in American copyright. We fundamentally agree with her assertion that, when it comes to copyright, creators and the public interest are not (or shouldn’t be) at odds. It’s crucial that on on the road to “the next great copyright act” we forefront the needs of creators and not just those of the big media companies. To parapharase Pallante, this is the best way to get the public to show true respect for an engine of American expression and commerce.
Pallante called the lack of a public performance right for over-the air (AM/FM) broadcasts “indefensible.” We agree; by not compensating performers for radio play, America is in the company of North Korea and Iran.
Not everyone was pleased. If you followed Twitter, it was obvious that modifications to existing copyright law is a contentious topic. Some, for example, seemed annoyed that Pallante was calling for bringing illegal streaming penalties in line with those for unauthorized downloads. You may recall a internet campaign in which it was (falsely) suggested that a 2011 bill to do just that would have resulted in Justin Bieber going to jail. Now, it can be argued that the severity of statutory damages for infringement is too great, but is it really so crazy to want to harmonize enforcement standards?
No one is arguing that private citizens in their home or good-faith libraries should be put in jail. What we’re saying is that there are actual, real pirates out there making a boatload of money off things they don’t own and creating business models around it. And law enforcement has limited ability to go after them because our law is still reflecting the 20th century.
It’s true that the infamous Stop Online Piracy Act (SOPA), defeated in early 2012 contained provisions to broaden penalties for streaming. But that’s not what we and many others in the cultural community found troubling about the bill. With regard to Pallante’s testimony, we think there was far more interesting stuff to focus on — namely, how music is licensed to legitimate services.
We’ve been saying for quite some time that the digital music space could benefit from a rethink of how content is licensed (and more importantly, how creators are paid). We’re pleased to see that Pallante also recognizes the room for improvement. “Music licensing so complicated and broken that if we get that right, we can get the whole statute right,” she remarked.
There was also a lot of attention paid to the recent Supreme Court decision allowing the resale of imported goods under copyright in another territory. This case is defintiely important (we analyzed its potential impact on digital media in an earlier post), but it’s probably not a central issue for musicians.
Of greater significance was Pallante’s remarks about the DMCA. Frankly, we were surprised that they members didn’t spend more time here, but we expect that if reforms start to take shape, DMCA revisions will be among the most contentious topics. (We’re not alone: this piece by tech reporter Greg Sandoval does a great job of outlining what’s at stake for a range of stakeholders.)
At the heart of the DMCA debate are its “safe harbor” provisions. These safe harbors are what allow user-generated services and social networks to exist, by giving their operators a shield against liability for material posted by their users (provided they fulfill some requirements, including the expeditious takedown of infringing material upon notification). Some groups claim that the notice-and-takedown system is too often abused by overzealous rightsholders. Others, including some smaller media companies, say that it’s impossible to keep up with the scale of infringement and complain of material popping up no sooner than a notice is sent.
So you can see how this one can be tricky. On the one hand, you’ve got powerful platforms that musicians and other creators use every day to build buzz (and, yes, generate revenue). On the other, there’s the question of who bears the burden for keeping up with infringing links in every corner of the internet. And don’t even get us started on fair use.
Pallante also pointed to “orphan works” as an area needing reform. We agree, which is why we recently took the time to craft a potential solution that would take into account the needs of authors as well as new users of works whose owner, for one reason or another, cannot be located.
It’s important to keep in mind that nothing moves quickly in the world of copyright, so almost all of the issues brought up will take some time to resolve — and that’s depending on Congress’ appetite for addressing them at all. That said, we are encouraged that Pallante recognizes the need to have copyright laws that reflect the interest of creators and the public, while being better adapted to our times.
Where things go from here is anybody’s guess, but we’ll do our part to make sure musicians have a seat at the table.