By FMC Policy Fellow Jordan Reth

The US House of Representatives continued its review of existing copyright law yesterday with the Subcomittee on Courts, Intellectual Property and the Internet hearing on “Moral Rights, Termination Rights, Resale Royalty, and Copyright Term.”

Witnesses included Karyn Temple Clagett, Associate Register of Copyrights and Director of Policy & International Affairs for the U.S. Copyright Office; Rick Carnes, President of the Songwriters’ Guild of America; Casey Rae, VP of Policy and Education for Future of Music Coalition; Professor Michael Carroll of American University Washington College of Law; and Thomas Sydnor II of American Enterprise Institute.

Right out of the gate, Rep. John Conyers (D-MI) noted that there could have easily been four separate hearings conducted on these issues. We’re inclined to agree.

Claggett focused her opening remarks and testimony on “resale royalty”—the idea that visual artists should be able to benefit on subsequent sales of their original works, which is often when value has greatly increased. The Copyright Office released an updated study in 2013, supporting this right for U.S. visual artists. (Back in February, Rep. Jerrold Nadler (D-NY) introduced H.R. 4103, American Royalties Too Act or the “ART” Act that largely relied on Copyright Office recommendations.)

Carnes, writer of hits for artists like Garth Brooks and Reba McIntyre, emphasised the importance of moral rights for U.S. artists, citing the Universal Declaration of Human Rights and the notion that musical artists often maintian a connection with their work that is deeply personal, even familial.

“What I am is a professional songwriter and the one thing we songwriters know something about and write frequently about is what’s right, and what’s good, and what’s bad,” Carnes offered. First and foremost, I want to point out the bedrock of moral rights principles is that a creator has the right to control the use of something he or she has created and to recieve attribution for such. These are rights that I have personally noted are widely embraced in the American public.”

While Carnes acknowledged the importance of free speech as protected by the fair use doctrine, he urged that a balance be struck with moral rights that would give artists more leeway in preventing uses to which they objected.

“Just as we never want to inhibit the free exchange of ideas and opinions in our society, we should similarly never allow the fair use doctrine to threaten to overwhelm, control attribution and economic rights of creators,” he said.

Carnes also noted the SGA’s staunch support for termination rights as an important expression of creators’ rights. He directed the Committee to SGA’s written testimony, outlining five principles for a moral copyright system, including elements such as the establishment of a small claims court system, a fair market value compensation system for musical works (including the right to terminate after a term of years) and complete transparency throughout the licensing and payment process.

As noted in an earlier post, FMC’s Casey Rae focused termination rights for recording artists and songwriters, describing the “second bite at the apple” such rights provide creators who had earlier granted their works to labels or publishers. Casey made the case that all authors—including recording artists and songwriters—are eligible to reclaim their copyrights under Section 203 of the U.S. Copyright Act.

“There should be no question that recording artists, songwriters and composers are eligible to terminate transferred copyrights after 35 years under Section 203.” he stated. “Unfortunately, this statutory right is often muddied by major labels that want us to believe that sound recordings are somehow not part of the provisions laid out by Congress in the 1976 Act. While it is true that the Act exempts certain categories of works, it is absurd to think that Congress intended to exclude recording artists from this fundamental right.”

When Rep. James Smith (R-MO) asked Casey about the impact of copyright term extensions independent artists and creators, Casey noted that one policy aim should be advancing a fundamental respect for copyright, a goal that may be compromised if current copyright terms are further extended.

“The issue here is that in the public mind, perhaps wrongly, many people believe that copyright has been extened only for the benefit of corporations … further term extensions might actually exacerbate that fundamental disconnect from the value of a creative work and who benefits from its exploitation. I would like to see balance restored to copyright so we would feel confident that artists have an ability to be cut into the value generated from their works, under whatever term Congress or the Supreme Court previously decided, but not certainly not at a point where it cheapens the value of copyright in the eyes of the public that also benefits from its availability.”

Carnes pointed out, as did Sydnor in his opening statement and later during testimony, that piracy has restricted the term of copyright to the point of time between creation and upload to the Internet. Carnes suggested that many creators may not have access to expensive lawyers to fight infringements that amount to a loss of control over their work. 

Professor Carroll, who also is a founding member of Creative Commons and who runs the U.S. branch of the organization, discussed artist attribution and the fact that, even when compensation may not be desired, attribution almost always is. Professor Carroll also discussed copyright terms and stated that the average current term (life of the author plus 70 additional years) is too long to achieve the incentivizing purposes of the limited grant of rights originating in the U.S. Constitution. 

“As a practical matter, there are reasons why shortening the term may be difficult … Rep. Zoe Lofgren (D-CA) in 2003 and then again in 2005, offered a middle ground solution called the Public Domain Enhancement Act, which is what my co-panelist Mr. Rae was referring to that Maria Pallante supported. The idea is that after life plus 50, if the copyright owner still wants those last years of protection, they have to show us that they care. So just register, just pay a dollar to the Copyright Office and register and you can get the remainder of the term. That would be compliant with International law, but it would put more works into the public domain quicker.”

Professor Carroll also noted that currently under U.S. law, there is ambiguity as to whether creators can permanently dedicate their works to the public domain in advance of a copyright’s natural expiration. 

Syndor noted that while copyright term is controversial, Congress should stay more focused on piracy, which makes the life of copyright—or at least certain exclusivities—less relevant.

While we’re glad that Casey was able to particpate in the hearing, we know that this is only the beginning of a much longer process. Once thing is for certain: wherever Congress decides to go from here, we’ll be paying close attention and reporting back to you.