300th Anniversary of Copyright Law Reveals Need for Clarification

The Bureau of National Affairs

BERKELEY, Calif.—Copyright law is “out of balance’’ and action must be taken to restore the public's respect for copyright, Register of Copyrights Marybeth Peters said April 10.

Technological, social, international evolutions are combining in ways that compel policy makers to act, Peters told a conference on the 300th anniversary of modern copyright law sponsored by University of California at Berkeley, Santa Clara University High Tech Law Institute, and the Copyright Society of the U.S.A.

Copyright is about incentivizing, creating, and making works available, said Peters, who is retiring at the end of the year. “Copyright should be seen as part of the solution, not as creating the problem,’’ she said. “But I do admit that when you have a statute that is crafted around photocopying and you are now in the digital age, it doesn't work very well.’’

Yet little is happening in Congress, Peters said, noting as an example the lawmakers' failure to resolve the problem of “orphan works”—copyrighted works whose owners are difficult or impossible to identify. “I believe that we're at a crossroads,’’ Peters said. “I believe that we're at a point where we really need to do something and I'm not sure’’ what that looks like.

Copyright law “is out of balance, and I think it's perceived by many as out of balance, and we have lost the respect of the public in many ways,’’ Peters said. Copyright law has to be updated “so that it makes sense for the copyright owners but also for the consuming public.’’
The law “can't be seen as frustrating the enjoyment of creative works. It's got to be seen as enabling new business models,’’ she said.

Dealing With Complexity

Copyright law should be understandable so that people will obey and respect it, Peters said. Further, the way copyright is viewed has changed, and there are lots of new players, including consumers, who Peters said “are really key in the copyright debate.’’ New technologies are bringing copyrighted works “to people who didn't have them before,’’ she added.
Pamela Samuelson, a law professor at the University of California at Berkeley and director of the Berkeley Center for Law and Technology, agreed that the law should be understandable.

“The complexities of copyright, the unreadability of most of the sections, really wasn't so much of a problem when all it was doing was regulating inter-industry disputes that need to be resolved. But now it implicates the daily lives of everybody. We need something that speaks to a wider public,’’ Samuelson said.

Copyright Principles Project

Samuelson started the Copyright Principles Project three and half years ago with 20 copyright professionals to examine whether it was possible to reach consensus about how current copyright law could be improved and how the Copyright Act's current problems could be mitigated.

The ambitious and ultimately unsuccessful goal was to draft a model copyright law, she said. What members did share was the view that “if copyright law is to command respect from the population, then it needs to be a law that people can both understand and regard as fair,’’ Samuelson said.

Among the principles to be published later this year are (1) that copyright law should encourage, support, and promote creating, disseminating, and enjoying works of authorship; (2) that it should articulate clear and sensible rules for identifying which works and parts of protected works can be protected, what constitutes infringement and remedies for infringement, and limitations on copyright owners' power over uses of creative works; and (3) that the United States should develop its copyright law in manner that respects the global system in which creative activity occurs.

Changing Attitudes, Tools

Andrew Bridges of Winston & Strawn, San Francisco, said that it “is time to find new mores for copyright law, and this is a propitious moment to try to think of new ways of organizing the law of copyright.’’

Plaintiffs are using Digital Millennium Copyright Act, the Lanham Act, and other legal tools to “accomplish copyright-type objectives outside of the copyright statute,’’ Bridges said.

“The question,’’ according to Jeremy Williams, senior vice president of Warner Bros. Entertainment Inc., who was a member of the Copyright Principles Project, “is how do we promote respect for copyright, good copyright attitude, in a world where millions of ordinary people are authors, distributors, and infringers?’’

“Wherever we are on the spectrum, by reducing the good guy-bad guy thing, which I think was one of the successes of the principles project, we can convey to people that copyright in the 21st century serves a good purpose,’’ Williams said.

Finding Owners, Protecting Rights

The conference celebrated the 1710 Statute of Anne, which Peters said established democratic principles for protecting the individual author's rights that remain today.

One of “the most frustrating things’’ about licensing regimes, according to Peters, is that finding some copyright owners and getting permission to use their works can be “ very, very difficult.’’

“As we make the term of copyright longer and longer and we have more and more devices and more and more content, what do you do about the situation when you want to find the copyright owner? Do you include all productive uses? Or should you figure out a way to find all those copyright owners, and when you can't, figure out a system that would allow the use but still protect the copyright owner?’’

But congressional work on dealing with orphan works has essentially stopped since Google announced plans to settle the class-action copyright lawsuit brought against it by writers and publishers challenging its planned scanning and digitization of books, Peters said, referring to Authors Guild v. Google Inc., S.D.N.Y., No. 05 Civ. 8136 (DC), settlement announced 10/28/08 (209 PTD, 10/29/08).

Peters has faulted the proposed $125 million settlement, arguing in part that the settlement would unfairly alter the property interests of millions of rights holders of out-of-print orphan works without any congressional oversight (174 PTD, 9/11/09).

Google Impacts

Google, “the biggest search engine in the world,’’ gets to use books without searching for the author, said Peters. “So the rest of the community says, ‘well, why should we do a search?’ ’’ she said.

Peters noted the U.S. government recommended against the breadth of the settlement. The Department of Justice during a Feb. 18 fairness hearing in the U.S. District Court for the Southern District of New York questioned whether the proposed terms were the appropriate vehicle for the objective of mass digitization (32 PTD, 2/19/10).

“But whether there is a settlement or not, the world of copyright is changing. The way that people look at copyright after Google is different. And I think we haven't seen it play itself out,’’ Peters said.

Looking for Champions

“Work on the copyright law right now is nonexistent. Nothing in copyright law is going to happen,’’ Peters said. Meanwhile, patent law has been amended almost yearly, except for the last couple of years, she said.

Peters said she has a noticed a trend in copyright. In the 1950s, 60s, and 70s, “Congress owned the process,’’ with lawmakers taking the lead. “Today you don't see that kind of activity. I'm not saying Congress isn't interested. They are. But they don't play the role of bringing parties together when they can't work out it in a way that Congress likes to move it forward.’’

Looking at legislation today, instead of seeing leadership, Peters said she sees compromise “with everybody who has any interest and who is in the room to get some piece of what they want.’’

“And what you get at the end is a very complex, long provision that very few people understand and courts struggle with,’’ she said.
Still, she said, “some legislators have shown to be champions and support the idea that copyright law needs to be updated.’’