Copyright Society of the USA Annual Meeting
[self-promotion: I’m here to pick up an award for Performance
Anxiety.]
The View from the Copyright Office
Maria A. Pallante, Register of Copyrights, U.S. Copyright
Office
Petrella and Aereo through the perspective of the
government’s briefs.
Petrella waited 18 years to sue; MGM spent a bunch of money
investing in a new version of the film.
Concern is for equity to defendant.
9th Circuit was too generous to MGM, but should the court
consider the delay in some way?
Copyright Office was concerned about threat to three-year rolling
statute of limitations. Middle position
between what CO saw as parties’ extreme views, arguing that 3-year period
should not be subject to laches, but delay could be considered w/r/t equitable
remedies such as injunction, where user has invested in derivative works. Gov’t prevailed.
9th Circuit wrongly held that laches should be a
complete bar where any part of the conduct occurred outside the statutory
period—could deprive owners of their copyrights decades before the statutory
term has run. (RT: Of course, one can be
deprived of other property that has no
expiration date; other causes of action run out.)
Dicta: is registration a requirement, or just
application? 10th and 11th
circuits use a registration approach: registration or refusal is required. 5, 7, 9th use application
approach. Petrella passage suggests that
Ginsburg & the 5 Justices who joined her agree with registration approach:
registration reduces the need for extrinsic evidence—“registration must be on
file with the Copyright Office before the copyright owner can sue.”
Aereo: performance
can be most valuable right; 2d Circuit could undermine streaming models. But it’s
important to preserve some cloud models, and the SCt focused on drawing a
line. CO: transmit clause makes the
relevant audience the ones capable of receiving the performance, and Aereo’s
promise to transmit to any paying member of the public makes each transmission
one to the public even though each one goes ultimately to a single
subscriber. Could enjoin this infringement
without questioning innovative tech for allowing consumers to store lawfully
acquired copies.
Observations from oral arguments: Sotomayor asked about
other services; Ginsburg asked about whether Aereo’s view was compatible with
int’l obligations. Another query of
note: how do you deal with Cablevision?
(laughter)
Many current reform initiatives, including PTO/NTIA green
paper. Multistakeholder dialogue on
improving DMCA notice and takedown; also soliciting comment on specific legal
issues such as first sale, statutory damages, remix. Signature theme of IPEC (coordinator) was
voluntary cooperation—between ISPs, music labels, movie studios. Led to
copyright alert system, which just released its first report. Copyright ecosystem: everyone benefits, so
everyone including ISPs, payment processors, advertisers, search engines should
contribute to its robustness. Civil and criminal liability is important, but
voluntary practices can do a lot. Question: what’s gov’ts role in
monitoring/setting practices?
Congressional hearings are underway, on House Judiciary
website. 13 hearings by the end of the
month. They’ve had lots of copyright
owner groups testify, MPAA to Getty Images to media photographers. Tech
platforms; Library of Congress preservation experts; law professors. Next Congress: more indication of
what/whether we’ll have an omnibus bill or connected series of small bills. Also unclear: what decisions Congress might
send to the CO. Courts are important but
don’t weigh the public good; voluntary practices are good but a private sector
deal won’t necessarily benefit public policy. SCt confirmed Congress’s role in Eldred. If the CO were to have more
authority to update certain things, that might help. Congressional Q: How to avoid picking
favorites when it comes to tech and not allow piracy? That’s the million-dollar question.
Does the existing Copyright Act adequately protect right of
communication to the public under WIPO treaties? CO believes there’s uncertainty in
implementation, which has clouded the certainty required. Legislative
clarification of making available would be beneficial; is it possible?
US implemented treaties in 1998 w/DMCA. Congress and CO concluded that authority was
already governed by combination of reproduction, distribution, and public
display/performance. Congress’s intent
was to comply with the treaties, and the US takes the position that we comply.
But some courts have not understood/been inconsistent, especially in questions
over whether infringement requires actual distribution. Nimmer: both sides recognize distribution
right. Point of disagreement: quantum of proof required to demonstrate that
distribution took place—uploading, or uploading plus proven downloads. (RT: Um,
some of us think that a download is an unauthorized reproduction, not a
distribution since no copy is transferred; secondary liability for the
unauthorized reproduction takes the place of distribution liability.) Prof. Lunney disagreed. Notice of Inquiry: what would the contours be? If Aereo wins, what is to be done?
Orphan works: years of study. Picked it up again because of cases applying
fair use. Had another public hearing on this.
What should be a good faith diligent search? What should the role of
private and public registries be? Should photographs be treated differently,
because they’re difficult to trace ownership and a category of works of a very
vulnerable population of owners because so frequently targets of unauthorized
use? Mass digitization has been
conflated with other issues. CO is
leaning towards view that mass digitization should be uncoupled from orphan
works; need legislative solution because even if mass digitization for
search/print disabilities is ok, that doesn’t solve other needs if access to
works is what the public wants, so Congress should put a framework in place
with remuneration for authors.
Small claims: 2-year
study. Many small creators want to pursue claims but it’s expensive; we
should not pay attention to those who don’t care about asserting their rights
because they don’t have a problem, but these small creators do. Songwriters’ Guild: combined impact of small
claims is death by a thousand cuts. Pro
bono assistance for lower-income artists: people who do it wanted alternatives
to federal litigation. We recommended an
alternative voluntary system (has to be voluntary, constitutionally) under
supervision of the Register but general direction of Librarian, administered
through online and teleconferencing, without personal appearances. Three adjudicators, two with experience in
copyright law and one in alternative dispute resolution. Focus: no more than $30,000 in damages,
actual or statutory, but statutory are $15,000 per work or $7500 per
unregistered work; registration required before action. Executive summary bears reading. We expect a hearing. Photographers want this; very few can afford
suit without this. Dramatist Guild and National Writers Union also agree.
Music: if there’s a
primary focus in policy now, it’s in music. In the middle of 8 hearings/CO
roundtables. Licensing: Commerce Task
Force roundtable too. Lyle Lovett: struggle remains to convince
music users and policymakers that music makers should get paid. Analog/digital divides, etc.
Asking many questions about revenue divisions, opportunities
for gov’t to encourage microlicensing and/or standards for ID’ing musical works
and sound recordings. Current licensing is broken and should be fixed if not
done away with completely: that’s the consensus. Question is what should
replace it? Musical works
reproduction/performance licensed together?
Maybe with sound recordings?
Musical work folks want to move to “free market”; others don’t. Transparency/competition concerns in
collective licensing. Some frustrated music publishers have been offering
rights to digital services directly. Challenge: how to reconcile competition
issues with beneficial aspects of collective management, which is still very
important. DoJ is going to conduct its
own parallel review of the operation/effectiveness of BMI and ASCAP consent
decrees—whether and how they should be modified. Comments due Aug. 6!
New bills in Congress: Songwriter Equity Act, changing CRB
rates to willing buyer/willing seller and eliminated §114(i) which prohibits
consideration of sound recording royalties in setting musical work royalties.
Another: require payment of royalties for pre-1972 recordings for any service
availing itself of §112 licenses on the same terms. Other pre-1972 issues would remain before
Congress.
CO: we’ve been stuck in time, in budget and otherwise. Given the changes, we need
modernization. Nimble and forward-thinking;
interoperable with marketplace we serve.
We’ve done everything we can do without money: talking/research. The
registration system needs a faster/better interface; secure repositories for
digital works; identifiers that match how works are created; automated
recordation for assignments, licenses etc. that would be publicly indexed;
metadata to connect to outside registries; need to finish digitization of
pre-1978 works and integrate them into a useful chain of title for public
record.
We can’t be fee-funded unless the statute were changed to
allow us to recover capital costs for long term projects like IT. We could if the statute were changed also ask larger © owners to pay a
surcharge to make it remain affordable for smaller owners. Under our statute, we can’t raise fees
beyond literal cost, but we can keep some deflated. Most have gone from $35 to
$55 but we’ve kept it lower to allow for single applications to stay at $35.
Shoutout to Bob Brauneis, who's working on modernizing registration as a scholar in residence. Parterned with Stanford University Law & Policy Lab; also Barbara Ringer honors program, 2 year paid fellowships like clerking for a judge.
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