Copyright Society meeting: Maria Pallante

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.  9^th 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.

9^th 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?  10^th and 11^th circuits use a registration approach: registration or refusal is required.  5, 7, 9^th 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.