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Copyright’s new ‘new law’
In the world that Maria Pallante, the US Register of Copyrights, inhabits, people sometimes call the Copyright Act of 1976 “the new law,” though it took decades to develop and, it can be argued, was already outdated by the time Congress managed to pass it.
But as Pallante said Thursday, in a talk at Fordham Law School’s intellectual property conference, that’s not exactly how she sees it. Her presentation was called “The View from the Copyright Office,” and that view is pretty simple. The copyright laws currently in place, which determine what can be copyrighted and by whom, how fair use works, who can be sued for infringement and for how much, are out of date. The “new law” isn’t cutting it anymore. Nor is the Digital Millenium Copyright Act, passed 15 years ago, in 1998. “That’s a long time in Internet years,” Pallante said.
In short: “The view from the copyright office is that the law is showing its age.”
Pallante doesn’t like the word “reform,” which “has a negative connotations, like there’s something wrong with the law,” she said. But she has been talking a lot lately about changing the way the United States deals with copyright. Early in March, she delivered a prestigious lecture on the “Next Great Copyright Act” at Columbia Law School, where she began by talking about the work her predecessors had done to shape and revise these laws. (Although two of the previous registrars were women, you do get the sense that Pallante spends a lot of time in the company of old white guys, dead and alive.) Later last month, she testified before the US Congress on her “Call for Updates to US Copyright Law.”
On each of these occasions, as well as at Fordham, her basic message has been the same: Copyright law in the United States needs to undergo a major retooling. It’s Congress that needs to do this work.
She’s not the only one saying this.
The other people who are asking Congress to please, please step in, she points out, are the judges who, in courts across the country, are dealing with copyright cases. These judges have been struggling to twist the law of land to answer questions of art, money, and ownership in a digital age, and they have been pointedly saying that these questions would “be more appropriately decided by Congress,” in the words of one judge. Another noted, quite delicately, that “legislative clarification…would therefore be most welcome.”
Here is a partial list of areas that Pallante has identified as needing at least a little bit of spit-and-shine work: legal streaming, public performance law, orphan works, collective licensing, first sale rights, incidental copies, statutory damages. Here is a partial list of the interested parties she’s thinking about: authors who don’t know they’re supposed to register, libraries, archives, people with print disabilities, educational institutions, courts that are “doing legal gymnastics” in order to apply 20th century laws to 21st century problems, startup tech companies that don’t know what they can do with other people’s content. (Apparently this last group calls the copyright office’s help line quite often.)
In pushing for “the next great copyright act,” Pallante is trying to make the point that all of these issues are connected and that dealing with them separately may only make a greater practical and political hash out of copyright and intellectual property laws. One of the problems with the Stop Online Piracy Act and the Protect Intellectual Property Act—the proposals that sparked massive protests from Internet activists last year—was that they addressed only one of the many issues riddling copyright law. “SOPA and PIPA in some ways are the point,” Pallante said. “It was enforcement with a capital E, and 75 percent of what we’re talking about has nothing to do with enforcement.”
Her argument is that there’s a better and calmer way to untangle the mess that the Internet has made of copyright practices. She wants to get all the issues out on the table and sort through them. Which are priorities? Which must Congress deal with? Which can courts handle on their own? Pallante’s making it her job to push for “a forward-looking blueprint”—for a law that looks ahead and tries to anticipate the issues that technology could dredge up, rather than react to them years afterwards. In her Columbia talk, Pallante noted that after the 1976 law was finally in place, one of her predecessors, Barbara Ringer, “acknowledged the shortcomings of the new law, calling it ‘a good 1950 copyright law.’” Pallante wants the new law for which she’s pushing to actually feel new.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.