Comprehensive Copyright Reform on the Horizon in the US

By Gene Quinn
April 10, 2013

On March 20, 2013, Maria A. Pallante, who is the Register of Copyrights at the United States Copyright Office, testified before the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary. In her testimony she called for a comprehensive review and updating of the Copyright Act. She started her prepared remarks by explaining: “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”

During her testimony on Capitol Hill, Pallante explained that it is time to begin work on “the next great copyright act,” which is required because individuals “increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.” Pallante also lamented the fact that the current Copyright Act is cumbersome and difficult to understand, saying: “if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.”

With the prospect of comprehensive copyright reform on the horizon the familiar battle lines are being drawn between those who absolutely need copyright protection to survive and create versus those who are a part of the infringement culture. Will the comprehensive reforms necessary to protect creators or original works be possible? Will any reform be achievable? The goal of comprehensive reform seems laudable, but creators of original works must engage, both individually and by and through their various Guilds and Associations.

What copyright reforms are being proposed by the Copyright Office? Pallante provided Congress with a long list of issues that require review and legislative attention. She said:

The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

She then went on to say that it is unnecessary for Congress to “start from scratch” since there has been more than 10 years of debate on issues relating to public performance right for sound recordings and the way in which musical works are licensed in the marketplace. Pallante explained that at least these two issues “are ripe for resolution.”

Not surprisingly, the Motion Picture Association of America (MPAA) is already engaging publicly and behind the scenes. According to the MPAA, its member companies “welcome a continuation of the ongoing discussion of the importance of copyright.” Notwithstanding the willingness to engage in debate, a memo circulated by the MPAA unapologetically stated that any debate should easily conclude that copyright law  “encourages and rewards creativity and breakthrough innovation, promotes distribution and enjoyment of America’s most beloved stories and characters…” There is no doubt that copyright laws promote the creation of original works of authorship, but it seems a stretch to me to say that copyright law promotes innovation. Patent law promotes innovation. Copyright law promotes creativity. There is no need to overstate the case or importance of copyright law.

Everyone who cares to thoughtfully consider the issues has to come to the conclusion that if content creators cannot protect their works and works are free to be copied then there will be fewer and fewer works of original creation.

It amuses me when those who despite property rights, particularly intellectual property rights, spew their brand of intellectually dishonest nonsense. Do these people really believe that content creators can and will create content if others who didn’t invest in the creation are allowed to simply copy and exploit? Even if there is no commercial gain affiliated with the copycat who without authorization steals a protected work, if someone can get it from a copycat without paying they don’t need to obtain it from the content creator. It really is that simple. If we want original works we have to have strong protections and stiff penalties.

Whenever I talk about copyrights and the need for protection for creators I like to use this example. What if artists like Van Gogh or Michelangelo needed to have a day job in order to pay the bills? Would they have created as much as they did or ever perfected their skills and techniques to create anything of meaning? If Michelangelo were required to have the equivalent of a professional desk job or if he had to do the equivalent of flipping burgers at McDonalds it is clear that he would not have created as much and he wouldn’t have achieved the mastery that he did achieve. The fact that such an obvious statement needs to be made is testament to the intellectual bankruptcy of those who despite copyrights. Everyone who even casually thinks about this has to reach the conclusion that if you want creators to create you have to allow them to make it a profession to which they devote full-time, assuming they are talented enough to meet their needs and desires as a result of pursuing their passion.

Of course, the unthinking retort brings up patronage. Yes, Michelangelo did not partake in the benefits of an intellectual property system like we have today. Instead, they had patrons who provided for them, and paid them, so they could create the works they did. However, the patronage system is inconsistent with mass consumption. If you want mass consumption and access to original works a patronage system is not going to maximize production or availability. This is what led to the patronage system declining in favor of a capitalistic, market-based approach to incentivizing creation of original works. See Patronage.

Thus, regardless of the debate and what those who detest property right think, copyright law plays an absolutely essential role. If you weaken copyright laws to make stealing even more plausible than it already is that would without a doubt decrease the amount of original creation. The Internet and the mentality of those who like to ignorantly believe everything placed on the Internet is free to be copied is already making it exceptionally difficult for many to make a living. That is why you see the same old, tired stories and “news” on every site across the Internet. It costs nothing to copy and paste, and very little to read and paraphrase. Within minutes of posting original content that took hours, days or even weeks to prepare can be lost and benefit misdirected to the copycat. Something needs to be done about that, and if Congress had a clue they would focus on this issue first.

Without a solution to the growing culture of infringement original creation of copyrightable works will continue to experience downward pressure, which will ultimately curtail original creation by all those other than corporate conglomerates that have the resources to police and enforce. Do we really want to see the market squeeze out independent content creators due to copyright laws that don’t function given the new age technological realities?

This is why I agree with the MPAA when they say “we must advance policies to promote an Internet the reflects the values that have been fundamental to us for hundreds of years, including freedom of expression, property rights, and protection of the rights of individuals.”

I also wholeheartedly agree with the MPAA when they say: “As infringement grows more widespread, sound copyright policy must recognize that the solution to such problem is in society’s broad interest. Any review of copyright must focus on whether the system as a whole provides for meaningful accountability on the part of those who infringe the rights of others…”

AMEN!

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 16 Comments comments.

  1. Tom Gallagher April 10, 2013 6:29 pm

    “we must advance policies to promote an Internet the reflects the values that have been fundamental to us for hundreds of years, including freedom of expression, property rights, and protection of the rights of individuals.”

    Well, one out of three has been fundamental to them.

  2. alessandro la rosa April 11, 2013 4:59 am

    Hi Gene, This is Alessandro writing. Found very interesting your article on Copyright Reform in US.
    In Europe we are facing the same problems and the EU Parlamient is in charge to discuss about updating the Directive 2000/31/CE on limitations of responsability of the ISP for piracy over the Internet.
    Keep in touch!
    Alessandro

  3. Justen Barks April 11, 2013 11:14 am

    Gene, the biggest mistake copyright reform can make after 35 years under the current Act is to fail to understand that copyright laws can no longer be the industry regulating tool they have been since the concept jumped the pond. You bring up a good point about Michelangelo and Van Gogh who, if they were creating masterpieces today, would both have true property rights in their works. The prevailing international view of copyright is as a property right inherent in the act of creation. This directly opposes the Anglo-American view that copyright is a statutory protection, offered by the will of Congress to promote creativity. Our constitutionally-rooted view that without copyright, creativity would suffer was not born from the Internet, peer-to-peer networks, CD-Rs, or locker services. It came from the idea that the gatekeepers, the printers, expected a return on their investment if they were going to make copies, and expected not to be cut off at the knees by thieving competitors. This is the same motivation the MPAA, the BSA, the NMPA, the RIAA and the rest of the alphabet soup have today. Is that reform? We know that since 1998 more technological innovation has opened more channels of distribution and access to the public for unregulated individuals than ever before. Individuals, not “the industry”. Copyright reform must be personal, the kid making beats in his college dorm room, who sells them on Beatport, or puts them up on YouTube should be at the forefront of this conversation. It should be about protecting Michelangelo and Van Gogh’s interests, not the interests of those Patrons you mentioned, with the deep pockets and ulterior motives.

    Regards,
    Justen.

  4. Lea April 12, 2013 10:12 pm

    If copyright is about promoting creativity by ensuring that artists receive some compensation for their efforts, then I fail to see how an increasingly indefinite term of copyright promotes either interest. If a business or individual can continue to control a product one hundred years old and thereby live off the payments, where then is the incentive to create? Why should new artists with fresh ideas be denied the opportunity to create with old works when the old artist has nothing new to offer? We would never handicap new innovation with patent laws like this, why are we doing so with creativity?

    Copyright is intended to be about a practical balance between artist ownership and new creative expression. As time goes on and the rights of artists are increased, while the rights of consumers and new artists are inhibited, this balance is lost and the purpose of copyright is lost.

    Copyright was not intended to create ownership of a work at all, it was intended to create legal rights regarding the copying of a work. That it is increasingly lost on the layman artist who thinks that he somehow owns his artistic expression. But artistic expression, once made public, is owned by culture. The artist owns legal rights intended to ensure compensation for his work, not the work itself. The idea of any type of ownership or rights in creative works is a modern one. Additionally, the idea that derivative work is of lesser value is a modern one.

    A modern reform of copyright will have to address issues of derivative works in copyright and is going to have to find some way to balance the experiential aspect of copying and the inherent creativity of derivative works with the artist’s right to be sure that such copying and derivative works aren’t simply a sneaky way to make money from or give away his work for free.

  5. Anon April 15, 2013 10:17 am

    Lea,

    I am having difficulty following your argument.

    First, the incentive of a long term pay-off is there prior to any creation. It is not meant to be an incentive post-creation. I think you are misunderstanding this.

    Second, there is no denial to new artists with fresh ideas. You seem to to think that copying or violating copyright is equivalent to “fresh ideas.” They are antonyms, not synonyms.

    Third, this so-called handicap is exactly what we do with patent law (well, not exactly, as the duration is different, as welll as a few other factors like fair use – but close enough to the point you are trying to make).

    I think that to contemplate change, you need to understand the system you are changing from. I don’t think you do understand the current system.

  6. Tom Gallagher April 15, 2013 10:30 am

    I agree with Lea. FYI look at this interesting video: http://www.youtube.com/watch?v=tk862BbjWx4

  7. Anon April 15, 2013 11:28 am

    Tom,

    Copy/paste it into the Consitution…?

    Sorry, you lost me there.

  8. Lea April 15, 2013 1:10 pm

    I understand copyright very well. I’ve studied it’s historical context, the history of the development of the concept of intellectual property, and the eroding rights of consumers and derivative works. If you don’t understand that copyright creates right to “copy” (which includes derivative works), but not to the actual creation, then you are the one that doesn’t understand copyright. A creation is owned by the person who buys and possesses it. Normally, that would mean that the owner does whatever they want with it. Practically, that would include copying. Since, that would deny the artist the ability for compensation, the concept of intellectual property was developed to create rights in copy. That’s why it’s called copyright.

    You act as though the duration of time is a minor issue, when in fact, it is one of the most significant ones. Original copyright had a term much closer to current patent terms. In addition, no one suggests that a person improving on an invention is not new innovation, but you want to argue that artistry is unique because fresh ideas cannot be based on prior works, which is ridiculous. That requires creativity as well.

    In a comment, I really can’t address the experiential and educational aspects of copying the works of those that have come before, or the historic view of derivative works, and how the idea of ownership in cultural creations is really a modern one.

    I’m not saying that artists should not have rights or compensation, and I agree that effective copyright law is essential to ensuring that. But balance is an inherent aspect of the intellectual property laws. Balance between the rights of consumers and the rights of artists. One of the rights of consumers is, as with patent, the ability to create derivative works from the public domain, the ability to experiment with another’s creation in order to develop understanding about the process. In the past, new artists learned by copying the works of others. When works fail to enter the public domain, our culture is poorer for it.

    I do understand that the incentive is prior to creation. People have incentive to create because they will get payoff. I just don’t see why the payoff should last forever. Why are should we pay the heirs, who created nothing, royalties for something created 100 years ago? The purpose of payoff is to create incentive for continuing creation, not to give every artist and his heirs the shot at a multimillion dollar estate. If a person or company receives payoff forever, then they have no incentive to continue to create, just as an inventor has no incentive to improve his design if patent never expires. To argue otherwise is just as disingenuous as the argument that copying isn’t theft and that artists would be willing to create for free.

  9. Lea April 15, 2013 1:25 pm

    “The purpose of payoff is to create incentive for continuing creation”

    Okay. I can see where your confusion might be about what I’m saying here. What I mean is not that by paying someone for a creation they already made, we then expect them to create more. I mean that we want people, all people, to continue to add to our culture by creating and not stop after one successful work. If their payoff is indefinite, then they can indeed stop after one work and the point of the promise of compensation is lost.

    The Constitution specifically states that purpose of these laws is to promote progress.

    A limited term of copyright is an essential aspect. To push for new creation. AND to push for creative new takes on the old. That’s how progress works. So, the durational differences between patent and copyright are not “close enough to the point [I’m] trying to make.”

  10. Anon April 15, 2013 2:09 pm

    What I mean is not that by paying someone for a creation they already made, we then expect them to create more.

    Sorry, but that argument falls to fallacy. I will let you think about it for awhile to figure out why.

    And instead of addressing the points tha tI make, you hone in on one I did not: limited time.

    Lea, I find your arguments (of what little there are), rather not compelling.

  11. Tom Gallagher April 15, 2013 5:06 pm

    Perhaps Lea and Anon really agree. Anon says: “the incentive of a long term pay-off is there prior to any creation. It is not meant to be an incentive post-creation.” Lea says: “If their payoff is indefinite, then they can indeed stop after one work and the point of the promise of compensation is lost. *** A limited term of copyright is an essential aspect. To push for new creation. AND to push for creative new takes on the old. That’s how progress works. So, the durational differences between patent and copyright are not “close enough to the point [I’m] trying to make.”

    If all I need is one hit to put my great grandchildren through college, what is the [copyright] incentive for me to create more [assuming that creating is hard work]? A copyright that expires in my lifetime is an incentive to keep creating.

  12. Lea April 15, 2013 5:11 pm

    Exactly!

  13. Lea April 15, 2013 5:19 pm

    I said that is not what I was arguing.

    ” Why should new artists with fresh ideas be denied the opportunity to create with old works when the old artist has nothing new to offer? We would never handicap new innovation with patent laws like this, why are we doing so with creativity?”

    “Third, this so-called handicap is exactly what we do with patent law (well, not exactly, as the duration is different, as welll as a few other factors like fair use – but close enough to the point you are trying to make).”

    This is exactly what time duration is about. We would never extend the monopoly on patent for such an extreme duration of time, because that would handicap new innovation, but for some reason, it is acceptable to handicap new creation with copyright this way. I disagree. So, did the original law makers. In this way, the difference between patent and copyright is essential to my argument and not of minor importance, as you claim.

    I directly addressed your argument that copyright limits fresh expression. Refusing to agree with me that derivative works have creative value does not equate to me failing to address that argument. Failing to understand the educational and experiential value of copying does not mean that I did not present the point.

    I directly addressed your point that we want to offer incentive to create by discussing the important balance between promised compensation and the necessity of an expired term to create incentive for continuing creation. What kind of long term payoff do you need? Inventors deal with 20 years. Why do artists need so much longer? What about enriching the public domain, as the laws promised once upon a time?

    I want to see laws that return to the idea of balance, create effective enforcement, as Mr. Quinn says, and stop expanding to ridiculous extremes the duration of copyright and the inhibition of derivative works. Artists and business aren’t the only ones frustrated with this system. Effective reform addresses the other side too.

  14. Tom Gallagher April 15, 2013 5:36 pm

    When I started looking into © reform, I was hoping for some reformation of the ridiculously long term. However, it appears that the “reformers” only want to expand the girth of copyrights into new areas of liability and opportunities to milk more defendants. Perhaps, if the girth is sufficiently expanded, the length will appear to be shorter.

    In any case, neither patent reform nor copyright reform are designed to help authors and inventors, but rather employers of authors and inventors.

  15. Joren De Wachter April 20, 2013 6:23 am

    “Everyone who cares to thoughtfully consider the issues has to come to the conclusion that if content creators cannot protect their works and works are free to be copied then there will be fewer and fewer works of original creation.”

    This is patently untrue. Copyright has many major flaws in both its theory and practice, which make it particularly inept for the digital age. Systems without protection yield far superior creativity, based on evidence.

    The most important ones flaws in the theory are 1) the unworkable distinction between copy and original (or imitation/innovation). Copying 4 bars of melody is the work of genius, copying 5 is a criminal act. Copying the twelve bar blues progression is great artistic work. Copying an arrangement is “theft” (although no natural scarcity exists, so theft is a very misleading term – not by accident). It makes no sense. Copy and original, Imitation and innovation are on the same continuum – “bad artists imitate, great artists steal” said Picasso (quoted by Steve Jobs), and they were both right; 2) the fact that, with copyright, all the money goes to the middle-men, the distributors (the MPAA being an excellent example). They are not creators, they are distributors. Allowing distributors to hoard monopolies is rewarding inefficiencies – and the music industry is the perfect example. Yet copyright theory does not actually talk about the middle-men. Only Pink Floyd in “have a cigar”.

    Also, the concept that copyright promotes creativity is plainly contradicted by the facts, for those who want to look at them.

    Since Napster destroyed the distribution monopoly of the music industry through technical means, we observe the following four phenomena: 1° consumer spending on music went up (but you have to calculate everything, not just the buying of CD’s or downloads from iTunes) 2° the availability of music on the Internet exploded – i.e. creativity went up significantly, 3° the percentage of that consumer spending that went to the artists went up significantly, 4° the percentage that went to the music industry dropped significantly.

    From an economic perspective, this is quite unambiguous: when you weaken a distribution monopoly, market efficiency starts to kick in. The monopolist distributors lose out, everybody else wins.

    So the only ones who claim that copyright promotes creativity are …. you guessed it, the distributors (and their advocates who get paid to say so).

    But the theory is boink, and all the evidence goes against it.

    Copyright is unworkable today, as many examples show: Pinterest, Napster, the Pirate Bay, 3D-printing. Every user on the Internet is technically a copyright infringer (any copy/paste will do) and a criminal. No-one goes to jail. This law is an ass – best to abolish it altogether. We had fantastic creations before copyright (Mozart, Beethoven, Shakespeare), and we will have a lot more once it is abolished.

    Copyright is no more than a tax on creativity, levied by distributors.

    Wonder how long it will take before someone will use an “ad hominem” argument, stating I’m an idiot or don’t understand copyright law. All arguments above are not about the law, they are about the underlying theory and the facts though.

  16. Tommy January 1, 2014 2:01 pm

    What part of limited time do you not understand? Do you really look down on everyone not named Gene as a bunch of pirates? Is that why you disdain us? How is anyone motivated to continue making anything if they can just make one thing and then have even their great great grandchildren benefit with the whole death years thing. Why would Michaelangelo keep working if he could live off his first painting?