Newswise — A group of leading experts on copyright law and policy released a new report today that explores meaningful reforms to the U.S. copyright system. Crafted over three years by a group of legal academics, private practitioners, and corporate attorneys, the report examines several ways to improve and update the law in an era of rapid technological change.
The Copyright Principles Project: Directions for Reform (CPP) report attempts to ignite an informed debate about how to best balance the interests of copyright owners and users. The group reached consensus on a number of significant ideas, as well as guiding principles for copyright reform. The project was led by Berkeley Law distinguished professor Pamela Samuelson.
“The report intelligently informs the copyright debate, and the identification and discussion of issues is well done and important,” said Marybeth Peters, the head of the U.S. Copyright Office. “The recommendations are thoughtful, and in many cases, I support them. This entire project significantly reinvigorates efforts to bring the copyright law up-to-date, either incrementally or as a major revision.”
U.S. Copyright law, originally drafted in the 1960s, was conceived decades before widespread use of the Internet, Web, and global digital networks. At that time, there was no reason for ordinary people to care much about copyright law. However, today, virtually everyone online interacts with copyrighted works, whether downloading photos or songs from the Web, forwarding news articles to friends, place-shifting music collections, or linking to favorite websites.
Advances in technology have not only vastly expanded access to authors’ works, but it has also brought new stakeholders into the copyright arena. Millions of ordinary citizens now publish and distribute material with the click of a mouse, making it easier to become copyright creators and publishers.
Professor Samuelson says such user-generated content challenges copyright law because it’s typically created by non-professionals—amateurs with different needs than, say, Hollywood studios.
"Copyright law touches us all on a daily basis and now millions of people who create user-generated works have become copyright stakeholders," said professor Samuelson. “Copyright law needs to be simpler, understandable, and more flexible to change with the times.”
Terry Ilardi, a project participant and IBM copyright counsel, said, "While the Copyright Act has grown enormously in the last three decades, it has not done so coherently, or in a way that has been sensitive to the changes demanded by the newest technologies.”
One of the project’s ideas would provide non-commercial uses of copyrighted works better shelter from liability, particularly as users lift parts of existing works to create new ones. The report also suggests a more efficient and technologically-driven approach to copyright registration, so that works can be freely reused if their authors agree.
Copyright law reform has been a challenging issue for stakeholders, many of whom have starkly different ideas about how to balance public and private interests. To its credit, the project team explored controversial subjects openly and with vigorous debate. In cases where the participants could not settle on a specific reform proposal, they were able to draft guiding principles for future reform efforts.
“The report will be a major spur to copyright reform with its ideas and practical recommendations,” said Michael Traynor, of the American Law Institute. “It helps copyright owners and users, Congress, and the courts cope intelligently with rapidly advancing technology."
One common problem the report addresses is peer-to-peer file-sharing of commercial movies and music. Although some file-sharing services have been shut down, the illegal practice has not abated. The report suggests the creation of a “safe harbor” to protect online service providers from excessive damage claims if they take reasonable, voluntary, measures to limit file-sharing—or other unlawful distributions of commercial works. Companies that comply would be shielded from liability for user infringements.
The report also suggests development of reasonable and consistent statutory guidelines for damage awards. Current law allows courts to award between $750 and $30,000 in damages per infringed work—and up to $150,000 per work if the infringement is willful. This has led to awards that seem arbitrary and capricious, inconsistent with awards in similar cases, and grossly excessive or disproportionate.
Other ideas include:
Modernize the Copyright Office: Instead of one registry for all copyrighted works, the office could certify third-party registries for different types of works, such as photos, films, and computer programs. The model is akin to the domain name registration system. Other suggestions include adopting a small claims procedure for small-scale disputes.
Reinvigorate copyright registration: Encourage copyright owners to register so that it's simple to find out who owns what. The idea is to make registration easy and worthwhile for copyright owners so that the public can have better information about protected works and their owners.
Refine exclusive rights for authors: Weigh commercial value and risk of harm to copyright markets when determining whether someone's exclusive right has been infringed; this shields non-harmful activity from the threat of highly punitive copyright claims.
Revise the common practice of automatic injunctions: Courts could consider whether a preliminary or permanent injunction is needed to prevent irreparable harm, as well as whether having access to the work is in the public’s best interest.
Limit Orphan Works liability: Enable libraries and others to preserve a part of our cultural heritage by using copyrighted materials whose owners cannot readily be found.
Register of Copyrights, Marybeth Peters, agrees that “there’s a real need for orphan works legislation,” and “commends the copyright project participants for making this a priority.” Overall, Peters said, the report “will command attention and much respect.”
The Copyright Principles Project: Directions for Reform will be published this fall in the Berkeley Technology Law Journal.
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