[x-pubpol] Review: Maria Pallente at WCS

[Joly MacFie]

http://www.lexology.com/library/detail.aspx?g=8c59b3a5-02fc-4d58-a090-0ad7090805a0

by  David Oxenford  (extract)

In a speech last week to the World Creator’s Summit in Washington, DC,
Register Pallente revisited the topic of Copyright reform, and laid
out many of the issues that she felt needed to be addressed in any
comprehensive reform that may occur. The list was long, and is bound
to be controversial. She noted that the last comprehensive reform of
the Act, in the 1990s leading to the Digital Millennium Copyright Act,
was 20 years in the making – a delay that can’t occur now given the
number of pressing issues. As she noted, the importance of copyright
has never been greater to the average person. That, to me is very
clear, as digital media has put so many more people in a position to
be involved in copyright issues, as doing everything from creating a
Facebook or Pinterest page to a YouTube video, or accessing a file on
BitTorrent or any other sharing site, can immediately immerse an
individual in a copyright dispute with consequences far greater than
the improper use of a copy machine or cassette recorder would have had
20 or 30 years ago. So what does she propose to examine?

First, she started with the proposition that copyright owners must
have the meaningful ability to protect the content that they create.
But the public must also be able to access that content in a
meaningful ways. Both creators and users of content have
responsibilities to participate in the larger copyright economy to
make sure that it functions properly.

Some specific areas that she suggests are important to review include
the following:

The exclusive rights set out by section 106 of the Copyright Act (the
rights to publicly perform, reproduce, distribute, display and make
derivative works) need to be clarified for the digital world. As we
have written before, the distinctions between these rights, that are
so clear in an analog world, no longer make sense in many cases (like
for music) in a digital world, and the distinctions can have major
significance as to who gets paid for any particular use of copyrighted
material.

The notice and take down provisions of the DMCA safe harbor for
user-generated content have to be reviewed. While these provisions
have allowed for many very popular new services to thrive, many
copyright holders believe that they make it too burdensome to enforce
their rights, as they constantly have to monitor the entire Internet
to see if their rights are being infringed.

She called for a full performance right in sound recordings –
requiring that recording artists be paid whenever their recordings are
played in public. This call goes far beyond the broadcast performance
royalty (which we have written about many times here), to the
potential for imposing royalty obligations on bars, restaurants,
stadiums, and all other venues where recorded music is performed.
These royalties would be on top of the royalties already paid to
songwriters and composers that are currently collected by ASCAP, BMI
and SESAC.

Exceptions and limitations of the rights of copyright holders need to
be adapted for the digital world. For instance, how does “fair use”
apply in the digital world? Are the other exceptions that are set out
in the Act or thorough judicial interpretations (e.g. exceptions for
certain non-profit uses and small businesses, or rights like those
given to consumers in cases like the Betamax decision finding that an
individual making a private recording of a TV show for personal use
was not infringing on the rights of the program creators) applicable
in the digital world?

How should orphan works be treated? Orphan works are those copyrighted
materials where the owner of the copyright can no longer be found. The
public’s access to copyrighted materials, one of the goals of the
copyright laws, cannot be facilitated if works can’t be if the owner
can’t be found to secure permission for performance, reproduction or
distribution. As the digital world allows for more and more
availability for certain “long tail” content, the promise of the new
media’s ability to make that content available can’t be fulfilled if
the rights can’t be secured when the owner is unknown.

The laws should allow for a diversity of a licensing regime, allowing
for transparent collective licensing, but being alert for
anticompetitive practices that such licensing may allow. But the law
should also permit direct licenses.
Review enforcement mechanisms for the copyright owner – including
potential criminal penalties for copyright infringement.

Register Pallente cited the need for a comprehensive review to make
sure that all aspects of an issue are being considered. For instance,
she talked about the need for a review of music rights and how they
all work together – looking at mechanical licensing and royalties for
public performances as well as the DMCA safe-harbor provisions all at
the same time to make sure that all of these rules work together.

The Register acknowledged the difficulty of such a review and urged
that all parties in the Copyright debate work together in good faith
and good humor to craft new rules for the future. She ended her
remarks quoting the Rolling Stones (with attribution, though we are
unsure as to whether she had permission or was relying on "fair use"
principles) by saying “you can’t always get what you want, but if you
try some times, you just might get what you need.”

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