On Wednesday, April 29, the House Judiciary Committee held its last copyright review hearing, The Register’s Perspective on Copyright Review. For the past two years, the House Judiciary Committee held twenty hearings with a total of one hundred witnesses who provided their views on a broad variety of copyright issues. This last hearing mirrored the very first one in March 2013, The Register Calls for Updates to U.S. Copyright Law, as Register of Copyrights Maria Pallante was the sole witness on both occasions.
In attendance were representatives Goodlatte (Committee Chairman), Conyers (Ranking Member), Marino Collins, Chu, Issa, Trott, Nadler, Bass, Lofgren, Farenthold, Smith (TX), Poe, Walters, Bishop, Deutch, Jeffries, Chabot, Kind, Del Bene, and Jackson Lee. In general, the Committee was very complimentary of Register Pallante and her staff’s work.
Copyright Office Modernization
During Wednesday’s hearing, Pallante focused on the need for modernizing the Copyright Office. Pallante explained that the Copyright Office as an independent agency would be the best solution to the current budget, technology and legal challenges that the Office faces as a result of its status as a department within the Library of Congress. Comparing this option with becoming part of the Department of Commerce and, Pallante favored an independent agency model because it would allow the Office to work both with Congress and the Executive.
When Rep. Conyers asked for a realistic timeline for these changes, Pallante explained that “ideally during this Congress.” She further added that the Office needs to plan for the next decade either its current structure as part of the Library of Congress or in a way that is more targeted to the copyright system. For Pallante, if properly structured, the Copyright Office would be in a better position to address “policy issues that are of interest to this committee.”
Pallante also explained that the Office’s registration and recordation databases need to be connected. Even though there is a need to revise the current fee schedule to cover the lion’s share of the cost of this type of improvement, Pallante thinks there should be some degree of taxpayer support because the public at large benefits from these databases.
Substantive copyright issues
Pallante also discussed areas that are ready for legislative action: music licensing, small claims court, felony streaming, library exceptions, orphan works, resale royalty for visual artists, improvements for people with print disabilities and a regulatory presumption in favor of existing exemptions to anticircumvention provisions. In contrast, Pallante recommended that fair use and the right of making available be left to courts to develop. Regarding the first sale doctrine and ‘mixed goods’, Pallante sees no need for Congressional action at this point and recommended only monitoring as copyright owners “are adapting.”
Regarding music licensing, Pallante explained on several occasions that the Fair Play, Fair Pay Act, a bill recently introduced by several members of the Committee, incorporates many of the Office’s Music Licensing Study recommendations. Overall, the Office’s study recommends an incremental but progressive move towards the free market in music licensing. She explained that even though the principles of the Copyright Act remain strong, the changes in the digital era call for change in order to reinforce the US creative output. Pallante also expressed her firm support for establishing public performance rights for sound recordings for terrestrial radio. In her view, it is embarrassing as a matter of policy that the US continues to be one of the few countries in the world that does not recognize this right. She also expressed her support for the creation of a unified central registry of music ownership information, administered by a government mandated non-profit entity, similar to SoundExchange.
On resale royalties for visual artists, Pallante explained that the recommendation for their adoption responds to the need for “parity with 70 countries on how we treat visual artists” given that the value of their work is attached to uniqueness. She added that the Office recently asked for more information from photographers and other visual artists on this matter.
Answering Chairman Goodlatte’s question regarding the difficulty that small copyright owners face when navigating copyright law, Pallante agreed. “Copyright law touches everybody in modern culture, it is unlike other laws in that respect.” She added that the Copyright Office can help with education and guidance.
Regarding damages, Pallante cautioned against amending them too quickly. She explained that remedies are key to the functioning of our system and that there is possibly room for improvements in terms of providing more guidelines for courts. Pallante also explained the importance of having effective remedies for small copyright owners as part of the rationale behind her Office’s support for the creation of a small claims system.
Answering Rep. Jackson Lee’s questions, Pallante expressed her support for strong copyright provisions in the Trans Pacific Partnership Agreement.
What to expect moving forward
Chairman Goodlatte explained that in the next few months, the Committee will invite all stakeholders to share their views on the copyright issues examined throughout the review and any others. He also emphasized that the success of the process also depend heavily on whether the direct channels of communication between the different stakeholders remain open.
It is vitally important that creators and artists remain actively involved in these processes. To stay up to date on further developments, continue to follow our blog and follow us on Twitter, Facebook, and Instagram. And finally, for opportunities to participate in defending creators’ rights, join our One Voice network of Copyright Advocates.
Read the letter the Copyright Alliance submitted for this hearing’s record signed by more than 1,500 creators.
Read Register Pallante’s full written testimony.