Copyhype

On September 28, a group of leading copyright academics and practitioners released the Copyright Principles Project: Directions for Reform (full report [pdf] available here). According to the press release, the Project “attempts to ignite an informed debate about how to best balance the interests of copyright owners and users” by examining “several ways to improve and update the law in an era of rapid technological change.”

The project is well worth a read. Participants in the project come from a variety of perspectives, including academics like project leader Pamela Samuelson, Jessica Litman, Michael Carroll, and Christopher Sprigman; copyright practitioners like Jon A. Baumgarten of Proskauer Rose LLP and Kate Spelman of Cobalt LLC; and corporate attorneys like Troy Dow of Walt Disney, Terry Ilardi of IBM, Jule Sigall of Microsoft, and Jeremy Williams of Warner Bros. Entertainment. Working together, they crafted twenty-five specific proposals that address “how current copyright law could be improved and how the law’s current problems could be mitigated.” ¹Copyright Principles Project, pg. 2.

The Copyright Principles Project came about in part from Samuelson’s idea of creating a “model copyright law” — akin to projects like the American Law Institute’s Model Penal Code — which could provide “an inchoate vision of a ‘good’ copyright law”; “provide a platform from which to launch specific copyright reforms”; and “prove useful as a resource to courts and commentators as they try to interpret ambiguous provisions of the existing statutes” and apply the statute to novel and unforeseen circumstances. ²Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 3 Utah L. Rev. 551 (2007). Samuelson discusses how the model copyright law project served as a genesis for the Copyright Principles Project during her remarks at Berkeley Law’s “Copyright @ 300” conference, audio available under Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.

Reaction to the report from the Copyright Principles Project has been generally positive. I haven’t been able to find too much analysis of the individual recommendations online, though there has been some. Copyright Chronicle’s Thomas Gulick, for example, points to recommendations that seem to “create imbalance for the sake of ease.”

Today, I want to look at those recommendations in the Project that call for an increased role for the US Copyright Office within copyright law. This topic is of special interest to me. In Copyright Reform Step Zero, I make the case for delegating substantive rulemaking authority to the Copyright Office as an important first step to maintaining an up-to-date and effective copyright law. Several of the recommendations in the Copyright Principles Project take the same approach while also envisioning adding adjudicatory functions to the Office.

Recommendation #3: The Copyright Office should develop additional policy expertise and research capability, particularly in the area of economics and technology.

The Copyright Principles Project specifically calls for two new positions to be created within the US Copyright Office: Chief Economist and Chief Technologist. These positions would help ensure that those areas of expertise which are most important for developing copyright policy in today’s world can be led by dedicated individuals. The Copyright Office already plays an important role preparing studies of specific copyright issues, advising Congress and other federal agencies on policy matters, and interacting with foreign and international organizations; so even if the Office didn’t take on a greater role in actual policymaking, it could still benefit by beefing up its expertise in these areas.

Recommendation #4: The Copyright Office should give serious consideration to developing some mechanism(s) through which users could receive guidance on “fair use.”

One of the mechanisms suggested by the Copyright Principles Project is the idea of a fair use “opinion letter,” likely inspired by an existing proposal from Project contributor Michael Carroll. In Fixing Fair Use, Carroll envisions as body within the Copyright Office that would hear from companies or individuals contemplating the use of a copyrighted work. The body would analyze if the contemplated use would legally be a fair use and issue an advisory letter with its opinion, similar to advisory letters that the IRS and SEC currently issue.

Recommendation #5: A small claims procedure should be available for resolving small-scale copyright disputes.

Interestingly, after orphan works, this recommendation may have the best chance for being adopted out of all the Copyright Principles Project’s recommendations. Although orphan works legislation failed to pass in 2006 and 2008 (and wasn’t even introduced in 2010), it is still considered by many to eventually become law. Both orphan works bills contained a provision commissioning the US Copyright Office to study the idea of a “small claims court” for copyright disputes which would otherwise stay out of courts because of legal costs. ³HR 5439 — Orphan Works Act of 2006, Sec. 4; HR 5889 — Orphan Works Act of 2008, Sec. 6.

Recommendation #23: Contributions to computer programs should be considered as a new category of specially commissioned work eligible for treatment as works made for hire.

The Copyright Principles Project discussion of this recommendation included the following: “We considered, for instance, whether the U.S. Copyright Office should be given rule-making authority to add computer software contributions or other types of works to the specially commissioned work for hire rule. We did not reach consensus on this approach.” This statement describes an example of how substantive rulemaking authority would be exercised by the US Copyright Office as I contemplate it in my paper. Congress incorporates a doctrine like “work for hire” into the Copyright Act. It lays out the broad strokes of the purpose and principles behind the doctrine. But it then delegates the nuts and bolts to the Copyright Office. In this example, the Copyright Office would have the authority to add additional categories to types of works eligible for treatment as works made for hire — within the limits of the statute and guided by the principles expressed by Congress.