Copyhype

Last Thursday, the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet held a hearing called “A Case Study for Consensus Building: The Copyright Principles Project.” The hearing is the first in an expected series of hearings that will take place in the upcoming months aimed at a comprehensive review of U.S. copyright law.

Rep. Goodlatte, the House Judiciary Committee Chairman, chose the topic of the first hearing not to endorse the substance of recommendations of the Copyright Principles Project, but to set the tone for a process that is hoped to be characterized by civil discourse between those who hold diverse views rather than rhetoric and “sharp elbows.” In his opening statement, Chairman Goodlatte elaborated on his motivation for the hearings:

We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy. It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.

There are numerous questions that will be raised by interested parties during this review. I have several myself including:

How do we measure the success of copyright and what metrics are used?

How do we ensure that everyone’s voice is heard?

How is copyright working for individual artists?

How is copyright working for our nation’s economy?

These are only a few of the issues we will be looking into. This review of copyright law will not be a quick process simply because the issues are so numerous. However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.

It’s an ambitious agenda even if it doesn’t make it to a point where legislation is contemplated. But fortunately, Congress does not have to reinvent the wheel when it comes to copyright review.

There already exists a large body of literature that pokes and prods at copyright law, asking many of the same questions that Rep. Goodlatte posed. Some of it sheds light on how current copyright law came to be shaped as it is, some of it identifies what issues recur most often or have proven most challenging. Together, this literature can prove valuable to Congress as it embarks on its own copyright review.

I want to highlight some of the literature I’m talking about. One can step way back and look at the very broad strokes of copyright law. Here you might focus on its philosophical underpinnings or justifications. You can also zoom in and examine individual doctrines and issues very closely. There are many books, articles, and papers that take both these perspectives. But one can also take a mid-level view of the copyright law as a cohesive whole and how it functions as a statute. This is, it would appear, the approach taken so far by the Subcommittee. And so this is the type of existing works I want to look at.

First, obviously, is the Copyright Principles Project itself, released in 2010. The Project describes a set of broad principles that copyright law should adhere to and than analyzes current law to see how aligned it is with those principles. It then offers a series of recommendations to revise copyright law. Thursday’s hearings did not focus so much on the substance of the Project but on its process itself, and the remarks from Subcommittee members suggested that here it fell short. Concerns over the lack of creators’ input during the project were raised several times during the hearing. Along with that, witness and Project participant Jon Baumgarten pointed out that while there was civil discourse during the process, very little actual consensus was reached in the end.

During the hearing, several references were made to the European Copyright Code, a publication of the Wittem Project. Sponsored in part by the Dutch Government, the European Copyright Code was drafted by a group of copyright scholars with the aim of providing a “model law” of sorts to facilitate future harmonization or unification in European copyright law. The Code was repeatedly referred to for its accomplishment of fitting a copyright law in less than 20 pages. While it did so by leaving out major components of a copyright law — most notably, it does not address infringement or remedies — it is still much shorter than the current U.S. Copyright Act. And although, like the Copyright Principles Project, the European Copyright Code was drafted by academics, its aim was descriptive rather than normative, so it may serve as a useful starting point when looking at how other countries approach copyright law.

Domestic Resources

For U.S. law specifically, one natural starting point is the U.S. Copyright Office, which, as the primary policy advisor for Congress, regularly engages in studying the U.S. Copyright Act. It was, after all, Register of Copyrights Maria Pallante who inspired Goodlatte to conduct the review with her earlier testimony on the Next Great Copyright Act. The Copyright Office has a number of reports that it has completed since the 1976 Copyright Act. Indeed, Pallante references a few in her Next Great Copyright Act article under the heading “Preparatory Work”. These include, to name a few, reports on digital first sale, orphan works, and statutory license for cable and satellite retransmission, as well as pending reports on resale royalties for visual artists, and solutions for enforcing small copyright claims.

The 1976 Copyright Act itself has produced volumes of legislative history (Subcommittee co-chair Rep. Marino could be seen paging through one such volume during Thursday’s hearings). But in terms of systematic and comprehensive discussion of copyright law and doctrines, nothing really compares to the series of copyright law revision studies prepared by the U.S. Copyright Office during this process. Although each tackles a specific area, the 34 studies together cover a range of issues that, for the most part, remain relevant today. Each not only provides a thorough historical background, but delves into many of the challenges and sticking points, surveying the diversity of opinions, highlighting the critical questions, and analyzing the different approaches. Drafts of each reports were submitted to an advisory panel of experts appointed by the Librarian of Congress; the comments and responses of panel members are also included in the reports, providing even more insights.

Although there hasn’t been a general revision since the 1976 Copyright Act was enacted, the 1997 Digital Millennium Copyright Act brought fairly substantial changes to the law, including many of the more contentious provisions today. The DMCA could be traced back to work done by the Working Group on Intellectual Property Rights in the National Information Infrastructure (NII). The NII grew out of the High Performance Computing Act of 1991 and laid a lot of the groundwork for the modern internet. In 1995, the Working Group released a report on Intellectual Property and the National Information Infrastructure. The report examined thoroughly current copyright law and doctrine, with an eye toward how that law would operate online, concluding with a set of recommendations for modernizing the law where necessary. The usefulness here is seeing the thought process behind the DMCA — where, for example, is it outdated because predictions it was based on failed to pan out and where has it fallen short despite accurate foresight because it hasn’t been implemented or interpreted properly.

Foreign and International Resources

A number of countries outside the U.S. have (or currently are) engaged in similar copyright reviews. Many of these reviews have resulted in comprehensive reports that could provide guidance and illumination on many copyright issues.

In the UK, for example, an independent review of copyright law was commissioned by Prime Minister David Cameron. The review, by Cardiff University professor Ian Hargreaves, was released in May 2011, and contains extensive findings, as well as ten recommendations for modernizing that country’s copyright law.

Australia has similarly engaged in a review of its copyright law. The Australian Law Review Commission, an independent statutory body that was established to conduct reviews of Australian law and offer recommendations, is currently in the midst of a review of copyright law. Last August, it released an issues paper on Copyright and the Digital Economy, identifying a number of questions it wished to examine and soliciting comments on the questions. Its final report is scheduled to be released November 2013.

In the international realm, nothing compares to the Berne Convention for the Protection of Literary and Artistic Works both in breadth (it is currently joined by 165 parties) and in vintage (it was first implemented in 1886). WIPO, which administers the treaty, has previously published a guide to the Berne Convention. Although the guide may be outdated in places (it was written over three decades ago), it remains essential reading for anyone engaged in copyright review. The guide explains each of the treaty’s provisions, along with its “nature, aims, and scope.” If one is looking for international norms in copyright law, this is a good place to start.

This is far from an exhaustive list of literature relating to copyright review, but it does provide an adequate foundation before one begins jumping into specific issues.