A Closer Look At Proposed Copyright Reforms

Yesterday's post addressed the speech Gigi Sohn made at a conference in Boston on the subject of reforming U.S. copyright laws.

The lawyer/lobbyist recommended six changes to existing laws, which I'd like to discuss in detail today:

1) Fair Use Reform: Fair use permits limited use of copyrighted material without requiring permission from the rights holders. It was intended to protect our First Amendment free speech rights. To do so, fair use allows for copyrighted material to be quoted without penalty in criticism, comment, news reporting, teaching, scholarship, and research.

Current U.S. law provides for a four-part test by which use of material can be judged. The four-part balancing test weighs the rights of a free society against the rights of the copyright holder. It examines:

• the purpose and character of the use (is it for commercial purposes?)
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole
• the effect of the use upon the potential market or value of the work

Sohn says, "I urge Congress to add incidental, transformative and non-commercial personal uses to the list of fair uses enumerated in copyright law. Congress should also expressly provide that making a digital copy for the purpose of indexing searches is not an infringement."

That last line is a reference to the type of copying for which Google is being sued by publishers and the Authors Guild. The Google BookSearch program should be viewed as the equivalent of a digital library card catalog. It provides only a few lines of the work shown along with the card catalog info and the retailers where a reader can purchase the book.

Of course, Google did not create BookSearch out of the goodness of its heart. The company is trying to increase the value of its search engine. However, it is not directly making profit from the work shown and, in fact, it is increasing the potential market value of the work shown by making it more available.

Sohn also says, "Critical to any effort to reform fair use is an amendment to the anti-circumvention provisions of the DMCA that would permit breaking a technological lock for lawful reasons."

2) Limits on Secondary Liability: Sohn mentions the historic Betamax case (Sony Corp. of America v. Universal City Studios, Inc., 1984). In that case, the U.S. Supreme Court ruled that manufacturers of home video recording devices like VCRs could not be held liable for infringement and that consumers who made copies to timeshift when they watched a program were not infringing on copyright either. She believes that Congress should codify this decision into an actual law and says, "[s]hould a technology not meet the Sony standard, the copyright holder is still entitled to actual damages if they can prove that there has been financial harm."

3) Protections Against Copyright Abuse: Sohn believes "Congress should legislate an affirmative cause of action for allegations of copyright abuse, and the Federal Trade Commission should declare that notices, like those used by sports leagues that overstate a copyright holder’s rights are unfair and deceptive trade practices under the Federal Trade Act."

What she's saying is that those copyright holders who either "knowingly or recklessly" make a false claim of copyright infringement should be held accountable.

4) Fair and Accessible Licensing: This point relates to my earlier post of April 25 here. Sohn is specifically talking about the music industry. She believes Congress must try again to simplify the process currently in place for the industry.

However, she singles out for mention the "problem created by the Copyright Royalty Board’s recent decision to raise by 300-1200% the royalties that Internet radio services pay to record companies. The rate has now been set so high that it threatens the viability of all but the largest webcasters."

Sohn demands that Congress not treat traditional radio broadcasters differently from the digital Internet or satellite radio broadcasters. Presently traditional broadcaster enjoy lower royalty rates. She believes Congress should "set the rate across platforms of approximately 3% of gross revenues."

5) Orphan Works Reform: Our current copyright laws afford the creator of a work immediate protection once the work is fixed in a tangible medium (i.e. written on the page, or recorded on a CD). The lack of a requirement for registration makes it hard for anyone wanting to license the work to find the copyright holder. Sohn says, "[w]hen a potential user cannot find a copyright holder after a good faith effort, we consider the work to be an 'orphan' work."

While Google can help locate text, there is no good way to locate visual works since there is no registration requirement. Sohn believes Congress should support a 2005 proposal by the Copyright Office "that anyone who does a reasonable search for the owner of a copyright but nonetheless cannot find them should only be liable for 'reasonable compensation' should the copyright owner resurface."

Of all Sohn's proposals, this one troubles me the most. I can see a lot of opportunity for scamming. She does say that Congress should "open the door to the creation of a new registry that should greatly benefit visual artists."

I think a lot of work would need to be done to define what constitutes a "reasonable search" before I would be in favor of this proposal.

6) Notice of Technological and Contractual Restrictions on Digital Media : Finally, Sohn wants to eliminate all those pages of fine print that no one can be bothered to read.

She says, "copyright holders should be required to provide clear and simple notice of any technological or contractual limitations on users’ ability to make fair or otherwise lawful uses of their products. This gives the purchaser the information she needs to decide whether or not to purchase the product." Sohn con-tinues, "failure to notify a purchaser of a copy protected CD, for example, should be considered an unfair or deceptive trade practice under the Federal Trade Act."

I think--for the most part--Sohn's proposals are thoughtful and reasonable. Congress should pay attention.