On March 20, 2013, Maria A. Pallante, who is the Register of Copyrights at the United States Copyright Office, testified before the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary. In her testimony she called for a comprehensive review and updating of the Copyright Act. She started her prepared remarks by explaining: “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”
During her testimony on Capitol Hill, Pallante explained that it is time to begin work on “the next great copyright act,” which is required because individuals “increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.” Pallante also lamented the fact that the current Copyright Act is cumbersome and difficult to understand, saying: “if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.”
With the prospect of comprehensive copyright reform on the horizon the familiar battle lines are being drawn between those who absolutely need copyright protection to survive and create versus those who are a part of the infringement culture. Will the comprehensive reforms necessary to protect creators or original works be possible? Will any reform be achievable? The goal of comprehensive reform seems laudable, but creators of original works must engage, both individually and by and through their various Guilds and Associations.
What copyright reforms are being proposed by the Copyright Office? Pallante provided Congress with a long list of issues that require review and legislative attention. She said:
The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.
She then went on to say that it is unnecessary for Congress to “start from scratch” since there has been more than 10 years of debate on issues relating to public performance right for sound recordings and the way in which musical works are licensed in the marketplace. Pallante explained that at least these two issues “are ripe for resolution.”
Not surprisingly, the Motion Picture Association of America (MPAA) is already engaging publicly and behind the scenes. According to the MPAA, its member companies “welcome a continuation of the ongoing discussion of the importance of copyright.” Notwithstanding the willingness to engage in debate, a memo circulated by the MPAA unapologetically stated that any debate should easily conclude that copyright law “encourages and rewards creativity and breakthrough innovation, promotes distribution and enjoyment of America’s most beloved stories and characters…” There is no doubt that copyright laws promote the creation of original works of authorship, but it seems a stretch to me to say that copyright law promotes innovation. Patent law promotes innovation. Copyright law promotes creativity. There is no need to overstate the case or importance of copyright law.
Everyone who cares to thoughtfully consider the issues has to come to the conclusion that if content creators cannot protect their works and works are free to be copied then there will be fewer and fewer works of original creation.
It amuses me when those who despite property rights, particularly intellectual property rights, spew their brand of intellectually dishonest nonsense. Do these people really believe that content creators can and will create content if others who didn’t invest in the creation are allowed to simply copy and exploit? Even if there is no commercial gain affiliated with the copycat who without authorization steals a protected work, if someone can get it from a copycat without paying they don’t need to obtain it from the content creator. It really is that simple. If we want original works we have to have strong protections and stiff penalties.
Whenever I talk about copyrights and the need for protection for creators I like to use this example. What if artists like Van Gogh or Michelangelo needed to have a day job in order to pay the bills? Would they have created as much as they did or ever perfected their skills and techniques to create anything of meaning? If Michelangelo were required to have the equivalent of a professional desk job or if he had to do the equivalent of flipping burgers at McDonalds it is clear that he would not have created as much and he wouldn’t have achieved the mastery that he did achieve. The fact that such an obvious statement needs to be made is testament to the intellectual bankruptcy of those who despite copyrights. Everyone who even casually thinks about this has to reach the conclusion that if you want creators to create you have to allow them to make it a profession to which they devote full-time, assuming they are talented enough to meet their needs and desires as a result of pursuing their passion.
Of course, the unthinking retort brings up patronage. Yes, Michelangelo did not partake in the benefits of an intellectual property system like we have today. Instead, they had patrons who provided for them, and paid them, so they could create the works they did. However, the patronage system is inconsistent with mass consumption. If you want mass consumption and access to original works a patronage system is not going to maximize production or availability. This is what led to the patronage system declining in favor of a capitalistic, market-based approach to incentivizing creation of original works. See Patronage.
Thus, regardless of the debate and what those who detest property right think, copyright law plays an absolutely essential role. If you weaken copyright laws to make stealing even more plausible than it already is that would without a doubt decrease the amount of original creation. The Internet and the mentality of those who like to ignorantly believe everything placed on the Internet is free to be copied is already making it exceptionally difficult for many to make a living. That is why you see the same old, tired stories and “news” on every site across the Internet. It costs nothing to copy and paste, and very little to read and paraphrase. Within minutes of posting original content that took hours, days or even weeks to prepare can be lost and benefit misdirected to the copycat. Something needs to be done about that, and if Congress had a clue they would focus on this issue first.
Without a solution to the growing culture of infringement original creation of copyrightable works will continue to experience downward pressure, which will ultimately curtail original creation by all those other than corporate conglomerates that have the resources to police and enforce. Do we really want to see the market squeeze out independent content creators due to copyright laws that don’t function given the new age technological realities?
This is why I agree with the MPAA when they say “we must advance policies to promote an Internet the reflects the values that have been fundamental to us for hundreds of years, including freedom of expression, property rights, and protection of the rights of individuals.”
I also wholeheartedly agree with the MPAA when they say: “As infringement grows more widespread, sound copyright policy must recognize that the solution to such problem is in society’s broad interest. Any review of copyright must focus on whether the system as a whole provides for meaningful accountability on the part of those who infringe the rights of others…”