Copyright Principles Project/Center for Democracy and Technology Copyright Reform

Current copyright law has proven inadequate to address the uses of creative works in this technological and Internet age. Today’s global environment is one of almost costless reproducibility and dissemination, low-cost production of not only written works but also musical, visual, and moving image works, and increased and varied platforms for publication. In addition, the past decade has seen proliferation of user-generated content, in which both amateurs and professionals enjoy copyright ownership over their publicly accessible works, as well as an unfailing use of peer-to-peer file sharing of copyrighted works. Combine these developments in creation and dissemination of copyrightable works with the complicated role of online service providers (OSPs) as hosts of both amateur and professional content and copyright law can be fairly described as “under considerable stress.”

This is how Pamela Samuelson and Members of the Copyright Principles Project (CPP) summarized the current state of copyright law in the recently released “The Copyright Principles Project: Directions of Reform” (PDF). In the Report, Samuelson and CPP outline seven guiding principles for copyright reform, focusing on the purpose of copyright in this digitally interconnected world. Copyright should:

1)   “encourage and support the creation, dissemination, and enjoyment of works of authorship in order to promote growth and exchange of knowledge and culture”;

2)   “promote the creation and dissemination of new works in three distinct and complimentary ways: by encouraging the provision of capital and organization needed for the creation and dissemination of creative works; by promising creators opportunities to convey their works, as appropriate, to aid education, cultural participation, the creation of new works, and the development of new forms of creative output”;

3)   “facilitate the provision of capital and organization for creative works by providing a set of rights over which parties can reliably transact”;

4)   “give creators opportunities to convey works to their intended audiences by vesting exclusive rights, as an initial matter, in the authors of the works and encouraging authors to explore different ways of reaching audiences for the works”;

5)   “limit control over uses of creative works by setting boundaries on the rights of copyright owners and on remedies for infringement”;

6)   “support opportunities for innovation and competition in technologies for disseminating and experiencing creative works” and “also support rights holders’ reasonable interests in effective protection of their rights in the face of technological change”; and

7)   “recognize that the system in which creative activity occurs and in which creative works are circulated is increasingly global.”

These are the guiding principles behind copyright law and, as the Report makes clear, these principles are not wholly absent from current copyright law.  However, some significant reforms are nonetheless needed.

The Report makes twenty-five recommendations for reform to current copyright law. Some reforms emphasize the need for improving the registration system for copyrighted works, including creating a series of registries/registration systems for different kinds of copyrighted works. Other reforms suggest the need for guidance to users about what constitutes “fair use” and also the creation of a “small claims procedure” for “small-scale copyright disputes.” The Report also suggests, especially in an age of easy and large-scale dissemination of works, that copyright owners have exclusive rights over how their works are communicated to the public. Furthermore, as transmission of copyrighted works is facilitated through OSPs, the Report emphasizes the need for comprehensive safe harbor provisions against secondary liability. There is also considerable devotion in the proposed reforms to statutory damages (about which Professor Samuelson has written on at length with Tara Wheatland in “Statutory Damages in Copyright Law: A Remedy in Need of Reform”). In addition to reforming copyright protections, the Report also emphasizes the need for copyright owners to be able to easily and clearly “dedicate their work to the public domain” and for work in the public domain to remain there. Finally, the Report also calls for reforms that limit kinds of copyrightable elements, expand purposes of fair use, allow for personal uses of copyrighted works, and encourage institutional practices of preservation and storage of copyrighted works.

Even more than outlining comprehensive copyright reforms, the Report is a product resulting from a much-needed collaboration between academics, practicing lawyers, and industry leaders. They emphasize that “[t]oo much discourse about copyright law in the past fifteen years has been burdened by rhetorical excesses and an unwillingness to engage in rational discourse with those having differing perspectives.” Modern copyright policy requires balancing incentives for producing creative and useful works and protections for the rights of creators against the needs of fellow users, artists, researchers, and other citizens to use the work of their fellow producers. Refusing to recognize current ways of engaging with information and creative works and neglecting to incorporate these current uses into this balancing act will stifle creativity and innovation rather than incentivize creation of new works. The CPP Report is an important first step in revising copyright law to comport with current means of creative production and uses of creative works.

However, revising copyright law in order to align current technologies and means of creative production with the underlying principles of copyright law does not necessarily protect against abusive uses of copyright law to chill political speech. The Center for Democracy and Technology (CDT) recently released a report criticizing the Notice and Takedown Procedure of the Digital Millennium Copyright Act (DMCA) for allowing political campaigns and news organizations to use the procedure to censor political speech. In this report, entitled “Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Speech,” CDT shows how broadcasters who are concerned with having news clips used in political ads distributed online are using the DMCA takedown procedure to remove those ads from the Internet. CDT argues that such use of news clips is most likely a fair use (and therefore not subject to the Notice and Takedown process which is limited to uses that are infringing copyrighted works) and using the DMCA procedure to remove lawful political speech is a significant threat to free speech.

The CDT Report, like the CPP Report, emphasizes the rise of user-generated content sites and OSPs as hosts for such content. The proliferation of online platforms for both written content and audio-visual materials is extremely powerful for political speech. And the DMCA Notice and Takedown procedure is important to empower copyright owners who become aware of infringing uses of their copyrighted works online. However, abuse of this procedure, especially if it targets online political ads, has a disproportionately chilling effect on free political speech. The CDT Report is a good reminder that, even if copyright law embodies copyright principles, there are ways that its procedures can be used to negatively affect free speech. In considering copyright reform, therefore, it is necessary to consider measures that not only fulfill the guiding principles of copyright law but also that protect against abuse of these laws to chill free speech or otherwise stifle creative or useful expression.