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May 14, 2008
Copyright reform
Speaking of IP reform bills, a copyright bill is moving through Congress -- the IP Pro Act (HR 4279). As the Washington Post reports (House Bill To Create Anti-Piracy Czar Advances), the bill is not without controversy. For one, the Justice Department objects to the creation of an IP czar in the White House:
"Establishing such an office would undermine the traditional independence of the Department of Justice in criminal enforcement matters," department spokesman Peter Carr wrote in an e-mail yesterday. "Establishing such an office in [the White House] would codify precisely the type of political interference in the independent exercise of DOJ prosecutorial judgment that many members of Congress and senators have alleged over the last couple years."
Not withstanding that objection, the House passed the bill last week by a vote of 410 - 11. In part, that is because many of the provision had been worked out. As the Post story (written before the final House vote) pointed out
Early opponents fought hard to tone down what they said were the draconian elements of the bill.
"We just generally didn't like the whole tenor of, 'Oh, my God, we need to cut off people's toes' if they commit copyright infringement," said Gigi B. Sohn, president of Public Knowledge, a public-interest group that has advocated reducing some penalties for copyright violation. Sohn said her group is generally comfortable with the bill as approved yesterday but said Public Knowledge has its own six-point plan for revising copyright laws that it will seek to have introduced as legislation this summer.
That six point plan (Six Steps to Digital Copyright Sanity: Reforming a Pre-VCR Law for a YouTube World | Public Knowledge) covers:
1. Fair Use Reform. The existing four-part legal test for fair use should be expanded to add incidental, transformative and non-commercial personal uses of content. In addition, Congress should provide that making a digital copy of a work for indexing searches is not an infringement.
2. Limits on Secondary Liability. The 1984 Sony Betamax decision by the U.S. Supreme Court protecting a manufacturer of technology from liability as long as the technology has “substantial non-infringing use” should be codified.
3. Protections Against Copyright Abuse. The Digital Millennium Copyright Act (DMCA) should be expanded to deter copyright holders from filing frivolous requests that material be taken down from a web site. Congress should provide legal relief for legitimate users of a work should copyright owners overstate their rights.
4. Fair and Accessible Licensing. Congress should simplify the Byzantine world of obtaining rights to use a musical work, and should require broadcasters to pay performance royalties as satellite and Internet radio do.
5. Orphan Works Reform. Congress should limit damages for the use of works for which a copyright can not be found after a good-faith search. In addition, competitive visual registries should be established to protect visual artists and photographers.
6. Notice of Technological and Contractual Restrictions on Digital Media. Copyright holders should be required to provide clear and simple notice to consumers of any technological or contractual limitations on a consumer’s ability to make fair use or other lawful use of a product. There would be legal consequences if that notice isn’t followed.
So, we might see a busy fall with Congress going after both patent and copyright legislation. Or not. Stay tuned.
Posted by Ken Jarboe at May 14, 2008 12:06 PM
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