Perspective: 'Tis the season for common sense copyright

It's the season of giving, and the House Judiciary Committee could give consumers, innovators, and artists what they are asking for--fair and balanced copyright reform--and even give a holiday boost to our technology-driven economy.

A bill, H.R. 4279 introduced in the House by Judiciary Chairman John Conyers (D-Mich.) and Congressman Howard Berman (D-Calif.), has given everyone interested in workable copyright reform for the digital age an opportunity to get into the holiday spirit and start talking about compromise.

Everyone, regardless of the side they take on this hotly contested issue, believes that artists, innovators, and other copyright holders deserve to be compensated for their work, and that current copyright laws need to be updated. There is a middle ground. And it's essential to our economy that we find it.

Copyright laws must reflect the realities of the digital age, in which consumers can legally enjoy the content they purchase, and artists and innovators can use technology to create new content and new revenue without the threat of government restrictions or costly lawsuits. Instead of forcing consumers to buy a new copy of the same movie for each device on which they want to watch it (movie studios argue that existing copyright law bars loading a DVD you own onto your own iPod, even for personal use), our copyright laws should empower consumers to make full use of lawfully acquired digital content, which will drive demand for even more innovation.

So the question then becomes, what do we do about it? In this new digital world, we need to find a way to compensate artists for their work, but protect the free flow of information, ideas, and creativity. Our economy is powered by technology, and with more than half of American homes equipped with broadband, and the nation transitioning to digital television, consumer demand for digital content is exploding.

Let's be clear, H.R. 4279--named the Enhancements to Civil Intellectual Property Laws Act of 2007--is not a panacea for all that is wrong with copyright law. It falls well short of the massive overhaul needed to undo the damage inflicted by the Digital Millennium Copyright Act. Instead of empowering digital media by promoting innovation, that antiquated copyright law has imposed massive statutory damages that deter the very creativity that copyright laws are supposed to promote.

What H.R. 4279 offers, if we are very lucky, is the beginning of a meaningful conversation.

Fortunately, we don't have to start this conversation from scratch. Gigi Sohn of Public Knowledge in a recent speech at Boston University suggested replacing the "I sue you, you sue me" approach to copyright law with a rational, reasonable series of policy steps: fair use reform; limits on secondary liability; protections against copyright abuse; fair and accessible licensing; orphan works reform; and notice of technological and contractual restrictions on digital media.

These modest changes acknowledge that an entirely new copyright regime that addresses the practical realities of the digital world and user-generated content is probably not going to happen anytime soon, while also recognizing that the "idea economy" is our future. From a policy standpoint, eliminating statutory damages and codifying consumer fair-use rights are essential changes that are easy and make sense, but more importantly, they will have a significant impact on our day-to-day lives.

We can take care right now to ensure that our laws allow the next innovation to be born. In the world of copyright law and digital policy, in the spirit of the holidays, we should get together and agree that it is better to engage in productive conversations and pass reasonable reform than to continue fighting over long settled issues with no end in sight. The House Judiciary Committee understands the importance of this bill as well as anyone: not as the perfect solution for copyright reform, but as a symbol of progress and the possibility that we can someday agree on vitally needed changes.

After all, 'tis the season for hope.

Biography
Maura Corbett is a partner at Qorvis Communications and a senior adviser to the Digital Freedom Campaign.

More Perspectives

[boyurboy]

how about...

Undoing copyright being granted in excess of 25 years...that is plenty of time for a creative artist to profit before something passes into the public domain...with no extensions granted simply for reconverting the work into another format (lp to cd to sacd, etc.). that'd be nice.<br />-bb

[Teched to Death]

how about... reply

Common sense... what a novel idea! While I'm certain there are a few tweaks to be considered, this is such a wonderful way to approach this cumbersome issue.

[mr3vil]

Agreed...

I really don't think that someone who creates a copyrighted work should get royalties in perpetuity. All that does is make it so that someone can create ONE good work and never work a day in their life ever again. Just coast off the fruits of one labor. Unlike the rest of us that have to bust our ***** 40 hours or more per week.

[csven]

Agree and I'd add...

Agree that the whole time frame issue needs to be revisited. Personally, I'd start from scratch. Maybe even lower the time frame since moving the IP out to the consumer is now an almost instantaneous process.<br /><br />In addition, I think we should revisit the issue of registration; question whether or not the "automatic" provision added in the 70's(?) is doing more harm than good.

[JadedGamer]

Time to profit

Yeah - in a world where a movie or record is considered a "failure" unless it earns its costs within a YEAR or two of release, having lifetime + 70 is just a device for <br /><br />a) paying the "non-creators" like record companies executives and family members - i.e. not the creator but "secondaries", and<br /><br />b) keeping "works of art and sciences" (in reality entertainment industry products) outside the public domain where the cultural products are meant to end up. <br /><br />For instance, there are plenty of works that are unavailable to purchase because the rights holders refuse to re-issue them, thus denying the public access to those elements of the culture. Should they have this right to refuse publication? Perhaps the law also needs a clause that says that works that are kept from the public revert to the pubic domain? Copyright is after all just a right granted by the Government, they should also be able to take it away.

[hadaso]

Requiring registration

One main problem with current copyright laws is the automatic nature of copyrights: everything is copyrighted automatically, even if the creator has no intention to financially benefit from the work. And in this environment there is no way to know what may be reused.<br /><br />In the past perhaps there was some justification for not requiring registration. Nowadays that registration can mean not much more than filling an online form there is no reason not to require registration of a copyrighted work for it to receive protection of the law (protection that costs money to the public).<br /><br />An author that needs copyright protection for a work that produces profit should be required to register that work. Perhaps within a limited time (few years) after initial publication, which would grant legal protection against infringement that occurs after the registration and until a certain time when the copyright expires which hopefully would be much shorter than what happens today, and with perhaps options to delay expiration for a fee that would ensure that only works that really generate profits to their copyright holders would not pass to the public domain after a short period of protection - that would reduce the number of orphan works to practically zero while protecting those making a living off the very few works that remain popular for a long time).

[hadaso]

Mickey's not an orphan

A point I forgot in my last post:<br /><br />The very long copyright terms are often attributed to Disney's efforts to retain the copyrights on Mickey Mouse (TM). Mickey Mouse films are not orphan works. Disney still distributes them. But there's a huge number of works that are just as old but are not distributed by anyone. The copying of these works is prohibited because of a law that protects Disney's distribution privileges on Mickey, and there is often no one that can be found that can allow such copying. Many works were lost because restoration work couldn't be done on them (since someone has to pay, and without being able to distribute the restored content for lack of permission restoration is not possible. These works are orphans, and they have to die so that rich old Mickey doesn't leave home.<br /><br />What I suggested in my last post (that long copyrights would be possible only for works whose copyright holder is interested in paying a fee to keep them) would free these orphans to be adopted while preserving Disney's right to keep Mickey at home until he grows a white beard... It's good for everyone, including Disney, and differentiates between those works that the law protects and those that the the law doesn't in a way quite similar to what happens with trademarks: long term copyright would only apply to those works whose copyright owner actively makes an effort to retain the copyright.<br /><br />A requirement should be that long term copyright protection can only be applied to works that are still being actively distributed by their copyright holder (that is: are not oprphan). The copyright owner's prolonged right to the work should only be protected when the copyright owner makes the work available to the public. Otherwise anyone else shuld be aloud to make it available to the public.

[Renegade Knight]

Artist Right to be Compensated

One thing should be clarified. Copyright holders don't have a right to be compensated for their work. They have the right to compete in the marketplace and try to sell their work. Nothing more. Success will vary.<br /><br />Copyright itself gives them some rights and legal tools to keep others from interfering in their efforts to market their works.<br /><br />My professional license earned me the right to practice a certain profession. That gave me the right to compete in the marketplace in that profession. However I don't have the extra legal help given by copyright in my profession to help me out. Just like with artists. Success will vary.

[blsith]

But in your profession can your work be stolen?

Yes, but in most professions your work cannot be used by others to create revenue without your consent like artists can. It might take a year to make a painting, and someone then takes that work and duplicates it onto napkins and sells it. If you get nothing from the use of that work, it's immoral and really is stealing the other person's talent for your own benefit.<br /><br />That is the crux of the copyright issue - because you can digitally replicate a piece of work without loss, or possibly consent, you are undermining the process that the person that developed the work gets compensated. <br /><br />I still feel that much of the copyright infringement that happens, see Microsoft's piracy woes in particular, come from an over-value of the price of a product. There is a point where folks just won't pirate it because there is no profit in piracy. There is a price where customer uptake because of this price point maxes out. This is the price that should be aimed for - maximizing the price of the product to get the most revenue for it. Instead I feel our pricing structure is based on old concepts of value and market bare.

[Heebee Jeebies]

There will never be a middle ground...

That is good for the consumer or the creators of copyrighted material. In this world greed wins out. People and company want more and more money at all costs and this fact alone has driven the copyright laws to date and will continue to do so. Add in our antique and stupid government officials who like the corporations buying them only care about more and more money and the consumer is the one on the loosing end.<br /><br />People want a consumer bill of rights for airline passengers. Well, we need one for copyright as well. One that spells out in plane English what a consumer can and can't do with the copyrighted material they buy. Unfortunately, the copyright owners want something like "You can pay $20 for that DVD and only play it on one device". That isn't going to fly and until they and our government set the greed aside will continue to be on the loosing end as consumers tell them to go f'off and do what they want with what they bought with their ever increasingly hard earned money.<br /><br />Robert

[taphilo]

Lobbyist for Media Giants Control Agenda

Like anything in the world, the more money you have allows you to make your point heard above the rest. Unless there is a competing lobbying organization created to counter the large corporation's view of how to exploit creators (media giants do NOT create anything - others do and they earn $ by marketing their works) changing copyright - especially since we are not just figting the US Congress but the WORLD's (think European centric view) global treaty on how copyright should be allowed to work - Berne Convention. The US signed onto that and so that is how the DCMA came about - since it was good for the global media and they had the money to lobby Congress to agree to it. A million voices in the field is worth nothing compared to a single voice in front of a Congressman.<br />As Robert and one other stated, common sense and clear language on all produced works would do wonders. If the front of every item did state that this can only be used on Sony CD players and you must buy another version to play on your PC, and another to play on your iPod and so on - then the common people would talk to their congress and get the law changed by pulling the US out of the Berne treaty - thus DCMA would drop off and we would be back to a reasonable 20 years for copyright before going to public domain. If it is SO important to proect intelectual rights - why not change Patent Law to be the same as Copyright - life plus 70 years for a person's creation and 95 years for works owned by a corporation? Don't you think that if they had to deal - and PAY for - fundamental patents for 95 years that these companies would then change to a lower time frame?<br />State secrets become public before copyright expires (maybe they should just copyright all state secrets - more penalties and it would be protected longer.)<br /><br />And yes, I have copyrighted works (pictures and articles) so I would lose out on years worth of potential income - course that includes 70 years worth of income to my heirs after I am dead.<br /><br />Tom Philo<br /><a class="jive-link-external" href="http://www.taphilo.com" target="_newWindow">http://www.taphilo.com</a>

[firebate]

a quick rough draft of what I think copyright should state.

Common Sense CopyWrite:<br /><br />1. First owner of copyright is the subject of the material (if a subject exists) (ie. The people in the photo, drawing, or painting (objects such as buildings can not be the subject for this item)) (non transferable except into the public domain and then only with co-action of the secondary owner)<br />2. Second owner of copyright is the artist (singer, writer, painter, photographer). <br />a) When the artist is commissioned and paid to produce an item, control of the art is given to the commissioner unless specifically agreed otherwise.<br /><br />Needs work (ie. Business IP)<br /><br />3. First owner of copyright can never give up their copyright. They can have others manage it on their behalf. In any argument on this issue, 1st owner overrides management and 2nd owner.<br />4. Businesses can not own copyrights, They can manage them with owner permission.<br />5. Copyright refers only to the art, not the media on which it exists. As such copyright refers only to the intangible intellectual property.<br />6. Licenses to copyrighted material are to be based on per-user not per-seat.<br />7. The copyright holder has no control over the media on which the art is experienced only the IP contained there-on.<br />8. As the copyright refers only to the IP and not the media, the copyright holder also has no control over the ?quality of the product?. Ie. A licence to a movie grants access to the VCR quality version of the movie and the HD version of the movie equally as the only difference is the quality of the recording and not the movie itself.<br />9. Software is copyrightable but not patentable.<br />10. Different forms of art shall be protected for different periods of time. Though all can be released into the public domain earlier so long as both primary and secondary copyright owners agree.<br />a) Photos, Paintings, Drawings and related shall be protected for the life of the subject and the artist (primary and secondary copyright holders). <br />b) Music, Books (with the exception of computer code books (see below), Movies and related shall be protected for 25 years to a maximum of 50 years in special circumstances.<br />c) Because of the uniformity of computer code a shorter protection time is required. That time shall be 10 years from creation or 5 years from publishment, which ever is longer. (for the purpose of this document publishment shall be defined as the point at which the public or company begins using the art.) (ie. The release/sale of the program)<br />11. Fair Use Exceptions:<br />a) As previously stated license is for the IP content not the media or quality, there-fore copying for the purpose of back-up or to move to a different preferred media is completely legal.<br />b) Further exceptions apply for the purpose of paridy, research, library and archiving.<br />c) (see current fair-use guidelines)<br /><br />12. Infringement: (the use of the copyrighted content without license or the fair use exemption.) Fines shall be based on the moneys/products earned by the infringement *1.5). <br />13. Infringement must be intentional. Ie. Leaving a shared folder that contains the song/picture/item exposed does not constitute infringement unless it can be proven that the folder was left exposed specifically for the purpose of allowing the infringement.

[chash360]

Very well said

If only our politicians could be this concise. There would need to be some verbage of 'primary subject' such that a random person caught in the background of a photo, is not considered a copyright holder (unless the photograph was edited or published to make such a background person the primary subject). <br />The elimination of software patents is critical to future innovation. The only case in which software should ever be protected by patent is when it is required and inseparable from a patentable piece of hardware (basically device specific firmware), where both the hardware and software would share the patent together, and only if the complete device merits a patent.

[cycle003]

I essentially agree with one exception

I agree with most of your ideas except the one that businesses should not be allowed to own copyright. I believe that would stifle innovation. If a business owner is paying someone to create material then why should they retain at least some rights to that material. I'm not saying that the business should be the sole owner of the material, but companies would have very little incentive to create art, etc. without some protection. <br /><br />By the way, I particularly agree that the subject or commissioner of art should have at least equal copyright ownership as the artist. It seems ridiculous to me that I cannot reproduce a photograph of myself regardless of the photographer.

[sismoc]

Think about how ludicrous "life plus 70" is...

If current copyright law had been in effect in the 19th century then NONE of Mark Twain's work would have passed into the public domain until April 1980! (He died April 21, 1910).<br /><br />Nothing written in my lifetime will pass into the public domain until my great-great-grand-children are dead.<br /><br />Current copyright law is stealing our common culture from us. Corporate interests have bought laws so they can own our cultural heritage. Our children will be poorer because of this.<br /><br />This is so sad it is almost beyond belief.

[R. U. Sirius]

Wow, an RIAA Spokesperson Giving Me a Gift

What a crock. Come on Cnet, your audience is smart enough to know when it is being conned.