Suddenly lots of people seem to be talking about copyright reform proposals. One way to look at this is as an indication that the flaws in our current system are becoming increasingly obvious. Several commentators have noticed that the passage of patent reform bills in both houses of Congress (whatever you think of the merits of those bills) seems to coincide with a more general public recognition (including in an hour-long episode of This American Life) that our patent system is so broken as to stifle the innovation it is supposed to encourage.
There is a sense of the same phenomenon occurring in Britain as it moves along toward copyright reform legislation.The British government’s response to the Hargreaves Report indicated a desire to get copyright reform moving, and this report from IP Watch suggests that the reform effort is gaining momentum. Again, not all of the details are clear, and what we do know is mixed. The addition of a private copying right, which would decriminalize ripping a CD to listen on an iPod or scanning a journal article to read later, is a good start. If it is combined with a flexible exception similar to fair use in the US, the reform effort might really make an economic difference for Britain.
But most of the time, reform proposals are not as sweeping as what may be taking place in Britain; they tend to be responses to particular problems and are shaped to solve the perceived difficulty. I want to look at three such proposals in the United States.
First, Rep. John Conyers got some press when he called for reform that would clarify the situation for musicians and other artists who would like to exercise their “termination right” and recover rights to works they created. The termination right kicks in after 35 years to allow the artists to void copyright transfers and exclusive licenses, so some big-selling hits from the late 70s, which are still quite profitable, are at issue. Artists would like to reclaim the rights and get a larger share of the profit, which, after all, is how copyright is supposed to work. The recording industry has responded by saying that these works are “work made for hire” and not subject to termination. If one reads the work for hire definition in the copyright law with any awareness of how the music industry works, this claim is ludicrous. But to prevent endless litigation, Rep. Conyers would like to clarify those provisions so it is clear that artists are able to reclaim their rights.
Another problem in need of a legislative solution is the recent decision about the first sale doctrine that threatens the ability of libraries to lend works manufactured overseas and of students to resell their textbooks if they were printed in foreign lands. Here again a relatively simple change might be proposed. Instead of the phrase “lawfully made under this title” in section 109 of the copyright law, the wording should be changed to “lawfully protected under this title.” That would make it clear that if a copyright holder wants to have the protection of US law in the United States, consumers and users of their works will also have the normal protections of that law — nothing more, but nothing less.
Both of these proposals would require actions by Congress, and many feel that the current political climate makes such actions improbable, to say the least. A really creative take on reform, directed not at Congress but at state legislatures, comes in this paper on “A State Law Approach to Preserving Fair Use in Academic Libraries” by David Hansen of the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley. David’s paper, which gets favorable notice from the Law Librarian Blog, does an excellent job of explaining why it is problematic that library licenses so often limit fair use rights and of how federal courts — where copyright claims are heard and licensing matters usually decided based on “supplemental or ancillary jurisdiction” — have no incentive to investigate the propriety of those provisions. So David proposes state-by-state reform of contract rules to make such restrictions void as a matter of contract law, at least in regard to public colleges and universities. David correctly points out that state legislatures, concerned as they are about how public education funds are spent, have a real incentive to look at this and to realize that this simple provision would increases the efficiency of money spent on licenses.
Hansen’s proposal is very modest, and one hopes it is possible to get more sweeping reform than he suggests. He makes a good case for starting with state governments, however, and has a depressing analysis of the likelihood of Congressional action. In any case, a reform of contract rules that govern state institutions of higher education is a great place to start, and perhaps — just maybe — we are beginning to see a groundswell that can move reform up the ladder.