01 April, 2013

The Register’s Call for Updates to US Copyright Law

Not to be confused with a copyrighted seal
Being one of the biggest producers of copyrighted material in the World, the United States and its laws have clout all over, regardless of jurisdictions, through either free-trade agreements, or sheer market power. In a society where more material is accessed outside of the domestic market of a nation than ever, legislatures in all countries have to try and keep up with the constant change that we experience in the consumption of said material. In a call for copyright law reform, as reported by the Creative Commons blog, Maria Pallante of the US Register of Copyrights seeks to close the rift that exists between the consumer and the copyright holder's rights in the United States today.

In her statement Ms. Pallante says that:
"The law is showing the strain of its age... 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."
This can be applied, not only in the US, but in Europe as well. With a clear lack of proper guidelines and laws to govern both personal use by consumers, be it copying or sharing, and the courts stretch existing laws to cover areas which they were not meant to cover. Copyright laws in most common law jurisdictions are lagging behind, and there seem to be no efforts in trying to pull them towards a new era. Even in the United Kingdom there have been calls for reform, yet they seem to have fallen on deaf ears.

Orphaned works are a perfect example of the law failing to accommodate the needs and wishes of today's public. Orphaned works are effectively works which are still under copyright, where the author(s) or other copyright holders cannot be located or contacted. Google started the mass digitization of orphaned works, and faced litigation because of this, showcasing the clash of the interests of those holding the rights to the works and not utilizing them, going against the greater good through free access to these works. Should copyright prevent access to information not being used, or move towards an avenue more akin to that of trade marks, where the rights holder should actively use the work being protected? The current legal framework does not address this issue.

Ms. Pallante further expands that:
"...it is time for Congress to think about the next great copyright act, which will need
to be more forward thinking and flexible than before... A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful."
Flexibility is what the modern age requires. When technology moves at such a pace that it does these days, the new law would have to be flexible and maneuverable, both to protect the interests of copyright holders, and to help consumers use the content they have legally acquired. The path modern laws have taken in a variety of nations has been increasingly draconian, and in this writer's opinion, this trend needs to end.

The new law needs to be worded in anticipation of the ever more digital world, with the old laws concentrating on the physical mediums of copyright, the new law has to look forward to the intangible. The wording has to be open enough for the judiciary to easily apply it in a variety of situations, while being specific enough to protect the interests of rights holders. I will admit this will be a challenge for any legislature, but one where consultation needs to be sought from both sides, not merely from the ones with a clear monetary interest.

Ms. Pallante also brought up the main question that needs addressing in the new law:
"If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it... Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property."
Rounding up her argument, Ms. Pallante points out that:
"The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation."
The Harlem Shake, an example of "proper" free use of copyrighted material
This writer fully agrees with Ms. Pallante in her call for reform - not just in the US, but all over the common law. The interests of the public, and rights holders, are of equal standing, and the shift towards a more common and level playing field for both parties needs to be taken. The consumer has to have rights in using the material they have rightfully acquired, yet still keeping them from freely copying and sharing that content to provide an illegal way for others to get that material. Whether this call for reform will result in any changes remains to be seen, but this writer will remain hopeful.

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