Once the domain of Hollywood lawyers, the digital age has increasingly made copyright a more public-facing issue. And for years now, stakeholders in the U.S. have spoken of the need to update copyright law for the digital age—largely without results. Where does the copyright debate stand in the U.S. today? PW recently caught up with UCLA law professor Neil Netanel, author of Copyright: What Everyone Needs to Know (Oxford Univ. Press) to talk about copyright, and copyright reform.
Congratulations on the book, which offers a much-needed look at the broader policy objectives of copyright. In the digital age, the public has really become much more interested in copyright in copyright issues—is this who you wrote this book for?
Yes. My previous books have been largely for academics, but I wanted to write this book for a broader readership. Copyright law and policy—and the vehement debates that surround them—are quite complex, and are often misunderstood even by educated lay people. This book aims to clarify copyright law and policy for anyone who has questions about what the law provides, and what issues are at stake in the copyright debates.
I was especially interested in your last chapter on copyright reform. It’s been three years since Congress finished holding hearings on reform, and we’ve seen exactly one narrow bill, HR 1695, which would make the Register of Copyrights. What are your thoughts on that bill?
It’s telling, I’m afraid, that the one bill that has passed a house of Congress in the wake of Congress’s copyright reform hearings has been narrow legislation that would increase lobbyists’ influence over the selection of the Register of Copyrights. The Copyright Office should serve the public interest. That should be true regardless of whether the Register of Copyrights is appointed by the President, or the Librarian of Congress. But in our current political climate, keeping the Copyright Office within the Library of Congress and having the Librarian appoint the Register is probably a better guarantee of the professionalism of the Copyright Office.
The other policy proposal we’ve seen is to establish a “small claims” court for copyright. However, supporters acknowledge that for legal reasons participation would have to be voluntary. Do we really need a volunteers-only traffic court for copyright?
There are probably a sufficient number of such cases to make establishing small claims court for copyright a worthwhile experiment. However, participation should truly be voluntary. Only defendants that affirmatively opt-in, as opposed to those who merely fail to respond, should be subject to default judgment. And any small claims court should only award damages commensurate with the actual harm caused, not punitive statutory damages.
American publishers and authors groups are also pushing a proposal that would mandate that ISPs and websites monitor their networks and remove “pirated” content. Critics say AI filters cannot make crucial distinctions about copyright status, and that such a change would have grave implications on free speech. What’s your take? Are those concerns valid, or overblown?
Concerns over filters’ implications for free speech are overblown, I think. YouTube’s Content ID does make mistakes, sometimes tagging non-infringing videos, for example. But on YouTube, copyright owners almost always elect to monetize user videos tagged by Content ID rather than remove them, so the end result is something roughly like a blanket licensing system. It’s not perfect. But it’s a fairly minimal incursion on user speech. Unlike YouTube, Facebook and other large social media platforms with voluntarily implemented filters have not released data about how often copyright owners monetize rather than remove posted content. But I imagine most copyright owners have an overriding interest in monetizing their content on those platforms as well.
At the same time, to require all ISPs and social media platforms to implement filtering would impose a crushingly costly burden on new Internet platforms, most of which lack the immense resources of Google or Facebook. Filtering is best left to voluntary implementation by large social media platforms that, like Google’s YouTube, have the wherewithal and incentive to do so. And for platforms that implement filtering systems like Content ID, I think the law should require a user-friendly appeal process for any user whose video has been removed.
As part of a new North American trade deal announced this month, Canada will now extend its copyright period from life plus 50 years, to life plus 70 years to match U.S. law. Are copyright periods too long? Why or why not?
The copyright term is way, way too long. Prior to enactment of the Copyright Act of 1976, the copyright term was just 28 years from publication, with the possibility of renewal for another 28 years by application to the Copyright Office. And a Copyright Office study found that the vast majority of copyrights were not renewed, presumably because the copyright owner did not find it worthwhile to invest even the relatively minimal time and money required to renew.
Ideally, Congress should re-institute some kind of renewal system to sort out copyrights that remain commercially valuable after 28 years from copyrights that should expire. The Berne Convention, of which the US is now a party, forbids the imposition of formalities as a condition to copyright enforcement. But Congress could condition the availability of remedies like statutory damages and attorney’s fees on renewal.
And Congress should also address the problem of orphan works, which arose because Congress extended the copyright term and eliminated renewal. Mass digitization of legacy books and other works could bring revenues for older books and benefit the public. But even well-heeled companies like Google cannot afford to figure out who owns the electronic distribution and display rights for legacy books for which the author is long dead and the publisher out of business.
The U.S. courts are now considering a case, Capitol Records vs. ReDigi, that could impact the doctrine of First Sale in the digital age. Should licenses be able to write out the ability to transfer ownership of digital files, like we enjoy in the physical world?
This is an issue that begs for Copyright Office study and Congressional action. In principle, I think the law should be based on the substance of a transaction—in other words, the end result—not the happenstance of how the technology facilitates that transaction. However, the creation of a secondary market in electronic copies that do not degrade in quality, unlike used books, for example, might adversely impact the book market. So I think this is a question that requires further study.
Last year, I wrote column bemoaning how entrenched the two sides of the copyright debate have become—and not not red vs. blue, but tech vs. Hollywood, really. Maybe you are more hopeful than I am? Do you see any way to break the impasse, or any guiding principles emerging for lawmakers?
I generally share your pessimism about reaching a consensus on copyright reform. And now, with the involvement of the public at large—by which I mean both the remix culture and the growth of user generated content—reaching a consensus is even more difficult. Having said that, the recently passed Music Modernization Act gives me greater hope for copyright reform. The stakeholders, including online streaming services, collective licensing organizations, music publishers, and songwriters, seem to have come to a compromise agreement on how to reform music licensing. Perhaps that effort will offer possibilities for copyright reform in other industries and licensing sectors as well.