Cooperation, Patience Needed for Multistakeholder Copyright Reform, House IP Subcommittee Hears

Goodlatte asked witnesses what advice they would give the lawmakers and stakeholders looking to engage in copyright reform. The panelists responded that the group working on the CPP aimed to talk to, not past, each other. “I think we avoided the good versus evil stories,” Microsoft lawyer Jule Sigall said: The group “focused really on trying to understand the interests” of each stakeholder, rather than characterize them. Samuelson pointed to the group’s “holistic understanding that copyright is an ecosystem.” Every stakeholder has a role to play to keep the ecosystem thriving, she said. Jon Baumgarten, former Copyright Office general counsel, advised the stakeholders to be patient. “It’s going to take a lot of patience to solve these problems,” he said: “I fear that too often, people look for a very quick and simple solution to very complex problems” to match the rapid pace of technological change.

Though the project was collaborative and respectful, “this process did not generate a great deal of substantive agreement,” Baumgarten said. “There are other instances where procedural and substantive collegiality prevailed among interested parties on very difficult and complex copyright policy issues notwithstanding intense differences,” he continued. Baumgarten pointed to a successful stakeholder process involving lawyers, technologists and advocates from the motion picture and consumer electronics industries that resulted in the “emergence of the then-great new media consumer success, DVD and related formats,” in prepared testimony.

"I'm concerned that the report didn’t include a creator’s views,” said Rep. Judy Chu, D-Calif., asking the project’s members why content creators “weren’t directly involved.” Johnson submitted for the record a letter from a chapter of the National Writers’ Union, which “notes the absence of writers from the Copyright Principles Project,” he said. Samuelson responded that, though they were not directly involved, CCP participants were mindful of creators’ interests. “I don’t believe that we were excluding the interest of creators at all,” she said. “I think we were very much keeping their interest in mind."

Witnesses outlined the areas of copyright law they want evaluated. The orphan works problem -- regarding copyrighted works for which the rightsholder cannot be identified or located -- should be a priority and is “ripe” for evaluation, Sigall said. Mirroring the safe-harbor protections for providers established by the Digital Millennium Copyright Act, it may be time to consider a safe-harbor provision for consumers, to provide “certainty that the ordinary and reasonable personal use of legitimately purchased content will be enabled, not stifled, by copyright,” Sigall continued. Sameulson called on the subcommittee to examine the “hodge podge” of limitations and exceptions to exclusive rights. “Refining both the exclusive rights and also thinking in a more systematic way about exceptions and limitations to those rights should be a very high priority” as Congress considers copyright reform, she said.

How should Internet and online service providers be acting to prevent online piracy, Rep. Thomas Marino, R-Pa., asked the witnesses. Sigall outlined Microsoft’s approach to online piracy, which “focuses on the notice and takedown process” that results from the DMCA. “We work with Internet providers around the world to make sure that system is effective as possible, and I think that’s really the right approach to take,” he said.

"Free speech does not mean free stuff,” said subcommittee Ranking Member Mel Watt, D-N.C. “It cannot be that the digital age turns creators into content servants for the rest of us.” Both copyright holders and the digital companies that connect users with that copyrighted material need to evaluate how their practices comport with copyright law, he said. Ultimately, the appetite for copyrighted content across the world will be most benefited by “a robust copyright regime that protects the ... rights of creators,” he said.

Rep. Hank Johnson, D-Ga., questioned Samuelson on her characterization of copyright law as “patchwork.” What are the drawbacks to a piecemeal approach to copyright, he asked. Because of the piecemeal approach taken to formulating copyright law, “over time, the statute has become much longer,” she said: “The longer it has become, the more technical it has become,” making it difficult to read and understand. Ultimately, this does not serve the rightsholders or the people seeking to access the content, she said. “We need a law that people can read and understand."

The hearings on copyright should serve to foster and protect innovation, BSA/The Software Alliance said in a statement Thursday, commending Goodlatte and the committee for holding the hearing. “As the Committee’s review proceeds, the common goal of fostering and protecting creative works and innovation should serve as the lodestar to guide constructive dialogue and debate,” said BSA Senior Vice President-External Affairs Matt Reid. To protect the copyright system’s legal legacy, the law must continue to balance “the best interests of copyright owners and the public ... even as new technologies change the way we create and distribute protected works,” he continued. Internet and technology lawyer Marvin Ammori called the hearing “a good starting point for addressing copyright reform issues,” in a blog post (http://bit.ly/110pmuc). Unlike the process that led to the Stop Online Piracy Act, “the subcommittee is taking a look at how the current copyright system is functioning, what is working well, what isn’t, and where there might be some areas of agreement so meaningful reform can occur,” he said.