For the first time in over a decade, Congress is looking at a major copyright overhaul. But before it happens, the House Judiciary Committee is looking backwards, at both a 3-year-old copyright report and what it sees as an earlier, quieter time, when intellectual property debates were the province of the courtroom rather than the internet. Behind it all is a simple question: why are people so upset about copyright law?
"No sharp elbows."
Yesterday, the Judiciary held "A Case Study for Consensus Building," the first in a series of hearings on copyright. It focused on the Copyright Principles Project (CPP), a legal study group that released a nearly 70-page report on potential reforms in 2010. Five members of the original project were selected to testify: former Copyright Office General Counsel Jon Baumgarten, law professors Laura Gasaway, Pamela Samuelson, and Daniel Gervais, and Microsoft Assistant General Counsel for Copyright Jule Sigall.
Though the Judiciary Committee did not endorse the project’s findings, it held the process up as an example of the kind of discourse it wanted: "civil," pragmatic, and run by people willing to listen. In his testimony, Sigall recalled Samuelson telling him that "the group would have diverse perspectives on copyright but all members would share a common trait: ‘no sharp elbows.’" Baumgarten agreed. "When viewed from the perspective of today’s increasingly polarized, largely distrustful, and deeply antagonistic copyright debates," he said, "the process and report of the CPP was a breath of fresh air." Senators and witnesses alike bemoaned a coarsening in the copyright debate.
"Debates in the '60s and '70s were engaged in by people who respected copyright law."
That coarseness proved a point of tension: did it simply signal a lack of respect for copyright law, or was it the result of the law becoming more important than ever? Baumgarten, who served the Copyright Office in the 1970s, appeared to be in the former camp. "I don’t think the copyright system is broken or dysfunctional," he asserted. The problem, as he saw it, was that people simply no longer wanted to protect it. Despite disagreement in past decades, he said, "by and large, the copyright revision debates in the '60s and '70s were engaged in by people who respected and in many case loved copyright law."
Sigall expressed similar disappointment. "Over the past 20 years," he said, "I’ve watched the public perception of copyright deteriorate, from a positive — if little-known — means of enriching public knowledge to the increasingly negative, and even hostile, manner in which it is sometimes viewed today." But unlike Baumgarten, he believed the issue lay with the law, which "is straining to remain relevant" in a world of widespread, instant distribution. Gervais made a similar point, pushing for a copyright philosophy based on "maximizing authorized uses," not minimizing unauthorized ones.
"Copyright is now part of almost every American’s daily activities."
As reform advocates see it, the problem isn’t just that the law is irrelevant: It’s that it actively interferes with things modern citizens take for granted. "Before the internet and digital devices became what is now probably the most widely used way of accessing copyrighted material," said Gervais, "individual consumers and users had few reasons to think about copyright in their daily lives." But now, "copyright is part of almost every American’s daily activities, from simple email to online database access to entertainment consumed at home." When the possibilities for copying and remixing are nearly endless, copyright becomes extremely visible, whether it’s seen as a saving grace, a necessary protection, or an outright evil. And when it becomes visible, it’s much easier to see how baroque and complicated the law has really become.
Outside of perhaps Baumgartner, all panelists agreed that the present copyright system needed pruning, presenting a number of suggestions that have long been discussed by reformers. Nearly everyone saw a serious problem with orphan works: pieces of art, music, or literature whose copyright has no known owner, making them almost impossible to license or adapt without breaking the law. Several suggested updating the copyright registration system, which is meant to keep a record of who owns the rights to a given work. There were also calls to limit statutory damages — a form of legal compensation that can stick defendants with hundreds of thousands of dollars in fines for copyright infringement.
"I would love to see a law that is encompassed in 20 pages."
Their proposals didn’t always sit well with either the Judiciary Committee or people whose work depends on copyright. Shortly before and during the hearing, musicians and artists began to complain that the hearing would not involve members of the creative community: one blog sarcastically remarked that it presented "a ‘broad perspective’ that didn't include any filmmakers, musicians, artists, etc." Representatives, meanwhile, pressed the panelists to pare down the law even more. "There’s 68 pages of the article you wrote!" complained Representative Mel Watt (D-NC). "I would love to see a copyright law that is encompassed in 20 pages." He sometimes characterized critics as unrepentant pirates: "Free speech doesn't mean free stuff," he warned.
It’s no coincidence that the House chose to open its hearing series with a panel on consensus. The Stop Online Piracy Act was one of the most stunningly contested bills in recent years, drawing mass protest and hyperbolic warnings on both sides. Congress, though, is also hardly immune from dismissing critics of anti-piracy laws or exhibiting general bewilderment at how the internet works. A productive copyright debate will indeed need to start with toning down the rhetoric — both inside and outside the Beltway.