[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
A CASE STUDY FOR CONSENSUS BUILDING:
THE COPYRIGHT PRINCIPLES PROJECT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 16, 2013
__________
Serial No. 113-31
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
80-976 PDF WASHINGTON : 2013
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
HOWARD COBLE, North Carolina, Chairman
TOM MARINO, Pennsylvania, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., MELVIN L. WATT, North Carolina
Wisconsin JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE CHABOT, Ohio Georgia
DARRELL E. ISSA, California JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah KAREN BASS, California
MARK AMODEI, Nevada CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia JERROLD NADLER, New York
RON DeSANTIS, Florida ZOE LOFGREN, California
[Vacant] SHEILA JACKSON LEE, Texas
Joe Keeley, Chief Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
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MAY 16, 2013
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Ranking Member, Subcommittee
on Courts, Intellectual Property, and the Internet............. 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 7
WITNESSES
Jon Baumgarten, former General Counsel, U.S. Copyright Office
(1976-1979)
Oral Testimony................................................. 10
Prepared Statement............................................. 11
Laura N. Gasaway, Paul B. Eaton Distinguished Professor of Law,
University of North Carolina School of Law
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Daniel Gervais, Professor of Law, Vanderbilt University Law
School
Oral Testimony................................................. 18
Prepared Statement............................................. 21
Pamela Samuelson, Richard M. Sherman Distinguished Professor of
Law, Berkeley Law School, Faculty Director, Berkeley Center for
Law & Technology
Oral Testimony................................................. 37
Prepared Statement............................................. 39
Jule Sigall, Assistant General Counsel--Copyright, Microsoft
Corporation
Oral Testimony................................................. 47
Prepared Statement............................................. 49
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Melvin L. Watt, a
Representative in Congress from the State of North Carolina,
and Ranking Member, Subcommittee on Courts, Intellectual
Property, and the Internet..................................... 4
Material submitted by the Honorable Henry C. (Hank) Johnson, Jr.,
a Representative in Congress from the State of Georgia, and
Member, Subcommittee on Courts, Intellectual Property, and the
Internet....................................................... 55
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 66
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Blake Farenthold, a
Representative in Congress from the State of Texas, and
Member,, Subcommittee on Courts, Intellectual Property, and the
Internet....................................................... 85
Prepared Statement of Future of Music Coalition.................. 86
Letter from Lee Knife, Executive Director, Digital Media
Association (DiMA)............................................. 94
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Report titled The Copyright Principles Project: Directions for Reform,
submitted by the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary. This report is available at the Subcommittee and can
also be accessed at:
http://docs.house.gov/meetings/JU/JU03/20130516/100830/HHRG-
113-JU03-20130516-SD004.pdf
Study titled Copyright in the Digital Era, Building Evidence for
Policy, submitted by the Honorable Blake Farenthold, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Courts, Intellectual Property, and the Internet.
This study is available at the Subcommittee and can also be
accessed at:
http://www.nap.edu/catalog.php?record_id=14686
A CASE STUDY FOR CONSENSUS BUILDING: THE COPYRIGHT PRINCIPLES PROJECT
----------
THURSDAY, MAY 16, 2013
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 2:55 p.m., in
room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Goodlatte, Marino, Smith,
Poe, Holding, Collins, DeSantis, Watt, Johnson, Chu, Deutch,
Bass, DelBene, Jeffries, Nadler, and Lofgren.
Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia
Lee, Clerk; and (Minority) Stephanie Moore, Minority Counsel.
Mr. Coble. The Subcommittee on Courts, Intellectual
Property, and the Internet will come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
We welcome all of our witnesses today. And at the outset, I
want to again reiterate our apology for the delay. The votes
take precedent oftentimes, and I am sorry. We appreciate your
patience.
I will give my opening statement, then call on Mr. Watt
afterwards.
This afternoon's hearing is an initial step in this
Subcommittee's effort to undertake a comprehensive review of
our Nation's copyright laws.
Last month, when Register Pallante testified before this
Subcommittee, she illustrated the mutual interest of authors
and the public. As she accurately and eloquently explained,
``As the first beneficiary of the copyright law, they are not a
counterweight to the public but instead are at the very center
of the equation. As such, the copyright law must start with the
creator as the center of the equation.'' As Ms. Pallante
concluded, ``A law that does not provide for authors would be
illogical, hardly a copyright law at all.''
Central to any review is identifying what has worked and is
working in the law. Copyright law is well-rooted, with 200
years of precedent that has produced a level of creativity and
innovation that is the envy of the world. Our consumers enjoy
an incredible selection of high-quality content that is
available on an array of technology platforms. Meanwhile, we
continue to lead the world with new ideas and creations. These
achievements are stunning and should not, in my opinion, be
overlooked.
That being said, I commend Chairman Goodlatte and Register
Pallante for recognizing the need for a comprehensive review.
Piracy is an enormous--piracy or threat--the terms are
synonymous, in my opinion--is an enormous problem that must be
addressed. Licensing is a periodic battle which oftentimes
leaves consumers with the short end of the stick. We should
take the time to consider whether there are other options.
Our high-tech innovators, which are also helping to drive
creativity, are frustrated by all of the above. Our policies
should incentivize innovation, not frustrate it.
These are some of the many issues I hope we will have an
opportunity to review to determine whether or not the law is
meeting its constitutionally-ordained purpose.
I am interested in hearing how this witness panel of
diverse perspectives on copyright law was able to put aside
their differences in an effort to work together. Such efforts
and others like them should be applauded. This Committee has
often heard from witnesses who were better at talking at each
other rather than with each other.
Of course, that does not mean that anyone should retreat
from his or her views on any subject. It should come as no
surprise that the Ranking Member, Mr. Watt, and I do not agree
on every issue that the full Judiciary Committee considers, but
we try to serve the people of our great State.
And, by the way, I am pleased to see that one of our
witnesses this afternoon is from the University of North
Carolina.
Efforts in the copyright world to recognize where consensus
can and cannot be reached are helpful as we undertake a
comprehensive review. I have no doubt that Chairman Goodlatte,
I, and other Members of the Subcommittee will hear from
interesting creators over the months ahead on how copyright is
and is not working for them.
The Register has already highlighted some problems with
copyright law, especially for the ability of copyright owners
to protect their works. The report generated by the Copyright
Principles Project and the testimony submitted today have also
highlighted problems that need to be addressed.
It seems to me that those who believe everything should be
free fundamentally disrespect the creators who have put so much
effort into their works and improve our Nation's culture as a
result.
I again want to thank the witnesses for your presence today
and for your willingness to spend to much time working in a
collegial manner with those whose views may not always embrace
or agree with. Their willingness to listen to others in such a
manner is one that I urge everyone to follow.
I am now pleased to recognize the distinguished gentleman
from North Carolina, the Ranking Member, Mr. Mel Watt.
Mr. Watt. Thank you, Mr. Chairman, and thank you for
convening the hearing.
For those of you who showed up today expecting my grandson
Nico, I have to extend my regrets. After yesterday's
performance went viral on a number of outlets, including ``Good
Morning, America'' this morning and others, he said he was
giving me no more exposure without royalties. So he is not here
with me today, although he is still in Washington for those of
you who want to sign him up.
Anyway, let me be serious. Earlier this week, I attended
the ``We Write the Songs'' event at the Library of Congress.
The auditorium was packed with an audience transfixed on the
skillfully crafted lyrics and the astonishing performances,
including the electrifying performance that earned a standing
ovation from the audience for a young group out of my home
State of North Carolina, the Carolina Chocolate Drops.
Bearing in mind the Chairman's call for a comprehensive
review of copyright law in the digital era, I left the event
with an even more passionate view that our copyright system
must preserve and protect the rights of the creators of the
music, books, games, movies, and other forms of intellectual
ingenuity that enrich each of us individually and all of us
collectively, as a Nation.
I start with this observation because it seems that, over
the past few years, there has been a shift in public discourse
about copyright away from the people who actually devote their
talent to create works for the benefit of society and those who
invest in them toward the users of those works and the
financial interests of those companies eager to commercially
exploit them.
That shift has often been accompanied by assertions of
lofty principles and constitutional values. But, as I have said
in the specific context of online theft, free speech does not
mean free stuff. And the free flow of information, even through
legitimate channels, doesn't mean that information, the
substance of what is flowing, should be free. It simply cannot
be the case that the digital age turns creators into content
servants for the rest of us.
That said, I am neither hardlined nor hardheaded about the
realties of today's marketplace or the complexity of the task
before us. The digital environment is replete with both
challenges and opportunities, but, currently, uncertainty
abounds for all stakeholders. Companies that invest in and
develop individual talent must be secure in their expectation
that strong copyright exists and that a mechanism to enforce
those rights effectively is in place. Consumers deserve clarity
about legitimate uses. And Internet and tech companies should
have clear rules to help them develop sustainable business
models that fairly compensate authors.
Companies that invest in creative talent may have to adjust
their business models to accommodate the digital revolution,
and many have. But the digital companies, some of whom have
taken to exalting their disruptive power, well, they are not
exempt from the need to adjust their practices either.
Keeping our focus on creators, while hardly novel or
radical, is seemingly controversial in some quarters. Some of
that controversy is evident in the Copyright Principles Project
report and process that we will hear about today. Some is also
evident in the reaction to the report, for example, the op-ed
authored by musician David Lowery that was published earlier
this week, which I ask unanimous consent to offer for the
record.
Mr. Coble. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Watt. As Chairman Goodlatte has made clear, the
Committee does not endorse the specific recommendations of the
Copyright Principles Project. Still, the project does contain
some useful background and insight into how parties with
divergent views might be able to engage in a constructive and
respectful dialogue.
I am particularly intrigued by the recommendation to
strengthen the exclusive right of copyright holders to control
communications of their works to the public, which I believe
more closely aligns with the principle that aims to preserve
and protect the creators' rights.
A report from this Committee in the 21st Congress observed,
``It cannot be for the interest or honor of our country that
intellectual labor should be depreciated and a life devoted to
research and laborious study terminate in disappointment and
poverty.''.
As we review copyright law and policy in the digital era,
this Committee should work to secure the rights of the
creators, who enhance our lives and grow our economy, while
balancing the interest of the public. Let me be clear that I
believe that the global appetite for intellectual property will
benefit best from a robust copyright regime that protects the
individual expressive rights of creators and authors.
Mr. Chairman, I thank you for the time, and I yield back.
Mr. Coble. I thank the gentleman from North Carolina.
And other Members' opening statements will be made part of
the record, if so desired.
I stand corrected. Our Chairman of the full Committee has
just arrived, the gentleman from Virginia, Mr. Bob Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. I apologize for
being late getting back.
Mr. Chairman, thank you for holding this hearing.
This afternoon, we will hear from several participants in
the Copyright Principles Project, who collectively have worked
on or studied copyright issues for decades. They have also
traveled here from all over the United States, and I thank them
for their willingness to be here today.
Copyright is a fundamental economic principle enshrined in
our Constitution. It has become a core part of our economy and
society in ways that Framers of our Constitution could never
have imagined.
The ways in which creators could express themselves when
the Constitution was written were very limited. Photography,
musical recordings, film, and software did not arrive for
decades, if not centuries, afterwards. Even many of these
creations have changed significantly as digital technologies
made the creation of content more diversified. Digital
technologies have also enabled wider distribution to occur.
Local artists can have a global reach.
The passion and skills of our Nation's creators have
enhanced our society and culture. Creators deserve our support
and respect.
Despite rapidly changing technologies and business models
since the enactment of the 1976 Copyright Act, there appears to
have been few efforts to bring together parties from different
perspectives to discuss how the 1976 act has worked as
technology and business models evolve. There have certainly
been short-term events where interested parties spoke for a few
minutes each about the latest technology or the latest court
decision. What has been lacking is something broader in
perspective.
What impressed me about the Copyright Principles Project
was not its report, or even on what issue its participants were
able to agree or disagree. In fact, the Committee does not
endorse the specific recommendations and findings of the
report. However, we do want to highlight that its participants,
with strongly held views on copyright law, many of which were
in direct opposition to each other, committed to spending 3
years together in an effort to productively discuss copyright
issues.
The Committee has invited five of the participants here
today as an example of how people with divergent views on
copyright law can productively debate a range of copyright
issues. Their written testimony highlights the fact that they
are all here this afternoon certainly not speaking with one
voice but speaking with a recognition that the person next to
them at the witness table has just as much right to advocate
their position on copyright law as they do.
This Judiciary Committee is no stranger to policy issues on
which opinions vary widely. This hearing room has and is
continuing to debate numerous policy issues in which there are
sharp disagreements. There were, of course, sharp disagreements
on the 1976 Copyright Act that we use today and whose hearing
record in 1975 in the Committee journals is before me.
Since announcing my interest in a comprehensive review of
copyright law several weeks ago, a variety of interested
parties began identifying their specific areas of interest that
they wanted to see reviewed. I appreciate their input, and I
look forward to working with all interested parties.
We should not be in a rush to focus on specific issues
without first recognizing the fundamentals of copyright and the
social and economic benefits that copyright brings to our
economy. It is my intention to conduct this broad overview by
hearing from everyone interested in copyright law, as we begin
by holding hearings on important fundamentals before we begin
to look at more specific issues.
There are numerous questions that will be raised by
interested parties during this review. I have several myself,
including: How do we measure the success of copyright and what
metrics are used? How do we ensure that everyone's voice is
heard? How is copyright working for individual artists? How is
copyright working for our Nation's economy? These are only a
few of the issues we will be looking into.
This review of copyright law will not be a quick process,
simply because the issues are so numerous. However, we must
undertake this review to ensure that copyright law continues to
incentivize creativity and innovation in the digital age.
I want to thank all of the witnesses for being here today.
And I definitely appreciate the Chairman's forbearance in
allowing me to give this opening statement, even though I had
to dash in to make sure it got done.
Mr. Coble. You are indeed welcome.
Mr. Goodlatte. We call all of your attention to this light
reading if you are having difficulty sleeping at night here
from 1975.
Thank you, Mr. Chairman.
Mr. Coble. I will begin by swearing in our witnesses prior
to introducing them.
If you would, please rise.
[Witnesses sworn.]
Mr. Coble. Let the record reflect that all responded in the
affirmative.
We have a distinguished panel of witnesses today.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I ask each witness, if you
can, to summarize your testimony in or about 5 minutes. When
your green light turns to amber, that is your signal. When the
red light turns red, that is an ultimatum. You won't be
penalized, but, if you could, wrap up shortly after that.
I am now pleased to introduce our witnesses.
Our first witness today is Mr. Jon Baumgarten, former
general counsel of the U.S. Copyright Office and retired
attorney at Proskauer Rose, LLP. Mr. Baumgarten was appointed
as general counsel of the Copyright Office in January 1976 by
the Register of Copyrights, Barbara Ringer. He served his term
until 1979, being a leading participant in the final
formulation of the general revision of the U.S. Copyright Act
of 1976. Mr. Baumgarten then joined Proskauer Rose as partner
in 1980 until 2011, when he retired. Mr. Baumgarten received
his J.D. degree from New York University School of Law and his
B.A. from the City University of New York.
Our second witness is Professor Laura Gasaway from the
University of North Carolina-Chapel Hill.
And Mr. Watt and I may be guilty of giving you preferential
treatment today, Professor. You are from Glory Land.
Professor Gasaway joined the UNC Law faculty in 1985 as
director of the law library and professor of law. She was
director until 2006, when she became Associate Dean for
Academic Affairs. She also co-chaired the Section 108 Study
Group for the U.S. Copyright Office of the Library of Congress
from 2005 to 2008. Professor Gasaway received her J.D. from the
University of Houston and her B.A. from the Texas Woman's
University with highest honors.
Professor Gervais, Mr. Daniel Gervais, professor of law and
director of the Intellectual Property Program at Vanderbilt
University School of Law. Prior to joining the Vanderbilt
faculty in 2008, Mr. Gervais researched international
intellectual property law for 10 years on behalf of the World
Trade Organization and the World Intellectual Property
Organization. He is currently editor-in-chief of the Journal of
World Intellectual Property. Professor Gervais received his
doctorate degree from the University of Nantes in France.
Our fourth witness today is Professor Pamela Samuelson at
the University of California Berkeley School of Law. Professor
Samuelson currently serves as director of the Berkeley Center
for Law and Technology and as a chancellor professor of
information management and law. She is currently a fellow in
the Association for Computing Machinery and also serves on the
advisory board for Public Knowledge. Professor Samuelson
received her J.D. from the Yale School of Law and a B.S. From
the University of Hawaii.
The fifth and final witness is Mr. Jule Sigall, assistant
general counsel for copyright at Microsoft Corporation, and, in
his position, Mr. Sigall leads the company's Copyright and
Trade Secrets Group. Before joining Microsoft, he served as
Associate Register for Policy and International Affairs at the
U.S. Copyright Office, where he led the division responsible
for providing domestic and international oversight policy to
both the legislative and executive branches. Mr. Sigall also
served as adjunct professor at the George Washington University
School of Law. Mr. Sigall received his J.D. summa cum laude
from Catholic University and his A.B. from Duke University in
Durham.
We will give you special treatment, too, Professor.
Welcome to you all.
And we will begin with Mr. Baumgarten. And I will remind
you again of the signal on your panel before you.
TESTIMONY OF JON BAUMGARTEN, FORMER GENERAL COUNSEL, U.S.
COPYRIGHT OFFICE (1976-1979)
Mr. Baumgarten. Thank you, Mr. Chairman.
I am pleased to appear here today in my individual capacity
in response to invitation from the Committee to testify
regarding my participation----
Mr. Watt. Could you pull your mike closer to you so we
could----
Mr. Baumgarten [continuing]. To testify regarding my
participation in the Copyright Principles Project. In addition
to having served as general counsel of the Copyright Office, I
have acted as counsel to copyright-owner plaintiffs in a number
of leading cases which are the subject of considerable
contention, as well as in nonlitigation matters to major
copyright industry entities.
In short, I have not been a neutral or, even in retirement,
a dispassionate observer of the great copyright debates; nor,
of course, were or are any of my CPP colleagues, whether the
numerous representatives of the academy or the few from the
private sector. We all brought to our deliberations strongly
held and frequently contesting views.
The CPP report is not a disinterested, independent
assessment, but it may usefully serve as one example of a
collegial and informal discussion of the important issues
facing this Committee as it again takes up its critically
important stewardship of this country's copyright law with the
assistance of the forward-looking and expert Register of
Copyrights.
When viewed from the perspective of today's increasingly
polarized copyright debates, the process and report of the CPP
was, indeed, a breath of fresh air. A hallmark was not simply
civility, but rather, real dialogue among representatives of
substantially differing views. By and large, the participants
listened to instead of speaking past each other and took the
remarks of others genuinely and respectfully into account.
As thoroughly documented in my written statement, however,
this process did not generate a great deal of substantive
agreement. Unfortunately, we referred to ``agreements'' and
``proposals'' and defined those terms in such a way that
understandably may have caused such confusion. In fact, the
report's description of many of those misnamed proposals
explicitly recorded a lack of consensus, opposing views,
expressed concerns or, in a few cases, the need for
considerably more detail, participation, and study before any
judgment can be made.
This is no surprise to this Committee, as our panel was
instructed from the very beginning to participate in issue
spotting, not to pretend to come up with a legislative package,
which, of course, is not our function. We were also asked to
demonstrate how contending parties can agree to disagree in
civil fashion.
Mr. Chairman, Members of the Committee, I will not review
my own objections and reservations with aspects of the report,
principally because for the most part the report does a fair
job of at least summarizing them, as well as all other
participants'. I probably would have written some of those
summaries different, but that was not the point of the
exercise.
But all of this does not mean that the deliberations and
report of the CPP are irrelevant to the program that Chairman
Goodlatte has announced or unsuitable as a beginning to the
difficult task of Chairman Coble, Ranking Member Watt, and
Members of this Committee. To the contrary, the report
expressed the hope that, ``recording the nature of our
disagreements could advance discourse on copyright issues by
others.''
Although the tenor of the CPP deliberations is a welcome
tempering of recent copyright debate, there are other
instances, described in my prepared testimony, where procedural
and substantive collegiality prevailed on very complex
copyright issues, notwithstanding very intense differences.
And at a personal level, if I may add, Mr. Chairman, my
friend to my left and I have probably not agreed with each
other in 40 years, but we have, over that period, had
significant discussions, significant and respectful, productive
instances, where some agreements we managed to extract.
At the risk of introducing a discordant note into this
discussion, I will conclude my testimony with an additional
point. For the reasons spelled out in my written statement, I
think it fair to consider the discussions and report of the CPP
as somewhat more attentive to perceived problems caused by
copyright to access and related interest users than to the
substantive and enforcement needs of authors and other
copyright owners in the 21st century.
As this Committee goes beyond the CPP report toward the
announced comprehensive review, I am confident that it will
take forward and expand the CPP's focus of attention to
encompass even more comprehensively the needs and concerns of
authors and other copyright owners as well as those of all
stakeholders and participants in the world of copyright.
Thank you for your time.
Mr. Coble. Thank you, Mr. Baumgarten.
[The prepared statement of Mr. Baumgarten follows:]
Prepared Statement of Jon Baumgarten, former General Counsel,
U.S. Copyright Office (1976-1979)
I am Jon Baumgarten. Having retired from the practice of law, I am
appearing today in my individual capacity in response to invitation
from Chairman Goodlatte to testify regarding my participation in the
Copyright Principles Project (``CPP''). By way of disclosure, in
addition to government service as General Counsel of the Copyright
Office from 1976 through 1979, before and after that period I served as
counsel to copyright owner plaintiffs in a number of leading cases that
established precedent and principles of copyright law which are subject
of considerable contention in today's copyright debates, as well as
counsel to major copyright industry trade associations, consortia, and
companies. I have not been a neutral or (even in retirement)
dispassionate observer of the great copyright debates. Nor, of course,
were or are my CPP colleagues, whether the numerous representatives of
the academy or the few from the private sector.
We all hold and brought to our deliberations strongly held views
borne of scholarship, citizenship, learning, experience, observation
and practice. The report of the Copyright Principles Project--The
Copyright Principles Project: Directions for Reform, 25 Berkeley Tech.
L.J.1 (2010) (``Report'')--is not a disinterested independent
assessment or impartial opinion. It may, however, usefully serve as one
example of a more frank and less rhetorical, or at least more collegial
and informative, discussion than many others of some of the important
issues facing this committee as it continues its vigilant, deliberate
and critically important stewardship of this country's copyright law.
It is important to go further and make even more clear to this
committee what the Report was, and even more important, to make clear
what it was not. As I suggested a moment ago, when viewed from the
perspective of todays increasingly polarized, largely distrustful, and
deeply antagonistic copyright debates, the process and Report of the
CPP was a breath of fresh air. (As I will mention a bit later, however,
its tenor was not entirely unique or unprecedented.)
A hallmark of the process was not simply civility, but rather real
dialog among representatives of significantly differing views. During
the discussions, and as reflected in the Report--and notably in several
cases in its evolution from draft to final form--by and large the
participants listened to instead of speaking past each other and took
the remarks of others genuinely into account in developing and putting
toward their own positions and replies. While this process yielded a
constructive exchange and, I hope, a cadre of continuing disputants who
are more understanding, tolerant, and perhaps even respectful of each
other's' views, it does not at all mean that it generated overwhelming
or even a good deal of substantive agreement. Indeed, it became
apparent quite early in the process that considerable meaningful
agreement would probably not be--as indeed it was not--the conclusion
of our efforts. That objective was, in fact, soon disavowed as even our
purpose. The Report (pg 3) notes, for example, that ``we are not in a
position to offer a comprehensive and detailed set of . . .
proposals''; that ``CPP members are not uniformly of one mind about
various steps that could lead to improvements''; and that ``we have
succeeded in . . . articulating both where we agree and where and why
we disagree''. It also cautions (pg 4) that ``participation in the
project should not . . . be interpreted as an endorsement of each and
every proposal discussed in the document. In fact, various members of
the group maintain reservations and even objections to some proposals
described as recommendations in this Report.''
I will not, in my prepared testimony, review my own objections and
reservations with aspects of the Report; this is principally because,
in tribute to my colleagues and our convener, for the most part the
Report does a fair job of explicating or at least summarizing my
concerns and those of all other participants.
Examination of the (unfortunately mis-named) section of the Report
that sets forth ``twenty five reform proposals'' makes the qualitative
preponderance of ``disagree[ment]'' quite clear. The majority of
descriptions of these points explicitly recorded (and explained) lack
of consensus, opposing views, express concerns, or in a few cases the
need for considerably more detail and study before any judgment could
be made. The express acknowledgement of disagreement among the CPP
participants appears elsewhere in the Report as well, in connection
with such important subjects as possible changes to copyright duration
(pg 10), to the definition of exclusive rights (pg 13), to allocation
of the idea/expression dichotomy (pg 16), and to application of the
preemption doctrine (pg 16).
Of the twelve descriptions that did not record explicit
disagreement, at least one (#17: expanded statement of fair use
purposes) and perhaps more were in fact the subject of substantial
reservation and objection at the meetings; two (#12: injunctions and
principles of equity; and #14: permanence of public domain) have been
subject of dissension among CPP participant related interests in the
courts); one (#19) may--as I understand it--have been since disavowed
by some or all of the same interests that supported it; one (#21:
orphan works legislation) has been explored in far greater detail by
the Copyright Office and others); and in my view few (##7; 14; 17; 19;
21) are of major doctrinal and practical significance. It is worth
noting, however, that one of these uncontested yet important proposals
(#7: right of communication to the public) is of increasing benefit to
copyright owners.
Given this lack of agreement, it is understandable for members or
staff of the committee and other readers of the Report to wonder how
the document could describe a collection of twenty five revision
``proposals'' (after explicitly concluding that ``we are not in a
position to offer a comprehensive and detailed set of . . . proposals
[pg 3]''), refer to ``recommendations'', or assert that ``we believe .
. .''. The Report explains (pgs 4, 22):
``While various proposals elicited enough support within the
group that it was deemed constructive to style them as
recommendations, we do not intend affirmative statements or use
of phrases, such as `we recommend' or `we believe' to suggest
that the group as a whole was uniformly in support of each
particular view stated. It is a tribute to the collegiality of
the group and our collective desire to foster a constructive
dialog . . . that there was enough agreement among us to set
forth recommendations in this manner.''
Given the composition of the membership and strength of dissenting
views, the ``enough support'' rationale is, at least in retrospect (and
was to some at the time) an unfortunate and inadvertently misleading
one.
But all of this does not mean that the deliberations and Report of
the CPP are irrelevant to the process Chairman Goodlatte has announced,
or unsuitable as a point of orientation or beginning to the difficult
but important task of Chairman Coble, Ranking Member Watt, and members
of this committee. To the contrary, the Report expressed the hope that
``recording the nature of our disagreements could advance discourse on
copyright issues by others'' (pg 4), that the Report ``will contribute
to a wider and more effective conversation . . .'' (pg 4), and that the
purported proposals would ``stimulate thoughtful conversation . . .''
(pg 12). If my CPP colleagues and I have proven ourselves useful to the
committee in that posture then we may conclude that our time in the CPP
was not only intellectually rewarding and socially pleasant, but also
productively spent.
Although the tone and tenor of the CPP deliberations and
conclusions is a welcome tempering of at least the decibel level of
recent copyright debate, there are other instances where procedural and
substantive collegiality prevailed among interested parties on very
difficult and complex copyright policy issues notwithstanding intense
differences. For one example, the sometimes harshly contrasting and
loudly voiced positions of the motion picture industry on the one hand,
the consumer electronics industry on another and the information
technology industry on yet a third on certain copyright issues are very
well known to this committee. Yet over a period of several years a
number of us--notably including counsel, technologists, and business
persons from each group--repeatedly convened, carefully explored each
other's concerns, put aside the rhetoric, and in result created the
legal and technical environment--and with the essential aid of
Congress, the critical legislative support--for emergence of the then
great new media consumer success, DVD and related formats. There are
other examples of productive professional collegiality existing side by
side with or under the surface of simmering copyright controversy.
Since at least the years of the great copyright revision program of the
1960's and 70's and to more recent times, these include negotiated
guidelines and even legislation, and multi-party studies and reports.
Not all have survived the years, the progress of technology, or the
evolution of political strategies; some have not yet become effective
or operational; others have been perhaps more the product of
congressional prodding than of voluntarily initiated association. Yet--
at least in my own experience--for the greater part, much like the CPP,
these events have ``proven that it is possible for persons of good will
with diverse viewpoints and economic interests to engage in thoughtful
civil discourse on even the toughest and most controversial copyright
issues [Report pg 4].''
At the risk of now suddenly introducing an extra discordant note
into this discussion, I will conclude my testimony with an additional
point:
I think it fair to consider the discussions and Report of the
CPP as somewhat more attentive to perceived problems caused by
copyright to access and related interests of ``users'' than to
the substantive and remedial/enforcement needs of ``copyright
owners'' in the Twenty First Century. (I do apologize for
resurrecting this old and imprecise class distinction; but for
the moment it serves a purpose.) In my judgment, nineteen of
the twenty five points examined by the Report (all but ##5, 7,
9, 23, 24 and 25) can reasonably be categorized as addressing
``user'' access and related concerns. Please understand that I
am speaking here in comparative terms of the CPP's focus of
attention; not of its absolute substance. Indeed, there are
notable acknowledgments of copyright owner interests in both
specific ``proposals'' (#7: communication to the public; #9:
recognizing importance of ISP responsibility, though with
substantial disagreement on implementation; see also, ##5 & 23
[small claims and treatment of contributions to software] and,
for individual authors ##24 & 25 [termination and attribution
rights]); in many of the discussions of recorded objections and
concerns to other ``proposals''; and in other sections of the
Report as well. For example, it is most welcome to see instead
of the more commonplace copyright trampling rush to instant
gratification of an immense technology enhanced appetite for
immediate content, the following: ``It may take some time and
patience to allow disrupted copyright sectors to consider,
experiment with, and develop other or more refined models and
approaches with which they will be reasonably comfortable [pg
2].'' It is comforting as well to note the Report's tight
categorization of the Supreme Court's Sony Betmax decision as
involving only some device ``makers'' and time shifting of free
to air broadcast [pg 5] rather than the far broader if not
unbounded cloak of immunity for primary and secondary
infringement liability wrongly accorded to that decision by
others; its recognition of copyright's importance to
``encouraging provision of capital and organization needed for
dissemination of works'' as well as to authorial effort [pg 2];
and the importance of developing and deploying technical
protection measures in the digital age [pg 19].
As this committee goes beyond the CPP Report toward the announced
``comprehensive review of copyright law'' I am confident that it will
take forward and expand the CPP's ``focus of attention'' to encompass
even more comprehensively the needs and concerns of copyright owners as
well as of all stakeholders and participants in the world of copyright,
and of the public.
I am confident of that because I have seen and closely experienced
this committee, including its predecessors, do so before. During the
last omnibus copyright revision I spent many hours as Copyright Office
General Counsel assisting committee staff and members in addressing
major concluding issues of the revision program and its implementation.
Prior to and after that period I had numerous opportunities to confer
with the committee on behalf of clients affected by its copyright
related deliberations. I have high regard for its process, deliberation
and expertise; but I add, rather selfishly, that today, having retired
from practice, I am particularly delighted to experience something of a
homecoming in venue and in substance, and I am thankful for the
opportunity to appear here again.
__________
Mr. Coble. Professor Gasaway?
TESTIMONY OF LAURA N. GASAWAY, PAUL B. EATON DISTINGUISHED
PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
Ms. Gasaway. Thank you.
Chairman Coble, fellow North Carolinian, and Ranking Member
Watt and Members of the Subcommittee, thank you so much for
inviting me to participate in this distinguished panel.
I have worked with these folks for many years, and, as Mr.
Baumgarten told you, he and I have worked together probably
more than 35 years, usually taking opposite positions but
remaining friends all that time.
I have participated in a number of groups working on
copyright issues over the years, representing the Association
of American Universities in the Conference on Fair Use, and, as
you mentioned, co-chairing the Section 108 Study Group, and
then most recently as a member of the Copyright Principles
Project.
You also heard that I am both a law librarian and a law
professor, and so it is natural that my focus throughout my
career has been on libraries, archives, museums, and
educational institutions, not only on the use of copyrighted
works by these institutions but also on the creation of these
works by faculty and employees.
My written statement mentions educational uses, but in my
comments today I am going to talk just about libraries,
archives, and museums.
Copyright concerns have been part of these institutions
long before the 1976 act and the advent of photocopying. The
1976 act does not work so well on a number of fronts but
especially for libraries, archives, and museums and for their
users, visitors, and students. The current act is bewildering,
to say the least, often even to copyright lawyers.
I believe there are three potential ways to solve the
copyright problems that these institutions face. And when I
call them copyright problems, I mean how do we deal with users
and still protect the rights of creators, which so many of you
eloquently spoke about.
The first would be a total revision of the Copyright Act
based on principles, I would hope removing some of the
regulations from the statute and putting them into the Code of
Federal Regulations, where as a law librarian I will tell you
they belong, rather than in the statute, and at the same time
taking into account the unique roles that libraries, archives,
and museums play in our society.
For example, as a matter of principle, recognize the roles
of these institutions and allow them to provide access to
works; permit the reproduction of portions of works even in
digital format in order to encourage research, scholarship, and
private study. As a matter of principle, the Act could ensure
the ability of these institutions to preserve works digitally
so that they are available for future generations.
In addition to the Copyright Principles Project, another
model of these principles might be the European treaty
proposals that I mention in my written statement.
A second proposal would be to repeal section 108 and rely
solely on section 107: fair use. The Copyright Principles
Project highlights the difficulties with this approach, which I
believe are exacerbated for frontline employees in libraries,
archives, and museums.
Sometimes I think academic law librarians and academic
librarians at large institutions, which have legal counsel to
advise them, would like to rely solely on fair use. But I will
tell you that public librarians and librarians in small
colleges, which may not have any legal counsel, much less one
that is familiar with copyright, are often faced with a user
standing at a desk kind of ranting and raving and wanting to do
something, and they need an immediate answer. If only copyright
lawyers can understand and apply the Act, something is
fundamentally wrong.
A third way to solve the problem for libraries, archives,
and museums is to enact the recommendations of the Section 108
Study Group and update them, as detailed in my written
statement.
But there are two other issues that are crucial to these
institutions: solving the orphan works problem and finding a
way to deal with mass digitization. These are serious issues
facing these institutions as well as society.
Determining and maintaining the appropriate balance in
copyright is not an easy proposition, but, as the Copyright
Principles Project illustrates, it is possible for people of
good will to come together, discuss difficult issues, and reach
some agreements. But they must keep foremost in their minds
what is best for society and not just what is best for their
constituencies.
Thank you so very much, and best wishes to you as you begin
this endeavor. If I can help in any way, I would be delighted
to do so. Thank you.
Mr. Coble. Thank you, Professor Gasaway.
[The prepared statement of Ms. Gasaway follows:]
Prepared Statement of Laura N. Gasaway, Paul B. Eaton Distinguished
Professor of Law, University of North Carolina School of Law
Distinguished Chairman Goodlatte, Ranking Member Watt and Members
of the Subcommittee on Intellectual Property, Competition, and the
Internet: Thank you for inviting me to talk to you today about revising
the Copyright Act. I am a law librarian and law professor, and I have
worked in copyright arena since 1973 focusing on the use of copyrighted
works in libraries, archives and educational institutions and the
creation of copyrighted works by faculty and employees of these
organizations. I was the co-chair of the Section 108 Study Group;\1\ a
group convened to consider recommend changes to the library and
archives exceptions embodied in section 108 of the Copyright Act. I was
also a member of the Copyright Principles Project.
---------------------------------------------------------------------------
\1\ The Section 108 Study Group was created by the U.S. Copyright
Office and the National Digital Information Infrastructure and
Preservation Program of the Library of Congress. It issued its report
in 2008.
---------------------------------------------------------------------------
Libraries, archives, museums and educational institutions have
experienced tremendous changes over the past few decades; they have
been active adopters of technology to improve internal processes, to
provide increased access to information and to update educational
methodology to meet the needs of students today. The digital age has
revolutionized these institutions as well as copyrighted works which
are increasingly available in digital format. The 1976 Copyright Act
was enacted in the very early days of this revolution, and no one
envisioned creation of the Internet, the importance of digital works
and the rise of user generated content. These changes are highlighted
in the report of the Copyright Principles Project. For libraries,
archives, museums and educational institutions, the ability to rely on
digital technologies to perform their traditional functions is crucial.
These institutions are also beginning to engage in new activities such
as digital preservation and even so-called ``mass digitization.'' The
current statute does not deal with any of these issues. At the same
time, the creators of copyrighted works must be protected, encouraged
and compensated for their works, if they so choose, while making their
works available to the public. This means that whatever changes to the
copyright statute are adopted must create a balance between creators
and users of copyrighted works.
I have thought long and hard about how to solve the problems that
libraries, archives, museums and educational institutions encounter in
dealing with digital works as copyright owners increasingly attempt to
lock down their works with restrictive licensing provisions. For these
institutions, just trying to comply with the current complicated
statute is expensive and maybe even cost prohibitive. Moreover, today's
students and library patrons demand that works be made available in
digital format, but the current Copyright Act makes it difficult to
provide these copies and still comply with the provisions of section
108. There are three possible ways to ameliorate these problems while
still providing necessary protections to copyright owners. (1) Develop
a new copyright act that is flexible, less technical and easy for
ordinary people to understand, one that is based on underlying
principles rather than lobbying efforts that eliminates the difference
in the ways different types of works are treated under the statute. An
example of such an approach is the Treaty Proposal on Limitations and
Exceptions for Libraries and Archives developed jointly by the
International Federation of Library Associations, the International
Council on Archives, Electronic Information for Libraries and
Innovarte, a library non-governmental organization.\2\ (2) Repeal
section 108 and rely solely on the fair use doctrine to provide these
entities with the flexibility they need to fulfill their missions and
provide materials to their users, patrons, faculty, staff and students.
(3) Revise section 108 of the Act to expand the exceptions to the
exclusive rights of the copyright owner to take into account the
changes wrought by the digital age in accordance with the Section 108
Study Group Report \3\ and update and expand those recommendations.
---------------------------------------------------------------------------
\2\ See http://www.ifla.org/files/assets/hq/topics/exceptions-
limitations/documents/TLIB_v4.3_
050712.pdf.
\3\ See http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
---------------------------------------------------------------------------
The first alternative comes from the Copyright Principles Project.
The focus would be on providing to users of libraries and archives,
visitors at museums and students, faculty and staff of educational
institutions the ability to use copyrighted works in a non-commercial
manner to provide access to copyrighted works to their users. It would
require a flexible statute that is truly technology neutral. The
European Treaty Proposal on Limitations and Exceptions for Libraries
and Archives \4\ includes the ability for libraries and archives to
lend tangible copyrighted works to a user or another library; to
provide temporary access to copyrighted works in digital format to user
or another library for consumptive use; and to provide a copy of a
copyrighted work in connection with a user request for the purpose of
education, research or private use, provided that the reproduction and
supply is in accordance with fair practice. For preservation or
replacement, the proposed treaty permits libraries and archives to
reproduce works and allows preserved or replacement copies to be used
in place of the originals in accordance with fair practice. Another
general principle in the proposed treaty is that libraries and archives
are permitted to reproduce and make available to the public any work
for which the rights holder cannot be identified and located after
reasonable inquiry. The treaty proposal deals with digitization only as
a preservation matter or to meet the needs of people with disabilities,
however.
---------------------------------------------------------------------------
\4\ See supra note 2.
---------------------------------------------------------------------------
The second method to solve the statutory copyright problem for
these institutions is to repeal the current section 108 and rely
entirely on fair use. Fair use may offer much of what these
institutions need, but as the Copyright Principles Project noted, the
application of fair use is highly technical and often requires
interpretation by a copyright lawyer to provide librarians, archivists,
museum staff and faculty the answers they need. Many librarians may
prefer the fair use solution but there are also significant
difficulties with relying on fair use to such an extent. For front-line
employees of these institutions fair use is too indefinite and fails to
provide the immediate guidance they need to answer questions about
whether a particular activity is likely to be infringement,
particularly when those questions come from a user who wants a quick
answer. Further, fair use was never intended to be relied upon so
substantially, and it is likely overused today.
The third alternative solution is to amend section 108 to take
digital issues into account in a more comprehensive but flexible
manner. Clearly, in 1976, section 108 was drafted for the photocopy
era; the 1998 amendments improved the statute to permit some digital
copying, but they did not really provide what was needed for these
institutions to function in a digital world. The Section 108 Study
Group, made up of experts from libraries, museums and archives as well
as the experts from the copyright content community, spent three years
addressing how to amend the library and archives section of the Act.
The Study Group Report offered some recommendations and reached other
conclusions short of recommendations.\5\ But even those recommendations
and conclusions are now dated; digital technology as well as library,
archives, museum and educational institution practices are simply
moving too fast. So, one approach is to enact the changes recommended
in the Section 108 Report but also to update them. There are other
issues that must be addressed, however, such as orphan works and mass
digitization. The need to solve the orphan works problem was
highlighted by the Copyright Principles Project. Other organizations
and institutions in addition to libraries, archives and museums are
interested in large digitization projects, so that the issue might be
addressed either within the exceptions for libraries, archives and
museums or outside of the section 108 exceptions.
---------------------------------------------------------------------------
\5\ See supra, note 3.
---------------------------------------------------------------------------
The Section 108 Study Group recommended changes to the existing
section 108 to include adding museums to the institutions eligible to
take advantage of the exceptions but also with better definitions of
libraries, archives and museums that qualify for the exception or by
adding additional criteria for qualification such as having a public
mission, a trained professional staff and having a lawfully acquired
collection. Any amendment should also include the ability for these
institutions to outsource covered activities as long as the contractor
is acting solely as the provider and cannot retain copies of the works
digitized. Further, there would be an agreement between the parties to
permit rights holders to obtain redress for infringement by the
contractor.
For preservation and replacement, subsections 108 (b)-(c), the
current statute permits the making of digital copies, but it restricts
the total number of copies to three. Any amendment should change the
three copy limitation to a reasonable number of copies in order to
provide one usable copy. Statutory change should also provide for
refreshing digital copies as needed and upgrading them to new platforms
when necessary. Moreover, the Study Group recommended removing the
current ``premises'' requirement in (b) and (c) if the original work
that has been preserved or replaced could be used outside the premises
of the institution. Two new preservation subsections should be added to
the statute according to the Section 108 Study Report. The first would
permit up-front preservation of publicly disseminated digital works
because once a digital work has begun to deteriorate, it is too late to
preserve it. Libraries, archives and museums that undertake such
preservation would be required to meet additional criteria such as
maintaining preserved copies in a secure, managed, monitored, best
practices environment and to adopt transparent means to audit the
practices, standard security and a robust storage system with backup
copies. The second new recommended preservation subsection would permit
the preservation of publicly available websites and online content that
is not restricted by access controls. The idea is that this exception
would produce a curated collection of websites, available after an
embargo period for which copyright owners could opt out, but not if the
website is a government or political website. Preserved websites would
have to be labeled as such.
The Section 108 Study Report contained other recommendations and
conclusions in addition. Although the Group did not agree broadly on
providing off-site access to preserved and replacement digital copies
and to users who request digital copies under subsections 108(d)-(e),
there was agreement that academic institutions with a defined user
group (such as students, faculty and students) which have a way to
authenticate these users before providing such access could give off-
site access to individual, authenticated users without harm to
copyright owners. Libraries and other institutions that qualify for the
exceptions but which do not have such narrowly defined user groups were
more problematic for the Study Group. The ability to provide digital
copies to users is a crucial need for the modern era--users are
demanding such access, libraries have the ability to provide these
copies and to warn users about further distribution of the digital
copies. Any amendment to section 108 should provide for off-site access
with conditions to prevent further distribution.
For libraries and archives within educational institutions, many of
the copyright problems they encounter deal with providing materials for
students and faculty for teaching, learning and research. Digital
technology has changed the way courses are taught, the way that
students learn and how they access and interact with material.
Copyright issues for educational institutions can also be dealt with in
the three ways described above: from a general principles approach, by
reliance on fair use alone, or by specifically amending the exceptions
in sections 108 and 110(1)-(2).
Changes to modernize and update the Copyright Act may require
society to reevaluate its values: is the primary value of copyright
making works available through these important institutions for the
purposes of educating the populace, teaching and learning, scholarship,
etc., or as stated in the 1790 Copyright Act ``the encouragement of
learning''? Or is the primary value of copyright maximizing profits for
rights holders? Are both of the goals essential to fulfill promotion of
the progress of science and the useful arts? How can these competing
purposes of copyright law be balanced to provide maximum benefit for
society? Balancing these goals will be difficult to accomplish, but it
must be done if our society is to flourish and maintain its competitive
position in the world.
__________
Mr. Coble. Professor Gervais?
TESTIMONY OF DANIEL GERVAIS, PROFESSOR OF LAW,
VANDERBILT UNIVERSITY LAW SCHOOL
Mr. Gervais. Chairman Coble, Ranking Member Watt, Members
of the Subcommittee, thank you for the invitation to appear
before you today.
I wish to begin by commending this Subcommittee for its
leadership in tackling this issue of utmost importance and
economic significance.
It is time, I believe, to embark on the process that will
give us what the Register of Copyrights recently referred to as
``the next great Copyright Act,'' as was done three times in
the past: 1790, 1909, and 1976. So much has happened since
1976, when personal computers, the Internet, and the
digitization of music and the phenomenon of social media were
not yet realties.
Copyright should allow professional creators, whom I see as
small businesses, to get a fair return on their creative
investment when their work is successful in the marketplace. It
should also allow many sustainable business models to flourish
in producing, exporting, and providing access to U.S.
copyrighted material around the world.
Copyright should also be balanced. Individual users should
have fair access to copyrighted material and be able to take
advantage of the almost infinite possibilities that the
Internet offers.
As I explain in my written statement, making copyright work
should focus on maximizing authorized uses of copyrighted
material because then everyone wins, instead of focusing solely
on minimizing unauthorized uses.
I believe that copyright modernization is necessary in part
because copyright law is now everyone's business. It was not
always so. Before the Internet and digital devices became what
is now probably the most widely used way of accessing
copyrighted material, individual consumers and users had few
reasons to think about copyright in their daily lives.
Copyright was a set of rights for and negotiated between
professionals such as authors, publishers, record companies,
and broadcasters. For them, dealing with complex rules was part
of the cost of doing business.
Individuals who purchased copies of works in the form of
books, tapes, or CDs had ownership rights, in fact, in those
copies. As a result, copyright constraints were mostly
irrelevant in the daily lives of most Americans.
That situation has changed dramatically. Accessing a song
online, downloading an e-book, or streaming a movie generally
requires a license, which may restrict the uses that
individuals can make of the material. Technological locks may
also be in place.
On the flip side, however, technology has made it much
easier to copy, modify, and disseminate copies of material,
including sometimes material that belongs to others. This
points to a need to clarify the language of the statute but
also, and more importantly, the scope of rights, exceptions,
and remedies.
The international dimension is also relevant. I provide
details in my written statement. Let me just say that the
international picture is beginning to look like a patchwork of
rules. I believe a comprehensive review of the statute should
allow a clearer path for U.S. leadership in global copyright
discussions.
I would also like to say a few words, if I may, about
licensing. Both individual and collective licensing have become
an important vehicle through which creators and other rights
holders monetize their creative work. Let me give a brief
example of each.
Collectively, many songwriters and publishers authorize
performing rights organizations, such as ASCAP or BMI, to
license musical works for broadcasting and streaming.
Individually, authors and publishers may license, say, a
foreign publisher to translate or publish an e-book or a book
in another country.
Whether the Internet will perform adequately in years to
come as a viable marketplace for copyrighted material is in
large measure a function of whether licensing can work. The
statute contains eight compulsory licenses. Those are usually
fixes to temporary problems, but they tend to become permanent.
One of those licenses was first established for player pianos.
I point out many of the other issues in my written statement.
I believe the best way forward is to leave some discretion
to a specialized agency, such as the Copyright Office, to
decide from time to time whether changes are required to those
licenses, whether an existing license is still needed, or even
whether a new one should be established.
Finally, formalities also need to be modernized. When you
buy a car, the fact of the car's existence is not, unless
perhaps you are a student of philosophy, one that most people
would doubt. Registration may confirm things like the model or
place of manufacture. For a copyrighted work, it could be the
author, the publisher, or the year of publication. But buying a
car requires a determination that the person selling the car
has the title to the vehicle. This is where recordation of
transfers comes into play. I believe that a heightened
recordation requirement would ameliorate the number of issues,
including orphan works.
In closing, I commend the Subcommittee for its leadership
in this important endeavor and invite any questions that you
may have. Thank you.
Mr. Coble. Thank you, Professor Gervais.
[The prepared statement of Mr. Gervais follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Coble. Professor Samuelson?
TESTIMONY OF PAMELA SAMUELSON, RICHARD M. SHERMAN DISTINGUISHED
PROFESSOR OF LAW, BERKELEY LAW SCHOOL, FACULTY DIRECTOR,
BERKELEY CENTER FOR LAW & TECHNOLOGY
Ms. Samuelson. Thank you.
Mr. Coble. Your mike is not activated.
Ms. Samuelson. I am sorry.
Mr. Coble. A little closer to you, if you will.
Ms. Samuelson. Mr. Chairman, Members of the----
Mr. Coble. That is better.
Ms. Samuelson [continuing]. Subcommittee, thank you for the
opportunity to come and talk about the Copyright Principles
Project.
This is a project that I initiated, I convened. And I
convened it after having a series of conversations with
copyright lawyers, both in practice and in industry, and also
with then-Register of Copyrights Marybeth Peters. And all of
these people encouraged me to organize a conversation to bring
together a group of people who had expertise in different parts
of the copyright regime and who could talk together about what
is working well with copyright law today and what might need to
be updated.
So it was an effort to reach out to people of different
points of view and to bring together a group of people who
would be willing to have a series of conversations over time
and see whether, at least on some issues, we could reach
consensus.
And while I didn't highlight this in my statement, I think
it is worth mentioning that some part of the report that we
wrote actually discusses parts of copyright law that we think,
in fact, are really valuable. I think that all of the members
of the Copyright Principles Project really believe that a good
copyright law is important to society as well as to creators.
But we think, I think, that some changes may be needed, and
partly this is because the statute has become extremely
lengthy. It is very complicated. I have never been able to read
it from start to finish. And it seems to me that if we have a
law that applies to pretty much everybody who is both a user
and a creator, that the law ought to be somewhat more
comprehensible than it is today. And I think Register Pallante,
when she appeared before this Subcommittee recently, also
indicated that comprehensibility was really something to be
striven for in whatever comprehensive review might be
undertaken.
Of course, because the law was drafted largely in the
1960's, not enacted until the 1970's, it was a law that
predated the Internet, predated many of the challenges that the
courts have been facing in recent years. And it is no surprise
that things like the reproduction right, the distribution
right, and the public performance right have been difficult to
apply because they were written at a time when the technology
was very different.
So I think that some fine-tuning of exclusive rights is a
very important part of the comprehensive review that is under
way. And I hope that some of the ideas that were in the
Principles Project report might at least give rise to some
useful conversations about how those rights might be tailored
to our current environment, and maybe, in fact, some new right
might be needed.
One of the things that the Principles Project talked about
was the communication to the public right. This is actually
something that is in international treaties. The United States
doesn't have it. It does seem to me that, to be more consistent
with the international copyright regime, that it might be
beneficial to think about what that right ought to do that
would be different from the public performance right.
And while I could go on on many other issues, I did want to
raise a couple of things that I think that we, with the
Principles Project, were able to accomplish.
One was to think forward, in a forward-looking way, about
reviving the registration-of-copyright regime. We think that
there is not enough good information out there to facilitate
licensing today and that a better regime, a regime that
encourages more registration so that we have more information
to facilitate licensing, would be desirable. And we think that
there are some advances in technology that really can help with
that.
And, finally, I do want to mention that I agree with the
Register of Copyrights that there needs to be some guidance
about statutory damages. At the moment, I have done a big study
about statutory damages which shows that there is a lot of
inconsistency in statutory damage awards. And although the
statute says that those awards should be just, the Principles
Project group reached some consensus that sometimes the awards
in these cases are excessive.
One of the things that is a concern to me as a Californian
is that many of the companies in the Bay Area and elsewhere,
who are high-technology companies, are worried about statutory
damages that are having a chilling effect on innovation. I
think that it would be desirable to provide guidance, and I do
in my testimony and elsewhere, suggest some of the ways that
guidance could be provided.
Thank you very much.
Mr. Coble. Thank you, Professor.
[The prepared statement of Ms. Samuelson follows:]
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Mr. Coble. Mr. Sigall, you are the cleanup hitter.
TESTIMONY OF JULE SIGALL, ASSISTANT GENERAL COUNSEL--COPYRIGHT,
MICROSOFT CORPORATION
Mr. Sigall. Thank you, Mr. Chairman.
Chairman Coble, Ranking Member Watt, Members of the
Subcommittee, thank you for inviting me to appear today to
discuss copyright law and its potential reforms.
Copyright has been an important part of our economy and
culture since the founding of our Nation, but, as Register
Pallante has noted, the current law is under stress brought on
by technological change that continues to advance rapidly and
by shifting patterns in the way expressive works are created,
disseminated, enjoyed, and reused.
Today, the law is straining to remain relevant in the world
of smartphones and tablets connected to the Internet and in the
face of the demands of consumers, who expect to access, use,
and share creative works through any device at any time in an
instant. This stress is reflected in the heated and often
strident public debate that copyright policy seems to generate
these days.
The Committee is to be commended for beginning a dialogue
about how our copyright system can be improved to meet these
new challenges, and I am honored to contribute to that
discussion. I am hopeful that the dialogue will include a wide
range of stakeholders and consider a broad set of topics and
approaches to reform and that participants will engage in a
manner that is at all times constructive, clear-eyed, and
civil.
I believe this can be achieved because I have seen that
kind of copyright debate take place during the Copyright
Principles Project. When Professor Pamela Samuelson asked me to
join the project, she explained that the group would have
diverse perspectives on copyright but all members would share a
common trait: no sharp elbows, she explained.
I was interested in the Principles Project because, during
my nearly 20 years in copyright, I have watched its public
perception deteriorate from a positive, if little-known, means
of enriching public knowledge to the negative and even hostile
manner in which it is sometimes viewed today.
In this environment, progress can prove elusive even when
there is general support for reform. For example, a broad
spectrum of stakeholders support fixing the orphan works
problem, but that discussion has at times been heated, and the
path to legislative action has been marked more by hurdles than
by progress.
In my current role at Microsoft, I see firsthand and every
day the ways in which copyright law is struggling to keep pace
with the dynamic technology environment. As a copyright owner,
Microsoft has long relied on copyright to protect our core
software products like Windows and Microsoft Office and to
ensure that our customers enjoy legitimate and safe copies of
our software. Our world-class antipiracy team has created tools
based on copyright to make that protection real.
From the user side, on the other hand, I have seen how
ambiguous areas of the law are sometimes strained to question
the ordinary and reasonable personal use of copyrighted works.
I am not talking about piracy here but situations in which
consumers who legitimately purchased content are confronted and
confused by assertions that actions enabling the enjoyment of
that content are somehow infringing. This tactic creates
needless uncertainty and risk for businesses that are trying to
provide tools that simply help consumers communicate and share
information in the networked world.
These are the dual perspectives I brought to the Copyright
Principles Project.
In my remaining time, I would like to highlight three ideas
that were discussed in the Principles Project and that will be
important in possible reforms.
First, the copyright system must understand, accommodate,
and support the new generation of creators and business models
enabled by the Internet that often operate independent of
established publishers, distributors, and collective
organizations. Often, when these authors look to copyright and
how it might help them develop and market their works, they are
mystified by a system built for traditional modes of
distribution and not the new channels.
Second, as I noted earlier, the lack of clarity around
reasonable and ordinary personal use has contributed to the
declining public reputation of copyright and a lack of respect
for the law among some consumers. Fifteen years ago, in the
Digital Millennium Copyright Act, Congress helped launch a new
wave of online services by establishing a safe harbor that
limits the uncertainty and risk faced by telecommunications
companies, search engines, and other online businesses. It may
be time to consider a safe harbor for consumers, providing
certainty that the ordinary and reasonable personal use of
legitimately purchased content will be enabled, not stifled, by
copyright.
As my final point, copyright reform needs to improve the
infrastructure of the law, which works best when information
about who owns a particular work and where and how to contact
the rights owner is available and flows very easily throughout
the system. International treaties crafted decades before the
digital era prohibit formalities, but, given the current
extended copyright term and the availability of tools that
readily collect and make such ownership information available
online, it is time to consider whether the law has the right
incentives for dissemination of copyright information at the
speed and at the scale that the Internet requires.
Reform like this can help in many ways. It can address the
orphan works problem, remove uncertainty for users, facilitate
new uses and new modes of dissemination, and help individual
authors obtain real and practical enforcement and respect for
their copyright.
Thank you again for the opportunity to appear today, and I
would be happy to answer any questions you may have.
[The prepared statement of Mr. Sigall follows:]
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__________
Mr. Coble. Thank you all again for your testimony today.
A journalist friend of mine saw me recently, and he said,
``I note that you sit on the Intellectual Property
Subcommittee. How do you like it?'', he said. I said, ``Oh, I
find it very provocative, very interesting.'' He said,
``Intellectual property law is the most dull, boring law.'' He
didn't say that it induces sleep, but he came close to it. I
said, ``Get used to it because intellectual property is not
going away.''
And thank you again.
And, folks, we try to comply with the 5-minute rule, as
well. So if you could keep your answers as terse as possible,
we will be appreciative.
This is to all witnesses. I will start with Professor
Gasaway. In March, the Register testified before this
Subcommittee about her top priorities that included such topics
as felony streaming and orphan works. What copyright issues are
your top priorities?
And we will start with you, Ms. Gasaway, and work our way
down.
Ms. Gasaway. Thank you.
Obviously, solving the problem for libraries, archives, and
museums. And included in her priorities was also section 108
and looking at the study group again. And she did reconvene the
study group to come back and talk for 1 day about how we saw
what had happened in the 5 years since--I guess it was only 4
years at that time--since the study group report was issued.
So that would be my top, to look at that. But the orphan
works issue is huge. And so is--I actually don't like the term
``mass digitization,'' although I guess we would have to say
that is what Google Books and maybe HathiTrust is doing. But
many more libraries and archives and museums are doing large
digitization projects, but I wouldn't call them ``mass
digitization.''
And so I think dealing with those issues would be my top.
Mr. Coble. I thank you.
Professor Gervais?
Mr. Gervais. Thank you, Mr. Chairman.
So the five main points of my written testimony are
summarized on the last page, but if I had to pick three, I
would say, clearly, modernization of rights and exceptions
would be number one. And I do mean modernization, not just
adding rights and exceptions, but actually thinking about the
existing ones and how the interface--this means the making-
available right; consumer-related exceptions. And I have
mentioned many others in the written testimony.
A second point would be to review the licensing structure,
which needs to be coherent, flexible, and responsive. And,
arguably, the current one is none of these things, at least in
some cases.
And, finally, a review of formalities recordation, how it
is linked to remedies, would be my third.
Thank you.
Mr. Coble. Professor?
Ms. Samuelson. I agree with Professor Gervais that 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.
If you look at sections 107 through 121, you see that they
are a kind of hodgepodge, and it is difficult to gather what
the normative underpinnings of those exceptions really are. And
I think thinking about that in a more systematic way would be
really beneficial, including a possible safe harbor of the sort
that Mr. Sigall mentioned.
For me, a reform of statutory damages to give guidance,
something that also Register Pallante indicated was a priority
on her agenda, would be something. And then rethinking
registration in a way that will take advantage of the
opportunities of the new information technology environment.
Mr. Coble. Thank you, ma'am.
Mr. Sigall. I would have to say orphan works, as well. It
is an issue I worked on when I was in the Copyright Office and
continue to work on at Microsoft. I think it is ripe for action
now.
And I think the main point is that it is one of the classic
areas where the public scratches its head as to what copyright
is doing when it potentially interferes with very productive
uses of works, even where the copyright owner cannot be located
and probably has no interest in preventing those uses of the
works. And I think it would unlock a lot of those works for
public consumption and enjoyment.
So I think orphan works would be a good start toward
reinvigorating copyright.
Mr. Coble. Thank you, sir.
Mr. Baumgarten, let me put a question to you. I think I
have time for one more question. You were general counsel in
the Copyright Office during the last major revision of
copyright law through the 1976 Copyright Act.
Based upon a lengthy review of copyright then, what can we
learn from that prior experience as we undertake a
comprehensive review of copyright law today?
Mr. Baumgarten. I think, Mr. Chairman, that one thing we
can learn is that it is going to take a lot of patience to
solve these problems. But I think the patience is not only to
be expected of the Committee, it is to be expected of the
participants in the process, as well.
I fear that, too often, people look for a very quick and
simple solution to very complex problems simply because
technology makes things able to happen and do not give the
copyright community enough time to figure out how they can
happen in a more rational manner.
I think the second thing is tone. I believe one of the
distinguishing factors between the revision program in those
days--and I remember those hearings all too well--and the
copyright debate as it is happening today--and I do not mean in
the Copyright Principles Project--there were some big issues,
and there were some very strong voices, for example, in the
cable television issue.
But, by and large, the copyright revision debates in the
1960's and the 1970's were engaged in by people who respected
and, in many respects, loved the copyright law. They thought it
needed updating, they thought it needed improvement, but they
understood what it did.
I think, increasingly, today, outside the confines of the
Copyright Principles Project and some other limited exceptions,
the copyright debates today and the search for changes are too
often driven by those who are so infused with the promise of
new technology that anything standing in the way is to be
lightly and simply tossed aside in favor of permitting it to
happen.
Mr. Coble. I thank you, sir.
My time has expired.
The gentleman from North Carolina, Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman. As has become my policy,
I will defer and go last in the process.
Mr. Coble. The gentlemen from Georgia?
Mr. Johnson. Thank you.
I think Ranking Member Watt enjoys putting me first up for
some reason.
Mr. Watt. No, just somebody else to go.
Mr. Johnson. Yeah. All right. I see. But you like to do
that. So it is not personally directed at me. Okay. All right.
Well, I will say that I hope I am not out of place by
offering a letter from the National Writers Union, UAW Local
1981, into the record, which simply----
Mr. Coble. Without objection.
[The information referred to follows:]
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__________
Mr. Johnson. Thank you--which simply notes the absence of
writers from the Copyright Principles Project.
But I can assure you, I appreciate the voluntary nature of
what you all did. I think it is good, and I think it serves as
a model for what should take place in the future as we embark
upon comprehensive copyright reform.
And, Ms. Samuelson, in your written testimony, you
described U.S. copyright law as a patchwork quilt that is in
need of comprehensive reform. Our approach to copyright must be
balanced, clear, and forward-thinking. As we take a holistic
look at copyright in today's hearing, we should keep in mind
that there is not a simple fix to these challenges and that we
cannot help one industry or group at the expense of another.
We should also be sensitive to the fact that we live in a
global society, and this global society has a global economy.
And so, therefore, there is a need for a comprehensive reform
to U.S. copyright law that is harmonious with the laws of other
Nations, and perhaps can even lead other Nations, but certainly
not working without considering the views of our international
partners.
What are the drawbacks, Ms. Samuelson, to a piecemeal
approach to copyright?
Ms. Samuelson. Thank you for that set of observations and
for the questions.
I think that part of the problem with patchwork amendments
is that, over time, the statute has become much longer than it
was in 1976, and the longer it has become, the more technical
it has become. And so it is very difficult to, as I said
earlier, read it through.
I know that there has been an effort in Europe by a group
of copyright scholars there to articulate a European copyright
code draft, called the Wittem Group. And its draft copyright
law is basically about 20 pages long. A person can read through
the whole thing and understand it. And, especially today, it
seems to me that we need a law that people can read and can
understand.
One of the things that I tried very hard to do, especially
in the first part of the Principles Project report, was really
to explain copyright in a very straightforward, unjargonistic
way so that it could help to articulate what are the positive
principles that underlie copyright law.
I think the norms of copyright and the values that
copyright has for our society will be better understood by the
public as well as by many of the creators whose works are being
protected if it, in fact, is more comprehensible than it is
today. And I think you don't get comprehensibility easily when
you have 37 years of amendments that get tacked on to the
statute.
Mr. Johnson. Yeah, we have the same situation with our tax
laws in this country.
Ms. Samuelson. Well, unfortunately, the copyright law is
beginning to look like the tax law.
Mr. Johnson. If it is that book that is on Chairman
Goodlatte's desk, then it is probably worse than the Tax Code.
But I will ask, also, perhaps you could help us in that regard,
if the Europeans have some kind of 20-page tax document, that
would be great.
But, listen, how important that comprehensive copyright
reform take into consideration international standards?
Ms. Samuelson. I think that to the extent that U.S. law can
be compatible with the laws of other Nations that actually
assists the United States in being able to talk effectively to
other Nations and to conform their practices and our practices,
I think it helps in enforcement.
It is one of the reasons why I thought that the
communication-to-the-public right is something that we should
be considering. The United States is the only country in the
world, so far as I know, that has a public display right. That
is a right that hasn't been used very much. People don't
actually know what it means. If you took it literally, you
might have to shut down the Internet, and that doesn't seem
like a good idea.
So thinking about how we could think in a more
comprehensive way about what the role of the different
exclusive rights are and how we can foster international
conversations and agreement on that seems to me all to the
good.
Mr. Johnson. Thank you.
I yield back.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from Pennsylvania, Mr. Marino.
Mr. Marino. Thank you, Chairman.
Good afternoon, ladies and gentlemen. Thank you for being
here.
And, Professor Samuelson and your Committee, if I may refer
to it as that, I want to commend you folks on what you have
accomplished thus far. It is very helpful to me.
Mr. Sigall--am I pronouncing that right?
Mr. Sigall. Sigall.
Mr. Marino. Sigall. All right. I am sorry.
Let's move into--I don't want to get too far down in the
weeds because this is a review and we need responses from all
sides before we come to a conclusion, and that will take a
while, as the Chairman said. But let's move into the digital
arena for a moment.
Can you give me your opinion as to what could be done that
is not being done by Internet providers concerning downloading
of music, movies, purchasing of items that are pirated here in
the United States and around the world?
Mr. Sigall. Well, as you probably know, from our
perspective at Microsoft, piracy is a serious problem, and it
continues to be a problem. And we are very keenly interested in
addressing it in effective ways.
Our approach to online piracy focuses on the notice and
takedown system that is built on top of the Digital Millennium
Copyright Act that I referenced. And our antipiracy team works
very hard to make that system as efficient as possible so that
they can get information about where our works are being
pirated and how those works can be taken down as quickly as
possible.
And so we work with Internet providers around the world to
make sure that that system is as effective as possible. And we
think that is really the right approach to take in dealing with
the online piracy problem, from our perspective as a software
provider.
Mr. Marino. All right.
Professor Gasaway, as a law student, can you give me some
examples of where you would like to see changes concerning
research that the law student would have to perform concerning
photocopying, using specific verbatim in preparing briefs, for
example, and where that should not be permitted?
Ms. Gasaway. Well, let me start by saying that photocopying
is almost dead in law schools.
Mr. Marino. Okay. I think I just dated myself, or you did
that for me.
Ms. Gasaway. Right.
Mr. Marino. But----
Ms. Gasaway. Okay, I was in college and remember when we
got our first photocopier at Texas Woman's University.
Mr. Marino. Yes, yes, it was great, wasn't it? Well, let's
say drawing up digitally the material and printing it out.
Ms. Gasaway. Yes. Most of that is licensed. So, for law, we
may be the wrong discipline to actually be looking at. Because
with Lexis and Westlaw and then what the Federal courts and
State courts put online, we are sort of in a unique position
that we either have it from a commercial source or we have it
free on the Internet, when we are talking about our primary
legal materials.
But what we don't have so much free really is--and I guess
I shouldn't say ``free'' because law schools do pay; law
students don't, but we do pay. I think it is something like,
the University of North Carolina pays something like $80,000 a
year for law students' free access, but it is free to the
student. But other materials are not so available. And,
increasingly, even in legal briefs, we are seeing
interdisciplinary materials, whether they are science-and-
technology-related or something else.
The other thing we are beginning to see is multimedia. You
know, when most of us were in law school, it was your textbook
and a legal pad, and that was about it. But now we are seeing
students, you know, who are using video clips, and faculty who
are using them.
And so all types of works need to be available and part of
this research database. And I am going to use that in a--or I
should say databases. It may be licensed, maybe not.
Mr. Marino. Okay. Thank you.
Professor Samuelson, let's stay with the law school concept
here for a moment.
And you jogged my memory, Professor Gasaway, concerning a
professor who is preparing a curriculum and lectures and is
pulling information off the Internet from legal scholars, from
individuals who write treatises, and so on.
What do you think we should do with that? Should it be more
regulated or less regulated, and why?
Ms. Samuelson. I think that the norms of the academy,
actually, in general, respect copyright. Most of us who are
academics are authors, and we care, actually, about misuses of
our work. And I think that that helps to create a culture in an
academic environment in which respect for copyright is more
likely to occur than perhaps in some other sectors.
In respect of the activities of professors, it is the case
that we draw upon many types of works. I still, actually, like
photocopies sometimes, myself. But I am really quite careful
about this, partly because I am a copyright person. And I think
that my colleagues also are now making much greater use of
online materials. As Professor Gasaway mentioned, much of that
material is licensed, and we have access to many journals that
we don't have on our shelves now. And I think licensing has
become a solution to a lot of problems in this domain.
Mr. Marino. Thank you.
My time has expired.
Mr. Coble. I thank the gentleman.
The gentlelady from California, Ms. Chu.
Ms. Chu. Professor Samuelson, I appreciate the efforts that
you and the project participants put into the report. I think
it is so important that the participants came together in the
spirit of having a civil discussion on many complicated and
controversial issues.
However, I am concerned that the report didn't include the
input from a creator's view, someone who could give an on-the-
ground, practical perspective, such as a writer, a musician, or
a filmmaker. And, in fact, as a co-chair of the Congressional
Creative Rights Caucus, I feel that there should have been
creators even in today's hearing.
So I would like to ask you, Professor Samuelson, to what
extent were the interests and perspectives of the individual
creator considered during the project? And why weren't they
directly involved?
Ms. Samuelson. It is the case that I hope that many
conversations take place, and many different creative
communities are invited to participate in the kind of
conversation that this Committee seems intent on doing. If I
had to have a representative of each of the creative industries
participating in the Principles Project, it would have been a
group of 50. And I think you can't have a good conversation
about some of these issues with a large number of people.
So I believe that both as creators, ourselves, and also as
people who enjoy the arts and who respect copyright that, in
fact, we were keeping in mind the interests of individual
creators. And we hoped just to start a conversation, not to say
that because we had this conversation that that necessarily
meant that whatever we might think is the way that everyone
else should think. We hope that this discourse that we shared
with the public through this report is something that would
foster more conversation and more communication.
So I don't believe that we were excluding the interests of
creators at all. In fact, I think we were very much keeping the
interests of creators in mind.
Ms. Chu. Well, Professor, I think that if there were
individual creators, the issue of the Digital Millennium
Copyright Act might come up, in particular, the abuse of DMCA
takedown notices, which is not addressed, actually, in your
report.
And that is of concern to me, considering this is a big
challenge for individual creators. They are often trying to
keep up with issuing thousands of notices to infringing sites,
and a lucky few can afford to hire a service to do it. What is
most frustrating is that these sites claim to remove the
infringing file, only to have the same identical file reappear
on the same site within a few hours. And, in fact, David Lowery
in his op-ed called it a Whac-a-Mole process.
So how can individual creators keep up with a game that
they can't ever seem to win? Is there a better way that could
be more meaningful than the current DMCA process for them to
effectively address this rampant infringement of their works on
the Internet?
Ms. Samuelson. Thank you for the question. I do recognize
that individual creators are at some disadvantage, that they
don't have the resources that Microsoft, for example, has to
police online infringement. And I am concerned about that.
I do think that Congress went through a very careful
process in 1998 to think about how the rules for taking
material down should be handled, and they came up with a
particular solution: the notice and takedown. And if it is not
working effectively, I do think that it would be worth having
that be part of your agenda.
In terms of the agenda of the Principles Project, it wasn't
to say that we could take on every single issue that might be
out there. We gave the opportunity to our members to raise
issues that were of concern to them, and those were the ones
that we addressed in the report.
Ms. Chu. Well, I did also want to ask one last question,
which is, our current U.S. copyright law has enhanced and
delivered substantial benefits to our economy, and I am
concerned what would happen if our copyright law was watered
down.
Commerce recognized recently that resource-intensive
copyright industries, such as movies and music, have
contributed greatly to our GDP. And, in fact, figures have been
underreported over the years. They are now looking to revise
decades of official economic figures. In fact, creative works
are truly our most precious export, creating a positive trade
balance.
So what are the implications if we do not have a strong
copyright framework like we currently have?
Ms. Samuelson. I don't think anything in the Copyright
Principles Project report was recommending watering down or
weakening U.S. copyright law, but really trying to make it more
effective. And so, to me, the proposals and the suggestions
that were being made are ones that would continue to foster the
growth and strength of the U.S. copyright industries.
Ms. Chu. Thank you.
I yield back.
Mr. Coble. I thank the gentlelady.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Let me start by pursuing the line of questioning that Ms.
Chu started. I will ask each of you, how is copyright working
for the individual artist who wants to maximize the use of his
or her talents instead of having to spend time understanding
and using copyright law to protect their rights?
So, Mr. Baumgarten, do you want to take a shot at that?
Mr. Baumgarten. I will.
I think the notion in many circles that the copyright law
has become totally dysfunctional and counterproductive is not
the way the situation is. If I look around, I see services and
means of creation and dissemination, many under copyright
control, more of which probably should be under copyright
control, thriving. I don't think the copyright system is broken
or dysfunctional.
I think it may need some updating and improving. I am not
sure how much. I will not purport to speak for individual
creators. I spent too much of the last copyright revision as an
ally of one of the strongest creators' representatives who has
ever lived, Irwin Karp. And if I purported to speak for
individual creators, I am afraid what Mr. Karp's specter would
do to me.
I will say, though, in partial response to your question--
--
Mr. Goodlatte. You are going to have to be quick because I
have five people and I would like to ask more than one
question.
Mr. Baumgarten. Okay. In partial response to the question
that was just asked by Ms. Chu, I want to make it absolutely
certain that I do not purport to speak for individual creators.
I represented them many times----
Mr. Goodlatte. Sure.
Mr. Baumgarten [continuing]. Early in my career, and I
worked as allies with them, but their interests were not
overlooked completely. They weren't presented as eloquently,
perhaps, as Mr. Lowery or others were, but, for example, on the
question of the----
Mr. Goodlatte. Let me go to Professor Gasaway. I appreciate
that, but----
Mr. Baumgarten. Thank you.
Mr. Goodlatte.--I have to let some other people say some
things, too.
Ms. Gasaway. Mr. Goodlatte, I believe that we do have a
problem when it comes to individual creators. And I think if
you talk to a lot of the people in the user community, they
want to do things for the individual creator.
The resentment has come, I think, with big publishers, big
companies, big record companies. The way our Copyright Act is
structured, individual owners have to pursue their rights, and
litigation is the way they do that. And I think it is
unfortunate, but we don't, as a society, have much of a way so
far to deal with that. We favor the big guys. Sorry.
Mr. Goodlatte. Professor--is it Gervais?
Mr. Gervais. Yes. Thank you, Chairman Goodlatte.
At the high level, copyright policy is very easy. We need
creators, users, and ways to connect them. And it seems that
debate is always focused on that part in middle, and it is a
very important part.
These commercial intermediaries obviously are important. I
said in my written testimony there should be healthy
competition. But for creators, creators really went two things,
typically. They want attribution; we have heard that. But
professional creators need a way to monetize their work.
I mean, I live in Nashville. I don't think we would have
had George Jones or we would have----
Mr. Goodlatte. They probably want to have more than one way
to monetize their work, right? I mean, they may want to do
their own thing, be independent, have a simple system where
they can have their copyright royalties, rewards, however they
enforce that on their own. Or they may want to license with one
of these big entities that you refer to so that they can
completely focus on their work and let someone else take care
of it. Obviously, you are going to pay a premium for doing
that, but you certainly want to have that option. Those are
two. There may well be more, as well.
Professor Samuelson?
Ms. Samuelson. I think it would be worthwhile for there to
be more empirical studies about the interests of individual
creators and how the copyright system is working for them or
not. I think that is an empirical question. The National
Academy of Sciences just published a report suggesting that
more empirical research should be done in respect of copyright.
And as part of a comprehensive reform, it would seem to me that
this might be a good time to engage in some of that empirical
research.
The one thing that the Copyright Principles Project
identified that I think addressed the interests of small,
individual creators is the small claims court, that right now
litigation costs are so high that many people who----
Mr. Goodlatte. Before my time runs out, I am going to start
a----
Ms. Samuelson. Sorry.
Mr. Goodlatte [continuing]. Second question that is a
compliment to all of you. I mentioned in my opening remarks,
but I want to ask you, based on your joint experience working
together to find at least some common ground, what advice would
you give to your colleagues about how they can perhaps do the
same? And many of them are sitting right behind you.
Let's start with Mr. Sigall.
Mr. Sigall. That is a very good and interesting question to
think about. From my sort of personal perspective, one of the
things that I think did not happen in our discussions is I
think we avoided the good-versus-evil stories. And we didn't
try to characterize either side as in a drama, in a sense, and
focused really on trying to understand the interests, where the
other side potentially was coming from, so that we could modify
our remarks to make sure that we could communicate our
interests to the others, as well.
And I think that helps in these kinds of discussions
because copyright should be a very functional, pragmatic
discussion and really shouldn't be about drama or heated
rhetoric.
Mr. Goodlatte. Mr. Baumgarten?
Mr. Baumgarten. Tough question. Listen to each other and
try to search for a solution, rather than yell at each other, I
guess is the best I----
Mr. Goodlatte. Ms. Gasaway?
Ms. Gasaway. Stop being so polarized. Think about the needs
of society and our economy, what enriches our lives, and how do
we make works available that do that. I think that is what we
need to focus on, rather than just representing a client.
Mr. Goodlatte. Professor Gervais?
Mr. Gervais. Yes, I would say I hear a lot of people saying
that they speak on behalf of the public interest. If I may, I
think the public interest requires that copyright work for the
three categories of people I was identifying earlier: creators,
users, and the people who connect them.
Mr. Goodlatte. Professor Samuelson?
Ms. Samuelson. I think having a holistic understanding that
copyright is now an ecosystem and that it has multiple parts
and multiple stakeholders and that each of them has a role to
play in trying to help us get to the right kind of balance.
I think that if you start conversations in a way that
promote that kind of mutual respect, you are more likely to end
up with something that actually is both comprehensible and also
is considered fair and just. And that is what we are looking
for.
Mr. Goodlatte. Well, thank you.
Mr. Chairman, I have abused my time here by letting them
all answer the--oh, I am sorry.
So I also want to ask unanimous consent to enter into the
record the Copyright Alliance's statement that they prepared
for this hearing. And I very much appreciate their doing that
and want to have this entered into the record.
Mr. Coble. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Coble. Thank you, sir.
The distinguished gentleman from Florida.
Mr. Deutch. Thank you, Mr. Chairman.
And, Mr. Chairman, I want to begin by thanking you for
holding this hearing and starting what I hope will be a robust
and comprehensive review of copyright law.
We all know the challenges that any substantive discussion
of copyright law has in this, shall I say, rhetorically
charged, Twitterized environment we live in. These are complex
issues, and they don't lend themselves to easy sound bites.
It is important to recognize the tremendous success of our
current system. We live in a Nation in which creation has
thrived in large part due to the protections guaranteed to
creators under our Constitution and detailed in our copyright
law.
Millions of Americans depend on copyright for their
livelihood--from the songwriters, musicians, actors, directors,
and writers creating the music, movies, shows, and stories that
speak to us all, to the music publishers and the programmers,
the app developers, and the Web designers who help works find
audiences, not to mention the carpenters, engineers, and
countless others who contribute to the creative works.
It is a great American success story, but there are
challenges. We all know how easy it is to steal content. Our
copyright system needs to encourage ways to deliver the great
content we all love to the public while allowing for new
transformative technologies to continue to be developed in the
future.
But let's remember that even the most innovative technology
in this area relies upon the innovative creators, whose work
has to be protected. Our copyright laws may once have impacted
only a narrow subset of people; that has been a theme of this
discussion. But thanks to the transformative advances of
technologies in recent years, we are truly living in a world
where copyright impacts nearly all of us.
As an avid music lover, I have been able to enjoy my
favorite artists and discover new ones in ways I never would
have dreamed of in the 1970's and 1980's when I was listening
to records on my combination turntable/eight-track player. The
way that consumers interact with these works has changed not
only the way the content is delivered but frequently the way
that it is created.
And these are all positive developments as long as we keep
the foundation of our copyright system intact. The belief that
a creator has the right to get paid fairly for their ideas and
creative contributions, or, as the Constitution puts it, ``in
order to promote the progress of science and useful arts by
securing for a limited time to authors and inventors the
exclusive right to their respective writings and discoveries,''
that is the fundamental principle upon which the whole complex
copyright system rests. And any changes must help grow the pie
so that legal streaming technologies and apps can take off and
succeed with both the creators and the tech companies jointly
reaping the benefits.
If any changes are made to our system, they have to be done
with all stakeholders sitting down together, as you have said,
at the same table, including the public, the creators, and the
technology companies. As lawmakers, however, we cannot be
intimidated by those voices that simply want to stifle all
reasonable reform.
I appreciate the Chairman's approach. And, from my
conversations with Mr. Goodlatte, I know that he is also
committed to giving everyone a voice in this review process.
And I want to commend both of you for that approach and that
good work.
Now, advancing technologies may have made copyright issues
more complex, but, Mr. Chairman, if the Committee decides to
modify the Copyright Act, I hope that we do it in a way that
makes it easier for people to understand. Right now, that is
not always the case for consumers, for investors, or even for
creators.
And so, while I wouldn't say that the CPP paper should be
the foundation of a comprehensive reform, I would like to delve
into just one of the issues that it raises related to
complexity.
Professor Samuelson, recommendation seven of the report
specifically calls for establishing a right of communication to
the public in order to simplify the law and make it
conceptually more coherent. Today, cable and satellite
retransmissions and digital transmissions via the Internet are
dealt with either as performances or distributions or displays
or reproductions. And in a mobile and online world, most people
don't have an idea whether they are enjoying a performance or a
distribution or a display or a reproduction, much less what the
rights are.
So the report says that the right of communication is the
international norm. Could you just explain how that approach
works elsewhere in the world?
Ms. Samuelson. Professor Gervais may have more information
than me about how the communication right is practiced
elsewhere. But it is my understanding that broadcast, for
example, of television signals and the like is handled through
a communication right, and I think transmissions of different
sorts, digital transmissions as well as broadcast
transmissions, I think fit more easily under that kind of
right. And it is my understanding that that is the practice.
And that part of what happened with the public performance
right in the United States is, at the time that the 1976 Act
was put in place, that cable television transmission had been
deemed not a performance, so the statute was amended to add it,
rather than thinking about the communication-to-the-public
right as an alternative framework.
So, in some sense, we are stuck with something that was a
response to one particular technology at the time, and we are
now bundling transmissions under different kinds of rights. And
I think we don't know--we don't have a coherent view about
that.
I think if we were engaged in a comprehensive review of
copyright, we could say, this is the work that the
communication right does, this is the work that the public
performance right does, this is the work that the reproduction
right serves, and so forth. And it seems to me that that would
be something that would be very helpful, especially going
forward, as we try to understand how these rights should apply
in these environments.
Mr. Deutch. Thank you.
Thank you, Mr. Chairman.
Mr. Coble. Thank you, the gentleman from Florida.
The distinguished gentleman from Texas, Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
I want to thank you and Chairman Goodlatte for holding this
first of a whole lot more hearings.
You know, copyright law is difficult. My friend and lawyer,
Mr. Marino, is going through the copyright law. He is finding
out that it is twice as long as ``War and Peace'' and not near
as funny.
And, Professor Gasaway, when I was at the University of
Houston, I studied enough copyright and patent law to spend the
rest of my career, up until coming to Congress, in the criminal
justice area. Stealing and killing and robbing is a whole lot
easier to understand than copyright law.
But I appreciate the five of you, your work in this area.
It is difficult, it is complex, and it needs fixing. And that
is what we are going to try to do, with the Chairman's lead.
You know, the law has existed for 200 years, and it has
been good. America is better because we have the concept of
copyright. During the Cold War, I think part of the reason that
we were successful in the cold war was because of the
communication that was done by people in the copyright
business, songs and movies. All of that concept was able to go
worldwide and helped us win the Cold War. But there are a lot
of other examples, as well. But it has been good for the
country.
We certainly don't want to, as Congress sometimes does,
when we start working on things, we make a system worse than
better. We want to make sure we don't do that. All these folks
in the audience here are saying ``amen'' to that, I know,
because they don't want us to make the system worse because
they have stakeholders in it.
Let me ask this question, a specific question. I have four
questions to all five of you. The current system, the law that
Professor Marino is going through here, what is good in it? I
want to talk about the good, the bad, and the ugly. Let's just
talk about the good. What is good in the law right now?
Mr. Sigall? We will start on this end and go the other
direction.
Any of it?
Mr. Sigall. I think there is a fair amount that is good. As
I mentioned, I think the section 512 of the Digital Millennium
Copyright Act for online services is a very positive
development. I think the set of remedies and the way,
certainly, the U.S. legal system works is a very useful thing
for copyright owners and authors and creators to use to protect
their copyrights. I think the protections for the use of
technological measures in section 1201 are, by and large, a
positive force that are used by both small creators and larger
copyright owners.
So I think there is a lot that is valuable. I think it is--
certainly, as others on the panel have mentioned, one of the
things about this project was that everyone agreed that there
is a lot valuable and beneficial in the current system that, as
you have said, needs to be preserved and protected and not
interfered with. It becomes a question of what amendments can
make it better and stronger, especially in the eyes of
consumers.
Mr. Poe. Professor Samuelson?
Ms. Samuelson. I agree with Mr. Sigall that there is much
in U.S. copyright law today that is valuable and worth
preserving.
Mr. Poe. Like what?
Ms. Samuelson. Specifically, that copyright protects
original works of authorship from the moment of their fixation
for a period of time. That principle is one that was novel in
its day. There was a time when only published works were
protected by U.S. copyright law. So I think that is something
that we all thought was a valuable thing.
A second valuable thing is that copyright protects the
expression in a work, not ideas, processes, procedures, facts,
data, knowledge. That way, second-comers can basically extract
unprotected elements and make new works of authorship. And that
goes a long way toward producing ongoing creation that advances
the constitutional purpose.
I think there is consensus that the fair-use provision of
U.S. copyright law has done much good by enabling copyright law
to adapt during times of change. And so some uses aren't fair,
but some uses are. And I think courts have more or less done a
pretty good job in applying fair use in these areas.
And so, while I could go on, I think those three examples
are some of my favorites.
Mr. Poe. I am out of time. I would like the rest of you to
be specific in answering that question, other than what is
already in your testimony, and submit that.
Plus, the other question: What is the worst part about the
copyright law we have?
So we will talk about the good and the bad, and we will get
to the ugly some other day. So the worst part and the best
part.
And I will yield back, Mr. Chairman. Thank you.
Mr. Coble. I thank the gentleman from Texas.
The gentlelady from California.
Ms. Bass. Yes, thank you very much.
Mr. Poe, maybe I will ask that question if I have enough
time.
I wanted to ask the question about the report. It says in
the report that personal uses do not involve copyright's main
job of providing authors with the means of controlling
commercial exploitation of their works. So I wanted to know,
anyone on the panel, if you could help me understand what
exactly that means.
And then isn't every instance of someone downloading or
streaming a song or a movie or a photograph for their personal
enjoyment an example of commercial exploitation?
Mr. Baumgarten. I will take a crack at it, if I may. I will
try to be brief, because I have spent too much time giving
speeches about personal use in the past.
Over the years, I have represented a great number of
clients whose job, whose investments, whose capital, whose
creative energy, in terms of individual creators, has been in
creating, replicating, and disseminating works to individuals
for their personal use and enjoyment. I have always been
troubled by the fact that now, because individuals can do it
for themselves and because major industries can grow up
developing technologies and systems and services to enable
consumers to fulfill their own needs, that somehow the idea has
grown that personal use should be an exemption from copyright.
That doesn't make any sense to me.
There may be newer ways to deal with it that are required.
Technology may enable those very newer ways to do it. But there
is a recognition in the report that there are severe issues
with simply considering personal use to be an exempted field of
activity. And I think some of those are, as I said,
acknowledged in the report itself.
Ms. Bass. Thank you very much.
I wanted to ask you a question about international
copyright. The World Intellectual Property Organization is
going to be meeting next month, actually, in Morocco and
dealing with the whole issue of tweaking international
copyright for the visually impaired.
And I wanted to know if you were concerned about that
process. I have heard some concerns from some areas. I wanted
know if you had the same concerns.
Mr. Gervais. If I may take that. Thank you for your
question.
Indeed, there is a diplomatic conference that is scheduled
to adopt this treaty. So this is a treaty that would, in a way,
make an exemption mandatory for visually impaired users. And I
don't know that anyone disagrees with the normative side of it,
which is this is a good idea----
Ms. Bass. Right.
Mr. Gervais [continuing]. But there have been concerns
raised, in particular as to the application of the so-called
three-step test, which is the test for exceptions under
international rules, recently.
I certainly personally support this treaty, but it, I
think, is an example that a more comprehensive approach, not
just domestically but in fact internationally, might work
better. Because if you push just one treaty that has one new
right or one new exception, it is harder to get people to rally
around that, even for something that seems as fairly obvious as
the visually impaired.
Ms. Bass. I thought, actually, that was part of the
problem, that part of the concern was that to open it up and to
look at it in a broader way might raise many more concerns and
might compromise copyright. No?
Mr. Gervais. I meant broader, not just broader in terms of
more exceptions, but a more broader reform of international
copyright. There are rights missing, and there are exceptions
missing. And I think that broader discussion needs to happen,
but there is really no clear leadership internationally right
now to make that happen.
We have had international treaties, the Berne Convention.
But the U.S. joined that convention once it was all wrapped up,
so it was too late to influence it from the inside. Since then,
we have had the TRIPS Agreement, the World Trade Organization,
but it didn't do very much in terms of copyright. It was mostly
an enforcement-based instrument from the copyright perspective.
And since then, we have had partial efforts--ACTA, now
there is a TPP, and all these things. But they are all very
partial. And I kind of wonder if that is the best way forward,
to have all these parallel instruments.
And there are countries that are proposing counter-treaties
to the treaties now.
Ms. Bass. Right.
Mr. Gervais. I am a little worried about where that is
going. And I think if the U.S.----
Ms. Bass. Which countries? I certainly know that there are
some concerns around Nigeria, or, rather, a person representing
Nigeria, not necessarily the country. But which other countries
are proposing?
Mr. Gervais. So there is something that I refer to in my
written testimony, the official jargon is ``super-regional
meetings.'' And some of them have taken place in Latin America,
some of them have taken place in Africa. And, basically, these
are countries that are having meetings where the Europeans and
the Americans are simply not invited. And their argument is,
``Well, you are having meetings we are not invited to.'' And I
am not sure that is a very healthy development.
And if you are a U.S. exporter of copyrighted material, I
would think you might be a little worried about having a
picture where each country develops different norms. So I think
that leadership to update the entire system or at least to look
at the possibility of doing that might work better.
Ms. Bass. Thank you.
Thank you, Mr. Chair.
Mr. Coble. The gentleman from Georgia, Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman. I appreciate your
leadership on this issue and the commitment that you have
shown, along with Chairman Goodlatte, to discussing the
Copyright Act in an objective and nonpolarizing manner.
Although technology has developed far beyond what our
Founders could have imagined, their genius remains as true
today as it was when they crafted the Copyright Clause in
Article I.
There seems to be a tendency, however, in this day and age
to frame the idea of free and open access to creative rights as
a moral imperative. Those who believe in the right of an
individual to capitalize on their creation, be it a work of
art, music, or a brilliant reshaping of the English language in
a written work, are portrayed as anti-innovation and as
outdated as the flip phone that my father currently uses.
But our Founders understood what many of us have forgotten:
Unless we incentivize creators to create by giving them the
rights of ownership to their works, innovation will truly cease
to exist. Everything has an owner. I have said it before, and I
will continue to say it. Unless the law encourages the creative
genius in a person to take risk, both professional and
financial, by assuring appropriate protection of their
intellectual property, then the law does a disservice to what
the Framers intended in the Copyright Clause.
I would be remiss if I did not mention that I do have
concerns with the CPP report--concerns about the lack of artist
involvement, concerns about the conclusions reached, and
concerns about the seeming abandonment and disregard of the
fact that copyright protection finds its origins in our
Constitution.
Make no mistake, however. I recognize and strongly support
the economic vibrancy created by the technology sector. In my
home State of Georgia, there are over 13,000 technology
companies, employing over 250,000 men and women. Georgia also
continues to see record growth in the number of tech startups.
In fact, Atlanta is one of the top five startup centers in the
entire country. I am proud of the business environment we have
created in Georgia to allow this industry to thrive.
I firmly believe that protecting copyright leads to more
creation and more innovation and even more growth in every
sector that relies on the ideas and ingenuity of individuals.
Although I appreciate the witnesses being here and I have
fully read their testimony and the report, I do not have any
questions for them today.
And, Mr. Chairman, I yield back.
Mr. Coble. You win the prize, Mr. Collins.
The gentlelady from Washington is recognized.
Ms. DelBene. Thank you, Mr. Chair. I just want to thank you
for holding this hearing, and thank all of the witnesses for
taking the time to be here today.
When the Register was here for a hearing, she mentioned
that when all the work was going on for the Copyright Act in
1976, she said by the time it got done, it was already out of
date, because it took about 15 years to do it and many sections
of it were for many years before the final passage date.
So here we are today looking at things, and I know your
report is from 2010 already. And so my first question would be,
what has even changed between 2010 and now, whether it is court
decisions or technology changes, that you weren't able to
anticipate when you wrote the report that you think are
important for us to have on our radar now?
And anyone who has some feedback on that would be helpful.
Mr. Baumgarten. I think we probably all would have
different answers.
My answer is that I am concerned about what is happening in
the courts, which is something I never used to think. I was
pretty happy with the way the decisions were going. But the
decisions now in the area of fair use and in the area of public
dissemination of works, particularly in the Second Circuit, I
think those have changed. Some on the Principles Project would
applaud those changes. I think some of us would not applaud
those changes.
Ms. DelBene. Others?
Professor Gervais?
Mr. Gervais. A very brief answer. Thank you for your
question. I think one predictable and one less predictable
change.
The predictable change is the fact that the focus even in 3
years has visibly shifted from hard enforcement online to more
licensing, more authorization, more streaming, more content
legally available, which I think was predictable and is a good
thing.
If I had to point to one unpredictable change, it is the
Supreme Court reading of the statute in the first-sale case
known as Kirtsaeng. But it is not a digital case, so I don't
think that it impacts the CPP conclusions.
Ms. DelBene. Okay. Thank you.
Ms. Gasaway. I think that one of the major changes has been
these so-called mass digitization projects. They were just
beginning at the time that we completed our work, really. And
Google was under way, but with libraries and archives beginning
to do them, and looking at ways to do them. Does it need to be
licensed? You know, how are we going to do this?
Ms. DelBene. Uh-huh.
Ms. Samuelson. I think that cloud computing and mobile
devices were not really in contemplation as we were talking
through our deliberations about the Act.
But I think something that came out of our deliberations
which I think is something that can carry forward is a notion
that if we find a way to articulate what the right balance is
and we identify exclusive rights and some exceptions to those
rights that become comprehensible, that become predictable,
that they can, in fact, advance over time and get applied to
new things.
So I think we have learned a lot of lessons, but I think
that part of the challenge for this revision has got to be
comprehensibility, building in some flexibility, but also
keeping the norms at a level of generality so that the law
doesn't become obsolete. I don't want to have an exclusive
right to control this aspect of cloud computing because that is
going to go out of fashion.
So trying to figure out what is the right way to frame the
rights, and exceptions that might be needed to them, I think is
something that we have learned something about over the last
several years.
Ms. DelBene. Uh-huh.
Mr. Sigall?
Mr. Sigall. I would say it is the proliferation of devices
and cloud services, not only that they exist more so than they
did in 2010, but that people are really using them and they are
becoming integrated into their lives in the way they
communicate with their families, their friends.
And what that means is--another positive development that
has happened is that a lot more legitimate entertainment
services are being delivered over those devices and over the
Internet, which is, again, as Professor Gervais pointed out,
the win-win, where authorized uses are being made and creators
are being compensated. But it is also changing the way that
consumers expect to interact with the content that they find
very important and, as has been said, makes those devices and
services valuable.
And that is probably not going to change; that is going to
continue. And it is very hard to keep up with the dynamic
expectations of consumers around what they find important in
their devices and their technology.
Ms. DelBene. Now, you talked earlier, Mr. Sigall, about
transparency and that you think that is an area where we could
do a lot more. Can you elaborate a little bit more on that?
Mr. Sigall. Yes. There is an obvious need to have better
access to information about who owns what copyrights and what
those copyright owners would like--who they are, how you
contact them, what you can and can't do with their works. And
the first thought is always that the Copyright Office can build
a better database for people to use.
I think the Principles Project talks about an idea; rather
than do that, what the Copyright Office should get in the
business of doing is tapping into the already-existent private
registries of copyright information. The database that ASCAP
and BMI use for songwriters, the Copyright Clearance Center
uses for authors of journal and textual materials, the ways
photographers are distributing their works online--all of that
information exists. It is very conducive to the way authors
exploit their works and get paid for their works.
If the Office can somehow give some legal significance to
those databases, and therefore give those authors access to the
remedies that are keyed to making that information available, I
think that would be a very efficient way to help improve the
flow of information.
And then, that way, authors get very practical enforcement.
If someone knows that there is an author standing behind that
work and they don't want it used in a certain way, those folks
will probably restrain that use without ever having to take
them to litigation or do anything that requires expensive
outlays by the authors. And I think that is the approach that
is described in the project as a way to help this information-
flow problem.
Ms. DelBene. Thank you very much.
And I think my time has expired. I yield back, Mr. Chair.
Mr. Coble. The Chair recognizes the other distinguished
gentleman from North Carolina, Mr. Holding.
Mr. Holding. Thank you, Mr. Chairman.
You know, our Chairman is known with great affection
amongst the North Carolina delegation as our leader. So it is a
pleasure to be with him today.
And I want to thank the witnesses.
I would like to harken back to something that Chairman
Goodlatte was touching on in his questioning, and it referred
to, you know, the CPP process that you all have gone through
was successful in large part because you weren't throwing sharp
elbows and you kind of ratcheted down the level of hostility in
the discourse and so forth.
So I would like to ask, you know, why do you think the
current copyright policy discussions have become so polarizing
and antagonistic just in the last few years? And just run
through the panel and get some idea of, you know, what has
caused that.
Mr. Sigall?
Mr. Sigall. Well, I think it starts by showing how
important creativity is to both the persons who create the
works and to the consumers and others who use them. I mean,
these are incredibly important things to both sides of the
debate because they are matters of intense labor and time spent
by the creators and also free expression and, you know,
people's personalties about the works they care deeply about.
So you start from a place that is very important to the
participants in the debate. And I think that is, by and large,
the good thing about copyright, that copyright is an engine for
the creation of these things that people feel so important
about.
The question is, how do you go from that positive feeling
and import of these issues to a rational debate about the law?
And that is the tricky part. But I think it starts from a
positive sense that these issues are important and something
that people do care deeply about.
Mr. Holding. Professor, perhaps, you know, of course, there
are positive influences and so forth, but I am particularly
interested in, what are the negative influences that are
ratcheting up the antagonism in the debate?
Ms. Samuelson. I think it is partly a reaction to the huge
disruption that the Internet and advances in information
technology have enabled. There was a hope, there was a sense
that in the future that people would be able to control their
content better than before through digital rights management
technologies and the like. And then to discover that those
technical protection measures, while they are useful and
important, are not actually being quite as effective as I think
many hoped means that there is a sense of loss of control that
has made people extra nervous about things.
And I think peer-to-peer file sharing and the willingness
of people to engage in that activity in the millions has been
something that has created a toxic environment. Now, I think
that we are working our way out of that because there are more
opportunities now to get more legal content, and people are
taking advantage of those. So we may be working our way out of
that particular problem. But I do think that that has
contributed to the polarization in the----
Mr. Holding. Yeah, just to follow up on that just a bit,
you know, you say we might be working our way out of that. Now,
we don't know what the next new technological advancement is
going to be. I mean, we were just talking about, you know, what
has happened in the last 3 years and what we could not have
foreseen.
But, you know, knowing what you know, if we are working our
way out of it toward a better place, I mean, do you have any
horizon for that?
Ms. Samuelson. I wish I did.
Mr. Holding. Okay.
Well, quickly, Professor, if you could just touch on my
original question, quickly, because I would like to get the
other comments as well.
Mr. Gervais. I will be very brief.
So, you know, copyright is what allows creators and a lot
of businesses to function and to live, so, obviously, when you
touch it, people get very nervous. But the thing with the CPP,
I think we all agree it could be a lot better. So if you look
at it from a distance, some improvements are pretty clear.
The problem also is that when regulation is on the books
that is not particularly good, there are people who take
advantage of that structure. So if you change it for something
better, they might not be happy.
Mr. Holding. When they take advantage of that and turn it
into a business model which makes a lot of money, it fuels the
antagonism.
Mr. Gervais. Exactly.
Mr. Holding. Alright.
Professor?
Ms. Gasaway. I actually think that this sort of
disagreement began to rise really in the early 1980's. We began
to see it even over photocopying.
I think it also tracks a general lack of civility in
society. I mean, in the legal profession we see it and, you
know, get warned about it. And I think we have to return to the
days when ``compromise'' was not a dirty word.
Mr. Holding. Mr. Baumgarten, do you have a final comment?
Mr. Baumgarten. I suggested earlier, I think some aspects
of the framework have changed. I think what had been a
discussion of how to respectfully fix copyright law has in some
cases become a discussion of how to diminish the ``obstacles''
posed by copyright law to the promise of technologies that we
know today and technologies that will come tomorrow and treat
copyright law as just another impediment to be dispensed with.
I don't suggest that everyone is guilty of that, but when
that attitude comes and there is a counter from the other side,
things get loud and, more importantly, things get distrustful.
And I think that is what is missing today, is a lot of trust.
Mr. Holding. Thank you.
Mr. Chairman, I yield back.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from New York.
Mr. Jeffries. Thank you, Mr. Chair.
And let me thank the panel for your work as it relates to
the project, as well as for your very thoughtful testimony
today.
I think I will start with Professor Samuelson.
In the context of the congressional obligation to protect
creative works, it obviously is an obligation that stems from a
constitutional charge, article I, section 8, clause 8.
In the context of the project or of the work that you have
done academically, what can you tell us on the Committee about
the thought process that the Founding Fathers undertook in
including what was a groundbreaking provision in the heart of
the Constitution, when so many other complex things were being
discussed--obviously, separation of powers, the Electoral
College, checks and balances, federalism?
This was a complex document, yet the Founding Fathers saw
fit to include this provision to promote, obviously, scientific
works and useful arts. What can you tell us about what the
Founding Fathers were thinking?
Ms. Samuelson. I think one thing we can know is that many
of the Founding Fathers, as we often call them, were authors
and publishers and people who were engaged in learning and
scientific knowledge advancement, so this is something that
they actually cared about.
Secondly, many of the States, in fact most of the States,
in what is now the United States had already had individual
copyright and patent laws. They weren't all the same. And if
you wanted to form a Nation and you wanted for works, let's
say, published in New York to be able to easily be protected in
Georgia, then having a national law, having a uniform national
law, was something that was seen, I think, as something really
valuable.
So I think it was in order to help the transition to a more
national way of disseminating knowledge that was part of the
motivation of the Founders.
Mr. Jeffries. And that, presumably, is still a principle
that holds great merit today.
Ms. Samuelson. Yes. Absolutely.
Mr. Jeffries. Now, with respect to the challenge that I
think the Committee faces as it undertakes this comprehensive
review, we have this constitutional charge, of course, to
protect science and protect innovation, protect people's
creative genius in the artistic field as well, but also do it
in a way that allows for technological innovation to flourish
and to not be stymied.
Can anyone on the panel comment as to how we strike that
appropriate balance moving forward in a very complex commercial
environment that exists right now?
Mr. Gervais. Well, thank you. That is truly the core
question, I think. And what I said earlier about a law that
works for creators, users, and people who connect them, I
think, holds and is the best way to an answer.
So if the statute allows companies to flourish in the way
that they help produce and distribute content without
frustrating users, I think the system will work better. And the
way that I captured that in my written testimony and in my
opening remarks was to say, we should focus on maximizing
authorized uses of material as opposed to focusing first on
minimizing unauthorized uses. And I think we are moving in that
direction.
Mr. Jeffries. Now, to follow up on that observation, one of
the challenges, of course, we face is that, as the technology
develops rapidly, we have to put into place statutes that
accommodate the changing technology. We face that issue now as
it relates to piracy. Originally, it was unlawful reproduction
and distribution, and now it is largely done through illegal
streaming.
On that point, would you support or does the group support
strengthening penalties to deal with the essential change in
the manner in which piracy is taking place over the Internet
right now?
Mr. Sigall. Well, as I said before, piracy is a problem,
and we would certainly support looking at ways to help address
the problem, especially for individual creators.
I think as a company that also builds online services that
people use to communicate, we have the opposite concern that
any new measures to help on the piracy side might go too far
and overreach and cut back on people's ability to use the
technology for perfectly legitimate purposes.
So you always have to strike the right balance, and it is
difficult. But, certainly, considering both of those at the
same time is really the critical aspect of trying to figure out
ways to really help the copyright owner but not go too far in
chilling the legitimate use.
Mr. Jeffries. Thank you.
And I see, Mr. Chairman, that my time has expired.
Mr. Coble. I thank the gentleman from New York.
The distinguished gentleman from Florida is recognized for
5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman.
Thank you to the guests.
Professor Samuelson, the group, how was that group
assembled?
Ms. Samuelson. I talked to Marybeth Peters, I talked to
some of the practicing lawyers that I knew, I talked to some
law professors that I knew. And this was basically the use of
some social networks to try to bring a group of people together
that I thought would be able to have this kind of thoughtful
civil discourse.
Mr. DeSantis. Because I guess some have said, well, you
know, there is really not--there is a dearth of perspective of
independent artists and creators, who basically depend on
copyright for every day of what they do.
So do you think that you got sufficient input from those
types of individuals?
Ms. Samuelson. I think that it is important to recognize
that most of the academics on the panel are actually authors of
books, and those books actually bring in some income for those
people.
And I think the other thing is that, when we have been
teaching copyright law for decades or practicing copyright law
for decades, as is true of all the people who were
participating, I think that we have been taking into account
the interests of others, including small creators as well as
large creators.
So, as I said earlier, I think it is really important as
this process goes forward for you to hear from all manner of
different creator communities and individuals and groups. One
project of the sort that I tried to assemble really couldn't
reach out to every particular community. And so we tried to
have as broad a perspective as we could, while recognizing that
this was just hopefully the start of a conversation rather than
the end of a conversation.
Mr. DeSantis. Very well.
The report, I think, focuses on copyright and the
parameters thereof, really focusing on economic and utilitarian
principles, not as much as it being kind of based in a property
interest and property rights. And I guess, it seems to me, when
the Founding Fathers talked about it, you know, they believed
in the economic and utilitarian principles, but they believed
that the property right was really what would drive economic
benefits.
So do you think that your report kind of moves us away from
that historical understanding?
Ms. Samuelson. No, actually, I think that our recognition
that the utilitarian principle helps to define what the proper
scope of a property right is, is as much a foundational
principle of property law in the United States across the
board. All different kinds of property have some limitations
built into them, and I think that has been true for copyright.
Copyright has gotten somewhat broader in certain respects,
and it has evolved over time, but I don't think that it is not
a property right. I do think that it is a utilitarian-informed
property right, as it should be.
Mr. DeSantis. There was this article, I think it was in
Politico, and it was a musician. He basically said that if some
of what you were advocating was adopted, that you could have an
individual just post a photo online, like a family photo or
something that wasn't registered, and you could have a user
just take that and use that for their commercial gain.
So do you agree? Is that true?
Ms. Samuelson. No, I don't believe it is true at all.
Mr. DeSantis. And why not?
Ms. Samuelson. Well, because one of the things that we made
very clear is that, to the extent that someone is
commercializing something that someone posts online, that that
is actually an activity that copyright law would apply to. I
think that is very clear from our report, especially the
discussion about commercial harm.
Mr. DeSantis. Okay. Well, thank you.
Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman from Florida.
The Chair recognizes the distinguished gentleman from North
Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
And I want to thank all of the witnesses, who have
enlightened us.
And I have gotten in the habit of waiting until last on our
side to go, because I always am fascinated by some of the
questions that get asked and some of the answers. I would have
to say that the one that has fascinated me the most today is
Ms. Samuelson's notion that we might be able to do this in 20
pages. And somebody in Europe apparently did this in 20 pages.
And I am kind of searching for a way forward here. So I am
looking for either consensus on the 20-page notion or a
repudiation of the 20-page notion.
Mr. Baumgarten, I think, wants to either affirm it or
repudiate it.
Mr. Baumgarten. Repudiate.
I am not one of those who beats the drum for simple
solutions. The problems are too complex. I fear that a simple--
--
Mr. Watt. Okay. I got you, I got you.
Actually, I like simple solutions. I mean, the great beauty
of the Constitution and the amendments was simplistic, but the
great beauty of the Community Reinvestment Act actually is
simplistic in the statement you--a financial institution should
serve the community in which they live. Right? But the
regulations that have been written to interpret that have gone
into volumes now, and the court decisions to interpret the
Constitution have gone into volumes now.
And our problem here in Congress is that we either have to
write a law that covers every eccentricity, every nuance, or we
have to write a general principle and delegate responsibility
for the nuances to regulators. Then we get accused of, you
know, delegating to people who have not been elected. You know,
so we are kind of in a quandary here about how to move forward.
If there is anybody on this panel who actually agrees that
we could do this in 20 pages, I would love to have you take a
shot at it. Seriously. I am not being facetious here. Because I
would love to see a copyright law that is encompassed in 20
pages.
But then the question I would raise is, who would enforce
it? Who would interpret the general principles? And how would
you move forward without just massive litigation if it were the
courts doing it? Or if you gave the authority--the Copyright
Office doesn't have any enforcement authority now. I mean, it
is a wonderful office, but it can't smack anybody upside the
head and write a decision and say, ``You can't do this under
the principles that exist.''
So I am in this quandary. I mean, should we be giving more
enforcement authority to somebody? Should we have regulators? I
mean, we have the FCC, so, I mean, they are kind of in their
niche over there to do some of this.
But, Professor Samuelson, we have these simple principles.
You say we have to build in flexibility. That was your--I wrote
that down when you said it. My question is, how do we do this
with simple principles, flexibility, without some other
enforcement mechanism other than ending all the parties up in
massive litigation?
Ms. Samuelson. Well, I think much of copyright law that I
admire--and we talk about that in the first part of the
report--is basically very simple principles that have proven to
be----
Mr. Watt. But it took you 68 pages to write the article.
Ms. Samuelson. Well, yes, but I do actually----
Mr. Watt. I mean, I did look at the article. There are 68
pages of the article that you wrote.
Ms. Samuelson. But I think actually only about 10 of them
distill down----
Mr. Watt. So you want to take me up on my offer, then----
Ms. Samuelson. I would, actually.
Mr. Watt [continuing]. To give me 20 pages. I mean, I am
serious. I would----
Ms. Samuelson. Yes. I think----
Mr. Watt. I think the Committee would benefit from your
conceptions on this panel of what the law should say and how we
do this, build in principles, give it flexibility, and who
would enforce it. That is my challenge.
Ms. Samuelson. Well, a lot of what causes copyright to be
enforced now are the norms and practices of the people who
engage in this activity. And----
Mr. Watt. But one of the reasons we are updating it is
people are less and less abiding by those norms, especially
users, who just think everything ought to be free, and they
don't want to pay for anything.
Ms. Samuelson. Well, I don't know that that is always true.
There is actually a study called Copy Culture that suggests
that a lot of people who engage in some sharing actually are
bigger purchasers of content than other people.
So I care as much, I think, as anyone in this room for
developing a law of copyright that can be more widely
respected. And it seems to me the more comprehensible it is,
the more it focuses on normative principles, the more likely it
is to breed respect. And that has been a driving goal of mine
in this project.
Mr. Watt. Mr. Chairman, I know I am over my time, but I
want to see if there is anybody else on the panel who wants to
take me up on the 20-page challenge.
Seriously.
Ms. Gasaway. Seriously. We will work with Pam on it.
Mr. Gervais. I am certainly happy to work with you and the
Subcommittee.
Can I say in 10 seconds why I think this 20-page version
that Professor Samuelson was showing you is a great idea?
Essentially, it recognizes this: There are some uses that are
exclusive uses that should be exploited only by the copyright
holder. There are uses that should be entirely free, like fair
use in this country. And then there are uses in between that
are subject to what we would call compulsory licensing, but
they made them a special category.
And they clearly explain why certain users fit in all
three, and I think that is--it may not be, legislatively
speaking, a model we can use in terms of language, but the idea
sounds very good.
Mr. Watt. How long do you all think it will take you to get
me 20 pages? I am not--there is no--I mean, I am not putting
pressure on you. I am just trying to get a ballpark idea of
when we might expect something. I know you have law school to
teach and----
Ms. Samuelson. That is true.
Mr. Watt. Especially in North Carolina. We want our lawyers
down there to be taught well.
So, anyway, I will----
Mr. Coble. The gentleman's time has expired.
Mr. Watt. I will yield back.
Mr. Coble. I want to echo what Mel said.
I want to, first of all, thank the witnesses. You have been
here for 3 hours.
I want to also express thanks to those in the audience. I
did not detect anyone has been induced to sleep. So maybe it is
not as dull and boring as my journalistic friend concludes.
This concludes today's hearing. Thanks to all for
attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is adjourned.
[Whereupon, at 5:10 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Blake Farenthold, a Representative
in Congress from the State of Texas, and Member, Subcommittee on
Courts, Intellectual Property, and the Internet
While the Project adds great ideas to the debate, I think we need
to consider whether reliable data exists to inform us about how the
current copyright landscape is impacting not only the Internet and
content industries but also our entire economy. That is why I ask to
submit the National Academies National Research Council's recent study,
Copyright in the Digital Era, into the record. This study makes an
important finding--the current copyright debate ``is poorly informed by
independent empirical research.'' More specifically, it points out that
there is simply insufficient data to reach any sound conclusions about
the impact of the digital age on our current copyright system.
As we move forward in conducting a comprehensive review of the
copyright system in the digital age, our discussions (similar to
discussions regarding patent policy) must be supported by credible
empirical research. To generate reliable data, the study suggests a
number of research projects such as case studies, international and
sectoral comparisons, experiments, and surveys. Taking these actions
will provide further insight on this debate and ensure that our policy
decisions do not disturb the current balance between copyright
protection for creators and flexible exceptions and limitations, which
promote innovation and democratic discourse.
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