Copyright is a very divisive subject. There is a very wide spectrum of copyright beliefs and views and, while I don’t necessarily believe in the idea of an “us vs. them”, “abolitionists vs. maximalists” war, there is definitely a lot of strong divisions.
Because of that, some possible reforms are inherently divisive. Ask a large enough room how long the copyright term should be and you’ll get answers ranging from none to forever. Even some reforms that I don’t thinks should be very divisive, such as eliminating the need to register a work with the U.S. Copyright Office to file a lawsuit and collect damages, has its staunch opponents.
But even with all of that division and, at times, hostility, there are still several issues that pretty much everyone seems to agree on. Even more interestingly, there are several potential copyright reforms that seem to have widespread backing across the entire spectrum.
So, when we’re talking about copyright reform and seeking common ground, here are a few places that we can probably start with.
Note: For the purpose of this post I’ll be focusing on U.S. copyright law, though some of these elements are just as relevant to other countries.
1. Music Licensing Reform
With copyright, there are very few rules that seem to create a win-win-win for creators, intermediaries and consumers alike. However, music licensing reform is one of those areas.
The current music licensing system has elements of it that date all the way back to player pianos. It’s a hodgepodge system that has not always adapted ideally adapted to new technologies, most notably a pair of consent degrees that date back to the 1940s. Those govern how ASCAP and BMI, two of the largest performing rights organizations, can conduct business.
While the decrees were designed to reduce monopoly power of these groups, they also added a large layer of complexity, complete with rate courts and a requirement they only administer performance rights, guaranteeing many will need additional rights.
This makes it very difficult to license music, even for simple things. Whether you want to create a Spotify competitor or just play music in your restaurant, it can be tough to know where to go, who to talk to and what to ask for.
The U.S. Copyright Office recently announced it’s proposal for music licensing reform and, though the requirement for AM/FM radio stations to pay royalties on sound recording is somewhat controversial, it seems the bulk of its suggestions were well-received by pretty much everyone.
For copyright reform, music licensing is a low-hanging fruit that can help just about everyone.
2. Pre-1972 Sound Recording Reform
As we discussed previously, due to a quirk in copyright law, pre-1972 sound recordings are not protected under the federal system. Instead, they are protected by a hodgepodge of state laws, most of which have not been updated in decades.
While this hasn’t been a major problem for most of the time, as federal law has moved forward its left state law behind with serious questions about how many of the more recent reforms apply to pre-1972 sound recordings, if they do at all. This risks blowing serious holes in protections for both creators and intermediaries alike.
Most seem to agree that there needs to be federalization of pre-1972 sound recordings but the challenge is how. Since pre-1972 sound recordings are not registered with the U.S. Copyright Office and such registration is required for enforcement of all other types of copyrighted works, we risk either forcing a tidal wave of registrations or creating two classes of works with regards to the registration requirement.
These concerns were echoed by the U.S. Copyright Office, when it proposed such federalization in 2012. A lack of action means that we could be stuck with this two-tier system until 2067, when all pre-1972 sound recordings are automatically brought under federal copyright protection and then released into the public domain.
3. Device Ownership
This one is less a product of copyright law and more a product how technology has advanced. Basically, as time has marched on, more and more physical goods you buy contain software that is required for their operation. Whether it’s a laptop, a car, or even a microwave, many products are bricks without software to run it.
However, that software is copyright protected and some manufacturers have taken to using copyright as a means of restricting customers from reselling, repairing or giving away the product. This problem has been tackled from a variety of angles including a series of state and federal right to repair acts for cars and the recent Your Own Devices Act (YODA) which would require software sold with a product to be transferred with it.
The Digital Millennium Copyright Act (DMCA) also prevents users from breaking digital rights management (DRM) protections, such as encryption, even for non-infringing uses. In addition to intended uses such as addressing DVD piracy, this has been used in the past to prevent cell phone unlocking, block printer cartridge refilling and other non-infringing uses.
The Unlocking Technology Act of 2013 would have would have required a copyright infringement for the DRM-cricumvention rules to apply. However, this particular effort has been far more controversial, with many calling for these cases to be handled through the current DMCA exemption process, which is handled by the U.S. Copyright Office.
Either way, reform is clearly needed to make sure consumers own the products they buy.
4. Copyright Office Modernization
Speaking of the U.S. Copyright Office, Sandra Aistars, the chief executive officer of the Copyright Alliance, called its modernization “The one copyright issue everyone should agree on.”
Indeed, just about everyone recognizes that the U.S. Copyright Office, through decades of neglect and underfunding, is woefully behind the times. The U.S. Copyright Office’s Electronic Copyright Office (ECO) was already well behind the times when it debuted in 2007 and hasn’t seen a significant update in the years since.
It’s library of DMCA agents is just an alphabetic list of links to scanned PDFs. There is no search functionality, no simple way to add/update/remove information and it is so out of date that it doesn’t even use the same theme as the rest of the site.
Finally, recent rule changes at the USCO virtually guarantees that practical copyright protection is out of reach for nearly all bloggers and websites.
The U.S. Copyright Office needs to be reformed and updated urgently. Not many people are denying that.
5. Revenge Pornography Reform
To be fair, only some of this issue deals with copyright, but it’s still one worth mentioning.
Revenge pornography or involuntary pornography involves the posting of nude or sexual images of others online without their permission. It’s also one of the few issues that seems to bring people from across the copyright spectrum together in an instant.
My own involvement with the matter goes back a long ways including launching a partnership with e Cyber Civil Rights Initiative to help revenge porn victims at no cost and speaking on the topic at SXSWi 2014.
However, the issue goes well beyond copyright and victims often have little recourse against those who post their images and videos. Though there has been a spate of anti-revenge pornography laws passed, they’ve had little practical impact.
One site operator, Chris Brittain of isanybodydown, a site dedicated to involuntary porn, only received a slap on the wrist from the FTC despite posting many of the images himself and charging hundreds of dollars to remove them through a fake DMCA takedown service.
Granted, other providers, such as those behind YouGotPosted, have been hit with huge judgments, but only because they ran afoul of other laws, in this case child pornography laws.
Revenge porn victims deserve better protection but the trick is balancing those protections with first amendment issues. This has created a situation where everyone knows something has to be done, but are unsure about what.
To be clear, the title of this post is exaggerative and not absolutely everyone will agree on every reform (as I’m sure the comments will soon highlight). However, in my conversations these have been topics that have seen widespread support across people with very different ideologies on copyright.
When it comes to trying to find common ground, these are the areas of broad support. The industry vs. industry divides that you so commonly see between tech and content creators don’t really exist here, at least not nearly as strongly.
So, as we look to reform copyright in the U.S., these are a few really good starting points.
Because, while no reform will be completely without controversy, some definitely come with less friction than others.