How to Reform Copyright Law, Damages for Hi-Tech Age: Report

September 28, 2010

A group of experts on copyright law and policy have released a report that explores reforms to the U.S. copyright system.

One of the recommendations would improve liability protection for non-commercial uses of copyrighted works, particularly as users lift parts of existing works to create new ones.

The report also suggests development of reasonable and consistent statutory guidelines for damage awards. Current law allows courts to award between $750 and $30,000 in damages per infringed work—and up to $150,000 per work if the infringement is willful. This has led to awards that seem arbitrary and capricious, inconsistent with awards in similar cases, and grossly excessive or disproportionate, according to the report.

The report calls for a more efficient and technologically-driven approach to copyright registration, so that works can be freely reused if their authors agree.

Crafted over three years by a group of legal academics, private practitioners, and corporate attorneys, the The Copyright Principles Project: Directions for Reform (CPP) examines several ways to improve and update the law in an era of rapid technological change.

U.S. Copyright law, originally drafted in the 1960s, was conceived decades before widespread use of the Internet, Web, and global digital networks. Today, virtually everyone online interacts with copyrighted works, whether downloading photos or songs from the Web, forwarding news articles to friends, place-shifting music collections, or linking to favorite websites.

Advances in technology have not only vastly expanded access to authors’ works, but they have also brought new stakeholders into the copyright arena. Millions of ordinary citizens now publish and distribute material with the click of a mouse, making it easier to become copyright creators and publishers.

Berkeley Law professor Pamela Samuelson. who led the copyright reform project, says such user-generated content challenges copyright law because it’s typically created by non-professionals— amateurs with different needs than, say, Hollywood studios.

“Copyright law touches us all on a daily basis and now millions of people who create user-generated works have become copyright stakeholders,” said Samuelson. “Copyright law needs to be simpler, understandable, and more flexible to change with the times.”

Terry Ilardi, a project participant and IBM copyright counsel, said, “While the Copyright Act has grown enormously in the last three decades, it has not done so coherently, or in a way that has been sensitive to the changes demanded by the newest technologies.”

One common problem the report addresses is peer-to-peer file-sharing of commercial movies and music. Although some file-sharing services have been shut down, the illegal practice has not abated. The report suggests the creation of a “safe harbor” to protect online service providers from excessive damage claims if they take reasonable, voluntary, measures to limit file-sharing—or other unlawful distributions of commercial works. Companies that comply would be shielded from liability for user infringements.

“The report intelligently informs the copyright debate, and the identification and discussion of issues is well done and important,” said Marybeth Peters, the head of the U.S. Copyright Office. “The recommendations are thoughtful, and in many cases, I support them. This entire project significantly reinvigorates efforts to bring the copyright law up-to-date, either incrementally or as a major revision.”

Ideas from the report include:

  • Modernize the Copyright Office: Instead of one registry for all copyrighted works, the office could certify third-party registries for different types of works, such as photos, films, and computer programs. The model is akin to the domain name registration system. Other suggestions include adopting a small claims procedure for small-scale disputes.
  • Reinvigorate copyright registration: Encourage copyright owners to register so that it’s simple to find out who owns what. The idea is to make registration easy and worthwhile for copyright owners so that the public can have better information about protected works and their owners.
  • Refine exclusive rights for authors: Weigh commercial value and risk of harm to copyright markets when determining whether someone’s exclusive right has been infringed; this shields non-harmful activity from the threat of highly punitive copyright claims.
  • Revise the common practice of automatic injunctions: Courts could consider whether a preliminary or permanent injunction is needed to prevent irreparable harm, as well as whether having access to the work is in the public’s best interest.
  • Limit Orphan Works liability: Enable libraries and others to preserve a part of our cultural heritage by using copyrighted materials whose owners cannot readily be found.

The Copyright Principles Project: Directions for Reform will be published this fall in the Berkeley Technology Law Journal.

Source: University of California, Berkeley, School of Law

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