What 2013 May Ring In For New Copyright Legislation

2012 was a quiet year for any new copyright legislation that could affect those engaged in the creation, production and distribution of entertainment media. With the elections behind us, this could change in 2013. The Copyright Office has indicated that it is interested in tackling several issues that were identified as office priorities in a two-year plan under the new Register of Copyrights, Maria A. Pallante, filed in October 2011. As Co-Chair of the American Bar Association Committee on Copyright Legislation, I have been following these and other legislative issues and will continue to provide updates throughout the year.

One is a legacy issue from former Register Marybeth Peters concerning copyright exceptions for libraries. In 2008, the Copyright Office received a report from a special study group, consisting of a mixture of copyright owners and users, tasked to review the current copyright exception for libraries and archives under Section 108 of the Copyright Act. I participated in the study group as a representative of copyright owners and after nearly three years of discussion, we presented a report to the Library of Congress. The general conclusion was that this exception had not kept pace with the digital age, and that it needed some carefully thought out revisions. Preservation of works, particularly those works created in digital format were considered, as well as extending the exception to museums. The report emphasized the importance of maintaining the balance between the exclusive rights controlled by copyright owners and the preservation and other lending needs of libraries. The Copyright Office is likely to come out with some recommendations early this year and Register Pallante will be one of the speakers at the Kernochan Center Symposium on Section 108 Reform in New York on February 8, 2013, in which she will discuss the Copyright Office’s plans for Section 108 reform.

The other ongoing issue of how to create a legal framework to authorize the use of what has become known as “orphan works” (works in which permission is required but the copyright owner cannot be identified and/or located), is also likely to be re-addressed this year. Following a report on orphan works published by the Copyright Office and delivered to Congress in 2006, proposed legislation was introduced in the House and the Senate in 2008. These bills would have limited remedies a copyright owner could seek against a user who had conducted a diligent search and could not locate the copyright owner before making use of a work. No legislation was passed at the end of 2008 and no new bills have been introduced. A noted concern was that photographs were particularly prone to be “orphaned” even if the copyright owner was available to give permission, because identifying information was often stripped from photographs or never included at publication, as photo credit or copyright notice is not a current requirement under the Copyright Act. While both the House and Senate Bills tried to address the concerns of photographers, the lack of any useful registry to locate photographs and their owners was a significant issue at the time. Since then photographers and others have been working with the PLUS coalition to develop a searchable registry in of images, in anticipation that orphan works legislation will be revisited.

Another significant intervening issue delayed orphan works legislation over the past few years was the Google Books settlement. This proposed settlement was the result of a class action brought by the Authors’ Guild against Google, together with an action against Google by major publishers, asserting that Google’s massive book-scanning project in conjunction with several university libraries violated copyright in their works and was not a fair use. The proposed settlement included a books registry that dealt with the issue of orphan works and books. The court rejected the settlement in 2011, in part because of the issue of who would be entrusted with orphan works under the plan. The major publishers have recently settled with Google, leaving the pending class action by the Authors’ Guild in place. The Second Circuit has stayed the case pending an appeal by Google of the class certification.

As a result, it is unlikely that a book registry will be created and orphan works legislation is likely to be taken up again this year. The Copyright Office has closely followed the Google library project and the ensuing litigation. After the publication of the initial Google Book settlement, Marybeth Peters, the Register of Copyrights at the time, prepared a statement to the United States House of Representatives, expressing concern that the settlement encroached on areas of copyright policy that is more appropriately left to Congress. She noted that the legislature is the appropriate governmental body to consider a mechanism for creating a registry or a collecting society, after public debate and considering the interests of all stakeholders, and it should not be the result of an agreement between private parties. Register Pallante published a report on the “Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document” and continues the Copyright Office’s priority to work with Congress to effectuate legislation. On October 22, 2012, she published a Notice of Inquiry on “Orphan Works and Mass Digitization” requesting comments by February 4, 2013 in order to advise Congress on the possible next steps for revising Unites States law.