The Head of the US Copyright Office Is Now Calling for an Overhaul of US Copyright Law…

Here’s one problem with US Copyright Law: it doesn’t work for a vast majority of the participants involved.  But how to fix something so broken?  The following is what Register of US Copyrights Maria Pallante will tell members of Congress later today (Wednesday) about the need to drastically overhaul US Copyright Law.  The Congressional address is part of a far broader speech on the matter, available on

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Thank you for the opportunity to appear before you today to discuss the state of our copyright law.  My message is simple. The law is showing the strain of its age and requires your attention.  As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.

The issues are numerous, complex, and interrelated, and they affect every part of the copyright ecosystem, including the public at large.  For reasons that I will explain, Congress should approach the issues comprehensively over the next few years as part of a more general revision of the statute.  A comprehensive effort would offer an occasion to step back and consider issues both large and small, as well as whether and how they relate to the equities of the statute as a whole.  This Subcommittee in particular has an opportunity to do what it has done in the past, not merely to update particular provisions of copyright law, but to put forth a forward-thinking framework for the benefit of both culture and commerce alike.

It has been fifteen years since Congress acted expansively in the copyright space.

During that period, Congress was able to leave a very visible and far-reaching imprint on the development of both law and commerce.  It enacted the Digital Millennium Copyright Act (“DMCA”), which created rules of the road for online intermediaries (e.g., Internet service providers) and a general prohibition on the circumvention of technological protection measures (so-called “TPMs”) employed by copyright owners to protect their content.  The DMCA also created a rulemaking mechanism by which proponents could make the case for temporary exemptions to the TPM provisions in order to facilitate fair use or other noninfringing uses (the “section 1201 rulemaking”).

Nonetheless, a major portion of the current copyright statute was enacted in 1976.  It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention.  Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century.

<2>In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a “good 1950 copyright law.”

I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before.  Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.  Certainly some guidance could be given through regulations and education.

But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age.  I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful.  People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws. 

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine.  The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

That said, Congress does not need to start from scratch, as it has already laid the groundwork for many core issues.  For example, Congress already has had more than a decade of debate on the public performance right for sound recordings, and has given serious consideration to improving the way in which musical works are licensed in the marketplace.  These issues are ripe for resolution.

Likewise, Congress has requested a number of studies from the Copyright Office in recent years, on a variety of timely topics, including the first sale doctrine, orphan works, library exceptions, statutory licensing reform, federalization of pre-72 sound recordings, and mass digitization of books.  Additionally, we have reports in progress on small copyright claims and resale royalties for visual artists.

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Congress also may need to apply fresh eyes to the next great copyright act to ensure that the copyright law remains relevant and functional.  This may require some bold adjustments to the general framework.  You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term — for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office. And in compelling circumstances, you may wish to reverse the general principle of copyright law that copyright owners should grant prior approval for the reproduction and dissemination of their works —for example, by requiring copyright owners to object or “opt out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries.

If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it.  Any number of organizations may feel justified in this role, and on many issues there may in fact be many voices, but there is no singular party or proxy.  In revising the law, Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework.  It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public.  As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor.  But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists.

A law that does not provide for authors would be illogical —hardly a copyright law at all.

Finally, evolving the Copyright Office should be a major goal of the next great copyright act.  In short, it is difficult to see how a 21st century copyright law could function well without a 21st century agency.  The expertise of the Office is reflected in countless contributions over the last hundred years, including official studies, congressional hearings, treaty negotiations, trade agreements, policy recommendations, and legal interpretations, not to mention in the statute and its legislative history, and in opinions of the courts. But today, many constituents want the Copyright Office to do better the things it already does, and to do a host of new things to help make the copyright law more functional — from administering a small copyright claims tribunal to offering arbitration or mediation servicesto issuing advisory opinions. Moreover, as others have noted, the statute has become too detailed and less nimble, and could be more useful and flexible if certain aspects were handled administratively.

In closing I would like to express my gratitude to the members of the Subcommittee for your interest in and commitment to copyright policy, and encourage you to think big. The next great copyright act is possible if you approach it comprehensively, and as always, the staff of the U.S. Copyright Office is at your disposal.

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The US Copyright Office granted Digital Music News express permission to publish this address.  We added bold and pull quotes for emphasis.  Photo by Tracy Elizabeth, licensed under Creative Commons Attribution 2.0 Generic.

25 Responses

  1. Visitor

    there are only two words that need to be addressed in the next great copyright act:

    meaningful enforcement.

    rights without enfrocement are meaningless.

    artists, be afraid, be very afraid.

    Google has bought the US Copyright Office and they’re coming for your rights.

    • Visitor

      “Google has bought the US Copyright Office”

      Well, that’s a bit over the top — let’s not sound like torrentfreak, OK? 🙂

      But you’re so right regarding meaningful enforcement!

      • Visitor

        Hm, perhaps I should expand on that…

        What I objected against was the bribery accusation.

        But I agree that Google has done a lot of harm, and its negative influence on American politics is second only to the NRA’s.

    • Visitor

      It is getting so ugly out there for musicians, tech is just trying to get music for as little as possible as if it were steel or oil. Who knows, perhaps they believe great (American) music can be made in China?

      Really amazing given that without great content, a computer is nothing more than a machine and the internet is nothing but cable or empty radio waves, after all the internet is really just a highly evolved information distribution system and an awesome way to find stuff.

      Now a team of hundreds of engineers and programmers can design something that can be replicated millions of times. One songwriter can produce a song that is heard millions of times, but more than likely tens of thousands of songwriters are working alone to create a single song.

      The internet will flourish as long as there’s something on there that people want to listen to or watch. Once the talented musicians are all working full time day jobs, I wonder how long people will want to watch squirrel videos and listen to sampled versions of Stairway to Heaven

  2. Visitor

    If an overhaul is to be done, old ideas need to be shed. Life + 50 years will never be approved of by the general public. This day in age will be lucky to get 50 years or life, not both.

    • Visitor

      This. Life + 50 years is ridiculous. If this guy has any fucks to give about public domain, it should be life AT MOST.

      • mdti

        that’s stupid to remove yourself an opportunity to transfer your work to your kids or heirs and let them fructify what you have done (or have not been able/lucky enough to get).

        Or you are not a copyright owner. 50 or 70 years is fine to me and my children.

        But I understand your point of view; I too was annoyed by ickey mouse once, but after growing up and getting a deeper understanding of what the world does for you and what you do for it, then, I have no problem.

        Even if it is 500 years, i will support that as long as it is still the original author that gets this right, and not some intermediary like music company, that I agree should see their rights limited, in order to allow creators or their heirs to negotiate again the rights with the same or another music label/company.

        Ie, they pay more and at least twice, and they cannot retain the rights iun perpetuity against the oiginal author’s will.

        And that will be good my friend.

        But it ain’t gonna happen I’m afraid, because it is not creators who debate the law, but the intermediaries 😉

      • Visitor

        “This. Life + 50 years is ridiculous. If this guy has any fucks to give about public domain, it should be life AT MOST.”

        REALLY? What about people like Kurt Cobain? His child should not be able to benefit from her father’s work? Seriously?

        Please think before you speak.

      • Visitor

        “This day in age will be lucky to get 50 years or life, not both.”

        I think 50 years, no post mortem, would be fair.

        Sure, my children would lose a chunk of cash from such an adjustment. But they’ll get by.

        Here’s my favorite problem with the current legislation:

        You have to ask Chuck Berry’s grand grand children for permission until at least 2083 if you wish to use a phrase from Beach Boys’ Surfin’ USA.

        That’s not helpful for anyone involved.

  3. Tunaman

    Still, nothing created in my lifetime is going to be in the public domain in my lifetime. So why should I respect copyrights? The social contract where citizens give up some rights in order to give creators incentives to create, in exchange for a fertile public domain, has totally broken down. When civil disobedience reaches the level that copyright infringement is reaching today, the social contact needs to either be rethought, or simply abolished.A Cover

    • MystrTiger


      I’m not sure I understand your statement that “citizens give up some rights in order to give creators incentives to create, in exchange for a fertile public domain”. What rights are you referring to?

      Seems to me that citizens can choose whether to give up some money in exchange for a creative work – an exchange of values in a free market society. It is their choice whether to buy – no one forces them.

  4. Snead Hearn

    Right now, the government (prevailing parties of Democrats and Republicans) can barely getting even remote balance on social issues, programs, budgets and what not. In other words, it couldn’t find it’s own ass with both hands in a room full of mirrors and it smelled like sh*t.

    Fixing even the most basic and fundamental social needs will need to be done first, over many more years. Then maybe, JUST maybe analyzation and remedy of intellectual property laws can take place.

    • MystrTiger

      Well, I think I agree that our government is not working all that well, but I guess I’ll go out on a limb and say that maybe we are all partly to blame because we elect them and they’re just doing what we want them to do. Problem is, half the country wants it one way, and the other half the other way, and maybe not enough of us will accept compromise.

      Anyway, at least on the copyright issue, I think that problem might be a little easier to solve since it does not involve spending vs taxes. In fact, I think it needs not so much an overall, but simply to add some real teeth. It amuses me (and irritates me to be forced) to watch that same “FBI investigates copyright infringement…severe penalties…” message every time I watch a movie (which I paid to watch). Well, maybe its true that the FBI does that, I don’t really know, but that message makes me think that if it were true we wouldn’t need that message anymore.

      • ceebee

        “we elect them and they’re just doing what we want them to do”

        We elect them, yes. But to think that they are only doing what we want them to do and not making back-door deals to chase power and other things for their personal benefit is naive. Our job is to stop electing those people, which I think we fail at doing in general.

        • MystrTiger

          I was unclear – didn’t mean that congress does “only” what we want them to do. What I meant to convey is that congress gets stuck and fails to compromise when it comes to issues involving spending vs taxes because they take strong positions on one side of the issue or the other based on the desires of their constituents who elected them. My point really was that I suspect they would not get as stuck on issues that are less divisive, and that changing copyright law would seem to be a less divisive issue.

      • Visitor

        Any copyright reform is going to be a huge battleground too rivaling any other random stupid debate we have going on too. I feel that our government is too inept to do anything.

  5. Paul Resnikoff

    Here’s a statement just emailed to Digital Music News from the NMPA (National Music Publishers’ Association)


    March 20, 2013

    STATEMENT FROM: NMPA President and CEO David Israelite

    RE: Register of Copyrights, Maria Pallante, testimony before the Subcommittee on Courts, Intellectual Property and the Internet

    “There is no question U.S. copyright law has become outdated. On behalf of America’s songwriters and their music publishing partners, I applaud Register Pallante’s challenge that Congress tackle the next great copyright act, and thank Chairman Goodlatte for holding this hearing to begin the process.

    Among the many challenges is ensuring that it is easier for new business models to be licensed, and that the rights of songwriters who provide the content for these new business models are protected.”

  6. ceebee

    I think this is a great speech and I agree with Pallante. We need a serious overhaul, and I especially agree with her point that “the control of copyright owners should be absolute, but it needs to be meaningful”. I think if more permissions were treated with statutory-style conditions instead of needing to secure specific permissions, copyright would seem less like a barrier to many.

    When copyright was a term of 28 years, iron-grip control was not a big problem. If a work wasn’t renewed, eventually it would go into the public domain and meaningful discourse through derivative works could happen within a lifetime. But that same iron grip lasting until 75 years after death – I believe – seriously prohibits the growth and maturing of our artistic culture through derivative discourse and carries the caveat of encouraging disrespect for the rights of a creator in general. We *all* need a system where derivative works can be easily created without cheating the original author out of their fair due.

    Basically, I think that an author should have complete permissions control for a limited period of time, and the right to continue to collect on uses of their work for a long period of time. What that compensation amounts to and in what situations it exists needs to be revisited. You can argue all you want about how long that period of time is, but I think it becomes a smaller issue when control of use is severely lessened over time.

    I also think that things would be MUCH CLEARER if proper attribution were mandatory. Right now you don’t actually have to put down a proper copyright notice on your work for it to be protected, but as someone who has done a fair amount of research into particular items to find out who holds what copyright on older works, it’s amazing how quickly things can get confusing. For example, a book of poems may have content in the public domain but the book is copyright protected because of a forward or a font, and there’s no clear marking that the content has not been edited or is in the public domain. Proving that I had the right to set some Emily Dickinson poems to music would have been a nightmare if the Minneapolis Public Library system didn’t have original printings of her work that I could copy text from. If there were clear laws on how to mark copyrights, that would easily transfer from one work to the next with little confusion inbetween.

    haha, didn’t mean to go on a rant there. But I am really glad to see the head of copyright asking for change like this, and I am interested to know what others think of these ideas.

    • ceebee

      oops, I got a truncated quote in there somehow and it lost the negative. Should have been “I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful.” (emphasis mine)

  7. Visitor

    I wish that the pro-pirates would read — and understand — this:

    “In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.””

    THAT’S the reason we’re fighting piracy!

    I’m not doing it for my own sake. Sure, it’s annoying to spend time and money on DMCA takedowns, but I’ll survive. I just happen to love art from the bottom of my heart, and art has never been attacked like this before in any democratic society.

  8. Visitor

    Finally! The whole copyright system needs to be gutted and completely rethought. I’m amazed it took someone in power this long to figure that out.

    • Visitor

      Huh? 🙂

      Like any other laws, Copyright laws need to be adjusted once in a while.

      Now, that’s what’s going to happen.

      And you may want to pay attention to the first point in Ms. Pallante’s speech:

      “As many have noted, authors do not have effective protections”

  9. Ankh Entertainment

    We’re laughing, Copyright, how about the whole country should be overhauled. Did you know that HD has been around for at least fifteen years prior to hitting the US market. We were the interns and personal assistants at the time. All of the big television executives were using a TV screen that had the capability of showing several screens from different stations simultaneously.

    We just thought it was some cool looking screens.

    Japan already uses mobile capability like we eat chicken.

    It is really frustrating to hear about policies that should have been resolved years ago before getting to this point, of force majeure, lack of a better word to describe our non-sentimental mood about this particular subject. It’s not like we didn’t know that the waves of alpha and beta would eventually reach US shores. Trust 60% of this country are illiterate and hardly able to turn on a computer. Most do not even own a computer. We don’t realize what a charmed life we lead comparitively speaking. Technology is moving much faster than the intelligence level of our society. Honestly, common sense is worth more than a stream of book sense from Harvard and Yale.