March 19, 2013

Last week, the Register of Copyrights Maria Pallante gave remarks at Columbia Law School. During these remarks, she suggests some changes in United States copyright legislation may be necessary to help various entities properly utilize current technology within the confines of the law. Such entities that may benefit from future changes consist of courts, libraries, schools, and for-profit organizations.

During her remarks, Register Pallante posed the following suggestions and provocations:

1. Any future legislative changes need to address new and emerging technologies, but also they must be flexible enough to apply to technologies not yet created. After all, in accordance with Moore’s law, some of today’s technology will soon be a moot point.
2. The Digital Millennium Copyright Act (DMCA) may need to be revised as the internet and its features have changed since the DMCA’s inception.
3. Registration requirements for copyrighted materials should be revisited. Could a new revised registration requirement solve some issues such as the orphan works problem? Or, would such a requirement burden original creators?
4. Congress may need to take a look at section 109, also known as the first sale doctrine, depending on how the Court rules in the Kirtsaeng case in May or June.
5. Should section 108 contain new copyright usage exceptions specifically tailored for higher educational institutions, such as for libraries? It sounds like a great idea to me!
6. Congress may want to review the current copyright duration, which is a life-in-being plus 70 years. Should the later portion of this term be shortened to 50 years with an optional renewal of 20 extra years?
7. Could the Copyright Office become an actual agency? Ergo, it could resolve questions of law or fact via advisory opinions.

Hopefully Congress will address some of these concerns. At a bare minimum, Congress needs to investigate how best to grant institutions of higher education (including academic libraries) broader protection to digitize various materials and make these materials available to a wider selection of individuals. One way this could be accomplished as Register Pallante kind of alluded to, is to grant broader statutory exceptions to libraries when digitizing materials to which they currently own or to which they have agreed access.

I am not certain giving the Copyright Office administrative authority to resolve disputes or to interpret legislation is a good idea. If such an agency were given such authority, even though their opinions may only be given in an advisory manner, personally, I would rather see the United States Congress pay more attention to these issues and produce new legislation that provides more flexibility to libraries in serving their patrons with current digital technologies. Congressional statutes providing libraries with avenues to share information carry much more weight than do advisory opinions.

Submitted by - Kristyn H