On Wednesday, the head of the U.S. Copyright Office is going to testify to Congress and call for an update to U.S. copyright law. If Congress takes up the challenge, supporters of free expression and the promise of digital technology will have a great opportunity to forge a copyright law that reflects our fundamental values. Of course, a major reform of copyright law could lead the other way - back towards SOPA and beyond to a world of more centralization, censorship, and technology regulation.
Maria Pallante, the Register of Copyrights, previewed her upcoming testimony to Congress in a lecture at Columbia University. She raised the possibility of a slew of changes to copyright: changing the life-plus-seventy-years term, exempting some temporary and incidental copies, changes to statutory (automatic) damages rules, and maybe changing the Copyright Office's DMCA exemptions process. Pallante's speech also raised the prospect of revisiting some of the provisions of SOPA, such as criminalizing streaming and allowing easy censorship of so-called "rogue websites" within the U.S.
Needless to say, Pallante's suggestions are a mixed bag for supporters of an open Internet and the freedom to use digital technology. If Congress takes this invitation to rewrite the Copyright Act, major copyright owner interests like the MPAA and RIAA, and others with a financial interest in making copyright law ever stronger, will bring their lobbying and publicity machines to bear. Major Internet companies with clout inside the Beltway will certainly be involved too, and might push for changes that entrench their positions.
Register Pallante says the interests of authors are intertwined with the interests of the public, and we agree. But that relationship works in both directions. As the rise of the Web and user-generated content has made abundantly clear, artists and authors *are* members of the public, and copyright shouldn't be made to restrict members of the public from expressing themselves freely, or from commenting on the culture that surrounds them. That is, the interests of authors and the public are both served by a fair copyright policy that incorporates ideas like fair use that are beneficial to the user first. To that end, Register Pallante is absolutely correct to pursue a copyright act that doesn't require "an army of lawyers to understand," and that goal would also be served by reining in the excessive statutory damages that can make people understandably wary of publishing even legitimate speech.
Whether we like it or not, copyright law touches everyone who depends on digital technology - which is to say, everyone. We need to make sure that Internet users, bloggers, technologists, marginalized communities, and startups have a voice in copyright reform. If Congress learned anything from the protests over SOPA and PIPA, it must have learned that copyright law can't be written in locked rooms by a privileged few. Register Pallante said in her speech that "as Congress considers copyright revision, its primary challenge will be keeping the public interest in the forefront of its thoughts, including how to define the public interest and who may speak for it." And she recognized that "not since the industrial revolution has there been a force like the Internet, and it has changed both the creation and dissemination of authorship." Despite these noble sentiments, we can't count on a government agency, or Fortune 500 companies, to represent the interests of individual Internet users. A successful update of the Copyright Act is going to require sustained participation and effective organization by many affected communities.
If it's open season on the Copyright Act, let's be involved from the start.