What could be done to resolve some of the most troublesome, long-running issues in the music business today? That's what a U.S. House hearing on copyright reform on March 20 valiantly tried to address.
The lone witness, U.S. Register of Copyrights Maria Pallante, took questions from members of the Subcommittee on Courts, Intellectual Property and the Internet about topics ranging from a performance right for sound recordings to cellphone unlocking.
The last major copyright act has influenced today's music business significantly. The Digital Millennial Copyright Act provides the foundation on which digital services like YouTube can operate. The DMCA limits a service's copyright infringement liability, provided it follows specific rules regarding notification of infringing content.
Asked to name her top three issues for review, Pallante cited the performance right for sound recordings, orphan works and illegal streaming. She noted the subcommittee has been deliberating the performance right for a decade and has completed many pieces of research on the topic. She later called the United States' lack of the right "indefensible."
"The public is so frustrated by the long copyright term that it's not really the term itself but what to do when the rights holder goes missing," she said. The Copyright Office has spent years studying and holding hearings on this issue and is currently holding another public inquiry at the behest of Congress.
Pallante called illegal streaming "a parity issue." Copyright law lays out penalties for illegal copyright and distribution of copyright works but treats illegal streaming differently--the law hasn't effectively caught up to the way people engage with media online in the YouTube/Netflix era.
Exactly what issues will ultimately be part of copyright reform is impossible to know, says David Nimmer, professor at UCLA School of Law and of counsel to law firm Irell & Manella. He cites three interrelated issues he believes "should be resolved." Nimmer says Congress should provide clarification on public performance, the reproduction right and the unresolved questions from the 1984 Sony Betamax case regarding time-shifting in today's digital age.
Many other topics came up during the hearing, which lasted nearly 140 minutes due to three recesses so members could leave to vote in the House chamber. One hot-button issue was the rate-setting standard for webcasters.
Rep. Jason Chaffetz, R-Utah, a co-sponsor of last year's Internet Radio Fairness Act, and new subcommittee member Rep. Judy Chu, D-Calif., asked Pallante why webcasters are subject to a different rate-setting standard than other types of digital services. IRFA, which expired at the end of the last Congress and is expected to get introduced again in some form this year, sought to give webcasters the different rate-setting standard that would lead to lower statutory royalties.
"Music licensing is so complicated and so broken that if we can get that right I would be very optimistic about getting the entire statute right," Pallante responded, adding that she believes the disparity in rate-setting standards is the kind of issue that should be addressed with the next copyright act.
An omnibus copyright bill would impact numerous segments of the entertainment and creative industries and touch the lives of a wide swatch of creators. At the end of the hearing, Pallante spoke of trips to artist-filled cities like Nashville and New Orleans to speak with people who say copyright law isn't working for them.
"If people aren't able to make a living from their creativity, we're going to suffer as a country," she said. "That's the beauty of copyright law, that it allows that kind of culture."