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In January 1, 1978, the Copyright Act of 1976 was enacted. This event was considered as the onset of the weak requirements of copyright protection so as to suit the system which fulfilled the international conventions standards (p. 60). This is the first move against the traditional formalism of the 188 years of the copyright law (p. 60). The Copyright Act of 1976 made copyright protection became automatic for any work of authorship put in a concrete medium such as a printed material or a computer file. It also made the registration with the Copyright Office as optional (p. 61). Registration just became a requirement for filing suit in a U.S. District Court. It was just needed as a condition to collect statutory damages and attorney's fees (p. 62). This new law contained liberal measures.
Also, the new features of the law also changed the copyright protection term for new works to an author’s lifetime and an extra 50 years more the author’s death (p. 62). Before, this was just good for 28 years, upon the affirmative application to the Copyright Office. After two years, the renewal term for pre-1978 works was pushed to 47 years. In 1998, this was pushed to 67 years. In 1992, “automatic renewal” was put in place. Other changes followed after the US joined the Berne Convention.
The single best challenge to the US copyright system is its long standing architecture (Zimmerman, p. 1). The problem is that the copyright law in the US has not changed and has remained static despite the dynamic changes in the nature and scope of what it is supposed to regulate (p. 1).
At the onset of the digital revoltuion, the US copyright law became technical, inconsistent and hard to understand. Its coverages became selective. This is because the traditional protection for the writers, authors, painters, photographers, musicians, playrights, etc. have changed. They were unemcumbered ninety years ago (p. 1). At present, the emergence of new technologies circumvented the laws and the ways by which these authorships have been reproduced and transmitted. Such very acts constitute infringement and violations under the copyright laws. To complicate the matter, these acts are very comonplace nowadays, i.e. copying of books online, recording and transmittin gof music through the Internet, downloading of movies, among others. People usually “collide with copyright law” (p. 1).
As Lawrence Lessig, Director of the Center of Ethics of the Harvard University, puts it, “technology may be heedless of the law but the law cannot stay heedless of technology” (p. 1). In the digital and very technological world, every single use can produce a copy. To cite, one’s use of the digital book could mean copying it electronically. The problem now lies on the unregulated use since the platform for reproduction and transmission is very open and accessible (p. 1).
Part of this challenge is the arbitrariness of the US copyright law. It has various exceptions, limitations and their provisions have strong counter arguments (p. 1). To exemplify, Copyright is applied only to specific subject matter, codified within 17 U.S.C. § 102. Works which are not "original works of authorship maintained in any concrete medium of expression" are not covered by copyright (p. 1). Under 17 U.S.C. § 102(b), it is codified that copyright protection does not cover ideas, procedures, processes, systems, etc. Facts may not also be copyrighted.
Codified under 17 U.S.C. § 107, the “fair use” exception defends that the “fair use” of a copyrighted work (i.e. for educational purpose) cannot be considered as an infringement act. The “first sale doctrine,” which is codified at 17 U.S.C. § 109, limits the rights of copyright holders to regulate the distribution and exhibition of copies of their works (p. 1). The "good faith" defense, on the other hand, protects educational agencies, libraries, archives, and public broadcasters, by allowing the court to reduce statutory damages to only $200 if they are reasonably a fair use (p. 1).
More importantly, the problem of the orphan work. An orphan work is a copyrighted work for which the copyright owner is no longer available for contact (p. 1). In other cases, only the name of its copyright owner is known and no other information can be identified (p. 1). A work is considered orphan because the copyright owner is not aware of their ownership, or he/she has died, or he/she is a company which has gone out of business. This means that the ownership cannot be established (p. 1).
Digital technology has made it very easy for a work or part of a work (like audio recording) to be distinguished from ownership or permissions information, whether through accident or through deeds of bad faith actors (p. 1). The methods of business have furthered the publication of works less any credit of authorship or copyright ownership. For example, the publishing of images in some advertising contexts.
Hence, the copyright law failed to ensure proper incentive to innovation and creativity. It has also failed to protect the required freedoms in the amateur and scientific culture (p. 1). Lessig advocated voluntary licensing to balance the freedom with the regulation. A voluntary licensing contract “encourages the transfer and dissemination of technology, delimits or regulates practices and conditions which may in certain cases constitute an abuse of intellectual property rights, having an adverse effect on competition and trade” (Clarkson, p. 63). Lessig approves of the technology transfer systems which should comply with this in order to balance technology and copyright.
In tackling this problem or issue, the US Congress, including all the government and adjoining private and public sector agencies must consider the main essence of copyright as the world’s knowledge and creative products should be owned as private property. They should also be considered as tradable commodities and hence, copyright owners must have exclusive rights and fair use of their ownership (p. 59). There should constantly be an incentive to authors and hence, all agencies must expand the copyright regime (p. 60).
The first part of the solution is to make a comprehensive review of the US copyright law. The various sectors of the American society must be involved in the proposed revision which will address the fair use and other issues related to the exceptions, limitations and discrepancies in the present laws. Compensation for copyright, digitizing printed works, licensing, and reducing the bureacracy of the present copyright law are som eof the major topics for this total review. The stakeholders who should assess these must include all the members of the intellectual and commercial and the cultural agencies in the US such as the universities and the colleges, the libraries, entertainment and media, audio visual companies, Internet giants such as Google, Amazon, etc., computer and technical device manufacturers, copyright office, trademark and patents agencies, IPO representative, WIPO representative, among others. There must be a balance between those being represented by each segment. To strike a balance in copyright is to equalize these stakeholders and the forces of politics, economics and the general society and culture.
- Repeal Section 301(c) of the Copyright Act.
- Decriminalize the use and copying of orphaned works or the controversial works which are not attributed to any rightful owner or author such as ancient recordings.
- Bring US copyright terms congruent with the other First World countries such as UK.
- Enable third parties to re-issue abandoned works without permission from rightsholders, as long as those rightsholders are rightly compensated.
- Libraries should be enabled to more easily reproduce and transmit material within the library and into the other libraries. There should not be any limitations on the quality of the copies.
Secondly, there should be a recommended framework wherein a legitimate orphan works owner who comes back may bring a legal action for “reasonable compensation” against a qualifying user (Clarkson, p. 71). A user should not qualify for the advantages of the orphan works legislation unless he initially conducts a good faith, reasonably diligent yet unsuccessful search for the copyright owner or author. The reasonable compensation must be an amount “logical willing buyer and logical willing seller in the part of the owner and user would have said yes to at the time the use began (p. 72). This recovery is fair since it estimates the real market value of the work (p. 72). It enables a copyright owner to show evidence related to the market value of his work and simultaneously enables the copyright user to more completely assess his exposure to liability. In addition, statutory damages would not apply to use of an orphan work (p. 73).
Works Cited:
Clarkson, K., et. al. Business Law: Text and Cases: Legal, Ethical, Global, and Corporate Environment. London: Cencage Learning.
Zimmerman, Traci. Think Locally, Act Globally: Taking US Copyright Reform to a World Stage. Conference on College Composition and Communication. 2011. Accessed on May 6, 2013 < http://www.ncte.org/cccc/committees/ip/ipreports/thinklocally>.
