Peters Frames Current Copyright Issues at Member Meeting
At the annual ASMP member meeting on Saturday, October 23, Marybeth Peters, the Register of Copyrights, talked about how copyright is changing in the digital age. Although the main impetus for recent lawsuits and new legislation has come from the entertainment industry, she said, photographers’ rights are at stake too.
One example is the recent Supreme Court test of the Sonny Bono Copyright Extension Act. Most analysts have forgotten that the Act was originally drafted to bring U.S. law into full conformity with the Berne Convention treaty, which specifies that copyright should last for 70 years beyond the life of the creator. The music industry did most of the lobbying to get the bill enacted, but opponents managed to identify the law with Disney Corporation and the imminent expiration of copyrights for old Mickey Mouse movies. It was an astute bit of misdirection: Everyone loves the struggling artist, but no one loves a giant corporation. In the end, the Court upheld the term-extension law, but some observers suspect it was a near thing.
The telecom industry has raised another set of challenges to copyright. Internet firms deeply dislike several provisions of the Digital Millennium Copyright Act (such as the one requiring an ISP to disclose its customer list to a music publisher who believes his music is being pirated), and they have repeatedly sought to overturn those provisions in court. This would ordinarily be of academic interest to photographers, except that among the ISPs’ tactics are legal attacks on the very concept of copyright.
On the positive side, the movie industry is working to secure passage of some useful laws. One would allow a creator to pre-register a copyright before the work has been completed; this would help protect movie studios that need to distribute advance copies to disc-replication houses, publicity firms, language translators, etc. Another bill would allow U.S. Attorneys to file civil suits as well as criminal prosecutions for copyright infringement. Photographers, said Peters, can best help these efforts by educating the public and, especially, by talking about the benefits of copyright for individual creators.
Combating Peer Servers
The music and movie industries would also like to outlaw “inducement to infringe”; that is, they’d like to shut down all the peer-to-peer file sharing systems. So Congress, as part of the normal bill-drafting process, asked the Copyright Office to see whether there was an industry consensus on the question. There was not. Some 40 industry groups offered their comments, but the only thing they agreed on was that none of them liked the draft bill. Now, the Copyright Office is exploring a completely different approach that looks at the file-sharing service’s business model, rather than assessing potential for abuse or evil intent.
It’s too soon to say what will happen to this proposal; Silicon Valley, Hollywood and Tin Pan Alley don’t like it any better than the earlier bill. Meanwhile, file-sharing services are taking root in a wide range of legitimate applications that have nothing to do with pirated music, and online music sales have gotten popular. And this will have repercussions that go far beyond the entertainment business.
For photographers, said Peters, one implication is that exclusive distribution contracts are going to disappear. There will be several competing download services, but customers won’t want to shop around. Just as they will expect to find all their music in one Internet outlet, so they’ll want to buy all their stock from a single source. That means that creators will need to license their work non-exclusively. This will have a major impact on the stock houses, but it will be the result of market forces, not criminal acts, so there’s not much Congress or the Copyright Office can do about it.
An All-Electronic Office
The Copyright Office has about 550 employees, most of whom work on processing the 600,000 registration applications that are received each year. Six years ago, Peters launched an R&D project to develop an all-electronic registration process. In 2000, detailed planning for the conversion began. (It’s harder than you might think; the Copyright Office can’t afford to stop processing registrations during the conversion.) This year, the implementation phase arrived, starting with setting up an infrastructure of IT support and staff retraining.
The Copyright Office is an old institution. To refit its old building on Capitol Hill for the electronic age, next November the entire staff will move to temporary quarters. A year later, they will all move back — and from that moment on, all operations will be done electronically. Paper registrations will still be accepted for a while, but the first step will be to scan the paper into the computer system.
Put it in a Box
The all-electronic workflow will also ease the headaches of today’s bio-terror countermeasures. Right now, all incoming flat mail is diverted to a special screening facility where it is opened, tested for chemical residues and subjected to lethal radiation. This presumably kills any anthrax spores, but it also often destroys the CDs, prints, transparencies and even the checks that the Library of Congress requires.
This takes a few days, so the Copyright Office back-dates each registration to compensate for the delay. Interestingly, the inspection and radiation are done only to flat mail. Boxes are not irradiated and apparently go directly into the Copyright Office processing stream. Therefore, said Peters, if you want the earliest possible registration date or are worried about damage to your CD, send all your submissions in boxes. (The address for box deliveries is on the Copyright Office web site, and is also part of the ASMP’s revised Copyright Tutorial.)
Registering Web Sites
In reply to a question from the audience, Peters noted that there is still no good way to register the copyright for a web site. No one doubts that a site can be copyrighted; rather, the question is what constitutes a proper “deposit copy” of a site that changes every few hours, or whose content is streamed. At the moment, the Copyright Office is looking at using the same approach it takes for databases, which allows a single registration to cover all changes that occur in a three-month period and lets the copyright claimant deposit a typical sample of the data.
Peters freely admitted that it’s not a perfect solution. The Copyright Office, like everyone else, is adapting to new technologies while keeping to the intent and spirit of its original mandate in the Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”