Amid the
excitement of the D.C. Circuit releasing its decision on whether and how the FCC may regulate
the Internet, and Chairman Walden’s call for a Communications Act update, the House Subcommittee on Courts, Intellectual Property, and the Internet held an important hearing on the appropriate scope of Copyright law for the
digital age. In some circles, the Net Neutrality debate or discussions
regarding whether the Communications Act should be reformed may be more
central. But similar issues stemming from technological convergence, the
Internet, and fundamental changes in content distribution also pose significant
challenges to copyright law as it currently stands.
The hearing, "The Scope of Copyright Protection," examined whether the Copyright
Act is in need of reform to respond to new developments presented by digital
technologies, and other issues. The last major revision to the Copyright Act of
1976 was the Digital Millennium Copyright Act, (DMCA), which was signed in 1998. The
Register of Copyrights called for legislative reform in 2013, citing the rapid
development of digital content exchange platforms and the accompanying growth
of digital piracy and infringement since the DMCA was passed. She stated, “I think it is time for Congress to think about the next great
Copyright Act, which will need to be more forward thinking and flexible than
before. Because the dissemination of content is so pervasive to life in the
21st century, the law also should be less technical and more helpful to those
who need to navigate it.”
The January 14th
hearing examined whether the current Copyright Act provides an adequate
framework regarding three specific issue areas: How the current Copyright Act
defines infringement under the making available or distribution right; whether
the protections for broadcasters under the current Act should be revised; and
whether codes, standards, and state laws should be subject to copyright
protection. The hearing featured five witnesses: David Nimmer of counsel, Irell & Manella LLP and author of leading
treatise in Copyright, “Nimmer on Copyright;” Glynn Lunney Jr., professor of
law at the Tulane University School of Law; Mark Schultz, associate professor
of law and director of faculty development at the Southern Illinois University
School of Law; James Love, director of Knowledge Ecology International; Patricia
Griffin, vice president and general counsel for the American National Standards
Institute; and Carl Malamud, president of Public.Resource.org.
The debate
regarding the scope of copyright protection in the digital exchange context was
most illustrative of some of the central issues challenging copyright law
today. Namely, how to balance the values of access to information and content,
and authors’ rights in the fruits of their labors. Professors Nimmer and Lunney
primarily focused on this issue in the context of the scope of the distribution
right. They examined whether the act of placing or uploading a digital file
containing a copyrighted work into an Internet-accessible resource violates
copyright law. That is, whether a copyright holder must prove that the uploaded
file was subsequently downloaded in order to prove infringement. Professor
Nimmer testified that the exclusive right granted to
authors under the Copyright Act by the distribution right renders the act of
making an unauthorized upload an infringing act, even though courts are
currently split on the issue. As such, he recommended that Congress provide
clarification on the scope of the "making available" right. In
contrast, Professor Lunney stated that any action by Congress would lead to more confusion
rather than clarity.
Professor
Nimmer’s view properly looks to the history of copyright law, under which the
U.S. Copyright Office found in 1961 that the “twofold right to make and to publish
copies” constituted the “historic basis of copyright,” and merely making a
copyrighted work available to the public without the author’s permission was
infringement. The drafting of the current Copyright Act recast the historic
right “to publish” as the right “to distribute.” Some courts have interpreted
infringement of the distribution right as requiring both the offer and acceptance
of an unauthorized copy, despite legislative history indicating the opposite. In
the digital context, this interpretation requires a plaintiff to prove that an
unauthorized download was subsequently uploaded. This view does not properly
weigh the author’s property right in the fruits of his labor, and tips the
balance in favor of infringing parties.
Article 1,
Section 8, Clause 8 of the U.S. Constitution states that the goal of Copyright
law is 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.” Among the exclusive rights granted to owners of Copyright is
the right to distribute. Professor Nimmer explained in his testimony, “deterring unauthorized distribution (properly defined) promotes
progress in the creative arts by empowering creators to determine when and how
to commercialize their works,” and “increase[es] the ability of creators
to appropriate a return to their efforts.” This view properly recognizes the
foremost importance of protecting the property right of authors in their works.
As Free State
Foundation scholars Randolph May and Seth Cooper explained in “The Constitutional Foundations of Intellectual
Property,” property protection, whether the property is
tangible or intangible, is essential to enabling and maintaining a vibrant,
healthy overall economy.
Even as innovation and value increasingly take
intangible form, and protected content becomes more easily disseminated and
shared, securing intellectual property rights becomes ever more critical to
fostering the creation and marketing of goods and services to consumers. While
intellectual property protections must be forward-looking in order to reflect
new innovations in technology and the marketplace, the foundational principles
guiding IP policy are grounded in the past:
The foundations for
intellectual property predate the Constitution. Classical liberal political
philosophy was a formative influence on the framers and ratifiers of the U.S.
Constitution. According to this philosophy, especially the works of John Locke,
government exists to protect natural rights to life, liberty, and property.
This classical liberal philosophy defined "property" broadly to
include one's person, one's faculties, and the fruits of one's labor. Lockean
natural rights philosophical premises, as understood and adopted by James
Madison and other of our Founders, confirm the status of copyrights and patents
as genuine forms of property, on par with real or personal property….
A Lockean approach grounds
intellectual property in natural right, adjusted in a social context to account
for the public welfare.
Other witnesses and representatives at the recent hearing also
recognized the importance of protecting authors’ property rights in their
creations. Professor Mark Schultz stated in his testimony, “While
Congress and the courts have often revisited and adjusted the margins and
peripheries of copyright, the heart of copyright has remained consistent:
Copyright protects the productive intellectual labor of authors, provided that
those labors result in an original expressive work…. Like other property
rights, intellectual property rights are essential to the individual liberty
and free-market system that drive our dynamic economy.” Professor Schultz also observed,
as did Free State Foundation scholars in the most recent Perspectives on IP, that the
Founders’ concept of a person's property right was informed by James Madison’s statement
in Federalist No. 43 that “the
public good fully coincides ... with the claims of individuals.” This
reflects the notion that while the public’s demand for information, shared
content, and enabling technologies may become increasingly prevalent in the
digital age, copyright can and should remain grounded in authors’ rights while
also benefiting the public good.
In order to respond to the challenges of the changing
landscape of digital technologies and Internet communications, copyright law
may need to be adjusted or even substantially reformed. However, any reforms to
the Copyright Act should reflect and be consistent with the government’s
primary purpose to protect property rights, as intended by the Founders. In the
context of digital file sharing, Professor Nimmer’s view that an author need
only provide proof of an unauthorized upload seems to be more consistent with
the historical conception of authors rights, grounded in the Constitution and
in our country’s copyright jurisprudence.
As James Madison observed, a well-defined system of
intellectual property rights, which respects the proper scope of authors’
rights can serve both individual interests and the public good. This is true
even in the face of challenges posed by the digital age.
No. 1: The Constitutional Foundations of Intellectual
Property, by Free State Foundation President Randolph J.
May and Research Fellow Seth L. Cooper
No. 2: Reasserting the Property Rights Source of IP, by Free State Foundation President Randolph J. May and Research
Fellow Seth L. Cooper
No. 3: Literary Property: Copyright's Constitutional
History and Its Meaning for Today, by Free
State Foundation President Randolph J. May and Research Fellow Seth L. Cooper
No. 4: The Constitution's Approach to Copyright:
Anti-Monopoly, Pro-Intellectual Property Rights, by Randolph J. May and Seth L. Cooper
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