Thursday, April 30, 2015

Maria Pallante Supports the Property Rights of Musicians and Artists

I haven’t had a chance to review the actual testimony today of Maria Pallante, director of the U.S. Copyright Office and Register of Copyrights, before the Senate Judiciary Committee, only Broadcasting & Cable’s report of her testimony by John Eggerton.

But according to the B&C report, Ms. Pallante made several important points with which I agree.

She supported some form of fix so that artists holding the rights to pre-1972 sound recordings can be compensated for performances of these works. As my colleague Seth Cooper has explained here and elsewhere, state courts – quite correctly – recently have ruled in several different cases that artists must be compensated under various existing state law property rights-like remedies for performance of pre-1972 recordings. But Ms. Pallante is right to suggest that Congress should consider amending the Copyright Act to provide federal protection as well.

Ms. Pallante’s testimony also apparently urges Congress to remedy the current gap in the law whereby broadcasters escape payment of compensation for transmitting sound recordings. This exemption from payment of royalties for using the intellectual property of the music artists doesn’t make sense. Representatives Marsha Blackburn and Jerrold Nadler have introduced the “Fair Play Fair Pay Act” which would create a public performance right applicable to broadcasters for their transmission of copyrighted sound recordings. Seth Cooper, in this blog commending the Blackburn-Nadler bill, explains why broadcasters should not continue to be treated with favoritism vis-à-vis other technological platforms that are required to pay for use of copyrights recordings. Ms. Pallante’s support for considering redress for this inequity is commendable.

According to John Eggerton’s reporting, Ms. Pallante also will urge Congress to make unauthorizing streaming of content a felony just like the unauthorized downloading of copyrighted content. There may well be disagreements concerning the degree of culpability, and, therefore, the severity of punishment that is appropriate, for those who knowingly commit theft of intellectual property in different circumstances. But there shouldn’t be disagreement that those who knowingly commit such crimes should be held responsible. So, it is necessary and appropriate for Director Pallente to remind us that theft of intellectual property online – like theft of property wherever it occurs –is a serious crime.

It is entirely fitting that Ms. Pallante’s testimony takes place close to World Intellectual Property Day, celebrated each April 26. And it is still close enough to April 26 to remind you of the series of scholarly papers my colleague Seth Cooper and I have authored in our series of works addressing the constitutional foundations of intellectual property. If you’re interested in delving more deeply into foundational principles relating to the protection of intellectual property rights, I commend these papers to you.

Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property," Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today," Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).

Randolph J. May and Seth L. Cooper, "The Constitution’s Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights,” Perspectives from FSF Scholars, Vol. 8, No. 20 (2013).

Randolph J. May and Seth L. Cooper, "The 'Reason and Nature' of Intellectual Property: Copyright and Patent inThe Federalist Papers," Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).

Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress," Perspectives from FSF Scholars, Vol. 9, No. 18 (2014).

Randolph J. May and Seth L. Cooper, "Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).

Randolph J. May and Seth L. Cooper, "Intellectual Property Rights Under the Constitution's Rule of Law,"Perspectives from FSF Scholars, Vol. 9, No. 31 (2014).

Randolph J. May and Seth L. Cooper, "Reaffirming the Foundation if IP Rights: Copyright and Patent in the Antebellum Era," Perspectives from FSF Scholars, Vol. 9, No. 38 (2014).

Randolph J. May and Seth L. Cooper, “Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property, ” Perspective from FSF Scholars, Vol. 10, No. 2 (2015).