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).