By CRAIG D'OOGE
Depending on one's perspective, the Copyright Reform Act of 1993 (S. 373/H.R. 897) is either very simple or very complicated, according to Sen. Orrin Hatch.
Sen. Hatch (R-Utah) is one of the cosponsors of the act that was introduced in the House by Rep. William J. Hughes (D-N.J.) and in the Senate by Sen. Dennis DeConcini (D-Ariz.) on Feb. 16, 1993.
From one point of view, the bill can be seen as a simple amendment to make it easier for photographers, writers, graphic artists and others to protect their works under copyright law. Upon closer examination, however, the bill could cause "irreparable losses" for the collections of the Library of Congress and "irreversibly change its character," according to testimony from the Librarian of Congress.
In opening remarks at the Oct. 9 Senate hearings on the bill, Sen. Hatch went even further. He said that one section of the bill "may also be seen as an attempt by Congress to address the more fundamental policy question of the extent to which it is proper for the Copyright Act to be employed in the service of building and protecting the collections of the Library of Congress.
"In particular," he continued, "our legislation raises the question of whether it is desirable to continue to key the recovery of full copyright remedies on the interests of the Library when the impact of this arrangement falls on clearly identifiable classes of copyright owners."
The section of the proposed act that has caused such a wide spectrum of reaction is 102. This section calls for the repeal of two statutory provisions that encourage, to some extent, copyright registrations and deposit of materials in the Library of Congress. For 120 years, the Library's relationship with the Copyright Office has enriched the collections beyond measure. The value of the nearly 650,000 works transferred from the Copyright Office to the collections in FY 1992 alone has been estimated at $12 million.
The two incentives for this activity that the bill would eliminate are section 411(a) and 412 of the copyright law. The first requires that before a copyright infringement action can commence, registration must be made or refused by the Copyright Office. The next section (412) states that no award of statutory damages or attorneys' fees can be made (with certain exceptions) unless the work was registered before the infringement began or within three months of first publication.
According to Barbara Ringer, who played a major role in revising the copyright law in 1976 when she was Register of Copyrights, these sections were written back in the 1960s, when the costs of litigation were less. Many people who unknowingly fail to register now find it all but impossible to retain the services of an attorney unless they have the possibility of recovering the fees for his or her services. In addition, these sections also could be interpreted as "formalities," (i.e., requirements that make copyright contingent upon certain acts) that are prohibited by the Berne Convention, the world copyright treaty that the United States joined in 1989.
If anyone entered the hearing room at 10 a.m. on Oct. 19 with the idea that it was a simple matter to revise such a laboriously constructed piece of legislation as the U.S. copyright law, it would have been impossible to leave in the same frame of mind when the hearings concluded at 1 p.m.
The Librarian of Congress led off a group of 10 witnesses that represented authors, publishers, librarians, photographers, graphic artists and software publishers. Some spoke in favor of the bill, some against it, but all contributed to what should prove to be a continuing reexamination of the fundamental basis and methods for protecting America's creative work and ensuring its preservation in the Library.
Dr. Billington said that the challenge presented by S.373 is to sustain the principle of protection for owners and creators of intellectual property without jeopardizing the maintainance of the uniquely comprehensive record of creativity available in the Library of Congress.
"The present system, however flawed in some respects, has succeeded in assuring a steady flow of information and materials; and the major changes required to address the first principle could put in jeopardy this flow that the current copyright system provides," he said.
In order to assist him in developing alternatives and a response to S.373 and the House version, H.R. 897, the Librarian formed a 20-member private sector advisory group that delivered a report to him on Sept. 15. The group, called the Advisory Committee on Copyright Registration and Deposit (ACCORD), was cochaired by Robert Wedgeworth, president of the International Federation of Library Associations and Institutions and Ms. Ringer.
The Librarian recommended the report as an excellent starting point. "With very few qualifications," he said, "I endorse the proposals and recommend that your bill be amended to incorporate those that require statutory changes."
To ensure a steady flow of materials into the Library of Congress if the existing incentives are removed, ACCORD recommended expanding and improving the mandatory deposit provision of the copyright law.
Section 407 of the current copyright law says that copyright owners must deposit in the Library of Congress two copies of a work published in the United States. It gives the Register of Copyright the authority to demand the copies and impose fines if this is not done. As a practical matter, however, demands are not made very often, as this would be a cumbersome and costly way to maintain a steady and timely stream of materials into the collections of the Library.
The ACCORD report makes 15 recommendations to substantially expand and strengthen mandatory deposit and copyright registration, if the current incentives for voluntary deposit are removed. The recommendations include broadening the scope of mandatory deposit from only published works to works publicly disseminated by any means. Most important, this would include broadcasts of television and radio programs as well as online data bases. Other proposals relate to simplifying, liberalizing and improving the present copyright registration and deposit system through the use of techniques such as group registration, shorter forms, and reduced paperwork. The proposals will also improve the copyright registration data base, making copyright registration even more desirable.
However, the Librarian cautioned that "the expansion of mandatory deposit must be carefully planned, must be phased in through pilot projects and must be sufficiently funded." At a time when the government as a whole and the Library of Congress in particular is downsizing, important consideration must be paid to the adequate funding and administration of these new provisions.
Concerning the repeal of the incentives contained in sections 411(a) and 412 of the present copyright law, the Librarian testified that he has modified his position since last March when he testified strongly against the House version of the bill.
"After a thorough review of the ACCORD report and all related documentation and a careful consideration of all the issues ... I now believe that the arguments for repeal of section 411(a) outweigh those for retention," he said.
The question of 412 (the award of damages and attorneys' fees) was more troublesome. The Librarian told the committee he could only in good conscience support repeal of this section if three conditions were met:
- The major thrust of the final legislation is a congressional endorsement of the value of the current mandatory deposit and copyright registration system.
- The comprehensive package of inducements to deposit and register through copyright recommended by ACCORD is added in full to the bill, with adequate additional resources to make them work.
- A process is established to monitor the impact of the legislation on the collections and the copyright registration system with a reasonable means to rapidly correct any unforeseen problems.
"It seems to us a matter of common sense," Dr. Billington said. "Maintenance of the integrity of the Library's collections and the copyright data base is so important to Congress itself that we would be irresponsible in letting go a system that is currently supporting Congress well unless all essential aspects of a new system were agreed upon in advance."
The administrative and policy consequences of the bill were not foremost in the minds of the next group of witness, novelists Erica Jong and Scott Turow, both of whom claimed that their opposing views represented the true sentiments of the Authors Guild, and Maria Pallante, executive director of the 4,000-member National Writers Union.
Ms. Jong and Ms. Pallante both are in favor of eliminating section 412 from the copyright law because, in their view, writers are temperamentally unable to keep track of copyright regulations. Yet they are generally too poor to afford the legal fees that they are prohibited from recovering if they neglect to register and deposit.
Lawyer-novelist Scott Turow, on the other hand, spoke in support of the current law. He predicted that repeal would "foster increased litigation whose net effect will be to burden authors' rights of free expression," a position that puzzled Sen. DeConcini.
Attorney Irwin Karp, speaking on behalf of a number of writers' organizations (including the National Writers Union) supported the proposed changes, urging that 411 (a) be repealed because it does not stimulate registration unless a suit is brought, and only a small fraction of copyrights are litigated." He called section 412 a "glaring violation of international copyright's golden rule -- don't do to others what you don't want them to do to you," since other copyright countries do not require U.S. publishers, authors and film and record companies to register claims with them as a condition for obtaining any remedy under their law.
Mr. Karp, who resigned from ACCORD before it issued its report, reminded the committee that quite apart from any incentives to register and deposit with the Library of Congress, the current copyright law automatically grants creators copyrights in their works from the moment they are created. This fact was obscured amid the wide discussion of incentives, effects and costs.
Of the remaining witnesses, both Robert Oakley of the American Association of Law Libraries and Sandy Thatcher of the Association of American University Presses supported Dr. Billington's position that, as written and without the safeguards he proposed, S. 373 could jeopardize the collections of the Library of Congress. The final three witnesses, representing the interests of software publishers, photographers and graphic artists, detailed ways in which the current law makes it difficult for them to enforce their copyrights.
Sen. Hatch then drew the hearings to a close, thanking all the witnesses for providing an extremely interesting session. He even suggested that the hearings might form the basis for a good novel.
One hopes such a novel would become a part of the Library's collections.