The Right to Copy

Can Congress bring copyright law into the digital age?

Riddle me this: Why is a cell phone like a player piano? Because according to the Copyright Office the same compulsory license law covering player piano rolls also applies to cellular ringtones of popular songs.

The 97-year-old law, Section 115 of the Copyright Act, says that once an author of a musical composition makes a copy'or phonorecord'of the work generally available, anyone can make their own version of it as long as the copyright holder is paid a royalty.

'While the concept of the cellular phone ringtone undoubtedly would have astonished the members of the 1909 Congress, the license they devised was broad enough to include ringtones,' said Marybeth Peters, the register of copyrights, in her October decision.

Despite this flexibility, U.S. copyright law is being strained by rapidly evolving digital technologies, congressional staffers said in a recent roundtable hosted by the Progress and Freedom Foundation. Legislation addressing new forms of musical licensing and protecting orphan works whose copyright owners cannot be found was introduced in the outgoing 109th Congress, but was not acted on.

"While the concept of the cellular phone ringtone undoubtedly would have astonished the members of the 1909 Congress, the license they devised was broad enough to include ringtones."

It might be time to move beyond these bandaid fixes, said David Jones, counsel for the Senate Judiciary Subcommittee on Intellectual Property. 'The patchwork approach is really problematic. A lot of the assumptions that were made about the market no longer apply. It may be time to start the process of looking at a major reform of copyright laws.' Such an overhaul could take a decade or more, he said.

Copyright law seeks to strike a balance between the rights of the copyright holder and the public. The 1909 mechanical compulsory licensing provision was intended to keep authors from establishing monopolies for products such as piano rolls, while allowing them to profit from their works.

The issues raised by new digital forms are not trivial. The global market for cellular ringtones alone has been estimated at $1.5 billion to $4 billion or more annually. But until recently vendors of these tones have been operating in largely uncharted waters.

In 1995 Congress recognized the importance of digital music by amending Section 115 to recognize what it called digital phonorecord deliveries. But there has been disagreement in the music industry about whether musical ringtones fall into this category. In general, vendors and distributors said yes, while copyright owners said they do not fit, and that owners should be able to negotiate their own licenses and royalty payments. Ringtone services have been operating under the assumption that compulsory licenses do apply and have been paying royalty money into an escrow account.

Royalty rates to copyright owners would be set by the Copyright Royalty Board, which referred the dispute in September to the register of copyrights. She decided that ringtones are digital phonorecord deliveries subject to the compulsory license.

Yet to be resolved are issues such as how to treat satellite radio receivers that can record broadcast material and cached copies of copyright material housed on servers.

'We do need to modernize our copyright laws to deal with the Internet,' said Amy Levine, legislative counsel for Rep. Rick Boucher (D-Va.), who sits on the House Judiciary Committee.

Levine said her boss' copyright priorities include music licensing reform, clarification of fair-use exceptions on encryption under the Digital Millennium Copyright Act and orphan works, the millions of unidentified but copyrighted works that are in danger of slipping into obscurity because their owners cannot be found.
The Copyright Office has proposed legislation that would make it easier for libraries, universities and archives, including the Library of Congress, to digitize collections that contain orphan works.

Orphans have always been around, but the Internet has increased the urgency of the issue. Any time a library or museum makes a digital image for online display the copyright holder's permission must be obtained, a process that can cost hundreds of dollars if the holder cannot be easily identified.

The Copyright Office recommended allowing use of orphan works if the user can't locate the owner after making a reasonable search. If the owner eventually shows up, remedies would be limited to reasonable compensation, without the threat of punitive damages or attorney's fees.

But questions remain as to what would constitute a reasonable search, and some representatives of copyright holders think the proposal would let users off too easily, encouraging abuse.

Organizations representing copyright owners argued in the ringtone case that putting them under the compulsory license could open the door for similar snippets to be used in all kinds of consumer devices, including musical car alarms.
Now there's a scary thought: Cars on the street screaming out Britney Spears in the middle of the night. Reform can't come too quickly.

About the Author

William Jackson is a Maryland-based freelance writer.


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