Public Knowledge Proposes Changes To Key Copyright Laws

Public Knowledge has proposed changes to three key portions of copyright law: (1) notice and takedown procedures; (2) how to handle “incidental” copies of material and (3) digital music licensing, as part of the organization’s Copyright Reform Act project.

Three papers, each on one of those topics, as well as the other papers from the Copyright Reform Act project, are available online. The paper dealing with notice and takedown argues that the provisions of the Digital Millennium Copyright Act which allow copyright holders to challenge material posted online are “skewed in favor of takedown, leaving its procedural safeguards limited in effect,” and asks that Congress reform the procedures “to restore balance in the notice and takedown procedure, protect the rights of copyright owners, encourage OSP (online service provider) innovation, and respond to the needs of online users, content creators, and the public at large.” Among other items, the paper recommends that takedown notices be submitted under penalty of perjury and that there be increased transparency to the process.

“Incidental copies” are created as part of most technological processes, including every time a media file is played on a computer, every time software is launched, and every time a website is viewed on the Internet. Content companies have consistently tried to make these transient copies subject to copyright royalties, but without success.

To clarify the law, PK proposes that the DMCA exempt from infringement liability “transient or incidental” reproductions of material that are “made as an integral and essential part of a technological process” to enable a lawful use of the material.

The third paper deals with digital music licensing. While digital music has become increasingly more popular, the copyright organizations and rules surrounding it have not adapted. As a result, PK proposed the creation of digital music rights organizations (“DMROs”). These organizations would consolidate licensing for the reproduction, distribution, and public performance rights to nondramatic musical works, making it easy to find and obtain licenses. Under the proposal, DMROs are required to offer blanket licenses to their entire catalogs of works to employ reasonable and nondiscriminatory licensing terms, and to establish and maintain a searchable online database of the works they are authorized to license.

PK also proposed the clarification of the rights associated with digital transmissions. The Copyright Act should be amended to make clear that (1) any incidental copies made to facilitate music streaming -- a digital performance of a nondramatic musical work -- does not infringe the reproduction right, and (2) a music download does not implicate the right of public performance of the musical work.