page title New and Pending Copyright Legislation
Since copyright law is federal in nature, the bills to watch are those introduced in the US House and Senate. Most of the bills never make it into law, but those that do can have a direct effect on teaching and learning in higher education. Bills introduced in the 110th Congress that bear watching include:
• H.R. 1201 Fair Use Act of 2007
• H.R. 4279 Prioritizing Resources and Organization for Intellectual Property Act of 2007
• H.R. 4137 College Opportunity and Affordability Act of 2007
• H.R.5889 Orphan Works Act of 2008 and S.2913 Shawn Bentle Orphan Works Act of 2008
1. H.R. 1201 Fair Use Act of 2007
Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007
- Introduced 2/27/07 by Reps Boucher and Doolittle, long-time advocates of fair use
- Stated Purpose:
To restore the historical and necessary balance in copyright law by strengthening and clarifying fair use rights of digital media consumers, including libraries and higher education;
To counteract some of the negative effects of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA)
Specifically, the act would:
1. Codify the Library of Congress exemptions to the DMCA anticircumvention provisions (which now must be renewed through a rule-making process every three years). Some of these exemptions include allowing libraries to circumvent protection measures to carry out preservation efforts; allowing professors to circumvent protection measures to compile teaching film clips; authorizing circumvention in order to access public domain material and for other traditional fair use purposes.
2. Limit the availability of statutory damages for secondary infringement liability;
3. Codify the Supreme Court's Sony/Betamax doctrine protecting manufacturers of technology from liability for copyright infringement as long as their technology is capable of substantial non-infringing uses.
The many supporters of H.R. 1201 include:
- The major library associations through the Library Copyright Alliance (LCA) (read their statement)
- The Electronic Frontier Foundation (EFF) (read their press release)
- Public Knowledge's analysis of this bill
- Consumer Electronics Association summary of this bill (great site)
Opponents to this bill include the Recording Industry Association of America (RIAA) who says it would "legalize hacking" in favor of the so-called fair use doctrine.
2. H.R. 4279 Prioritizing Resources and Organization for Intellectual Property Act of 2007
-Introduced 12/5/07
-Stated Purpose: To enhance remedies for violations of intellectual property law
Specifically, the act would
1. Create a new division dedicated solely for intellectual property violations with an Intellectual Property Officer in the Executive Branch who could develop policies and directly impact criminal investigations and prosecutions
2. Increase penalties for infringement and repeat offenders
3. Expand forfeiture provisions beyond the infringing goods to include any property intended to be used to commit or facilitate the offense
4. Disaggregate the parts of a compilation or derivative work for purposes of calculating damages (multiplying the statutory damages)
5. Eliminate copyright registration requirement before criminal copyright enforcement proceeds
This legislation is strongly opposed by the library associations who believe that increasing statutory damages will significantly chill library efforts to digitize orphan works and make them publicly available.
It is also vigorously opposed by Public Knowledge who testified at the hearing on this bill on 12/13/07 before the House Subcommittee on Courts and Intellectual Property.
3. H.R. 4137 College Opportunity and Affordability Act of 2007
-Introduced 11/9/07 and passed the House
May come up for vote in Senate soon.
Although the bill is lengthy, the relevant section for purposes of copyright is the section entitled "Campus-Based Digital Theft Prevention". This section states: "Each eligible institution participating in any program under this title shall to the extent practicable - [...] (2)develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity."
This means no plan, no federal financial aid. Many are hopeful that the MPAA's 200% error in calculating how many college students are part of the infringing problem will derail this legislation.
• Peer-to-Peer Filing [sic] Sharing on Campus Under Fire Yet Again by Kenneth D. Salomon
• MPAA Admits Stats Inflated As Congress Considers Copyright Protection Bill
• MPAA: Linking college funding, piracy is 'perfectly legitimate'
• Troubling "Digital Theft Prevention" Requirements Remain in Higher Education Bill
4. H.R. 5889 Orphan Works Act of 2008 and S.2913 Shawn Bentley Orphan Works Act of 2008
"Orphan Works” are copyrighted works — books, music, records, films, etc — whose owner cannot be located. Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found … the list goes on. Very often, orphan works become obscure no matter how valuable the material contained in them may be. No future creator is willing to use the orphan work for fear that he/she will have to pay a huge amount of money in damages if the owner emerges. from the Public Knowledge page which describes the magnitude of the problem.
There are two bills making their way through Congress (the House bill was introduced in April and the Senate bill in May 15, 2008. The primary purpose of these bills is to limit the judicial remedies in copyright infringement cases involving orphan works. The Senate bill appears to be the better of the two and there is a specific exemption for institutions of higher education. This site contains the best analysis I've found to date.
• Public Knowledge: Orphan Works 2008: House and Senate Bills Introduced
• Or read this opposition to the bills by Lawrence Lessig: Little Orphan Artworks
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Updated May 23, 2008