The speech echoes a number of themes from a speech to Columbia University entitled The Next Great Copyright Act.
A number of the issues canvassed are topical in Australia, and have been raised in submissions to the Australian Law Reform Commission (ALRC) as part of its inquiry into copyright and the digital economy.
The public interest
Pallante refers to the role of the ‘public interest’ in copyright reform, but acknowledges the challenge for policy makers of defining the public interest and ‘who may speak for it’. She goes to say:
The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation.
Access to content for education
The Australian copyright environment for educational use of content is often compared to that in the US.
Pallante suggests that ‘in compelling circumstances’, the requirement of prior approval – ‘opt in’ – could be reversed, so that copyright owners would have to object or ‘opt out’ of particular uses. She gives the example of uses by educational institutions or libraries ‘whether paid or unpaid’.
New licensing models
The Copyright Office is open to new licensing models. This includes extended collective licensing, which has been operating for many years in Scandinavian countries, and is being introduced into the UK in accordance with recommendations in the Hargreaves report. Extended collective licensing differs from statutory (or compulsory licensing) as it allows rightsholders to ‘opt out’.
In her paper to Columbia University, Pallante says:
It has become clear, however, that opt-out systems might serve the objectives of copyright law in some compelling circumstances if appropriately tailored and fairly administered, and if created with oversight from Congress. One potential opt-out system is a form of licensing known as extended collective licensing. Extended collective licensing allows representatives of copyright owners and users to mutually agree to negotiate on a collective basis and then to negotiate terms that are binding on all members of the group by operation of law. It has the potential to provide certainty for users and remuneration for copyright owners (for example in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement.
The US extended its term of copyright protection from life plus 50 to life plus 70, following the European Union (which adopted life plus 70 as part of its harmonisation processes). The standard in the Berne Convention and other international treaties is life plus 50. But many countries, like Australia, have extended their term of protection to life plus 70 as a result of free trade agreements with the US.
Extensions of the terms of protection have been controversial. In Australia, it triggered a review of ‘balancing’ exceptions, which resulted in the introduction of a number of new exceptions in 2006.
Pallante suggests a different level of protection for the last 20 years, with a higher onus on the copyright owner to assert their copyright interest. In Australia, any proposals along these lines would need to be consistent with Australia’s obligations under the Australia–US Free Trade Agreement, unless the US were prepared to renegotiate this aspect of the agreement.
- Head of US Copyright Office wants reform (The 1709 Blog)
- The Next Great Copyright Act: Takeaways (The Future of Music)
- Notes From Today’s Hearing: The Register’s Call for Updates to U.S. Copyright Law (Public Knowledge)
- A good week for copyright (VoxIndie)