How is this going to work? It's hard to say. Probably not very well. The hearing structure allows a handful of witnesses to give very brief explanations of their views, but the question-and-answer format hasn't always been very productive. In the past, we've seen lawmakers in the committee raise pet issues instead of focusing on the topics on the agenda—take for example last month's hearing on the first sale doctrine, which included numerous questions about the unrelated issue of "piracy."
Moreover, in the absence of real public feedback during these hearings, the committee has sought to represent the public interest by inviting testimony from “both” sides of an imagined dichotomy. Hearings include witnesses from, say, a big company and a small company, a telecom and a publisher, or a copyright licensor and a licensee. This sometimes provides a good impression of balance, but on a panel addressing four separate issues, the odds seem long. It is also often the case that these “sides” don’t include anyone who represents the public interest.
But let's not pass judgment before the hearing even takes place. For those who are watching the hearing, here is a primer on the four issues up for discussion:
The length of copyright terms is an important issue that is very distinct from the other three being discussed. Our current term—95 years for corporate works, 70 years after the life of the author for others—is far too long. Worse, earlier policy decisions, such as the retroactive extension of terms on works already created, have been made without the support of empirical data. Though copyright should be fact-based policy, too often debate happens in a reality-free zone.
A term that is too long diminishes the public domain, creates a massive problem of orphan works, and exacerbates problems with archiving materials. Thankfully, not since the 1998 Copyright Term Extension Act have there been any serious proposals to extend the term further. But we should acknowledge that our effectively-perpetual terms create many more problems than they solve, do little if anything to promote innovation, and thus should be rolled back.
Because of the first-sale doctrine, the secondary markets for copyrighted works don't generally produce any income for the original authors of those works. Most notably, the sale of a painting can bring in millions of dollars, all of which goes to the shrewd collector who purchased it in the first place.
Lawmakers have at various times proposed to address this situation with a resale royalty that would be paid to the original artist on every sale of a given work. The Copyright Office has explored this question in two reports, one in 1992, and another last year. As of the most recent report, the Copyright Office acknowledged that there are some important missing data points to collect—information about art markets and industry norms—before considering any particular proposal.
By and large, United States copyright law does not include the concept of "moral rights," or legal ability for an artist to control things like attribution or integrity of their work (or a copy of that work) after it is no longer in her possession. American copyright policy is primarily an economic one, and for the most part the owner of a work or copy of a work has free rein to do with it what she wants. For example, most artists cannot legally object to the presentation (or even destruction) of their works once they are sold.
There is one major but narrow exception for visual artists, codified in section 106A of the Copyright Act. That section, added in 1990, grants visual artists limited legal rights to claim authorship, to prevent misapplied claims of authorship, and to prevent the distortion or destruction of certain works.
The Constitution allows Congress to make copyright and patent laws specifically to promote the progress of science and the useful arts. Congress should be careful to ensure that any moral rights proposals work towards that goal, and certainly that they do not run afoul of the First Amendment’s free speech guarantees.
Termination rights give an opportunity for authors who have transferred the copyright in their work to reclaim that copyright after a set period of time. These terminations can be confusing and necessarily require revisiting deals made decades in the past. The results have been inconsistent in the courts.
Termination rights are important because copyright terms are too long. Without termination rights, whomever receives a transferred copyright can control the fate and availability of a work for a century or more (even when they no longer care about it). Artists, however, often want to reclaim their works and continue to exploit them. This leads to a situation where some of the same industry groups that have sought to extend copyright term, such as the Recording Industry Association of America have also at times worked to limit termination rights.
As even this basic introduction shows, the Judiciary Committee has bitten off a lot of agenda for tomorrow's hearing. We'll report back how it did on covering these issues.