Fair Use highlighted at Re:Create conference

In his opening remarks at the November 17 Re:Create conference, Public Knowledge President & CEO Gene Kimmelman shared his thoughts about fair use as a platform for today’s creative revolution, and about it being a key to the importance of how knowledge is shared in today’s society. That set the tone for a dynamic discussion of copyright policy and law that followed, the cohesive focus behind the Re:Create coalition.

"Copyright on the Horizon" panelists discuss the future of copyright law, fair use and the Copyright Office.

Panel Moderator Mike Masnick, founder, Techdirt and CEO, Copia Institute, poses a question to panelists (L.toR.): Casey Rae, CEO, Future of Music; Julie Samuels, executive director, Engine; Howard University Law Professor Lateef Mtima, founder and director, Institute for Intellectual Property and Social Justice; and Greta Peisch, international trade counsel, Senate Finance Committee.

“Yes, it’s important for creators to have a level of protection for their work,” Eli Lehrer, president of the R Street Institute, said, “but that doesn’t mean government should have free rein. The founding fathers wanted copyright to be limited but they also wanted it to support the growth of science and the arts.” He went on to decry how copyright has been “taken over by special interests and crony capitalism. We need a vibrant public domain to support true creation,” he said, “and our outdated copyright law is stifling the advancement of knowledge and new creators in the digital economy.”

Three panels of experts brought together by the Re:Create Coalition then proceeded to critique pretty much every angle of copyright law and the role of the copyright office. They also discussed the potential for modernization of the U.S. Copyright Office, whether the office should stay within the Library of Congress or move, and the prospects for reform of the copyright law. The November 17 morning program was graciously hosted by Washington, D.C.’s Martin Luther King, Jr. Memorial Library.

Cory Doctorow, author and advisor to the Electronic Frontier Foundation, believes audiences should have the opportunity to interact with artists/creators. He pointed to Star Wars as an example. Because fans and audiences have interacted and carried the theme and impact forward, Star Wars continues to be a big cultural phenomenon, despite long pauses between new parts in the series. As Michael Weinberg, general counsel and intellectual property (IP) expert at Shapeways, noted, there are certain financial benefits in “losing control,” i.e. the value of the brand is being augmented by audience interaction, thus adding value to the product. Doctorow added that we’ve allowed copyright law to become entertainment copyright law, thus “fans get marginalized by the heavyweight producers.”

On the future of the copyright office panel, moderator Michael Petricone, senior vice president, government affairs, Consumer Technology Association (CTA), said we need a quick and efficient copyright system, and “instead of fighting over how to slice up more pieces of the pie, let’s focus on how to make the pie bigger.”

Jonathan Band, counsel to the Library Copyright Alliance (LCA), said the Copyright Office used to just manage the registration process, but then, 1) volume multiplied 2) some people registered and others didn’t who are not necessarily using the system, and 3) the office didn’t have the resources to keep up on the huge volume of things being created. This “perfect storm,” he said, is not going to improve without important changes, such as modernizing its outdated and cumbersome record-keeping, but the Office also needs additional resources to address the “enormous black hole of rights.” Laura Moy, senior policy counsel at the Open Technology Institute (OTI) agreed that this is a big problem, because many new creators don’t have the resources or the legal counsel to help them pursue copyright searches and registration.

All the panelists were in agreement that it makes no sense to move the Copyright Office out of the Library of Congress, as has been proposed by a few. Matt Schruers, vice president for law & policy, Computer & Communications Industry Association (CCIA) agreed, urging for more robust record-keeping, incentives to get people to register and taking steps to mitigate costs. He said “we need to look at what the problems are, and fix them where they are. A lot of modernization can be done in the Office where it is, instead of all the cost of moving it and setting it up elsewhere.”  Band strongly agreed. “Moving it elsewhere wouldn’t solve the issue/cost of taking everything digital. Moving the Office just doesn’t make sense.” Moy suggested there are also some new skills and expertise that are needed, such as someone with knowledge in IP and its impacts on social justice.

Later in the program, panelists further batted around the topic of fair use. For Casey Rae, CEO of the Future of Music Coalition, fair use is often a grey area of copyright law because it depends on how fair use is interpreted by the courts. In the case of remixes, for example, the court, after a lengthy battle, ruled in favor of 2 Live Crew’s remix of Pretty Woman, establishing that commercial parodies can qualify for fair use status. Lateef Mtima, professor of law, Howard University, and founder and director of the Institute for Intellectual Property and Social Justice, cited the Lenz v. Universal case that not only ruled in favor of the mom who had posted video on YouTube of her baby dancing to Prince’s Let’s Get Crazy, but established that fair use is a right, warning those who consider issuing a takedown notice to “ignore it at your own peril.”

When determining fair use, Greta Peisch, international trade counsel, Senate Finance Committee, said “Who do you trust more to best interpret what is in the best interests of society, the courts or Congress?” The audience response clearly placed greater confidence in the courts on that question. And Engine Executive Director Julie Samuels concluded that “fair use is the most important piece of copyright law—absolutely crucial.”

In discussing the future for copyright reform, Rae said there’s actually very little data on how revising the laws will impact the creative community and their revenue streams. He said legislation can easily be created based on assumptions without the data to back it up, so he urged for more research. But he also implied that the music industry (sound recording and music studios) need to do a better job of explaining their narrative…i.e. go to policymakers with data in hand and real life stories to share.

Mtima is optimistic that society is making progress in better understanding how the digital age has opened up the world for sharing knowledge and expanding literacy (what he called society’s Gutenberg moment). At first, he says, there was resistance to change. But as content users have made more and more demands for access to content, big content providers are recognizing the need to move away from the old model of controlling and “monetizing copies.” New models are developing and there’s recognition that opening access is often expanding the value of the brand.

Re:Create’s ability to focus on such an important area of public policy as copyright is the reason the coalition has attracted a broad and varied membership. It remains an important forum for discourse among creators, advocates, thinkers and consumers.

About Nancy Gravatt

Nancy Gravatt was a press officer of the American Library Association's Washington Office.

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