New Step for the Modernization of Copyright Law in the US – Progress or Regress?

During the celebration of World Intellectual Property Day on April 24, 2013, the US Committee on the Judiciary announced its intention to promote a comprehensive review of US copyright law in order to modernize copyright protection in the US.

This announcement comes at a time when copyright law is being challenged by the digital revolution. The current copyright regime does not provide legal certainty to controversial issues such as the digitization of and increased virtual access to books. (IPilogue posts about this topic can be found here and here.) There is also legal uncertainty as to who is liable for infringing content posted on public access networks, and for the storing and sharing of supposedly illegal content through mechanisms of cloud computing. The Megaupload saga is one prime example of a new technology that is testing the limits of copyright law (see here for IPilogue’s coverage of that story).

In light of the importance of the internet and these new challenges, the US Committee on the Judiciary is attempting to address the interests of various stakeholders by proposing solutions that will ensure effective protection and enforcement of copyright in the US. The US authorities, however, are not the only parties interested in modernizing the copyright system in their respective jurisdictions.

The adoption of the Intellectual Property Strategy in May 2011 (see “A Single Market for Intellectual Property Rights“) outlined the main objectives of the European Union with respect to Intellectual Property Law. The European Commission (EC) later announced in December 2012, within MEMO/12/950, its intention to proceed with modernizing copyright law in the digital economy. Through dialogue with various stakeholders and elaboration of market studies and legal drafts, the EC is hoping to achieve rapid progress in problematic fields such as: cross-border portability of content; user-generated content; data- and text-mining; private copying levies; access to audiovisual works; and cultural heritage. The Canadian legislative authorities have also attempted to find solutions to the new challenges to copyright law. The approval of Bill C-11 in June 2012 and its implementation are examples of steps being taken by the Canadian legislature to address these issues. (Further information on copyright reform in Canada can be found here.)

The announcement by the US Committee on the Judiciary, however, does not effectively clarify the extent to which the changes will affect the current copyright regime in the US.  In my view, by solely focusing on concerns about compensation for the use of protected works and the effectiveness of copyright enforcement, the Committee is neglecting review of the prevailing dogmatic standards for the protection of intellectual property.  By virtue of the advent of the digital economy and significant public interest, copyright law has experienced a transition, in which a reassessment of its justification and legitimacy is required. The social and economic functions of copyright – especially in view of the economic exploitation of rights by the music industry and by collective societies – should be discussed under a new lens. This would not only focus on the protection and enforcement of copyrights, but also on issues related to access to information, access to cultural elements, and the interests of creators and consumers alike.

In my opinion, if the review by the US Committee on the Judiciary does not take the above into account, it is unlikely that further legislative attempts will be justified and legitimized or provide legal certainty and solutions to the problems with the current system, and may in fact suffer the same fate as the SOPA and PIPA.  Effectively considering the point of view of all stakeholders is essential for the modernization and advancement of copyright law.

Pedro Henrique Dias Batista is an IPilogue Editor and a PhD student at Ludwig Maximilian University of Munich.

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