Revising copyright reform expectations

Joe Keeley, chief counsel of the Subcommittee on Courts, IP and the Internet of the House Judiciary Committee, noted that larger legislation like the AIA managed to make its way through Congress. These observations, he said, make an omnibus bill for copyright reform look appealing. But with the Obama administration in its final days, "my guess is that not much is going to happen until the new administration, whatever that may be," said Nancy Mertzel, a partner with Herrick Feinstein.

The panelists identified three key areas of functionality that are in most dire need of improvement within the Copyright Office: registration and renewals; recordation; and the development of a modern, searchable database. One potential issue to the first is a relationship between the Library of Congress – of which the Copyright Office is a part – and the Copyright Office itself.

According to the current statute, a hard copy deposit is required with the registration of a copyright. The Library of Congress has reaped the benefit of these deposits. "Certainly, we need to grow our nation's Library," said Mertzel, "but on the other hand, we need to improve our copyright registration process." Mertzel sees no reason that a hard copy should still be necessary to a registration, which would be cheaper and more efficiently done electronically, and falls in line with the Copyright Office's Provisional IT Modernization Plan.

In addition to the possibility of splitting the Copyright Office from its housing in the Library of Congress, Mertzel noted the handling of small claims issues also as an area of reform. Questions remain about the model of and scope of cases that would be eligible to be handled in a potential small claims court. The current pending legislation takes an "opt-out" approach, and refers only to exclusive rights under Section 106(b).

All three panelists agreed that the now-ex Register of Copyrights Maria Pallante (she left the role last Friday) had and would continue to "have an important role." June Besek, a professor at Columbia University Law School, called Pallante dynamic and forward thinking. Besek said: "People on both sides didn't like her decisions, and that's the only true measure of being balanced."

Keeley hinted that Pallante's sudden departure from the Copyright Office might be cause to temper expectations for reform. "Quite frankly, recent events, just within the last week or two, make it clear that perhaps it's best to just focus on small claims and a modernized Copyright Office," he said. An attendee pointed out that the panelist had only spoken about what these smaller pieces of reform might entail, but not "what it's going to take to push this through Congress."

Searching for an analogy, Keeley replied with a description of a house: its residents can see that it's falling into disrepair, but resist doing anything about it until "it's so bad you either have to rebuild it or move out."