Fee Hikes, Parasites, and a New Look at Fair Use: The Copyright Society of the USA's Annual Meeting

After this Kat’s last post, she was a bit hopeful that the sticky morass of fair use would just disappear for a bit.  This Kat could be so lucky.  Of course, her participation at the Copyright Society of the USA’s Annual Meeting, which ended yesterday, probably decreased her chances of avoiding the issue for a time.  The Copyright Society’s meeting was, as always, thought-provoking, interesting, slightly contentious, and full of many of the brightest minds in American copyright law, with the added bonus of the perspective of our members from Canada, Mexico and Germany.  The Society generally meets in slightly out-of-the-way resorts, so for two days all of these great minds are gathered together in one conference room, and of course, later at one bar.


The conference availed to us a whole array of worthwhile facts and notable ideas, as well as the ever-popular survey of the Recent Developments in Copyright Law delivered to us each year at the "Bob and Tom Show".  This post is about sharing a few of the conference tidbits with our readers.  Your reporter is more than happy to discuss in further detail any of the topics we covered at the conference, of course.  You can see the speakers and the agenda list here.  And really, you should come to Austin Texas for our Mid-Winter meeting in February next year and hear it all with your own ears.

David Carson delivered the View from the Copyright Office.  The U.S. Copyright Office last year registered over 670,000 claims - a new record.  Nearly 99% of the claims submitted last year were registered.  From the Copyright Office, $31 million dollars worth of new works were transferred to the Library of Congress last year.  Despite the Copyright Office’s apparent value, Congress has cut its budget once again, and as a result, registration fees are going up.  And by “up,” this Kat got a crink in her neck peering up into the stratosphere where these new proposed fees have gone.  An application for copyright in the U.S. is currently $35.00.  The rate is proposed to nearly double to $65.00.  As of this morning, that is over 50 Euros - apparently the latest news in Spain is not doing for U.S. currency what this Kat would hope as she plans for her Barcelona trip later this year..... but not to digress.  There is some suggestion that a single-work/single-author application would be less, but how much less?   We know not.

Other proposals at the Copyright Office include reigning in the registration of thousands of photographs in a database in a single registration.  The process has made the registrations almost worthless, and the Office would like to put a stop to it.  How (or whether) this will occur is not yet settled.  The Office is progressing on the massive project of digitizing the entire pre-1978 catalog - they have made it back as far as 1955, and it is considering comments on whether to bring pre-1972 sound recordings under federal copyright law.  Through a series of legislative maneuvers, sound recordings made in the U.S. before 1972 are protected by state law.  No one seems to be able to articulate why.

Michael Donaldson, attorney to independent filmmakers, has reviewed a number of cases in the United States and has an article appearing in this summer’s Journal of the Copyright Society of the U.S.A., suggesting that a test for fair use appears in U.S. caselaw that has nothing to do with the four-factor test so thoroughly vetted in the recent Georgia State case, at least when it comes to use of copyrighted material by non-fiction filmmakers.  The asserted alternative test consists of the following:

Does the item well illustrate your point?

Did you only use as much as needed to illustrate the point?

Is the connection between the item you are using and the point you are making obvious to the average viewer?

If it’s true that this is the test, this Kat probably could get a few hours spent reading that Georgia State case tacked back on to the end of her ninth life. 

Barton Beebe has taken on the breathtaking project of empirically analyzing every U.S. fair use case decided by a judge, and coming to certain conclusions, including finding that fair use cases are, on balance, no less uncertain than other areas of law.  This interferes with this Kat’s ability to be legitimately dramatic and angsty about these cases, and she resents this.

We heard from Robert Levine, one of the current darlings of the copyright world with his deliciously titled book Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back . Levine and the rest of the panel from the National Music Publisher’s Association, the RIAA, and George Washington University discussed the politics of dealing with the “user” side of the equation (read here:  Google).  More than once, our side was referred to as “pro-copyright,” leaving this Kat to wonder when we stopped being just “copyright” people and had to label ourselves as in favor of it.   The entire panel preached to the converted for 90 minutes, and let’s be honest, the converted ate it up.

Images courtesy of FreeDigitalPhotos.net

But crossfire is inevitable, particularly when Michael Robertson, the famous launcher of MP3.com and MP3tunes.com is in the room.  Both of these companies have been sued to death, largely by the companies represented at the other end of the table at the final panel.  

Sparks flew, of course, but some interesting things were said.  The MPAA representative indicated that if they had it to do over again knowing the backlash that it would create, his organization might not have put the time and effort it did into the Copyright Term Extension Act in 1998.  (This Kat did not hear the collective gasp in the room when that was said, but she is quite sure it was there).  And both sides agreed that while the DMCA is nowhere near as efficient and scalpel-like as everyone had hoped it would be, no one is interested in a re-write at the moment.

There’s obviously just too much else to do.