Pamela Samuelson on Copyright Reform

Pamela Samuelson, Professor at the School of Information and the School of Law, University of California at Berkeley, has written an interesting paper about copyright reform. While not very hopeful about immediate action, she outlines a number of reasons why such an effort is still worthwhile, blocks out the main areas of concern, and offers suggestions about possible reforms.

Here's an extract from the paper:

The 1976 Act has been amended more than twenty times since 1976. As a result of these many amendments to its text, the 1976 Act has become an amalgam of inter- and intra-industry negotiated compromises. As a consequence, it has become a hodgepodge law. Although Congress has occasionally given the Copyright Office rule-making authority, most of the controversial issues have been left for the Congress or the courts to resolve. This has given rise to serious public choice problems with the copyright law and policy making process. The copyright industries have become accustomed to drafting legislation that suits their perceived needs and to having that legislation adopted without careful scrutiny.

The ’76 Act is, moreover, the intellectual work product of a copyright reform process that was initiated in the late 1950’s. This legislation was written without giving serious thought to how it would apply to computers, computer programs, or computer networks. . . .

The ’76 Act was also drafted in an era when it mainly regulated the copyright industries and left alone the acts of ordinary people and non-copyright industries who might interact with copyrighted works. The copyright industries had negotiated many of the fine details of the statute and knew what they meant, even if no one else did. Advances in digital technologies have, among other things, democratized the creation and dissemination of new works of authorship and brought ordinary persons into the copyright realm not only as creators but also as users of others’ works. . . .

Thirty years after enactment of the ’76 Act, with the benefit of considerable experience with computer and other advanced technologies and the rise of amateur creators, it may finally be possible to think through in a more comprehensive way how to adapt copyright to digital networked environments as well as how to maintain its integrity as to existing industry products and services that do not exist outside of the digital realm. If one considers, as I do, that the 1976 Act was the product of 1950/1960’s thinking, then a copyright reform process should be well underway, for copyright revision projects have occurred roughly every 40 years in the U.S.25 A copyright reform project would, moreover, take years of careful thought, analysis, and drafting, and would then face the daunting challenge of persuading legislators to enact it. Viewed in this light, time’s awasting, and someone should get on with it.

Source: Samuelson, Pamela. "Preliminary Thoughts on Copyright Reform." SSRN. (2007).