Reaffirm the flexibility of fair use to accommodate unforeseen uses.
Copyright law has long recognized that some uses of copyrighted works by authors and by others are fair and non-infringing. Criticism, comment, news reporting, teaching, research and scholarship, are among the favored uses in the statute. Fair use is an essential part of a vibrant authorial culture. Without the flexibility of fair use, our ability to criticize, parody, educate, and innovate would be threatened. The next copyright act should affirm that its characteristic flexibility continues to allow it to apply to unforeseen and socially important uses of copyrighted works.
Clarify that more than ideas are excluded from the scope of copyright.
Copyright should encourage the free use of the basic building blocks of authorship. These building blocks include not only ideas, concepts, and principles, but also procedures, processes, systems, methods of operation, as well as facts, data, information, know-how, laws, judicial opinions, regulations, and other government edicts. The law’s recognition of the exclusion of these building blocks from copyright protection should be solidified.
The law should continue to exclude from copyright U.S. government works, but perhaps that exclusion should extend to all government works. This would promote better access to government information for the public and for authors who would like to incorporate government works into their research and writing. At the very least, edicts of government, such as laws, judicial opinions, regulations, and the like, should be outside the bounds of copyright.
Exempt incidental and personal use copies from legal regulation.
Current law has several exemptions for specific types of incidental copies. In the digital environment, we along with members of the public at large make incidental copies of protected works constantly. A general exemption of incidental copies made to facilitate non-infringing uses from the scope of copyright protection would better serve the interests of authors than the hodgepodge in today’s statute.
Similarly, virtually all authors make personal use copies of many works in the course of preparing our new works (for example, we might photocopy an article or chapter on which we are preparing a commentary) or for other legitimate purposes (for example, making copies of our work for our portfolios). We need recognition of a reasonable personal use exemption that expressly provides for these necessary everyday uses.
Empower libraries, archives, and other cultural heritage institutions to preserve works for future generations.
Digital reproduction and storage allow for the unprecedented preservation and archiving of countless works. We now have the technological ability to safeguard our cultural heritage for generations to come. The law should provide that such acts of preservation are not in violation of, and indeed are in alignment with the purpose of, the exclusive rights of copyright.
Encourage the development of new techniques and technologies of reproduction, dissemination, and discovery.
The law should recognize that authors have an interest in seeing our works widely disseminated. Technological innovation that allows works to be reproduced, shared, and discovered by readers enables the unprecedented spread of knowledge and culture by radically increasing and enabling authors’ potential audiences. While technological innovators should be held accountable for infringements they induce, the law must be careful not to use copyright to halt or penalize technological development at a single rights holder’s say-so.
Recognize the interests of both authors and the public in the public domain.
The public domain—the realm of works not subject to copyright restrictions—is critical to the scholarly and creative activities of authors. For too long, the law has ignored the importance of works in the public domain as essential building blocks for new creations. Copyright law should expressly recognize the public domain and the interests of authors and the public in its continued existence. Moreover, the law should recognize the public domain as inviolable: once made free to all, works and ideas should not again be subject to restrictions imposed by copyright law, by contracts, or by technology.
Free orphans from copyright restrictions.
Millions of in-copyright works are now orphans, that is, works whose owners cannot reasonably be identified and located. Orphans benefit no one: not the authors whose works languish unread, not the authors who would like to build on works from the past, and not the public that would rather see such works digitized, archived, explored, and repurposed. The reuse of orphans should either be exempt from copyright control or the law should limit remedies for reuses as long as the re-user had a good faith belief that the work was an orphan.
Congress added an extra 20 years to existing copyrights in 1998. Term extensions do not promote the progress of science, as the Constitution directs, and often actively constrain it. Copyright terms are already very long, lasting 70 years past an author’s death or 95 years from first publication in the case of corporate-authored works. Only a very few works continue to provide economic benefit to authors for the full duration of our current terms. For the vast majority of new works, a longer term would provide no new reward at all, while it would instead starve the public domain and orphan our cultural and intellectual heritage. Without a demonstrated need or definite public benefit, we oppose any attempt to lengthen the copyright terms yet again.