M+E Daily

By Paul Sweeting

Newly introduced legislation to allow consumers to unlock their cell phones, prompted by a statement from the Obama Administration endorsing the idea, will likely get its first public airing on Capitol Hill Wednesday when the head of the U.S. Copyright Office Maria Pallante is scheduled to testify before the House Subcommittee on Courts, Intellectual Property and the Internet. The Copyright Office recently rejected calls to allow unlocking, which is currently prohibited by the Digital Millennium Copyright Act’s ban on circumventing digital locks, prompting the White Hose statement.

As I speculated here in a previous post, however, the debate over the DMCA’s ban on unlocking cell phones isn’t likely to remain confined to cell phones. The main purpose of Pallante’s testimony, in fact, is to discuss the Copyright Office’s recent recommendations for a broader overhaul of U.S. copyright law, including the DMCA. Thanks to the attention generated by the cell phone issue, the copyright overhaul agenda is now very much in play in Washington.

And what an agenda it is. In oral testimony posted to the subcommittee’s website in advance of the hearing, Pallante lays out a long list of suggested issues for Congress to tackle:

The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

An overhaul is necessary, Pallante will tell the committee, because current copyright law, including the DMCA, is increasingly out of step with technological change: 

The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated. The issues are numerous, complex, and interrelated, and they affect every part of the copyright ecosystem, including the public at large.

Pallante will also suggest that some more fundamental elements of current copyright law may also need to be reconsidered:

Congress also may need to apply fresh eyes to the next great copyright act to ensure that the copyright law remains relevant and functional. This may require some bold adjustments to the general framework. You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term — for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office. And in compelling circumstances, you may wish to reverse the general principle of copyright law that copyright owners should grant prior approval for the reproduction and dissemination of their works — for example, by requiring copyright owners to object or “opt out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries.

Nearly every issue touched on by Pallante has partisans on both sides, and any proposed revisions are certain to spark fierce controversy. The cell phone unlocking legislation, however, has broad, bi-partisan support on Capitol Hill, which means it’s likely to become a popular vehicle to try to slip more controversial reforms through Congress by attaching them to a fast-moving bill. That scramble begins Wednesday.