A question came up regarding copyright registration at the May 16, 2013 House IP Subcommittee hearing featuring Professor Pamela Samuelson.  Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at schools such as Fordham, American University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.

I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum.  The Samuelson Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”.  Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google.  This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.

The reason that Professor Samuelson was testifying before the IP Subcommittee is that she formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act.  As Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at the 2013 hearing, the CPP was convened by Professor Samuelson with one principal qualification for membership:  That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”).

In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform.”  The white paper has a list of those “convened” and based on the testimony of attorney Baumgarten and other information, there was little broad consensus about many of the “principles” but everyone was very polite to each other (as one might expect given that no one whose livelihood was at stake seemed to be included in the FOP “social network”).  The flaws of composition and conflict of interest in CPP is discussed elsewhere on MTP.

I mention the formation of the social network in relation to the (second) failed attempt to pass an “orphan works” law in the US for a reason.  This post is limited to the “reformalization” of copyright advocated by the Copyright Principles Project and the inevitable interaction of that new registration requirement with the orphan works issue.  It is well to remember actively that the word “registration” in the white paper has a special meaning, and not the meaning that we currently attach to a copyright registration, or even the meaning attached to copyright registration under the 1909 Copyright Act.  Although the word “registration” is the same in the past and current law and the white paper, the meaning is quite different.

Professor Samuelson described it to the committee as “rethinking registration in a way that will take advantage of the opportunities of the new information technology environment.”   We’ll come back to this–for now, realize that it is the intention of the CPP to use the “new information technology environment” to give effect to this new registration requirement.  That is, to burden creators, not to help locate creators.  The witnesses were asked what had changed since their 2010 paper, and they all mentioned cloud computing and the proliferation of devices.  None of them mentioned The Death of Privacy.  The Death of Privacy should make it easier than ever to track down a creator to ask their permission to use their works.

This was never discussed.

When combined with the orphan works recommendation advocated by the CPP, the concept of registration as described in the white paper seems designed to create a new class of works available for mass exploitation: works that are not registered, even without regard to whether the author could otherwise be found.  These unregistered works may or may not be true “orphans” in the sense that the author or owner cannot be found after looking in the right place; rather, the work is simply not registered for some reason known only to the creator.

This approach changes the default from the “get a license” requirement on the user, to a new “chase a license” burden on the creator.

There was a 6th witness at the hearing–one that was not actually present, but whose presence was felt by all concerned.  David Lowery had published an op-ed at Politico.com in the days prior to the hearing and it seemed that many of the Members of the IP Subcommittee had read it carefully.  Then Ranking Member Mel Watt even entered the Lowery post into the committee’s record.  David critiqued the CPP white paper and specifically called out this registration proposal.

When Representative DeSantis asked Professor Samuelson a direct question regarding registration based on the Lowery piece in Politico, I regret to say that the transcript reflects that she answered a different question, leaving many with the impression that David got it wrong (emphasis mine):

MR. DESANTIS

There was this article, I think it was in Politico, and it was a musician, he basically said that if some of what you were advocating was adopted that an individual could post a photo online, like a family photo that wasn’t registered [as defined in the white paper] and you could have a user just take that and use it for their commercial gain.  Do you agree, is that true?

PROFESSOR SAMUELSON

No I don’t believe that’s true at all.

MR. DESANTIS

Why not?

PROFESSOR SAMUELSON

Because one of the things we made very clear was that to the extent that someone is commercializing something that someone posts online that’s actually an activity that copyright law would apply to.  I think that’s very clear from our report, especially the discussion about commercial harm.

Note that Professor Samuelson did not answer the question that was asked.  Representative DeSantis, referring to the Lowery op-ed, correctly asked if a family photo was not registered as advocated by the CPP could that photo be exploited commercially by a “user”.  (A “user” could include Google.)

Professor Samuelson’s response did not address the “registration issue” at all, merely that the commercial use of a family photo would be subject to the copyright law.    Which, of course, would always be true.  Or at least one would hope so.

David Lowery’s point was that if he failed to register a family photo under the registration regime contemplated by the CPP, his rights to stop even a commercial exploitation would be reduced under that regime.  As it is burdensome to register family photos (if that would even be permitted under the CPP regime), it is more likely that such works would be exploited.  (This relates to the CPP concepts of “commercial value” and the “commercially dead” as we will see.)

As I think can be demonstrated and that you will see in later installments of this post, David Lowery got it right.

I wish I could say that there was some special insight that Mr. Lowery brought to the issue, but frankly this registration “gotcha” that’s in the white paper has been around for quite some time, certainly since the 2008 attempt to orphan works.  It’s kind of old news, so it’s surprising that the CPP is making another attempt to push it over the wall.

It was criticized in 2008 and has been criticized by a variety of creators on at least two continents (e.g., Stop43 in the UK).  It was extensively criticized by Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog last year.  It was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008.  It has been criticized in the current orphan works inquiry at the U.S. Copyright Office.

And it will be criticized in this post although I claim to bring no special insight, either.  The problems with reformalization are obvious and the result is easily anticipated–it is a system seemingly designed to create orphans, not to prevent them.  And create them on a grand scale in the millions of works.

We have to assume that it was this harsh reality that Representative DeSantis wanted the IP Subcommittee to discuss with the disinfectant of sunlight.

Next in Part 2: Get a License vs. Chase a License