[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                 A CASE STUDY FOR CONSENSUS BUILDING: 
                    THE COPYRIGHT PRINCIPLES PROJECT 

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 16, 2013

                               __________

                           Serial No. 113-31

                               __________

         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

80-976 PDF                       WASHINGTON : 2013 


                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 HOWARD COBLE, North Carolina, Chairman

                TOM MARINO, Pennsylvania, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         MELVIN L. WATT, North Carolina
Wisconsin                            JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas                   HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE CHABOT, Ohio                     Georgia
DARRELL E. ISSA, California          JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 KAREN BASS, California
MARK AMODEI, Nevada                  CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas              SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina       HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia                JERROLD NADLER, New York
RON DeSANTIS, Florida                ZOE LOFGREN, California
[Vacant]                             SHEILA JACKSON LEE, Texas

                       Joe Keeley, Chief Counsel

                   Stephanie Moore, Minority Counsel



                            C O N T E N T S

                              ----------                              

                              MAY 16, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Ranking Member, Subcommittee 
  on Courts, Intellectual Property, and the Internet.............     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     7

                               WITNESSES

Jon Baumgarten, former General Counsel, U.S. Copyright Office 
  (1976-1979)
  Oral Testimony.................................................    10
  Prepared Statement.............................................    11
Laura N. Gasaway, Paul B. Eaton Distinguished Professor of Law, 
  University of North Carolina School of Law
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Daniel Gervais, Professor of Law, Vanderbilt University Law 
  School
  Oral Testimony.................................................    18
  Prepared Statement.............................................    21
Pamela Samuelson, Richard M. Sherman Distinguished Professor of 
  Law, Berkeley Law School, Faculty Director, Berkeley Center for 
  Law & Technology
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Jule Sigall, Assistant General Counsel--Copyright, Microsoft 
  Corporation
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Melvin L. Watt, a 
  Representative in Congress from the State of North Carolina, 
  and Ranking Member, Subcommittee on Courts, Intellectual 
  Property, and the Internet.....................................     4
Material submitted by the Honorable Henry C. (Hank) Johnson, Jr., 
  a Representative in Congress from the State of Georgia, and 
  Member, Subcommittee on Courts, Intellectual Property, and the 
  Internet.......................................................    55
Material submitted by the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    66

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Blake Farenthold, a 
  Representative in Congress from the State of Texas, and 
  Member,, Subcommittee on Courts, Intellectual Property, and the 
  Internet.......................................................    85
Prepared Statement of Future of Music Coalition..................    86
Letter from Lee Knife, Executive Director, Digital Media 
  Association (DiMA).............................................    94

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Report titled The Copyright Principles Project: Directions for Reform, 
    submitted by the Honorable Bob Goodlatte, a Representative in 
    Congress from the State of Virginia, and Chairman, Committee on the 
    Judiciary. This report is available at the Subcommittee and can 
    also be accessed at:

        http://docs.house.gov/meetings/JU/JU03/20130516/100830/HHRG-
        113-JU03-20130516-SD004.pdf

Study titled Copyright in the Digital Era, Building Evidence for 
    Policy, submitted by the Honorable Blake Farenthold, a 
    Representative in Congress from the State of Texas, and Member, 
    Subcommittee on Courts, Intellectual Property, and the Internet. 
    This study is available at the Subcommittee and can also be 
    accessed at:

        http://www.nap.edu/catalog.php?record_id=14686


 A CASE STUDY FOR CONSENSUS BUILDING: THE COPYRIGHT PRINCIPLES PROJECT

                              ----------                              


                         THURSDAY, MAY 16, 2013

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 2:55 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Goodlatte, Marino, Smith, 
Poe, Holding, Collins, DeSantis, Watt, Johnson, Chu, Deutch, 
Bass, DelBene, Jeffries, Nadler, and Lofgren.
    Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia 
Lee, Clerk; and (Minority) Stephanie Moore, Minority Counsel.
    Mr. Coble. The Subcommittee on Courts, Intellectual 
Property, and the Internet will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    We welcome all of our witnesses today. And at the outset, I 
want to again reiterate our apology for the delay. The votes 
take precedent oftentimes, and I am sorry. We appreciate your 
patience.
    I will give my opening statement, then call on Mr. Watt 
afterwards.
    This afternoon's hearing is an initial step in this 
Subcommittee's effort to undertake a comprehensive review of 
our Nation's copyright laws.
    Last month, when Register Pallante testified before this 
Subcommittee, she illustrated the mutual interest of authors 
and the public. As she accurately and eloquently explained, 
``As the first beneficiary of the copyright law, they are not a 
counterweight to the public but instead are at the very center 
of the equation. As such, the copyright law must start with the 
creator as the center of the equation.'' As Ms. Pallante 
concluded, ``A law that does not provide for authors would be 
illogical, hardly a copyright law at all.''
    Central to any review is identifying what has worked and is 
working in the law. Copyright law is well-rooted, with 200 
years of precedent that has produced a level of creativity and 
innovation that is the envy of the world. Our consumers enjoy 
an incredible selection of high-quality content that is 
available on an array of technology platforms. Meanwhile, we 
continue to lead the world with new ideas and creations. These 
achievements are stunning and should not, in my opinion, be 
overlooked.
    That being said, I commend Chairman Goodlatte and Register 
Pallante for recognizing the need for a comprehensive review. 
Piracy is an enormous--piracy or threat--the terms are 
synonymous, in my opinion--is an enormous problem that must be 
addressed. Licensing is a periodic battle which oftentimes 
leaves consumers with the short end of the stick. We should 
take the time to consider whether there are other options.
    Our high-tech innovators, which are also helping to drive 
creativity, are frustrated by all of the above. Our policies 
should incentivize innovation, not frustrate it.
    These are some of the many issues I hope we will have an 
opportunity to review to determine whether or not the law is 
meeting its constitutionally-ordained purpose.
    I am interested in hearing how this witness panel of 
diverse perspectives on copyright law was able to put aside 
their differences in an effort to work together. Such efforts 
and others like them should be applauded. This Committee has 
often heard from witnesses who were better at talking at each 
other rather than with each other.
    Of course, that does not mean that anyone should retreat 
from his or her views on any subject. It should come as no 
surprise that the Ranking Member, Mr. Watt, and I do not agree 
on every issue that the full Judiciary Committee considers, but 
we try to serve the people of our great State.
    And, by the way, I am pleased to see that one of our 
witnesses this afternoon is from the University of North 
Carolina.
    Efforts in the copyright world to recognize where consensus 
can and cannot be reached are helpful as we undertake a 
comprehensive review. I have no doubt that Chairman Goodlatte, 
I, and other Members of the Subcommittee will hear from 
interesting creators over the months ahead on how copyright is 
and is not working for them.
    The Register has already highlighted some problems with 
copyright law, especially for the ability of copyright owners 
to protect their works. The report generated by the Copyright 
Principles Project and the testimony submitted today have also 
highlighted problems that need to be addressed.
    It seems to me that those who believe everything should be 
free fundamentally disrespect the creators who have put so much 
effort into their works and improve our Nation's culture as a 
result.
    I again want to thank the witnesses for your presence today 
and for your willingness to spend to much time working in a 
collegial manner with those whose views may not always embrace 
or agree with. Their willingness to listen to others in such a 
manner is one that I urge everyone to follow.
    I am now pleased to recognize the distinguished gentleman 
from North Carolina, the Ranking Member, Mr. Mel Watt.
    Mr. Watt. Thank you, Mr. Chairman, and thank you for 
convening the hearing.
    For those of you who showed up today expecting my grandson 
Nico, I have to extend my regrets. After yesterday's 
performance went viral on a number of outlets, including ``Good 
Morning, America'' this morning and others, he said he was 
giving me no more exposure without royalties. So he is not here 
with me today, although he is still in Washington for those of 
you who want to sign him up.
    Anyway, let me be serious. Earlier this week, I attended 
the ``We Write the Songs'' event at the Library of Congress. 
The auditorium was packed with an audience transfixed on the 
skillfully crafted lyrics and the astonishing performances, 
including the electrifying performance that earned a standing 
ovation from the audience for a young group out of my home 
State of North Carolina, the Carolina Chocolate Drops.
    Bearing in mind the Chairman's call for a comprehensive 
review of copyright law in the digital era, I left the event 
with an even more passionate view that our copyright system 
must preserve and protect the rights of the creators of the 
music, books, games, movies, and other forms of intellectual 
ingenuity that enrich each of us individually and all of us 
collectively, as a Nation.
    I start with this observation because it seems that, over 
the past few years, there has been a shift in public discourse 
about copyright away from the people who actually devote their 
talent to create works for the benefit of society and those who 
invest in them toward the users of those works and the 
financial interests of those companies eager to commercially 
exploit them.
    That shift has often been accompanied by assertions of 
lofty principles and constitutional values. But, as I have said 
in the specific context of online theft, free speech does not 
mean free stuff. And the free flow of information, even through 
legitimate channels, doesn't mean that information, the 
substance of what is flowing, should be free. It simply cannot 
be the case that the digital age turns creators into content 
servants for the rest of us.
    That said, I am neither hardlined nor hardheaded about the 
realties of today's marketplace or the complexity of the task 
before us. The digital environment is replete with both 
challenges and opportunities, but, currently, uncertainty 
abounds for all stakeholders. Companies that invest in and 
develop individual talent must be secure in their expectation 
that strong copyright exists and that a mechanism to enforce 
those rights effectively is in place. Consumers deserve clarity 
about legitimate uses. And Internet and tech companies should 
have clear rules to help them develop sustainable business 
models that fairly compensate authors.
    Companies that invest in creative talent may have to adjust 
their business models to accommodate the digital revolution, 
and many have. But the digital companies, some of whom have 
taken to exalting their disruptive power, well, they are not 
exempt from the need to adjust their practices either.
    Keeping our focus on creators, while hardly novel or 
radical, is seemingly controversial in some quarters. Some of 
that controversy is evident in the Copyright Principles Project 
report and process that we will hear about today. Some is also 
evident in the reaction to the report, for example, the op-ed 
authored by musician David Lowery that was published earlier 
this week, which I ask unanimous consent to offer for the 
record.
    Mr. Coble. Without objection.
    [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Watt. As Chairman Goodlatte has made clear, the 
Committee does not endorse the specific recommendations of the 
Copyright Principles Project. Still, the project does contain 
some useful background and insight into how parties with 
divergent views might be able to engage in a constructive and 
respectful dialogue.
    I am particularly intrigued by the recommendation to 
strengthen the exclusive right of copyright holders to control 
communications of their works to the public, which I believe 
more closely aligns with the principle that aims to preserve 
and protect the creators' rights.
    A report from this Committee in the 21st Congress observed, 
``It cannot be for the interest or honor of our country that 
intellectual labor should be depreciated and a life devoted to 
research and laborious study terminate in disappointment and 
poverty.''.
    As we review copyright law and policy in the digital era, 
this Committee should work to secure the rights of the 
creators, who enhance our lives and grow our economy, while 
balancing the interest of the public. Let me be clear that I 
believe that the global appetite for intellectual property will 
benefit best from a robust copyright regime that protects the 
individual expressive rights of creators and authors.
    Mr. Chairman, I thank you for the time, and I yield back.
    Mr. Coble. I thank the gentleman from North Carolina.
    And other Members' opening statements will be made part of 
the record, if so desired.
    I stand corrected. Our Chairman of the full Committee has 
just arrived, the gentleman from Virginia, Mr. Bob Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. I apologize for 
being late getting back.
    Mr. Chairman, thank you for holding this hearing.
    This afternoon, we will hear from several participants in 
the Copyright Principles Project, who collectively have worked 
on or studied copyright issues for decades. They have also 
traveled here from all over the United States, and I thank them 
for their willingness to be here today.
    Copyright is a fundamental economic principle enshrined in 
our Constitution. It has become a core part of our economy and 
society in ways that Framers of our Constitution could never 
have imagined.
    The ways in which creators could express themselves when 
the Constitution was written were very limited. Photography, 
musical recordings, film, and software did not arrive for 
decades, if not centuries, afterwards. Even many of these 
creations have changed significantly as digital technologies 
made the creation of content more diversified. Digital 
technologies have also enabled wider distribution to occur. 
Local artists can have a global reach.
    The passion and skills of our Nation's creators have 
enhanced our society and culture. Creators deserve our support 
and respect.
    Despite rapidly changing technologies and business models 
since the enactment of the 1976 Copyright Act, there appears to 
have been few efforts to bring together parties from different 
perspectives to discuss how the 1976 act has worked as 
technology and business models evolve. There have certainly 
been short-term events where interested parties spoke for a few 
minutes each about the latest technology or the latest court 
decision. What has been lacking is something broader in 
perspective.
    What impressed me about the Copyright Principles Project 
was not its report, or even on what issue its participants were 
able to agree or disagree. In fact, the Committee does not 
endorse the specific recommendations and findings of the 
report. However, we do want to highlight that its participants, 
with strongly held views on copyright law, many of which were 
in direct opposition to each other, committed to spending 3 
years together in an effort to productively discuss copyright 
issues.
    The Committee has invited five of the participants here 
today as an example of how people with divergent views on 
copyright law can productively debate a range of copyright 
issues. Their written testimony highlights the fact that they 
are all here this afternoon certainly not speaking with one 
voice but speaking with a recognition that the person next to 
them at the witness table has just as much right to advocate 
their position on copyright law as they do.
    This Judiciary Committee is no stranger to policy issues on 
which opinions vary widely. This hearing room has and is 
continuing to debate numerous policy issues in which there are 
sharp disagreements. There were, of course, sharp disagreements 
on the 1976 Copyright Act that we use today and whose hearing 
record in 1975 in the Committee journals is before me.
    Since announcing my interest in a comprehensive review of 
copyright law several weeks ago, a variety of interested 
parties began identifying their specific areas of interest that 
they wanted to see reviewed. I appreciate their input, and I 
look forward to working with all interested parties.
    We should not be in a rush to focus on specific issues 
without first recognizing the fundamentals of copyright and the 
social and economic benefits that copyright brings to our 
economy. It is my intention to conduct this broad overview by 
hearing from everyone interested in copyright law, as we begin 
by holding hearings on important fundamentals before we begin 
to look at more specific issues.
    There are numerous questions that will be raised by 
interested parties during this review. I have several myself, 
including: How do we measure the success of copyright and what 
metrics are used? How do we ensure that everyone's voice is 
heard? How is copyright working for individual artists? How is 
copyright working for our Nation's economy? These are only a 
few of the issues we will be looking into.
    This review of copyright law will not be a quick process, 
simply because the issues are so numerous. However, we must 
undertake this review to ensure that copyright law continues to 
incentivize creativity and innovation in the digital age.
    I want to thank all of the witnesses for being here today. 
And I definitely appreciate the Chairman's forbearance in 
allowing me to give this opening statement, even though I had 
to dash in to make sure it got done.
    Mr. Coble. You are indeed welcome.
    Mr. Goodlatte. We call all of your attention to this light 
reading if you are having difficulty sleeping at night here 
from 1975.
    Thank you, Mr. Chairman.
    Mr. Coble. I will begin by swearing in our witnesses prior 
to introducing them.
    If you would, please rise.
    [Witnesses sworn.]
    Mr. Coble. Let the record reflect that all responded in the 
affirmative.
    We have a distinguished panel of witnesses today.
    Each of the witnesses' written statements will be entered 
into the record in its entirety, and I ask each witness, if you 
can, to summarize your testimony in or about 5 minutes. When 
your green light turns to amber, that is your signal. When the 
red light turns red, that is an ultimatum. You won't be 
penalized, but, if you could, wrap up shortly after that.
    I am now pleased to introduce our witnesses.
    Our first witness today is Mr. Jon Baumgarten, former 
general counsel of the U.S. Copyright Office and retired 
attorney at Proskauer Rose, LLP. Mr. Baumgarten was appointed 
as general counsel of the Copyright Office in January 1976 by 
the Register of Copyrights, Barbara Ringer. He served his term 
until 1979, being a leading participant in the final 
formulation of the general revision of the U.S. Copyright Act 
of 1976. Mr. Baumgarten then joined Proskauer Rose as partner 
in 1980 until 2011, when he retired. Mr. Baumgarten received 
his J.D. degree from New York University School of Law and his 
B.A. from the City University of New York.
    Our second witness is Professor Laura Gasaway from the 
University of North Carolina-Chapel Hill.
    And Mr. Watt and I may be guilty of giving you preferential 
treatment today, Professor. You are from Glory Land.
    Professor Gasaway joined the UNC Law faculty in 1985 as 
director of the law library and professor of law. She was 
director until 2006, when she became Associate Dean for 
Academic Affairs. She also co-chaired the Section 108 Study 
Group for the U.S. Copyright Office of the Library of Congress 
from 2005 to 2008. Professor Gasaway received her J.D. from the 
University of Houston and her B.A. from the Texas Woman's 
University with highest honors.
    Professor Gervais, Mr. Daniel Gervais, professor of law and 
director of the Intellectual Property Program at Vanderbilt 
University School of Law. Prior to joining the Vanderbilt 
faculty in 2008, Mr. Gervais researched international 
intellectual property law for 10 years on behalf of the World 
Trade Organization and the World Intellectual Property 
Organization. He is currently editor-in-chief of the Journal of 
World Intellectual Property. Professor Gervais received his 
doctorate degree from the University of Nantes in France.
    Our fourth witness today is Professor Pamela Samuelson at 
the University of California Berkeley School of Law. Professor 
Samuelson currently serves as director of the Berkeley Center 
for Law and Technology and as a chancellor professor of 
information management and law. She is currently a fellow in 
the Association for Computing Machinery and also serves on the 
advisory board for Public Knowledge. Professor Samuelson 
received her J.D. from the Yale School of Law and a B.S. From 
the University of Hawaii.
    The fifth and final witness is Mr. Jule Sigall, assistant 
general counsel for copyright at Microsoft Corporation, and, in 
his position, Mr. Sigall leads the company's Copyright and 
Trade Secrets Group. Before joining Microsoft, he served as 
Associate Register for Policy and International Affairs at the 
U.S. Copyright Office, where he led the division responsible 
for providing domestic and international oversight policy to 
both the legislative and executive branches. Mr. Sigall also 
served as adjunct professor at the George Washington University 
School of Law. Mr. Sigall received his J.D. summa cum laude 
from Catholic University and his A.B. from Duke University in 
Durham.
    We will give you special treatment, too, Professor.
    Welcome to you all.
    And we will begin with Mr. Baumgarten. And I will remind 
you again of the signal on your panel before you.

   TESTIMONY OF JON BAUMGARTEN, FORMER GENERAL COUNSEL, U.S. 
                  COPYRIGHT OFFICE (1976-1979)

    Mr. Baumgarten. Thank you, Mr. Chairman.
    I am pleased to appear here today in my individual capacity 
in response to invitation from the Committee to testify 
regarding my participation----
    Mr. Watt. Could you pull your mike closer to you so we 
could----
    Mr. Baumgarten [continuing]. To testify regarding my 
participation in the Copyright Principles Project. In addition 
to having served as general counsel of the Copyright Office, I 
have acted as counsel to copyright-owner plaintiffs in a number 
of leading cases which are the subject of considerable 
contention, as well as in nonlitigation matters to major 
copyright industry entities.
    In short, I have not been a neutral or, even in retirement, 
a dispassionate observer of the great copyright debates; nor, 
of course, were or are any of my CPP colleagues, whether the 
numerous representatives of the academy or the few from the 
private sector. We all brought to our deliberations strongly 
held and frequently contesting views.
    The CPP report is not a disinterested, independent 
assessment, but it may usefully serve as one example of a 
collegial and informal discussion of the important issues 
facing this Committee as it again takes up its critically 
important stewardship of this country's copyright law with the 
assistance of the forward-looking and expert Register of 
Copyrights.
    When viewed from the perspective of today's increasingly 
polarized copyright debates, the process and report of the CPP 
was, indeed, a breath of fresh air. A hallmark was not simply 
civility, but rather, real dialogue among representatives of 
substantially differing views. By and large, the participants 
listened to instead of speaking past each other and took the 
remarks of others genuinely and respectfully into account.
    As thoroughly documented in my written statement, however, 
this process did not generate a great deal of substantive 
agreement. Unfortunately, we referred to ``agreements'' and 
``proposals'' and defined those terms in such a way that 
understandably may have caused such confusion. In fact, the 
report's description of many of those misnamed proposals 
explicitly recorded a lack of consensus, opposing views, 
expressed concerns or, in a few cases, the need for 
considerably more detail, participation, and study before any 
judgment can be made.
    This is no surprise to this Committee, as our panel was 
instructed from the very beginning to participate in issue 
spotting, not to pretend to come up with a legislative package, 
which, of course, is not our function. We were also asked to 
demonstrate how contending parties can agree to disagree in 
civil fashion.
    Mr. Chairman, Members of the Committee, I will not review 
my own objections and reservations with aspects of the report, 
principally because for the most part the report does a fair 
job of at least summarizing them, as well as all other 
participants'. I probably would have written some of those 
summaries different, but that was not the point of the 
exercise.
    But all of this does not mean that the deliberations and 
report of the CPP are irrelevant to the program that Chairman 
Goodlatte has announced or unsuitable as a beginning to the 
difficult task of Chairman Coble, Ranking Member Watt, and 
Members of this Committee. To the contrary, the report 
expressed the hope that, ``recording the nature of our 
disagreements could advance discourse on copyright issues by 
others.''
    Although the tenor of the CPP deliberations is a welcome 
tempering of recent copyright debate, there are other 
instances, described in my prepared testimony, where procedural 
and substantive collegiality prevailed on very complex 
copyright issues, notwithstanding very intense differences.
    And at a personal level, if I may add, Mr. Chairman, my 
friend to my left and I have probably not agreed with each 
other in 40 years, but we have, over that period, had 
significant discussions, significant and respectful, productive 
instances, where some agreements we managed to extract.
    At the risk of introducing a discordant note into this 
discussion, I will conclude my testimony with an additional 
point. For the reasons spelled out in my written statement, I 
think it fair to consider the discussions and report of the CPP 
as somewhat more attentive to perceived problems caused by 
copyright to access and related interest users than to the 
substantive and enforcement needs of authors and other 
copyright owners in the 21st century.
    As this Committee goes beyond the CPP report toward the 
announced comprehensive review, I am confident that it will 
take forward and expand the CPP's focus of attention to 
encompass even more comprehensively the needs and concerns of 
authors and other copyright owners as well as those of all 
stakeholders and participants in the world of copyright.
    Thank you for your time.
    Mr. Coble. Thank you, Mr. Baumgarten.
    [The prepared statement of Mr. Baumgarten follows:]
     Prepared Statement of Jon Baumgarten, former General Counsel, 
                   U.S. Copyright Office (1976-1979)
    I am Jon Baumgarten. Having retired from the practice of law, I am 
appearing today in my individual capacity in response to invitation 
from Chairman Goodlatte to testify regarding my participation in the 
Copyright Principles Project (``CPP''). By way of disclosure, in 
addition to government service as General Counsel of the Copyright 
Office from 1976 through 1979, before and after that period I served as 
counsel to copyright owner plaintiffs in a number of leading cases that 
established precedent and principles of copyright law which are subject 
of considerable contention in today's copyright debates, as well as 
counsel to major copyright industry trade associations, consortia, and 
companies. I have not been a neutral or (even in retirement) 
dispassionate observer of the great copyright debates. Nor, of course, 
were or are my CPP colleagues, whether the numerous representatives of 
the academy or the few from the private sector.
    We all hold and brought to our deliberations strongly held views 
borne of scholarship, citizenship, learning, experience, observation 
and practice. The report of the Copyright Principles Project--The 
Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. 
L.J.1 (2010) (``Report'')--is not a disinterested independent 
assessment or impartial opinion. It may, however, usefully serve as one 
example of a more frank and less rhetorical, or at least more collegial 
and informative, discussion than many others of some of the important 
issues facing this committee as it continues its vigilant, deliberate 
and critically important stewardship of this country's copyright law. 
It is important to go further and make even more clear to this 
committee what the Report was, and even more important, to make clear 
what it was not. As I suggested a moment ago, when viewed from the 
perspective of todays increasingly polarized, largely distrustful, and 
deeply antagonistic copyright debates, the process and Report of the 
CPP was a breath of fresh air. (As I will mention a bit later, however, 
its tenor was not entirely unique or unprecedented.)
    A hallmark of the process was not simply civility, but rather real 
dialog among representatives of significantly differing views. During 
the discussions, and as reflected in the Report--and notably in several 
cases in its evolution from draft to final form--by and large the 
participants listened to instead of speaking past each other and took 
the remarks of others genuinely into account in developing and putting 
toward their own positions and replies. While this process yielded a 
constructive exchange and, I hope, a cadre of continuing disputants who 
are more understanding, tolerant, and perhaps even respectful of each 
other's' views, it does not at all mean that it generated overwhelming 
or even a good deal of substantive agreement. Indeed, it became 
apparent quite early in the process that considerable meaningful 
agreement would probably not be--as indeed it was not--the conclusion 
of our efforts. That objective was, in fact, soon disavowed as even our 
purpose. The Report (pg 3) notes, for example, that ``we are not in a 
position to offer a comprehensive and detailed set of . . . 
proposals''; that ``CPP members are not uniformly of one mind about 
various steps that could lead to improvements''; and that ``we have 
succeeded in . . . articulating both where we agree and where and why 
we disagree''. It also cautions (pg 4) that ``participation in the 
project should not . . . be interpreted as an endorsement of each and 
every proposal discussed in the document. In fact, various members of 
the group maintain reservations and even objections to some proposals 
described as recommendations in this Report.''
    I will not, in my prepared testimony, review my own objections and 
reservations with aspects of the Report; this is principally because, 
in tribute to my colleagues and our convener, for the most part the 
Report does a fair job of explicating or at least summarizing my 
concerns and those of all other participants.
    Examination of the (unfortunately mis-named) section of the Report 
that sets forth ``twenty five reform proposals'' makes the qualitative 
preponderance of ``disagree[ment]'' quite clear. The majority of 
descriptions of these points explicitly recorded (and explained) lack 
of consensus, opposing views, express concerns, or in a few cases the 
need for considerably more detail and study before any judgment could 
be made. The express acknowledgement of disagreement among the CPP 
participants appears elsewhere in the Report as well, in connection 
with such important subjects as possible changes to copyright duration 
(pg 10), to the definition of exclusive rights (pg 13), to allocation 
of the idea/expression dichotomy (pg 16), and to application of the 
preemption doctrine (pg 16).
    Of the twelve descriptions that did not record explicit 
disagreement, at least one (#17: expanded statement of fair use 
purposes) and perhaps more were in fact the subject of substantial 
reservation and objection at the meetings; two (#12: injunctions and 
principles of equity; and #14: permanence of public domain) have been 
subject of dissension among CPP participant related interests in the 
courts); one (#19) may--as I understand it--have been since disavowed 
by some or all of the same interests that supported it; one (#21: 
orphan works legislation) has been explored in far greater detail by 
the Copyright Office and others); and in my view few (##7; 14; 17; 19; 
21) are of major doctrinal and practical significance. It is worth 
noting, however, that one of these uncontested yet important proposals 
(#7: right of communication to the public) is of increasing benefit to 
copyright owners.
    Given this lack of agreement, it is understandable for members or 
staff of the committee and other readers of the Report to wonder how 
the document could describe a collection of twenty five revision 
``proposals'' (after explicitly concluding that ``we are not in a 
position to offer a comprehensive and detailed set of . . . proposals 
[pg 3]''), refer to ``recommendations'', or assert that ``we believe . 
. .''. The Report explains (pgs 4, 22):

        ``While various proposals elicited enough support within the 
        group that it was deemed constructive to style them as 
        recommendations, we do not intend affirmative statements or use 
        of phrases, such as `we recommend' or `we believe' to suggest 
        that the group as a whole was uniformly in support of each 
        particular view stated. It is a tribute to the collegiality of 
        the group and our collective desire to foster a constructive 
        dialog . . . that there was enough agreement among us to set 
        forth recommendations in this manner.''

    Given the composition of the membership and strength of dissenting 
views, the ``enough support'' rationale is, at least in retrospect (and 
was to some at the time) an unfortunate and inadvertently misleading 
one.
    But all of this does not mean that the deliberations and Report of 
the CPP are irrelevant to the process Chairman Goodlatte has announced, 
or unsuitable as a point of orientation or beginning to the difficult 
but important task of Chairman Coble, Ranking Member Watt, and members 
of this committee. To the contrary, the Report expressed the hope that 
``recording the nature of our disagreements could advance discourse on 
copyright issues by others'' (pg 4), that the Report ``will contribute 
to a wider and more effective conversation . . .'' (pg 4), and that the 
purported proposals would ``stimulate thoughtful conversation . . .'' 
(pg 12). If my CPP colleagues and I have proven ourselves useful to the 
committee in that posture then we may conclude that our time in the CPP 
was not only intellectually rewarding and socially pleasant, but also 
productively spent.
    Although the tone and tenor of the CPP deliberations and 
conclusions is a welcome tempering of at least the decibel level of 
recent copyright debate, there are other instances where procedural and 
substantive collegiality prevailed among interested parties on very 
difficult and complex copyright policy issues notwithstanding intense 
differences. For one example, the sometimes harshly contrasting and 
loudly voiced positions of the motion picture industry on the one hand, 
the consumer electronics industry on another and the information 
technology industry on yet a third on certain copyright issues are very 
well known to this committee. Yet over a period of several years a 
number of us--notably including counsel, technologists, and business 
persons from each group--repeatedly convened, carefully explored each 
other's concerns, put aside the rhetoric, and in result created the 
legal and technical environment--and with the essential aid of 
Congress, the critical legislative support--for emergence of the then 
great new media consumer success, DVD and related formats. There are 
other examples of productive professional collegiality existing side by 
side with or under the surface of simmering copyright controversy. 
Since at least the years of the great copyright revision program of the 
1960's and 70's and to more recent times, these include negotiated 
guidelines and even legislation, and multi-party studies and reports. 
Not all have survived the years, the progress of technology, or the 
evolution of political strategies; some have not yet become effective 
or operational; others have been perhaps more the product of 
congressional prodding than of voluntarily initiated association. Yet--
at least in my own experience--for the greater part, much like the CPP, 
these events have ``proven that it is possible for persons of good will 
with diverse viewpoints and economic interests to engage in thoughtful 
civil discourse on even the toughest and most controversial copyright 
issues [Report pg 4].''
    At the risk of now suddenly introducing an extra discordant note 
into this discussion, I will conclude my testimony with an additional 
point:

        I think it fair to consider the discussions and Report of the 
        CPP as somewhat more attentive to perceived problems caused by 
        copyright to access and related interests of ``users'' than to 
        the substantive and remedial/enforcement needs of ``copyright 
        owners'' in the Twenty First Century. (I do apologize for 
        resurrecting this old and imprecise class distinction; but for 
        the moment it serves a purpose.) In my judgment, nineteen of 
        the twenty five points examined by the Report (all but ##5, 7, 
        9, 23, 24 and 25) can reasonably be categorized as addressing 
        ``user'' access and related concerns. Please understand that I 
        am speaking here in comparative terms of the CPP's focus of 
        attention; not of its absolute substance. Indeed, there are 
        notable acknowledgments of copyright owner interests in both 
        specific ``proposals'' (#7: communication to the public; #9: 
        recognizing importance of ISP responsibility, though with 
        substantial disagreement on implementation; see also, ##5 & 23 
        [small claims and treatment of contributions to software] and, 
        for individual authors ##24 & 25 [termination and attribution 
        rights]); in many of the discussions of recorded objections and 
        concerns to other ``proposals''; and in other sections of the 
        Report as well. For example, it is most welcome to see instead 
        of the more commonplace copyright trampling rush to instant 
        gratification of an immense technology enhanced appetite for 
        immediate content, the following: ``It may take some time and 
        patience to allow disrupted copyright sectors to consider, 
        experiment with, and develop other or more refined models and 
        approaches with which they will be reasonably comfortable [pg 
        2].'' It is comforting as well to note the Report's tight 
        categorization of the Supreme Court's Sony Betmax decision as 
        involving only some device ``makers'' and time shifting of free 
        to air broadcast [pg 5] rather than the far broader if not 
        unbounded cloak of immunity for primary and secondary 
        infringement liability wrongly accorded to that decision by 
        others; its recognition of copyright's importance to 
        ``encouraging provision of capital and organization needed for 
        dissemination of works'' as well as to authorial effort [pg 2]; 
        and the importance of developing and deploying technical 
        protection measures in the digital age [pg 19].

    As this committee goes beyond the CPP Report toward the announced 
``comprehensive review of copyright law'' I am confident that it will 
take forward and expand the CPP's ``focus of attention'' to encompass 
even more comprehensively the needs and concerns of copyright owners as 
well as of all stakeholders and participants in the world of copyright, 
and of the public.
    I am confident of that because I have seen and closely experienced 
this committee, including its predecessors, do so before. During the 
last omnibus copyright revision I spent many hours as Copyright Office 
General Counsel assisting committee staff and members in addressing 
major concluding issues of the revision program and its implementation. 
Prior to and after that period I had numerous opportunities to confer 
with the committee on behalf of clients affected by its copyright 
related deliberations. I have high regard for its process, deliberation 
and expertise; but I add, rather selfishly, that today, having retired 
from practice, I am particularly delighted to experience something of a 
homecoming in venue and in substance, and I am thankful for the 
opportunity to appear here again.
                               __________

    Mr. Coble. Professor Gasaway?

  TESTIMONY OF LAURA N. GASAWAY, PAUL B. EATON DISTINGUISHED 
  PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

    Ms. Gasaway. Thank you.
    Chairman Coble, fellow North Carolinian, and Ranking Member 
Watt and Members of the Subcommittee, thank you so much for 
inviting me to participate in this distinguished panel.
    I have worked with these folks for many years, and, as Mr. 
Baumgarten told you, he and I have worked together probably 
more than 35 years, usually taking opposite positions but 
remaining friends all that time.
    I have participated in a number of groups working on 
copyright issues over the years, representing the Association 
of American Universities in the Conference on Fair Use, and, as 
you mentioned, co-chairing the Section 108 Study Group, and 
then most recently as a member of the Copyright Principles 
Project.
    You also heard that I am both a law librarian and a law 
professor, and so it is natural that my focus throughout my 
career has been on libraries, archives, museums, and 
educational institutions, not only on the use of copyrighted 
works by these institutions but also on the creation of these 
works by faculty and employees.
    My written statement mentions educational uses, but in my 
comments today I am going to talk just about libraries, 
archives, and museums.
    Copyright concerns have been part of these institutions 
long before the 1976 act and the advent of photocopying. The 
1976 act does not work so well on a number of fronts but 
especially for libraries, archives, and museums and for their 
users, visitors, and students. The current act is bewildering, 
to say the least, often even to copyright lawyers.
    I believe there are three potential ways to solve the 
copyright problems that these institutions face. And when I 
call them copyright problems, I mean how do we deal with users 
and still protect the rights of creators, which so many of you 
eloquently spoke about.
    The first would be a total revision of the Copyright Act 
based on principles, I would hope removing some of the 
regulations from the statute and putting them into the Code of 
Federal Regulations, where as a law librarian I will tell you 
they belong, rather than in the statute, and at the same time 
taking into account the unique roles that libraries, archives, 
and museums play in our society.
    For example, as a matter of principle, recognize the roles 
of these institutions and allow them to provide access to 
works; permit the reproduction of portions of works even in 
digital format in order to encourage research, scholarship, and 
private study. As a matter of principle, the Act could ensure 
the ability of these institutions to preserve works digitally 
so that they are available for future generations.
    In addition to the Copyright Principles Project, another 
model of these principles might be the European treaty 
proposals that I mention in my written statement.
    A second proposal would be to repeal section 108 and rely 
solely on section 107: fair use. The Copyright Principles 
Project highlights the difficulties with this approach, which I 
believe are exacerbated for frontline employees in libraries, 
archives, and museums.
    Sometimes I think academic law librarians and academic 
librarians at large institutions, which have legal counsel to 
advise them, would like to rely solely on fair use. But I will 
tell you that public librarians and librarians in small 
colleges, which may not have any legal counsel, much less one 
that is familiar with copyright, are often faced with a user 
standing at a desk kind of ranting and raving and wanting to do 
something, and they need an immediate answer. If only copyright 
lawyers can understand and apply the Act, something is 
fundamentally wrong.
    A third way to solve the problem for libraries, archives, 
and museums is to enact the recommendations of the Section 108 
Study Group and update them, as detailed in my written 
statement.
    But there are two other issues that are crucial to these 
institutions: solving the orphan works problem and finding a 
way to deal with mass digitization. These are serious issues 
facing these institutions as well as society.
    Determining and maintaining the appropriate balance in 
copyright is not an easy proposition, but, as the Copyright 
Principles Project illustrates, it is possible for people of 
good will to come together, discuss difficult issues, and reach 
some agreements. But they must keep foremost in their minds 
what is best for society and not just what is best for their 
constituencies.
    Thank you so very much, and best wishes to you as you begin 
this endeavor. If I can help in any way, I would be delighted 
to do so. Thank you.
    Mr. Coble. Thank you, Professor Gasaway.
    [The prepared statement of Ms. Gasaway follows:]
  Prepared Statement of Laura N. Gasaway, Paul B. Eaton Distinguished 
      Professor of Law, University of North Carolina School of Law
    Distinguished Chairman Goodlatte, Ranking Member Watt and Members 
of the Subcommittee on Intellectual Property, Competition, and the 
Internet: Thank you for inviting me to talk to you today about revising 
the Copyright Act. I am a law librarian and law professor, and I have 
worked in copyright arena since 1973 focusing on the use of copyrighted 
works in libraries, archives and educational institutions and the 
creation of copyrighted works by faculty and employees of these 
organizations. I was the co-chair of the Section 108 Study Group;\1\ a 
group convened to consider recommend changes to the library and 
archives exceptions embodied in section 108 of the Copyright Act. I was 
also a member of the Copyright Principles Project.
---------------------------------------------------------------------------
    \1\ The Section 108 Study Group was created by the U.S. Copyright 
Office and the National Digital Information Infrastructure and 
Preservation Program of the Library of Congress. It issued its report 
in 2008.
---------------------------------------------------------------------------
    Libraries, archives, museums and educational institutions have 
experienced tremendous changes over the past few decades; they have 
been active adopters of technology to improve internal processes, to 
provide increased access to information and to update educational 
methodology to meet the needs of students today. The digital age has 
revolutionized these institutions as well as copyrighted works which 
are increasingly available in digital format. The 1976 Copyright Act 
was enacted in the very early days of this revolution, and no one 
envisioned creation of the Internet, the importance of digital works 
and the rise of user generated content. These changes are highlighted 
in the report of the Copyright Principles Project. For libraries, 
archives, museums and educational institutions, the ability to rely on 
digital technologies to perform their traditional functions is crucial. 
These institutions are also beginning to engage in new activities such 
as digital preservation and even so-called ``mass digitization.'' The 
current statute does not deal with any of these issues. At the same 
time, the creators of copyrighted works must be protected, encouraged 
and compensated for their works, if they so choose, while making their 
works available to the public. This means that whatever changes to the 
copyright statute are adopted must create a balance between creators 
and users of copyrighted works.
    I have thought long and hard about how to solve the problems that 
libraries, archives, museums and educational institutions encounter in 
dealing with digital works as copyright owners increasingly attempt to 
lock down their works with restrictive licensing provisions. For these 
institutions, just trying to comply with the current complicated 
statute is expensive and maybe even cost prohibitive. Moreover, today's 
students and library patrons demand that works be made available in 
digital format, but the current Copyright Act makes it difficult to 
provide these copies and still comply with the provisions of section 
108. There are three possible ways to ameliorate these problems while 
still providing necessary protections to copyright owners. (1) Develop 
a new copyright act that is flexible, less technical and easy for 
ordinary people to understand, one that is based on underlying 
principles rather than lobbying efforts that eliminates the difference 
in the ways different types of works are treated under the statute. An 
example of such an approach is the Treaty Proposal on Limitations and 
Exceptions for Libraries and Archives developed jointly by the 
International Federation of Library Associations, the International 
Council on Archives, Electronic Information for Libraries and 
Innovarte, a library non-governmental organization.\2\ (2) Repeal 
section 108 and rely solely on the fair use doctrine to provide these 
entities with the flexibility they need to fulfill their missions and 
provide materials to their users, patrons, faculty, staff and students. 
(3) Revise section 108 of the Act to expand the exceptions to the 
exclusive rights of the copyright owner to take into account the 
changes wrought by the digital age in accordance with the Section 108 
Study Group Report \3\ and update and expand those recommendations.
---------------------------------------------------------------------------
    \2\ See http://www.ifla.org/files/assets/hq/topics/exceptions-
limitations/documents/TLIB_v4.3_
050712.pdf.
    \3\ See http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
---------------------------------------------------------------------------
    The first alternative comes from the Copyright Principles Project. 
The focus would be on providing to users of libraries and archives, 
visitors at museums and students, faculty and staff of educational 
institutions the ability to use copyrighted works in a non-commercial 
manner to provide access to copyrighted works to their users. It would 
require a flexible statute that is truly technology neutral. The 
European Treaty Proposal on Limitations and Exceptions for Libraries 
and Archives \4\ includes the ability for libraries and archives to 
lend tangible copyrighted works to a user or another library; to 
provide temporary access to copyrighted works in digital format to user 
or another library for consumptive use; and to provide a copy of a 
copyrighted work in connection with a user request for the purpose of 
education, research or private use, provided that the reproduction and 
supply is in accordance with fair practice. For preservation or 
replacement, the proposed treaty permits libraries and archives to 
reproduce works and allows preserved or replacement copies to be used 
in place of the originals in accordance with fair practice. Another 
general principle in the proposed treaty is that libraries and archives 
are permitted to reproduce and make available to the public any work 
for which the rights holder cannot be identified and located after 
reasonable inquiry. The treaty proposal deals with digitization only as 
a preservation matter or to meet the needs of people with disabilities, 
however.
---------------------------------------------------------------------------
    \4\ See supra note 2.
---------------------------------------------------------------------------
    The second method to solve the statutory copyright problem for 
these institutions is to repeal the current section 108 and rely 
entirely on fair use. Fair use may offer much of what these 
institutions need, but as the Copyright Principles Project noted, the 
application of fair use is highly technical and often requires 
interpretation by a copyright lawyer to provide librarians, archivists, 
museum staff and faculty the answers they need. Many librarians may 
prefer the fair use solution but there are also significant 
difficulties with relying on fair use to such an extent. For front-line 
employees of these institutions fair use is too indefinite and fails to 
provide the immediate guidance they need to answer questions about 
whether a particular activity is likely to be infringement, 
particularly when those questions come from a user who wants a quick 
answer. Further, fair use was never intended to be relied upon so 
substantially, and it is likely overused today.
    The third alternative solution is to amend section 108 to take 
digital issues into account in a more comprehensive but flexible 
manner. Clearly, in 1976, section 108 was drafted for the photocopy 
era; the 1998 amendments improved the statute to permit some digital 
copying, but they did not really provide what was needed for these 
institutions to function in a digital world. The Section 108 Study 
Group, made up of experts from libraries, museums and archives as well 
as the experts from the copyright content community, spent three years 
addressing how to amend the library and archives section of the Act. 
The Study Group Report offered some recommendations and reached other 
conclusions short of recommendations.\5\ But even those recommendations 
and conclusions are now dated; digital technology as well as library, 
archives, museum and educational institution practices are simply 
moving too fast. So, one approach is to enact the changes recommended 
in the Section 108 Report but also to update them. There are other 
issues that must be addressed, however, such as orphan works and mass 
digitization. The need to solve the orphan works problem was 
highlighted by the Copyright Principles Project. Other organizations 
and institutions in addition to libraries, archives and museums are 
interested in large digitization projects, so that the issue might be 
addressed either within the exceptions for libraries, archives and 
museums or outside of the section 108 exceptions.
---------------------------------------------------------------------------
    \5\ See supra, note 3.
---------------------------------------------------------------------------
    The Section 108 Study Group recommended changes to the existing 
section 108 to include adding museums to the institutions eligible to 
take advantage of the exceptions but also with better definitions of 
libraries, archives and museums that qualify for the exception or by 
adding additional criteria for qualification such as having a public 
mission, a trained professional staff and having a lawfully acquired 
collection. Any amendment should also include the ability for these 
institutions to outsource covered activities as long as the contractor 
is acting solely as the provider and cannot retain copies of the works 
digitized. Further, there would be an agreement between the parties to 
permit rights holders to obtain redress for infringement by the 
contractor.
    For preservation and replacement, subsections 108 (b)-(c), the 
current statute permits the making of digital copies, but it restricts 
the total number of copies to three. Any amendment should change the 
three copy limitation to a reasonable number of copies in order to 
provide one usable copy. Statutory change should also provide for 
refreshing digital copies as needed and upgrading them to new platforms 
when necessary. Moreover, the Study Group recommended removing the 
current ``premises'' requirement in (b) and (c) if the original work 
that has been preserved or replaced could be used outside the premises 
of the institution. Two new preservation subsections should be added to 
the statute according to the Section 108 Study Report. The first would 
permit up-front preservation of publicly disseminated digital works 
because once a digital work has begun to deteriorate, it is too late to 
preserve it. Libraries, archives and museums that undertake such 
preservation would be required to meet additional criteria such as 
maintaining preserved copies in a secure, managed, monitored, best 
practices environment and to adopt transparent means to audit the 
practices, standard security and a robust storage system with backup 
copies. The second new recommended preservation subsection would permit 
the preservation of publicly available websites and online content that 
is not restricted by access controls. The idea is that this exception 
would produce a curated collection of websites, available after an 
embargo period for which copyright owners could opt out, but not if the 
website is a government or political website. Preserved websites would 
have to be labeled as such.
    The Section 108 Study Report contained other recommendations and 
conclusions in addition. Although the Group did not agree broadly on 
providing off-site access to preserved and replacement digital copies 
and to users who request digital copies under subsections 108(d)-(e), 
there was agreement that academic institutions with a defined user 
group (such as students, faculty and students) which have a way to 
authenticate these users before providing such access could give off-
site access to individual, authenticated users without harm to 
copyright owners. Libraries and other institutions that qualify for the 
exceptions but which do not have such narrowly defined user groups were 
more problematic for the Study Group. The ability to provide digital 
copies to users is a crucial need for the modern era--users are 
demanding such access, libraries have the ability to provide these 
copies and to warn users about further distribution of the digital 
copies. Any amendment to section 108 should provide for off-site access 
with conditions to prevent further distribution.
    For libraries and archives within educational institutions, many of 
the copyright problems they encounter deal with providing materials for 
students and faculty for teaching, learning and research. Digital 
technology has changed the way courses are taught, the way that 
students learn and how they access and interact with material. 
Copyright issues for educational institutions can also be dealt with in 
the three ways described above: from a general principles approach, by 
reliance on fair use alone, or by specifically amending the exceptions 
in sections 108 and 110(1)-(2).
    Changes to modernize and update the Copyright Act may require 
society to reevaluate its values: is the primary value of copyright 
making works available through these important institutions for the 
purposes of educating the populace, teaching and learning, scholarship, 
etc., or as stated in the 1790 Copyright Act ``the encouragement of 
learning''? Or is the primary value of copyright maximizing profits for 
rights holders? Are both of the goals essential to fulfill promotion of 
the progress of science and the useful arts? How can these competing 
purposes of copyright law be balanced to provide maximum benefit for 
society? Balancing these goals will be difficult to accomplish, but it 
must be done if our society is to flourish and maintain its competitive 
position in the world.
                               __________

    Mr. Coble. Professor Gervais?

        TESTIMONY OF DANIEL GERVAIS, PROFESSOR OF LAW, 
                VANDERBILT UNIVERSITY LAW SCHOOL

    Mr. Gervais. Chairman Coble, Ranking Member Watt, Members 
of the Subcommittee, thank you for the invitation to appear 
before you today.
    I wish to begin by commending this Subcommittee for its 
leadership in tackling this issue of utmost importance and 
economic significance.
    It is time, I believe, to embark on the process that will 
give us what the Register of Copyrights recently referred to as 
``the next great Copyright Act,'' as was done three times in 
the past: 1790, 1909, and 1976. So much has happened since 
1976, when personal computers, the Internet, and the 
digitization of music and the phenomenon of social media were 
not yet realties.
    Copyright should allow professional creators, whom I see as 
small businesses, to get a fair return on their creative 
investment when their work is successful in the marketplace. It 
should also allow many sustainable business models to flourish 
in producing, exporting, and providing access to U.S. 
copyrighted material around the world.
    Copyright should also be balanced. Individual users should 
have fair access to copyrighted material and be able to take 
advantage of the almost infinite possibilities that the 
Internet offers.
    As I explain in my written statement, making copyright work 
should focus on maximizing authorized uses of copyrighted 
material because then everyone wins, instead of focusing solely 
on minimizing unauthorized uses.
    I believe that copyright modernization is necessary in part 
because copyright law is now everyone's business. It was not 
always so. Before the Internet and digital devices became what 
is now probably the most widely used way of accessing 
copyrighted material, individual consumers and users had few 
reasons to think about copyright in their daily lives. 
Copyright was a set of rights for and negotiated between 
professionals such as authors, publishers, record companies, 
and broadcasters. For them, dealing with complex rules was part 
of the cost of doing business.
    Individuals who purchased copies of works in the form of 
books, tapes, or CDs had ownership rights, in fact, in those 
copies. As a result, copyright constraints were mostly 
irrelevant in the daily lives of most Americans.
    That situation has changed dramatically. Accessing a song 
online, downloading an e-book, or streaming a movie generally 
requires a license, which may restrict the uses that 
individuals can make of the material. Technological locks may 
also be in place.
    On the flip side, however, technology has made it much 
easier to copy, modify, and disseminate copies of material, 
including sometimes material that belongs to others. This 
points to a need to clarify the language of the statute but 
also, and more importantly, the scope of rights, exceptions, 
and remedies.
    The international dimension is also relevant. I provide 
details in my written statement. Let me just say that the 
international picture is beginning to look like a patchwork of 
rules. I believe a comprehensive review of the statute should 
allow a clearer path for U.S. leadership in global copyright 
discussions.
    I would also like to say a few words, if I may, about 
licensing. Both individual and collective licensing have become 
an important vehicle through which creators and other rights 
holders monetize their creative work. Let me give a brief 
example of each.
    Collectively, many songwriters and publishers authorize 
performing rights organizations, such as ASCAP or BMI, to 
license musical works for broadcasting and streaming. 
Individually, authors and publishers may license, say, a 
foreign publisher to translate or publish an e-book or a book 
in another country.
    Whether the Internet will perform adequately in years to 
come as a viable marketplace for copyrighted material is in 
large measure a function of whether licensing can work. The 
statute contains eight compulsory licenses. Those are usually 
fixes to temporary problems, but they tend to become permanent. 
One of those licenses was first established for player pianos. 
I point out many of the other issues in my written statement.
    I believe the best way forward is to leave some discretion 
to a specialized agency, such as the Copyright Office, to 
decide from time to time whether changes are required to those 
licenses, whether an existing license is still needed, or even 
whether a new one should be established.
    Finally, formalities also need to be modernized. When you 
buy a car, the fact of the car's existence is not, unless 
perhaps you are a student of philosophy, one that most people 
would doubt. Registration may confirm things like the model or 
place of manufacture. For a copyrighted work, it could be the 
author, the publisher, or the year of publication. But buying a 
car requires a determination that the person selling the car 
has the title to the vehicle. This is where recordation of 
transfers comes into play. I believe that a heightened 
recordation requirement would ameliorate the number of issues, 
including orphan works.
    In closing, I commend the Subcommittee for its leadership 
in this important endeavor and invite any questions that you 
may have. Thank you.
    Mr. Coble. Thank you, Professor Gervais.
    [The prepared statement of Mr. Gervais follows:]

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    Mr. Coble. Professor Samuelson?

TESTIMONY OF PAMELA SAMUELSON, RICHARD M. SHERMAN DISTINGUISHED 
   PROFESSOR OF LAW, BERKELEY LAW SCHOOL, FACULTY DIRECTOR, 
              BERKELEY CENTER FOR LAW & TECHNOLOGY

    Ms. Samuelson. Thank you.
    Mr. Coble. Your mike is not activated.
    Ms. Samuelson. I am sorry.
    Mr. Coble. A little closer to you, if you will.
    Ms. Samuelson. Mr. Chairman, Members of the----
    Mr. Coble. That is better.
    Ms. Samuelson [continuing]. Subcommittee, thank you for the 
opportunity to come and talk about the Copyright Principles 
Project.
    This is a project that I initiated, I convened. And I 
convened it after having a series of conversations with 
copyright lawyers, both in practice and in industry, and also 
with then-Register of Copyrights Marybeth Peters. And all of 
these people encouraged me to organize a conversation to bring 
together a group of people who had expertise in different parts 
of the copyright regime and who could talk together about what 
is working well with copyright law today and what might need to 
be updated.
    So it was an effort to reach out to people of different 
points of view and to bring together a group of people who 
would be willing to have a series of conversations over time 
and see whether, at least on some issues, we could reach 
consensus.
    And while I didn't highlight this in my statement, I think 
it is worth mentioning that some part of the report that we 
wrote actually discusses parts of copyright law that we think, 
in fact, are really valuable. I think that all of the members 
of the Copyright Principles Project really believe that a good 
copyright law is important to society as well as to creators.
    But we think, I think, that some changes may be needed, and 
partly this is because the statute has become extremely 
lengthy. It is very complicated. I have never been able to read 
it from start to finish. And it seems to me that if we have a 
law that applies to pretty much everybody who is both a user 
and a creator, that the law ought to be somewhat more 
comprehensible than it is today. And I think Register Pallante, 
when she appeared before this Subcommittee recently, also 
indicated that comprehensibility was really something to be 
striven for in whatever comprehensive review might be 
undertaken.
    Of course, because the law was drafted largely in the 
1960's, not enacted until the 1970's, it was a law that 
predated the Internet, predated many of the challenges that the 
courts have been facing in recent years. And it is no surprise 
that things like the reproduction right, the distribution 
right, and the public performance right have been difficult to 
apply because they were written at a time when the technology 
was very different.
    So I think that some fine-tuning of exclusive rights is a 
very important part of the comprehensive review that is under 
way. And I hope that some of the ideas that were in the 
Principles Project report might at least give rise to some 
useful conversations about how those rights might be tailored 
to our current environment, and maybe, in fact, some new right 
might be needed.
    One of the things that the Principles Project talked about 
was the communication to the public right. This is actually 
something that is in international treaties. The United States 
doesn't have it. It does seem to me that, to be more consistent 
with the international copyright regime, that it might be 
beneficial to think about what that right ought to do that 
would be different from the public performance right.
    And while I could go on on many other issues, I did want to 
raise a couple of things that I think that we, with the 
Principles Project, were able to accomplish.
    One was to think forward, in a forward-looking way, about 
reviving the registration-of-copyright regime. We think that 
there is not enough good information out there to facilitate 
licensing today and that a better regime, a regime that 
encourages more registration so that we have more information 
to facilitate licensing, would be desirable. And we think that 
there are some advances in technology that really can help with 
that.
    And, finally, I do want to mention that I agree with the 
Register of Copyrights that there needs to be some guidance 
about statutory damages. At the moment, I have done a big study 
about statutory damages which shows that there is a lot of 
inconsistency in statutory damage awards. And although the 
statute says that those awards should be just, the Principles 
Project group reached some consensus that sometimes the awards 
in these cases are excessive.
    One of the things that is a concern to me as a Californian 
is that many of the companies in the Bay Area and elsewhere, 
who are high-technology companies, are worried about statutory 
damages that are having a chilling effect on innovation. I 
think that it would be desirable to provide guidance, and I do 
in my testimony and elsewhere, suggest some of the ways that 
guidance could be provided.
    Thank you very much.
    Mr. Coble. Thank you, Professor.
    [The prepared statement of Ms. Samuelson follows:]

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    Mr. Coble. Mr. Sigall, you are the cleanup hitter.

TESTIMONY OF JULE SIGALL, ASSISTANT GENERAL COUNSEL--COPYRIGHT, 
                     MICROSOFT CORPORATION

    Mr. Sigall. Thank you, Mr. Chairman.
    Chairman Coble, Ranking Member Watt, Members of the 
Subcommittee, thank you for inviting me to appear today to 
discuss copyright law and its potential reforms.
    Copyright has been an important part of our economy and 
culture since the founding of our Nation, but, as Register 
Pallante has noted, the current law is under stress brought on 
by technological change that continues to advance rapidly and 
by shifting patterns in the way expressive works are created, 
disseminated, enjoyed, and reused.
    Today, the law is straining to remain relevant in the world 
of smartphones and tablets connected to the Internet and in the 
face of the demands of consumers, who expect to access, use, 
and share creative works through any device at any time in an 
instant. This stress is reflected in the heated and often 
strident public debate that copyright policy seems to generate 
these days.
    The Committee is to be commended for beginning a dialogue 
about how our copyright system can be improved to meet these 
new challenges, and I am honored to contribute to that 
discussion. I am hopeful that the dialogue will include a wide 
range of stakeholders and consider a broad set of topics and 
approaches to reform and that participants will engage in a 
manner that is at all times constructive, clear-eyed, and 
civil.
    I believe this can be achieved because I have seen that 
kind of copyright debate take place during the Copyright 
Principles Project. When Professor Pamela Samuelson asked me to 
join the project, she explained that the group would have 
diverse perspectives on copyright but all members would share a 
common trait: no sharp elbows, she explained.
    I was interested in the Principles Project because, during 
my nearly 20 years in copyright, I have watched its public 
perception deteriorate from a positive, if little-known, means 
of enriching public knowledge to the negative and even hostile 
manner in which it is sometimes viewed today.
    In this environment, progress can prove elusive even when 
there is general support for reform. For example, a broad 
spectrum of stakeholders support fixing the orphan works 
problem, but that discussion has at times been heated, and the 
path to legislative action has been marked more by hurdles than 
by progress.
    In my current role at Microsoft, I see firsthand and every 
day the ways in which copyright law is struggling to keep pace 
with the dynamic technology environment. As a copyright owner, 
Microsoft has long relied on copyright to protect our core 
software products like Windows and Microsoft Office and to 
ensure that our customers enjoy legitimate and safe copies of 
our software. Our world-class antipiracy team has created tools 
based on copyright to make that protection real.
    From the user side, on the other hand, I have seen how 
ambiguous areas of the law are sometimes strained to question 
the ordinary and reasonable personal use of copyrighted works. 
I am not talking about piracy here but situations in which 
consumers who legitimately purchased content are confronted and 
confused by assertions that actions enabling the enjoyment of 
that content are somehow infringing. This tactic creates 
needless uncertainty and risk for businesses that are trying to 
provide tools that simply help consumers communicate and share 
information in the networked world.
    These are the dual perspectives I brought to the Copyright 
Principles Project.
    In my remaining time, I would like to highlight three ideas 
that were discussed in the Principles Project and that will be 
important in possible reforms.
    First, the copyright system must understand, accommodate, 
and support the new generation of creators and business models 
enabled by the Internet that often operate independent of 
established publishers, distributors, and collective 
organizations. Often, when these authors look to copyright and 
how it might help them develop and market their works, they are 
mystified by a system built for traditional modes of 
distribution and not the new channels.
    Second, as I noted earlier, the lack of clarity around 
reasonable and ordinary personal use has contributed to the 
declining public reputation of copyright and a lack of respect 
for the law among some consumers. Fifteen years ago, in the 
Digital Millennium Copyright Act, Congress helped launch a new 
wave of online services by establishing a safe harbor that 
limits the uncertainty and risk faced by telecommunications 
companies, search engines, and other online businesses. It may 
be time to consider a safe harbor for consumers, providing 
certainty that the ordinary and reasonable personal use of 
legitimately purchased content will be enabled, not stifled, by 
copyright.
    As my final point, copyright reform needs to improve the 
infrastructure of the law, which works best when information 
about who owns a particular work and where and how to contact 
the rights owner is available and flows very easily throughout 
the system. International treaties crafted decades before the 
digital era prohibit formalities, but, given the current 
extended copyright term and the availability of tools that 
readily collect and make such ownership information available 
online, it is time to consider whether the law has the right 
incentives for dissemination of copyright information at the 
speed and at the scale that the Internet requires.
    Reform like this can help in many ways. It can address the 
orphan works problem, remove uncertainty for users, facilitate 
new uses and new modes of dissemination, and help individual 
authors obtain real and practical enforcement and respect for 
their copyright.
    Thank you again for the opportunity to appear today, and I 
would be happy to answer any questions you may have.
    [The prepared statement of Mr. Sigall follows:]

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                               __________

    Mr. Coble. Thank you all again for your testimony today.
    A journalist friend of mine saw me recently, and he said, 
``I note that you sit on the Intellectual Property 
Subcommittee. How do you like it?'', he said. I said, ``Oh, I 
find it very provocative, very interesting.'' He said, 
``Intellectual property law is the most dull, boring law.'' He 
didn't say that it induces sleep, but he came close to it. I 
said, ``Get used to it because intellectual property is not 
going away.''
    And thank you again.
    And, folks, we try to comply with the 5-minute rule, as 
well. So if you could keep your answers as terse as possible, 
we will be appreciative.
    This is to all witnesses. I will start with Professor 
Gasaway. In March, the Register testified before this 
Subcommittee about her top priorities that included such topics 
as felony streaming and orphan works. What copyright issues are 
your top priorities?
    And we will start with you, Ms. Gasaway, and work our way 
down.
    Ms. Gasaway. Thank you.
    Obviously, solving the problem for libraries, archives, and 
museums. And included in her priorities was also section 108 
and looking at the study group again. And she did reconvene the 
study group to come back and talk for 1 day about how we saw 
what had happened in the 5 years since--I guess it was only 4 
years at that time--since the study group report was issued.
    So that would be my top, to look at that. But the orphan 
works issue is huge. And so is--I actually don't like the term 
``mass digitization,'' although I guess we would have to say 
that is what Google Books and maybe HathiTrust is doing. But 
many more libraries and archives and museums are doing large 
digitization projects, but I wouldn't call them ``mass 
digitization.''
    And so I think dealing with those issues would be my top.
    Mr. Coble. I thank you.
    Professor Gervais?
    Mr. Gervais. Thank you, Mr. Chairman.
    So the five main points of my written testimony are 
summarized on the last page, but if I had to pick three, I 
would say, clearly, modernization of rights and exceptions 
would be number one. And I do mean modernization, not just 
adding rights and exceptions, but actually thinking about the 
existing ones and how the interface--this means the making-
available right; consumer-related exceptions. And I have 
mentioned many others in the written testimony.
    A second point would be to review the licensing structure, 
which needs to be coherent, flexible, and responsive. And, 
arguably, the current one is none of these things, at least in 
some cases.
    And, finally, a review of formalities recordation, how it 
is linked to remedies, would be my third.
    Thank you.
    Mr. Coble. Professor?
    Ms. Samuelson. I agree with Professor Gervais that refining 
both the exclusive rights and also thinking in a more 
systematic way about exceptions and limitations to those rights 
should be a very high priority.
    If you look at sections 107 through 121, you see that they 
are a kind of hodgepodge, and it is difficult to gather what 
the normative underpinnings of those exceptions really are. And 
I think thinking about that in a more systematic way would be 
really beneficial, including a possible safe harbor of the sort 
that Mr. Sigall mentioned.
    For me, a reform of statutory damages to give guidance, 
something that also Register Pallante indicated was a priority 
on her agenda, would be something. And then rethinking 
registration in a way that will take advantage of the 
opportunities of the new information technology environment.
    Mr. Coble. Thank you, ma'am.
    Mr. Sigall. I would have to say orphan works, as well. It 
is an issue I worked on when I was in the Copyright Office and 
continue to work on at Microsoft. I think it is ripe for action 
now.
    And I think the main point is that it is one of the classic 
areas where the public scratches its head as to what copyright 
is doing when it potentially interferes with very productive 
uses of works, even where the copyright owner cannot be located 
and probably has no interest in preventing those uses of the 
works. And I think it would unlock a lot of those works for 
public consumption and enjoyment.
    So I think orphan works would be a good start toward 
reinvigorating copyright.
    Mr. Coble. Thank you, sir.
    Mr. Baumgarten, let me put a question to you. I think I 
have time for one more question. You were general counsel in 
the Copyright Office during the last major revision of 
copyright law through the 1976 Copyright Act.
    Based upon a lengthy review of copyright then, what can we 
learn from that prior experience as we undertake a 
comprehensive review of copyright law today?
    Mr. Baumgarten. I think, Mr. Chairman, that one thing we 
can learn is that it is going to take a lot of patience to 
solve these problems. But I think the patience is not only to 
be expected of the Committee, it is to be expected of the 
participants in the process, as well.
    I fear that, too often, people look for a very quick and 
simple solution to very complex problems simply because 
technology makes things able to happen and do not give the 
copyright community enough time to figure out how they can 
happen in a more rational manner.
    I think the second thing is tone. I believe one of the 
distinguishing factors between the revision program in those 
days--and I remember those hearings all too well--and the 
copyright debate as it is happening today--and I do not mean in 
the Copyright Principles Project--there were some big issues, 
and there were some very strong voices, for example, in the 
cable television issue.
    But, by and large, the copyright revision debates in the 
1960's and the 1970's were engaged in by people who respected 
and, in many respects, loved the copyright law. They thought it 
needed updating, they thought it needed improvement, but they 
understood what it did.
    I think, increasingly, today, outside the confines of the 
Copyright Principles Project and some other limited exceptions, 
the copyright debates today and the search for changes are too 
often driven by those who are so infused with the promise of 
new technology that anything standing in the way is to be 
lightly and simply tossed aside in favor of permitting it to 
happen.
    Mr. Coble. I thank you, sir.
    My time has expired.
    The gentleman from North Carolina, Mr. Watt?
    Mr. Watt. Thank you, Mr. Chairman. As has become my policy, 
I will defer and go last in the process.
    Mr. Coble. The gentlemen from Georgia?
    Mr. Johnson. Thank you.
    I think Ranking Member Watt enjoys putting me first up for 
some reason.
    Mr. Watt. No, just somebody else to go.
    Mr. Johnson. Yeah. All right. I see. But you like to do 
that. So it is not personally directed at me. Okay. All right.
    Well, I will say that I hope I am not out of place by 
offering a letter from the National Writers Union, UAW Local 
1981, into the record, which simply----
    Mr. Coble. Without objection.
    [The information referred to follows:]

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                               __________

    Mr. Johnson. Thank you--which simply notes the absence of 
writers from the Copyright Principles Project.
    But I can assure you, I appreciate the voluntary nature of 
what you all did. I think it is good, and I think it serves as 
a model for what should take place in the future as we embark 
upon comprehensive copyright reform.
    And, Ms. Samuelson, in your written testimony, you 
described U.S. copyright law as a patchwork quilt that is in 
need of comprehensive reform. Our approach to copyright must be 
balanced, clear, and forward-thinking. As we take a holistic 
look at copyright in today's hearing, we should keep in mind 
that there is not a simple fix to these challenges and that we 
cannot help one industry or group at the expense of another.
    We should also be sensitive to the fact that we live in a 
global society, and this global society has a global economy. 
And so, therefore, there is a need for a comprehensive reform 
to U.S. copyright law that is harmonious with the laws of other 
Nations, and perhaps can even lead other Nations, but certainly 
not working without considering the views of our international 
partners.
    What are the drawbacks, Ms. Samuelson, to a piecemeal 
approach to copyright?
    Ms. Samuelson. Thank you for that set of observations and 
for the questions.
    I think that part of the problem with patchwork amendments 
is that, over time, the statute has become much longer than it 
was in 1976, and the longer it has become, the more technical 
it has become. And so it is very difficult to, as I said 
earlier, read it through.
    I know that there has been an effort in Europe by a group 
of copyright scholars there to articulate a European copyright 
code draft, called the Wittem Group. And its draft copyright 
law is basically about 20 pages long. A person can read through 
the whole thing and understand it. And, especially today, it 
seems to me that we need a law that people can read and can 
understand.
    One of the things that I tried very hard to do, especially 
in the first part of the Principles Project report, was really 
to explain copyright in a very straightforward, unjargonistic 
way so that it could help to articulate what are the positive 
principles that underlie copyright law.
    I think the norms of copyright and the values that 
copyright has for our society will be better understood by the 
public as well as by many of the creators whose works are being 
protected if it, in fact, is more comprehensible than it is 
today. And I think you don't get comprehensibility easily when 
you have 37 years of amendments that get tacked on to the 
statute.
    Mr. Johnson. Yeah, we have the same situation with our tax 
laws in this country.
    Ms. Samuelson. Well, unfortunately, the copyright law is 
beginning to look like the tax law.
    Mr. Johnson. If it is that book that is on Chairman 
Goodlatte's desk, then it is probably worse than the Tax Code. 
But I will ask, also, perhaps you could help us in that regard, 
if the Europeans have some kind of 20-page tax document, that 
would be great.
    But, listen, how important that comprehensive copyright 
reform take into consideration international standards?
    Ms. Samuelson. I think that to the extent that U.S. law can 
be compatible with the laws of other Nations that actually 
assists the United States in being able to talk effectively to 
other Nations and to conform their practices and our practices, 
I think it helps in enforcement.
    It is one of the reasons why I thought that the 
communication-to-the-public right is something that we should 
be considering. The United States is the only country in the 
world, so far as I know, that has a public display right. That 
is a right that hasn't been used very much. People don't 
actually know what it means. If you took it literally, you 
might have to shut down the Internet, and that doesn't seem 
like a good idea.
    So thinking about how we could think in a more 
comprehensive way about what the role of the different 
exclusive rights are and how we can foster international 
conversations and agreement on that seems to me all to the 
good.
    Mr. Johnson. Thank you.
    I yield back.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from Pennsylvania, Mr. Marino.
    Mr. Marino. Thank you, Chairman.
    Good afternoon, ladies and gentlemen. Thank you for being 
here.
    And, Professor Samuelson and your Committee, if I may refer 
to it as that, I want to commend you folks on what you have 
accomplished thus far. It is very helpful to me.
    Mr. Sigall--am I pronouncing that right?
    Mr. Sigall. Sigall.
    Mr. Marino. Sigall. All right. I am sorry.
    Let's move into--I don't want to get too far down in the 
weeds because this is a review and we need responses from all 
sides before we come to a conclusion, and that will take a 
while, as the Chairman said. But let's move into the digital 
arena for a moment.
    Can you give me your opinion as to what could be done that 
is not being done by Internet providers concerning downloading 
of music, movies, purchasing of items that are pirated here in 
the United States and around the world?
    Mr. Sigall. Well, as you probably know, from our 
perspective at Microsoft, piracy is a serious problem, and it 
continues to be a problem. And we are very keenly interested in 
addressing it in effective ways.
    Our approach to online piracy focuses on the notice and 
takedown system that is built on top of the Digital Millennium 
Copyright Act that I referenced. And our antipiracy team works 
very hard to make that system as efficient as possible so that 
they can get information about where our works are being 
pirated and how those works can be taken down as quickly as 
possible.
    And so we work with Internet providers around the world to 
make sure that that system is as effective as possible. And we 
think that is really the right approach to take in dealing with 
the online piracy problem, from our perspective as a software 
provider.
    Mr. Marino. All right.
    Professor Gasaway, as a law student, can you give me some 
examples of where you would like to see changes concerning 
research that the law student would have to perform concerning 
photocopying, using specific verbatim in preparing briefs, for 
example, and where that should not be permitted?
    Ms. Gasaway. Well, let me start by saying that photocopying 
is almost dead in law schools.
    Mr. Marino. Okay. I think I just dated myself, or you did 
that for me.
    Ms. Gasaway. Right.
    Mr. Marino. But----
    Ms. Gasaway. Okay, I was in college and remember when we 
got our first photocopier at Texas Woman's University.
    Mr. Marino. Yes, yes, it was great, wasn't it? Well, let's 
say drawing up digitally the material and printing it out.
    Ms. Gasaway. Yes. Most of that is licensed. So, for law, we 
may be the wrong discipline to actually be looking at. Because 
with Lexis and Westlaw and then what the Federal courts and 
State courts put online, we are sort of in a unique position 
that we either have it from a commercial source or we have it 
free on the Internet, when we are talking about our primary 
legal materials.
    But what we don't have so much free really is--and I guess 
I shouldn't say ``free'' because law schools do pay; law 
students don't, but we do pay. I think it is something like, 
the University of North Carolina pays something like $80,000 a 
year for law students' free access, but it is free to the 
student. But other materials are not so available. And, 
increasingly, even in legal briefs, we are seeing 
interdisciplinary materials, whether they are science-and-
technology-related or something else.
    The other thing we are beginning to see is multimedia. You 
know, when most of us were in law school, it was your textbook 
and a legal pad, and that was about it. But now we are seeing 
students, you know, who are using video clips, and faculty who 
are using them.
    And so all types of works need to be available and part of 
this research database. And I am going to use that in a--or I 
should say databases. It may be licensed, maybe not.
    Mr. Marino. Okay. Thank you.
    Professor Samuelson, let's stay with the law school concept 
here for a moment.
    And you jogged my memory, Professor Gasaway, concerning a 
professor who is preparing a curriculum and lectures and is 
pulling information off the Internet from legal scholars, from 
individuals who write treatises, and so on.
    What do you think we should do with that? Should it be more 
regulated or less regulated, and why?
    Ms. Samuelson. I think that the norms of the academy, 
actually, in general, respect copyright. Most of us who are 
academics are authors, and we care, actually, about misuses of 
our work. And I think that that helps to create a culture in an 
academic environment in which respect for copyright is more 
likely to occur than perhaps in some other sectors.
    In respect of the activities of professors, it is the case 
that we draw upon many types of works. I still, actually, like 
photocopies sometimes, myself. But I am really quite careful 
about this, partly because I am a copyright person. And I think 
that my colleagues also are now making much greater use of 
online materials. As Professor Gasaway mentioned, much of that 
material is licensed, and we have access to many journals that 
we don't have on our shelves now. And I think licensing has 
become a solution to a lot of problems in this domain.
    Mr. Marino. Thank you.
    My time has expired.
    Mr. Coble. I thank the gentleman.
    The gentlelady from California, Ms. Chu.
    Ms. Chu. Professor Samuelson, I appreciate the efforts that 
you and the project participants put into the report. I think 
it is so important that the participants came together in the 
spirit of having a civil discussion on many complicated and 
controversial issues.
    However, I am concerned that the report didn't include the 
input from a creator's view, someone who could give an on-the-
ground, practical perspective, such as a writer, a musician, or 
a filmmaker. And, in fact, as a co-chair of the Congressional 
Creative Rights Caucus, I feel that there should have been 
creators even in today's hearing.
    So I would like to ask you, Professor Samuelson, to what 
extent were the interests and perspectives of the individual 
creator considered during the project? And why weren't they 
directly involved?
    Ms. Samuelson. It is the case that I hope that many 
conversations take place, and many different creative 
communities are invited to participate in the kind of 
conversation that this Committee seems intent on doing. If I 
had to have a representative of each of the creative industries 
participating in the Principles Project, it would have been a 
group of 50. And I think you can't have a good conversation 
about some of these issues with a large number of people.
    So I believe that both as creators, ourselves, and also as 
people who enjoy the arts and who respect copyright that, in 
fact, we were keeping in mind the interests of individual 
creators. And we hoped just to start a conversation, not to say 
that because we had this conversation that that necessarily 
meant that whatever we might think is the way that everyone 
else should think. We hope that this discourse that we shared 
with the public through this report is something that would 
foster more conversation and more communication.
    So I don't believe that we were excluding the interests of 
creators at all. In fact, I think we were very much keeping the 
interests of creators in mind.
    Ms. Chu. Well, Professor, I think that if there were 
individual creators, the issue of the Digital Millennium 
Copyright Act might come up, in particular, the abuse of DMCA 
takedown notices, which is not addressed, actually, in your 
report.
    And that is of concern to me, considering this is a big 
challenge for individual creators. They are often trying to 
keep up with issuing thousands of notices to infringing sites, 
and a lucky few can afford to hire a service to do it. What is 
most frustrating is that these sites claim to remove the 
infringing file, only to have the same identical file reappear 
on the same site within a few hours. And, in fact, David Lowery 
in his op-ed called it a Whac-a-Mole process.
    So how can individual creators keep up with a game that 
they can't ever seem to win? Is there a better way that could 
be more meaningful than the current DMCA process for them to 
effectively address this rampant infringement of their works on 
the Internet?
    Ms. Samuelson. Thank you for the question. I do recognize 
that individual creators are at some disadvantage, that they 
don't have the resources that Microsoft, for example, has to 
police online infringement. And I am concerned about that.
    I do think that Congress went through a very careful 
process in 1998 to think about how the rules for taking 
material down should be handled, and they came up with a 
particular solution: the notice and takedown. And if it is not 
working effectively, I do think that it would be worth having 
that be part of your agenda.
    In terms of the agenda of the Principles Project, it wasn't 
to say that we could take on every single issue that might be 
out there. We gave the opportunity to our members to raise 
issues that were of concern to them, and those were the ones 
that we addressed in the report.
    Ms. Chu. Well, I did also want to ask one last question, 
which is, our current U.S. copyright law has enhanced and 
delivered substantial benefits to our economy, and I am 
concerned what would happen if our copyright law was watered 
down.
    Commerce recognized recently that resource-intensive 
copyright industries, such as movies and music, have 
contributed greatly to our GDP. And, in fact, figures have been 
underreported over the years. They are now looking to revise 
decades of official economic figures. In fact, creative works 
are truly our most precious export, creating a positive trade 
balance.
    So what are the implications if we do not have a strong 
copyright framework like we currently have?
    Ms. Samuelson. I don't think anything in the Copyright 
Principles Project report was recommending watering down or 
weakening U.S. copyright law, but really trying to make it more 
effective. And so, to me, the proposals and the suggestions 
that were being made are ones that would continue to foster the 
growth and strength of the U.S. copyright industries.
    Ms. Chu. Thank you.
    I yield back.
    Mr. Coble. I thank the gentlelady.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Let me start by pursuing the line of questioning that Ms. 
Chu started. I will ask each of you, how is copyright working 
for the individual artist who wants to maximize the use of his 
or her talents instead of having to spend time understanding 
and using copyright law to protect their rights?
    So, Mr. Baumgarten, do you want to take a shot at that?
    Mr. Baumgarten. I will.
    I think the notion in many circles that the copyright law 
has become totally dysfunctional and counterproductive is not 
the way the situation is. If I look around, I see services and 
means of creation and dissemination, many under copyright 
control, more of which probably should be under copyright 
control, thriving. I don't think the copyright system is broken 
or dysfunctional.
    I think it may need some updating and improving. I am not 
sure how much. I will not purport to speak for individual 
creators. I spent too much of the last copyright revision as an 
ally of one of the strongest creators' representatives who has 
ever lived, Irwin Karp. And if I purported to speak for 
individual creators, I am afraid what Mr. Karp's specter would 
do to me.
    I will say, though, in partial response to your question--
--
    Mr. Goodlatte. You are going to have to be quick because I 
have five people and I would like to ask more than one 
question.
    Mr. Baumgarten. Okay. In partial response to the question 
that was just asked by Ms. Chu, I want to make it absolutely 
certain that I do not purport to speak for individual creators. 
I represented them many times----
    Mr. Goodlatte. Sure.
    Mr. Baumgarten [continuing]. Early in my career, and I 
worked as allies with them, but their interests were not 
overlooked completely. They weren't presented as eloquently, 
perhaps, as Mr. Lowery or others were, but, for example, on the 
question of the----
    Mr. Goodlatte. Let me go to Professor Gasaway. I appreciate 
that, but----
    Mr. Baumgarten. Thank you.
    Mr. Goodlatte.--I have to let some other people say some 
things, too.
    Ms. Gasaway. Mr. Goodlatte, I believe that we do have a 
problem when it comes to individual creators. And I think if 
you talk to a lot of the people in the user community, they 
want to do things for the individual creator.
    The resentment has come, I think, with big publishers, big 
companies, big record companies. The way our Copyright Act is 
structured, individual owners have to pursue their rights, and 
litigation is the way they do that. And I think it is 
unfortunate, but we don't, as a society, have much of a way so 
far to deal with that. We favor the big guys. Sorry.
    Mr. Goodlatte. Professor--is it Gervais?
    Mr. Gervais. Yes. Thank you, Chairman Goodlatte.
    At the high level, copyright policy is very easy. We need 
creators, users, and ways to connect them. And it seems that 
debate is always focused on that part in middle, and it is a 
very important part.
    These commercial intermediaries obviously are important. I 
said in my written testimony there should be healthy 
competition. But for creators, creators really went two things, 
typically. They want attribution; we have heard that. But 
professional creators need a way to monetize their work.
    I mean, I live in Nashville. I don't think we would have 
had George Jones or we would have----
    Mr. Goodlatte. They probably want to have more than one way 
to monetize their work, right? I mean, they may want to do 
their own thing, be independent, have a simple system where 
they can have their copyright royalties, rewards, however they 
enforce that on their own. Or they may want to license with one 
of these big entities that you refer to so that they can 
completely focus on their work and let someone else take care 
of it. Obviously, you are going to pay a premium for doing 
that, but you certainly want to have that option. Those are 
two. There may well be more, as well.
    Professor Samuelson?
    Ms. Samuelson. I think it would be worthwhile for there to 
be more empirical studies about the interests of individual 
creators and how the copyright system is working for them or 
not. I think that is an empirical question. The National 
Academy of Sciences just published a report suggesting that 
more empirical research should be done in respect of copyright. 
And as part of a comprehensive reform, it would seem to me that 
this might be a good time to engage in some of that empirical 
research.
    The one thing that the Copyright Principles Project 
identified that I think addressed the interests of small, 
individual creators is the small claims court, that right now 
litigation costs are so high that many people who----
    Mr. Goodlatte. Before my time runs out, I am going to start 
a----
    Ms. Samuelson. Sorry.
    Mr. Goodlatte [continuing]. Second question that is a 
compliment to all of you. I mentioned in my opening remarks, 
but I want to ask you, based on your joint experience working 
together to find at least some common ground, what advice would 
you give to your colleagues about how they can perhaps do the 
same? And many of them are sitting right behind you.
    Let's start with Mr. Sigall. 
    Mr. Sigall. That is a very good and interesting question to 
think about. From my sort of personal perspective, one of the 
things that I think did not happen in our discussions is I 
think we avoided the good-versus-evil stories. And we didn't 
try to characterize either side as in a drama, in a sense, and 
focused really on trying to understand the interests, where the 
other side potentially was coming from, so that we could modify 
our remarks to make sure that we could communicate our 
interests to the others, as well.
    And I think that helps in these kinds of discussions 
because copyright should be a very functional, pragmatic 
discussion and really shouldn't be about drama or heated 
rhetoric.
    Mr. Goodlatte. Mr. Baumgarten?
    Mr. Baumgarten. Tough question. Listen to each other and 
try to search for a solution, rather than yell at each other, I 
guess is the best I----
    Mr. Goodlatte. Ms. Gasaway?
    Ms. Gasaway. Stop being so polarized. Think about the needs 
of society and our economy, what enriches our lives, and how do 
we make works available that do that. I think that is what we 
need to focus on, rather than just representing a client.
    Mr. Goodlatte. Professor Gervais?
    Mr. Gervais. Yes, I would say I hear a lot of people saying 
that they speak on behalf of the public interest. If I may, I 
think the public interest requires that copyright work for the 
three categories of people I was identifying earlier: creators, 
users, and the people who connect them.
    Mr. Goodlatte. Professor Samuelson?
    Ms. Samuelson. I think having a holistic understanding that 
copyright is now an ecosystem and that it has multiple parts 
and multiple stakeholders and that each of them has a role to 
play in trying to help us get to the right kind of balance.
    I think that if you start conversations in a way that 
promote that kind of mutual respect, you are more likely to end 
up with something that actually is both comprehensible and also 
is considered fair and just. And that is what we are looking 
for.
    Mr. Goodlatte. Well, thank you.
    Mr. Chairman, I have abused my time here by letting them 
all answer the--oh, I am sorry.
    So I also want to ask unanimous consent to enter into the 
record the Copyright Alliance's statement that they prepared 
for this hearing. And I very much appreciate their doing that 
and want to have this entered into the record.
    Mr. Coble. Without objection.
    [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Coble. Thank you, sir.
    The distinguished gentleman from Florida.
    Mr. Deutch. Thank you, Mr. Chairman.
    And, Mr. Chairman, I want to begin by thanking you for 
holding this hearing and starting what I hope will be a robust 
and comprehensive review of copyright law.
    We all know the challenges that any substantive discussion 
of copyright law has in this, shall I say, rhetorically 
charged, Twitterized environment we live in. These are complex 
issues, and they don't lend themselves to easy sound bites.
    It is important to recognize the tremendous success of our 
current system. We live in a Nation in which creation has 
thrived in large part due to the protections guaranteed to 
creators under our Constitution and detailed in our copyright 
law.
    Millions of Americans depend on copyright for their 
livelihood--from the songwriters, musicians, actors, directors, 
and writers creating the music, movies, shows, and stories that 
speak to us all, to the music publishers and the programmers, 
the app developers, and the Web designers who help works find 
audiences, not to mention the carpenters, engineers, and 
countless others who contribute to the creative works.
    It is a great American success story, but there are 
challenges. We all know how easy it is to steal content. Our 
copyright system needs to encourage ways to deliver the great 
content we all love to the public while allowing for new 
transformative technologies to continue to be developed in the 
future.
    But let's remember that even the most innovative technology 
in this area relies upon the innovative creators, whose work 
has to be protected. Our copyright laws may once have impacted 
only a narrow subset of people; that has been a theme of this 
discussion. But thanks to the transformative advances of 
technologies in recent years, we are truly living in a world 
where copyright impacts nearly all of us.
    As an avid music lover, I have been able to enjoy my 
favorite artists and discover new ones in ways I never would 
have dreamed of in the 1970's and 1980's when I was listening 
to records on my combination turntable/eight-track player. The 
way that consumers interact with these works has changed not 
only the way the content is delivered but frequently the way 
that it is created.
    And these are all positive developments as long as we keep 
the foundation of our copyright system intact. The belief that 
a creator has the right to get paid fairly for their ideas and 
creative contributions, or, as the Constitution puts it, ``in 
order to promote the progress of science and useful arts by 
securing for a limited time to authors and inventors the 
exclusive right to their respective writings and discoveries,'' 
that is the fundamental principle upon which the whole complex 
copyright system rests. And any changes must help grow the pie 
so that legal streaming technologies and apps can take off and 
succeed with both the creators and the tech companies jointly 
reaping the benefits.
    If any changes are made to our system, they have to be done 
with all stakeholders sitting down together, as you have said, 
at the same table, including the public, the creators, and the 
technology companies. As lawmakers, however, we cannot be 
intimidated by those voices that simply want to stifle all 
reasonable reform.
    I appreciate the Chairman's approach. And, from my 
conversations with Mr. Goodlatte, I know that he is also 
committed to giving everyone a voice in this review process. 
And I want to commend both of you for that approach and that 
good work.
    Now, advancing technologies may have made copyright issues 
more complex, but, Mr. Chairman, if the Committee decides to 
modify the Copyright Act, I hope that we do it in a way that 
makes it easier for people to understand. Right now, that is 
not always the case for consumers, for investors, or even for 
creators.
    And so, while I wouldn't say that the CPP paper should be 
the foundation of a comprehensive reform, I would like to delve 
into just one of the issues that it raises related to 
complexity.
    Professor Samuelson, recommendation seven of the report 
specifically calls for establishing a right of communication to 
the public in order to simplify the law and make it 
conceptually more coherent. Today, cable and satellite 
retransmissions and digital transmissions via the Internet are 
dealt with either as performances or distributions or displays 
or reproductions. And in a mobile and online world, most people 
don't have an idea whether they are enjoying a performance or a 
distribution or a display or a reproduction, much less what the 
rights are.
    So the report says that the right of communication is the 
international norm. Could you just explain how that approach 
works elsewhere in the world?
    Ms. Samuelson. Professor Gervais may have more information 
than me about how the communication right is practiced 
elsewhere. But it is my understanding that broadcast, for 
example, of television signals and the like is handled through 
a communication right, and I think transmissions of different 
sorts, digital transmissions as well as broadcast 
transmissions, I think fit more easily under that kind of 
right. And it is my understanding that that is the practice.
    And that part of what happened with the public performance 
right in the United States is, at the time that the 1976 Act 
was put in place, that cable television transmission had been 
deemed not a performance, so the statute was amended to add it, 
rather than thinking about the communication-to-the-public 
right as an alternative framework.
    So, in some sense, we are stuck with something that was a 
response to one particular technology at the time, and we are 
now bundling transmissions under different kinds of rights. And 
I think we don't know--we don't have a coherent view about 
that.
    I think if we were engaged in a comprehensive review of 
copyright, we could say, this is the work that the 
communication right does, this is the work that the public 
performance right does, this is the work that the reproduction 
right serves, and so forth. And it seems to me that that would 
be something that would be very helpful, especially going 
forward, as we try to understand how these rights should apply 
in these environments.
    Mr. Deutch. Thank you.
    Thank you, Mr. Chairman.
    Mr. Coble. Thank you, the gentleman from Florida.
    The distinguished gentleman from Texas, Mr. Poe.
    Mr. Poe. Thank you, Mr. Chairman.
    I want to thank you and Chairman Goodlatte for holding this 
first of a whole lot more hearings.
    You know, copyright law is difficult. My friend and lawyer, 
Mr. Marino, is going through the copyright law. He is finding 
out that it is twice as long as ``War and Peace'' and not near 
as funny.
    And, Professor Gasaway, when I was at the University of 
Houston, I studied enough copyright and patent law to spend the 
rest of my career, up until coming to Congress, in the criminal 
justice area. Stealing and killing and robbing is a whole lot 
easier to understand than copyright law.
    But I appreciate the five of you, your work in this area. 
It is difficult, it is complex, and it needs fixing. And that 
is what we are going to try to do, with the Chairman's lead.
    You know, the law has existed for 200 years, and it has 
been good. America is better because we have the concept of 
copyright. During the Cold War, I think part of the reason that 
we were successful in the cold war was because of the 
communication that was done by people in the copyright 
business, songs and movies. All of that concept was able to go 
worldwide and helped us win the Cold War. But there are a lot 
of other examples, as well. But it has been good for the 
country.
    We certainly don't want to, as Congress sometimes does, 
when we start working on things, we make a system worse than 
better. We want to make sure we don't do that. All these folks 
in the audience here are saying ``amen'' to that, I know, 
because they don't want us to make the system worse because 
they have stakeholders in it.
    Let me ask this question, a specific question. I have four 
questions to all five of you. The current system, the law that 
Professor Marino is going through here, what is good in it? I 
want to talk about the good, the bad, and the ugly. Let's just 
talk about the good. What is good in the law right now?
    Mr. Sigall? We will start on this end and go the other 
direction.
    Any of it?
    Mr. Sigall. I think there is a fair amount that is good. As 
I mentioned, I think the section 512 of the Digital Millennium 
Copyright Act for online services is a very positive 
development. I think the set of remedies and the way, 
certainly, the U.S. legal system works is a very useful thing 
for copyright owners and authors and creators to use to protect 
their copyrights. I think the protections for the use of 
technological measures in section 1201 are, by and large, a 
positive force that are used by both small creators and larger 
copyright owners.
    So I think there is a lot that is valuable. I think it is--
certainly, as others on the panel have mentioned, one of the 
things about this project was that everyone agreed that there 
is a lot valuable and beneficial in the current system that, as 
you have said, needs to be preserved and protected and not 
interfered with. It becomes a question of what amendments can 
make it better and stronger, especially in the eyes of 
consumers.
    Mr. Poe. Professor Samuelson?
    Ms. Samuelson. I agree with Mr. Sigall that there is much 
in U.S. copyright law today that is valuable and worth 
preserving.
    Mr. Poe. Like what?
    Ms. Samuelson. Specifically, that copyright protects 
original works of authorship from the moment of their fixation 
for a period of time. That principle is one that was novel in 
its day. There was a time when only published works were 
protected by U.S. copyright law. So I think that is something 
that we all thought was a valuable thing.
    A second valuable thing is that copyright protects the 
expression in a work, not ideas, processes, procedures, facts, 
data, knowledge. That way, second-comers can basically extract 
unprotected elements and make new works of authorship. And that 
goes a long way toward producing ongoing creation that advances 
the constitutional purpose.
    I think there is consensus that the fair-use provision of 
U.S. copyright law has done much good by enabling copyright law 
to adapt during times of change. And so some uses aren't fair, 
but some uses are. And I think courts have more or less done a 
pretty good job in applying fair use in these areas.
    And so, while I could go on, I think those three examples 
are some of my favorites.
    Mr. Poe. I am out of time. I would like the rest of you to 
be specific in answering that question, other than what is 
already in your testimony, and submit that.
    Plus, the other question: What is the worst part about the 
copyright law we have?
    So we will talk about the good and the bad, and we will get 
to the ugly some other day. So the worst part and the best 
part.
    And I will yield back, Mr. Chairman. Thank you.
    Mr. Coble. I thank the gentleman from Texas.
    The gentlelady from California.
    Ms. Bass. Yes, thank you very much.
    Mr. Poe, maybe I will ask that question if I have enough 
time.
    I wanted to ask the question about the report. It says in 
the report that personal uses do not involve copyright's main 
job of providing authors with the means of controlling 
commercial exploitation of their works. So I wanted to know, 
anyone on the panel, if you could help me understand what 
exactly that means.
    And then isn't every instance of someone downloading or 
streaming a song or a movie or a photograph for their personal 
enjoyment an example of commercial exploitation? 
    Mr. Baumgarten. I will take a crack at it, if I may. I will 
try to be brief, because I have spent too much time giving 
speeches about personal use in the past.
    Over the years, I have represented a great number of 
clients whose job, whose investments, whose capital, whose 
creative energy, in terms of individual creators, has been in 
creating, replicating, and disseminating works to individuals 
for their personal use and enjoyment. I have always been 
troubled by the fact that now, because individuals can do it 
for themselves and because major industries can grow up 
developing technologies and systems and services to enable 
consumers to fulfill their own needs, that somehow the idea has 
grown that personal use should be an exemption from copyright. 
That doesn't make any sense to me.
    There may be newer ways to deal with it that are required. 
Technology may enable those very newer ways to do it. But there 
is a recognition in the report that there are severe issues 
with simply considering personal use to be an exempted field of 
activity. And I think some of those are, as I said, 
acknowledged in the report itself.
    Ms. Bass. Thank you very much.
    I wanted to ask you a question about international 
copyright. The World Intellectual Property Organization is 
going to be meeting next month, actually, in Morocco and 
dealing with the whole issue of tweaking international 
copyright for the visually impaired.
    And I wanted to know if you were concerned about that 
process. I have heard some concerns from some areas. I wanted 
know if you had the same concerns.
    Mr. Gervais. If I may take that. Thank you for your 
question.
    Indeed, there is a diplomatic conference that is scheduled 
to adopt this treaty. So this is a treaty that would, in a way, 
make an exemption mandatory for visually impaired users. And I 
don't know that anyone disagrees with the normative side of it, 
which is this is a good idea----
    Ms. Bass. Right.
    Mr. Gervais [continuing]. But there have been concerns 
raised, in particular as to the application of the so-called 
three-step test, which is the test for exceptions under 
international rules, recently.
    I certainly personally support this treaty, but it, I 
think, is an example that a more comprehensive approach, not 
just domestically but in fact internationally, might work 
better. Because if you push just one treaty that has one new 
right or one new exception, it is harder to get people to rally 
around that, even for something that seems as fairly obvious as 
the visually impaired.
    Ms. Bass. I thought, actually, that was part of the 
problem, that part of the concern was that to open it up and to 
look at it in a broader way might raise many more concerns and 
might compromise copyright. No?
    Mr. Gervais. I meant broader, not just broader in terms of 
more exceptions, but a more broader reform of international 
copyright. There are rights missing, and there are exceptions 
missing. And I think that broader discussion needs to happen, 
but there is really no clear leadership internationally right 
now to make that happen.
    We have had international treaties, the Berne Convention. 
But the U.S. joined that convention once it was all wrapped up, 
so it was too late to influence it from the inside. Since then, 
we have had the TRIPS Agreement, the World Trade Organization, 
but it didn't do very much in terms of copyright. It was mostly 
an enforcement-based instrument from the copyright perspective.
    And since then, we have had partial efforts--ACTA, now 
there is a TPP, and all these things. But they are all very 
partial. And I kind of wonder if that is the best way forward, 
to have all these parallel instruments.
    And there are countries that are proposing counter-treaties 
to the treaties now.
    Ms. Bass. Right.
    Mr. Gervais. I am a little worried about where that is 
going. And I think if the U.S.----
    Ms. Bass. Which countries? I certainly know that there are 
some concerns around Nigeria, or, rather, a person representing 
Nigeria, not necessarily the country. But which other countries 
are proposing?
    Mr. Gervais. So there is something that I refer to in my 
written testimony, the official jargon is ``super-regional 
meetings.'' And some of them have taken place in Latin America, 
some of them have taken place in Africa. And, basically, these 
are countries that are having meetings where the Europeans and 
the Americans are simply not invited. And their argument is, 
``Well, you are having meetings we are not invited to.'' And I 
am not sure that is a very healthy development.
    And if you are a U.S. exporter of copyrighted material, I 
would think you might be a little worried about having a 
picture where each country develops different norms. So I think 
that leadership to update the entire system or at least to look 
at the possibility of doing that might work better.
    Ms. Bass. Thank you.
    Thank you, Mr. Chair.
    Mr. Coble. The gentleman from Georgia, Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate your 
leadership on this issue and the commitment that you have 
shown, along with Chairman Goodlatte, to discussing the 
Copyright Act in an objective and nonpolarizing manner.
    Although technology has developed far beyond what our 
Founders could have imagined, their genius remains as true 
today as it was when they crafted the Copyright Clause in 
Article I.
    There seems to be a tendency, however, in this day and age 
to frame the idea of free and open access to creative rights as 
a moral imperative. Those who believe in the right of an 
individual to capitalize on their creation, be it a work of 
art, music, or a brilliant reshaping of the English language in 
a written work, are portrayed as anti-innovation and as 
outdated as the flip phone that my father currently uses.
    But our Founders understood what many of us have forgotten: 
Unless we incentivize creators to create by giving them the 
rights of ownership to their works, innovation will truly cease 
to exist. Everything has an owner. I have said it before, and I 
will continue to say it. Unless the law encourages the creative 
genius in a person to take risk, both professional and 
financial, by assuring appropriate protection of their 
intellectual property, then the law does a disservice to what 
the Framers intended in the Copyright Clause.
    I would be remiss if I did not mention that I do have 
concerns with the CPP report--concerns about the lack of artist 
involvement, concerns about the conclusions reached, and 
concerns about the seeming abandonment and disregard of the 
fact that copyright protection finds its origins in our 
Constitution.
    Make no mistake, however. I recognize and strongly support 
the economic vibrancy created by the technology sector. In my 
home State of Georgia, there are over 13,000 technology 
companies, employing over 250,000 men and women. Georgia also 
continues to see record growth in the number of tech startups. 
In fact, Atlanta is one of the top five startup centers in the 
entire country. I am proud of the business environment we have 
created in Georgia to allow this industry to thrive.
    I firmly believe that protecting copyright leads to more 
creation and more innovation and even more growth in every 
sector that relies on the ideas and ingenuity of individuals.
    Although I appreciate the witnesses being here and I have 
fully read their testimony and the report, I do not have any 
questions for them today.
    And, Mr. Chairman, I yield back.
    Mr. Coble. You win the prize, Mr. Collins.
    The gentlelady from Washington is recognized.
    Ms. DelBene. Thank you, Mr. Chair. I just want to thank you 
for holding this hearing, and thank all of the witnesses for 
taking the time to be here today.
    When the Register was here for a hearing, she mentioned 
that when all the work was going on for the Copyright Act in 
1976, she said by the time it got done, it was already out of 
date, because it took about 15 years to do it and many sections 
of it were for many years before the final passage date.
    So here we are today looking at things, and I know your 
report is from 2010 already. And so my first question would be, 
what has even changed between 2010 and now, whether it is court 
decisions or technology changes, that you weren't able to 
anticipate when you wrote the report that you think are 
important for us to have on our radar now?
    And anyone who has some feedback on that would be helpful.
    Mr. Baumgarten. I think we probably all would have 
different answers.
    My answer is that I am concerned about what is happening in 
the courts, which is something I never used to think. I was 
pretty happy with the way the decisions were going. But the 
decisions now in the area of fair use and in the area of public 
dissemination of works, particularly in the Second Circuit, I 
think those have changed. Some on the Principles Project would 
applaud those changes. I think some of us would not applaud 
those changes.
    Ms. DelBene. Others?
    Professor Gervais?
    Mr. Gervais. A very brief answer. Thank you for your 
question. I think one predictable and one less predictable 
change.
    The predictable change is the fact that the focus even in 3 
years has visibly shifted from hard enforcement online to more 
licensing, more authorization, more streaming, more content 
legally available, which I think was predictable and is a good 
thing.
    If I had to point to one unpredictable change, it is the 
Supreme Court reading of the statute in the first-sale case 
known as Kirtsaeng. But it is not a digital case, so I don't 
think that it impacts the CPP conclusions.
    Ms. DelBene. Okay. Thank you.
    Ms. Gasaway. I think that one of the major changes has been 
these so-called mass digitization projects. They were just 
beginning at the time that we completed our work, really. And 
Google was under way, but with libraries and archives beginning 
to do them, and looking at ways to do them. Does it need to be 
licensed? You know, how are we going to do this?
    Ms. DelBene. Uh-huh.
    Ms. Samuelson. I think that cloud computing and mobile 
devices were not really in contemplation as we were talking 
through our deliberations about the Act.
    But I think something that came out of our deliberations 
which I think is something that can carry forward is a notion 
that if we find a way to articulate what the right balance is 
and we identify exclusive rights and some exceptions to those 
rights that become comprehensible, that become predictable, 
that they can, in fact, advance over time and get applied to 
new things.
    So I think we have learned a lot of lessons, but I think 
that part of the challenge for this revision has got to be 
comprehensibility, building in some flexibility, but also 
keeping the norms at a level of generality so that the law 
doesn't become obsolete. I don't want to have an exclusive 
right to control this aspect of cloud computing because that is 
going to go out of fashion.
    So trying to figure out what is the right way to frame the 
rights, and exceptions that might be needed to them, I think is 
something that we have learned something about over the last 
several years.
    Ms. DelBene. Uh-huh.
    Mr. Sigall?
    Mr. Sigall. I would say it is the proliferation of devices 
and cloud services, not only that they exist more so than they 
did in 2010, but that people are really using them and they are 
becoming integrated into their lives in the way they 
communicate with their families, their friends.
    And what that means is--another positive development that 
has happened is that a lot more legitimate entertainment 
services are being delivered over those devices and over the 
Internet, which is, again, as Professor Gervais pointed out, 
the win-win, where authorized uses are being made and creators 
are being compensated. But it is also changing the way that 
consumers expect to interact with the content that they find 
very important and, as has been said, makes those devices and 
services valuable.
    And that is probably not going to change; that is going to 
continue. And it is very hard to keep up with the dynamic 
expectations of consumers around what they find important in 
their devices and their technology.
    Ms. DelBene. Now, you talked earlier, Mr. Sigall, about 
transparency and that you think that is an area where we could 
do a lot more. Can you elaborate a little bit more on that?
    Mr. Sigall. Yes. There is an obvious need to have better 
access to information about who owns what copyrights and what 
those copyright owners would like--who they are, how you 
contact them, what you can and can't do with their works. And 
the first thought is always that the Copyright Office can build 
a better database for people to use.
    I think the Principles Project talks about an idea; rather 
than do that, what the Copyright Office should get in the 
business of doing is tapping into the already-existent private 
registries of copyright information. The database that ASCAP 
and BMI use for songwriters, the Copyright Clearance Center 
uses for authors of journal and textual materials, the ways 
photographers are distributing their works online--all of that 
information exists. It is very conducive to the way authors 
exploit their works and get paid for their works.
    If the Office can somehow give some legal significance to 
those databases, and therefore give those authors access to the 
remedies that are keyed to making that information available, I 
think that would be a very efficient way to help improve the 
flow of information.
    And then, that way, authors get very practical enforcement. 
If someone knows that there is an author standing behind that 
work and they don't want it used in a certain way, those folks 
will probably restrain that use without ever having to take 
them to litigation or do anything that requires expensive 
outlays by the authors. And I think that is the approach that 
is described in the project as a way to help this information-
flow problem.
    Ms. DelBene. Thank you very much.
    And I think my time has expired. I yield back, Mr. Chair.
    Mr. Coble. The Chair recognizes the other distinguished 
gentleman from North Carolina, Mr. Holding.
    Mr. Holding. Thank you, Mr. Chairman.
    You know, our Chairman is known with great affection 
amongst the North Carolina delegation as our leader. So it is a 
pleasure to be with him today.
    And I want to thank the witnesses.
    I would like to harken back to something that Chairman 
Goodlatte was touching on in his questioning, and it referred 
to, you know, the CPP process that you all have gone through 
was successful in large part because you weren't throwing sharp 
elbows and you kind of ratcheted down the level of hostility in 
the discourse and so forth.
    So I would like to ask, you know, why do you think the 
current copyright policy discussions have become so polarizing 
and antagonistic just in the last few years? And just run 
through the panel and get some idea of, you know, what has 
caused that.
    Mr. Sigall?
    Mr. Sigall. Well, I think it starts by showing how 
important creativity is to both the persons who create the 
works and to the consumers and others who use them. I mean, 
these are incredibly important things to both sides of the 
debate because they are matters of intense labor and time spent 
by the creators and also free expression and, you know, 
people's personalties about the works they care deeply about.
    So you start from a place that is very important to the 
participants in the debate. And I think that is, by and large, 
the good thing about copyright, that copyright is an engine for 
the creation of these things that people feel so important 
about.
    The question is, how do you go from that positive feeling 
and import of these issues to a rational debate about the law? 
And that is the tricky part. But I think it starts from a 
positive sense that these issues are important and something 
that people do care deeply about.
    Mr. Holding. Professor, perhaps, you know, of course, there 
are positive influences and so forth, but I am particularly 
interested in, what are the negative influences that are 
ratcheting up the antagonism in the debate?
    Ms. Samuelson. I think it is partly a reaction to the huge 
disruption that the Internet and advances in information 
technology have enabled. There was a hope, there was a sense 
that in the future that people would be able to control their 
content better than before through digital rights management 
technologies and the like. And then to discover that those 
technical protection measures, while they are useful and 
important, are not actually being quite as effective as I think 
many hoped means that there is a sense of loss of control that 
has made people extra nervous about things.
    And I think peer-to-peer file sharing and the willingness 
of people to engage in that activity in the millions has been 
something that has created a toxic environment. Now, I think 
that we are working our way out of that because there are more 
opportunities now to get more legal content, and people are 
taking advantage of those. So we may be working our way out of 
that particular problem. But I do think that that has 
contributed to the polarization in the----
    Mr. Holding. Yeah, just to follow up on that just a bit, 
you know, you say we might be working our way out of that. Now, 
we don't know what the next new technological advancement is 
going to be. I mean, we were just talking about, you know, what 
has happened in the last 3 years and what we could not have 
foreseen.
    But, you know, knowing what you know, if we are working our 
way out of it toward a better place, I mean, do you have any 
horizon for that?
    Ms. Samuelson. I wish I did.
    Mr. Holding. Okay.
    Well, quickly, Professor, if you could just touch on my 
original question, quickly, because I would like to get the 
other comments as well.
    Mr. Gervais. I will be very brief.
    So, you know, copyright is what allows creators and a lot 
of businesses to function and to live, so, obviously, when you 
touch it, people get very nervous. But the thing with the CPP, 
I think we all agree it could be a lot better. So if you look 
at it from a distance, some improvements are pretty clear.
    The problem also is that when regulation is on the books 
that is not particularly good, there are people who take 
advantage of that structure. So if you change it for something 
better, they might not be happy.
    Mr. Holding. When they take advantage of that and turn it 
into a business model which makes a lot of money, it fuels the 
antagonism.
    Mr. Gervais. Exactly.
    Mr. Holding. Alright.
    Professor?
    Ms. Gasaway. I actually think that this sort of 
disagreement began to rise really in the early 1980's. We began 
to see it even over photocopying.
    I think it also tracks a general lack of civility in 
society. I mean, in the legal profession we see it and, you 
know, get warned about it. And I think we have to return to the 
days when ``compromise'' was not a dirty word.
    Mr. Holding. Mr. Baumgarten, do you have a final comment?
    Mr. Baumgarten. I suggested earlier, I think some aspects 
of the framework have changed. I think what had been a 
discussion of how to respectfully fix copyright law has in some 
cases become a discussion of how to diminish the ``obstacles'' 
posed by copyright law to the promise of technologies that we 
know today and technologies that will come tomorrow and treat 
copyright law as just another impediment to be dispensed with.
    I don't suggest that everyone is guilty of that, but when 
that attitude comes and there is a counter from the other side, 
things get loud and, more importantly, things get distrustful. 
And I think that is what is missing today, is a lot of trust.
    Mr. Holding. Thank you.
    Mr. Chairman, I yield back.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from New York.
    Mr. Jeffries. Thank you, Mr. Chair.
    And let me thank the panel for your work as it relates to 
the project, as well as for your very thoughtful testimony 
today.
    I think I will start with Professor Samuelson.
    In the context of the congressional obligation to protect 
creative works, it obviously is an obligation that stems from a 
constitutional charge, article I, section 8, clause 8.
    In the context of the project or of the work that you have 
done academically, what can you tell us on the Committee about 
the thought process that the Founding Fathers undertook in 
including what was a groundbreaking provision in the heart of 
the Constitution, when so many other complex things were being 
discussed--obviously, separation of powers, the Electoral 
College, checks and balances, federalism?
    This was a complex document, yet the Founding Fathers saw 
fit to include this provision to promote, obviously, scientific 
works and useful arts. What can you tell us about what the 
Founding Fathers were thinking?
    Ms. Samuelson. I think one thing we can know is that many 
of the Founding Fathers, as we often call them, were authors 
and publishers and people who were engaged in learning and 
scientific knowledge advancement, so this is something that 
they actually cared about.
    Secondly, many of the States, in fact most of the States, 
in what is now the United States had already had individual 
copyright and patent laws. They weren't all the same. And if 
you wanted to form a Nation and you wanted for works, let's 
say, published in New York to be able to easily be protected in 
Georgia, then having a national law, having a uniform national 
law, was something that was seen, I think, as something really 
valuable.
    So I think it was in order to help the transition to a more 
national way of disseminating knowledge that was part of the 
motivation of the Founders.
    Mr. Jeffries. And that, presumably, is still a principle 
that holds great merit today.
    Ms. Samuelson. Yes. Absolutely.
    Mr. Jeffries. Now, with respect to the challenge that I 
think the Committee faces as it undertakes this comprehensive 
review, we have this constitutional charge, of course, to 
protect science and protect innovation, protect people's 
creative genius in the artistic field as well, but also do it 
in a way that allows for technological innovation to flourish 
and to not be stymied.
    Can anyone on the panel comment as to how we strike that 
appropriate balance moving forward in a very complex commercial 
environment that exists right now?
    Mr. Gervais. Well, thank you. That is truly the core 
question, I think. And what I said earlier about a law that 
works for creators, users, and people who connect them, I 
think, holds and is the best way to an answer.
    So if the statute allows companies to flourish in the way 
that they help produce and distribute content without 
frustrating users, I think the system will work better. And the 
way that I captured that in my written testimony and in my 
opening remarks was to say, we should focus on maximizing 
authorized uses of material as opposed to focusing first on 
minimizing unauthorized uses. And I think we are moving in that 
direction.
    Mr. Jeffries. Now, to follow up on that observation, one of 
the challenges, of course, we face is that, as the technology 
develops rapidly, we have to put into place statutes that 
accommodate the changing technology. We face that issue now as 
it relates to piracy. Originally, it was unlawful reproduction 
and distribution, and now it is largely done through illegal 
streaming.
    On that point, would you support or does the group support 
strengthening penalties to deal with the essential change in 
the manner in which piracy is taking place over the Internet 
right now?
    Mr. Sigall. Well, as I said before, piracy is a problem, 
and we would certainly support looking at ways to help address 
the problem, especially for individual creators.
    I think as a company that also builds online services that 
people use to communicate, we have the opposite concern that 
any new measures to help on the piracy side might go too far 
and overreach and cut back on people's ability to use the 
technology for perfectly legitimate purposes.
    So you always have to strike the right balance, and it is 
difficult. But, certainly, considering both of those at the 
same time is really the critical aspect of trying to figure out 
ways to really help the copyright owner but not go too far in 
chilling the legitimate use.
    Mr. Jeffries. Thank you.
    And I see, Mr. Chairman, that my time has expired.
    Mr. Coble. I thank the gentleman from New York.
    The distinguished gentleman from Florida is recognized for 
5 minutes.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Thank you to the guests.
    Professor Samuelson, the group, how was that group 
assembled?
    Ms. Samuelson. I talked to Marybeth Peters, I talked to 
some of the practicing lawyers that I knew, I talked to some 
law professors that I knew. And this was basically the use of 
some social networks to try to bring a group of people together 
that I thought would be able to have this kind of thoughtful 
civil discourse.
    Mr. DeSantis. Because I guess some have said, well, you 
know, there is really not--there is a dearth of perspective of 
independent artists and creators, who basically depend on 
copyright for every day of what they do.
    So do you think that you got sufficient input from those 
types of individuals?
    Ms. Samuelson. I think that it is important to recognize 
that most of the academics on the panel are actually authors of 
books, and those books actually bring in some income for those 
people.
    And I think the other thing is that, when we have been 
teaching copyright law for decades or practicing copyright law 
for decades, as is true of all the people who were 
participating, I think that we have been taking into account 
the interests of others, including small creators as well as 
large creators.
    So, as I said earlier, I think it is really important as 
this process goes forward for you to hear from all manner of 
different creator communities and individuals and groups. One 
project of the sort that I tried to assemble really couldn't 
reach out to every particular community. And so we tried to 
have as broad a perspective as we could, while recognizing that 
this was just hopefully the start of a conversation rather than 
the end of a conversation.
    Mr. DeSantis. Very well.
    The report, I think, focuses on copyright and the 
parameters thereof, really focusing on economic and utilitarian 
principles, not as much as it being kind of based in a property 
interest and property rights. And I guess, it seems to me, when 
the Founding Fathers talked about it, you know, they believed 
in the economic and utilitarian principles, but they believed 
that the property right was really what would drive economic 
benefits.
    So do you think that your report kind of moves us away from 
that historical understanding?
    Ms. Samuelson. No, actually, I think that our recognition 
that the utilitarian principle helps to define what the proper 
scope of a property right is, is as much a foundational 
principle of property law in the United States across the 
board. All different kinds of property have some limitations 
built into them, and I think that has been true for copyright.
    Copyright has gotten somewhat broader in certain respects, 
and it has evolved over time, but I don't think that it is not 
a property right. I do think that it is a utilitarian-informed 
property right, as it should be.
    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 you could have an 
individual just post a photo online, like a family photo or 
something that wasn't registered, and you could have a user 
just take that and use that for their commercial gain.
    So do you agree? Is that true?
    Ms. Samuelson. No, I don't believe it is true at all.
    Mr. DeSantis. And why not?
    Ms. Samuelson. Well, because one of the things that we made 
very clear is that, to the extent that someone is 
commercializing something that someone posts online, that that 
is actually an activity that copyright law would apply to. I 
think that is very clear from our report, especially the 
discussion about commercial harm.
    Mr. DeSantis. Okay. Well, thank you.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman from Florida.
    The Chair recognizes the distinguished gentleman from North 
Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman.
    And I want to thank all of the witnesses, who have 
enlightened us.
    And I have gotten in the habit of waiting until last on our 
side to go, because I always am fascinated by some of the 
questions that get asked and some of the answers. I would have 
to say that the one that has fascinated me the most today is 
Ms. Samuelson's notion that we might be able to do this in 20 
pages. And somebody in Europe apparently did this in 20 pages.
    And I am kind of searching for a way forward here. So I am 
looking for either consensus on the 20-page notion or a 
repudiation of the 20-page notion.
    Mr. Baumgarten, I think, wants to either affirm it or 
repudiate it.
    Mr. Baumgarten. Repudiate.
    I am not one of those who beats the drum for simple 
solutions. The problems are too complex. I fear that a simple--
--
    Mr. Watt. Okay. I got you, I got you.
    Actually, I like simple solutions. I mean, the great beauty 
of the Constitution and the amendments was simplistic, but the 
great beauty of the Community Reinvestment Act actually is 
simplistic in the statement you--a financial institution should 
serve the community in which they live. Right? But the 
regulations that have been written to interpret that have gone 
into volumes now, and the court decisions to interpret the 
Constitution have gone into volumes now.
    And our problem here in Congress is that we either have to 
write a law that covers every eccentricity, every nuance, or we 
have to write a general principle and delegate responsibility 
for the nuances to regulators. Then we get accused of, you 
know, delegating to people who have not been elected. You know, 
so we are kind of in a quandary here about how to move forward.
    If there is anybody on this panel who actually agrees that 
we could do this in 20 pages, I would love to have you take a 
shot at it. Seriously. I am not being facetious here. Because I 
would love to see a copyright law that is encompassed in 20 
pages.
    But then the question I would raise is, who would enforce 
it? Who would interpret the general principles? And how would 
you move forward without just massive litigation if it were the 
courts doing it? Or if you gave the authority--the Copyright 
Office doesn't have any enforcement authority now. I mean, it 
is a wonderful office, but it can't smack anybody upside the 
head and write a decision and say, ``You can't do this under 
the principles that exist.''
    So I am in this quandary. I mean, should we be giving more 
enforcement authority to somebody? Should we have regulators? I 
mean, we have the FCC, so, I mean, they are kind of in their 
niche over there to do some of this.
    But, Professor Samuelson, we have these simple principles. 
You say we have to build in flexibility. That was your--I wrote 
that down when you said it. My question is, how do we do this 
with simple principles, flexibility, without some other 
enforcement mechanism other than ending all the parties up in 
massive litigation?
    Ms. Samuelson. Well, I think much of copyright law that I 
admire--and we talk about that in the first part of the 
report--is basically very simple principles that have proven to 
be----
    Mr. Watt. But it took you 68 pages to write the article.
    Ms. Samuelson. Well, yes, but I do actually----
    Mr. Watt. I mean, I did look at the article. There are 68 
pages of the article that you wrote.
    Ms. Samuelson. But I think actually only about 10 of them 
distill down----
    Mr. Watt. So you want to take me up on my offer, then----
    Ms. Samuelson. I would, actually.
    Mr. Watt [continuing]. To give me 20 pages. I mean, I am 
serious. I would----
    Ms. Samuelson. Yes. I think----
    Mr. Watt. I think the Committee would benefit from your 
conceptions on this panel of what the law should say and how we 
do this, build in principles, give it flexibility, and who 
would enforce it. That is my challenge.
    Ms. Samuelson. Well, a lot of what causes copyright to be 
enforced now are the norms and practices of the people who 
engage in this activity. And----
    Mr. Watt. But one of the reasons we are updating it is 
people are less and less abiding by those norms, especially 
users, who just think everything ought to be free, and they 
don't want to pay for anything.
    Ms. Samuelson. Well, I don't know that that is always true. 
There is actually a study called Copy Culture that suggests 
that a lot of people who engage in some sharing actually are 
bigger purchasers of content than other people.
    So I care as much, I think, as anyone in this room for 
developing a law of copyright that can be more widely 
respected. And it seems to me the more comprehensible it is, 
the more it focuses on normative principles, the more likely it 
is to breed respect. And that has been a driving goal of mine 
in this project.
    Mr. Watt. Mr. Chairman, I know I am over my time, but I 
want to see if there is anybody else on the panel who wants to 
take me up on the 20-page challenge.
    Seriously.
    Ms. Gasaway. Seriously. We will work with Pam on it.
    Mr. Gervais. I am certainly happy to work with you and the 
Subcommittee.
    Can I say in 10 seconds why I think this 20-page version 
that Professor Samuelson was showing you is a great idea? 
Essentially, it recognizes this: There are some uses that are 
exclusive uses that should be exploited only by the copyright 
holder. There are uses that should be entirely free, like fair 
use in this country. And then there are uses in between that 
are subject to what we would call compulsory licensing, but 
they made them a special category.
    And they clearly explain why certain users fit in all 
three, and I think that is--it may not be, legislatively 
speaking, a model we can use in terms of language, but the idea 
sounds very good.
    Mr. Watt. How long do you all think it will take you to get 
me 20 pages? I am not--there is no--I mean, I am not putting 
pressure on you. I am just trying to get a ballpark idea of 
when we might expect something. I know you have law school to 
teach and----
    Ms. Samuelson. That is true.
    Mr. Watt. Especially in North Carolina. We want our lawyers 
down there to be taught well.
    So, anyway, I will----
    Mr. Coble. The gentleman's time has expired.
    Mr. Watt. I will yield back.
    Mr. Coble. I want to echo what Mel said.
    I want to, first of all, thank the witnesses. You have been 
here for 3 hours.
    I want to also express thanks to those in the audience. I 
did not detect anyone has been induced to sleep. So maybe it is 
not as dull and boring as my journalistic friend concludes.
    This concludes today's hearing. Thanks to all for 
attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This hearing is adjourned.
    [Whereupon, at 5:10 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Blake Farenthold, a Representative 
   in Congress from the State of Texas, and Member, Subcommittee on 
            Courts, Intellectual Property, and the Internet
    While the Project adds great ideas to the debate, I think we need 
to consider whether reliable data exists to inform us about how the 
current copyright landscape is impacting not only the Internet and 
content industries but also our entire economy. That is why I ask to 
submit the National Academies National Research Council's recent study, 
Copyright in the Digital Era, into the record. This study makes an 
important finding--the current copyright debate ``is poorly informed by 
independent empirical research.'' More specifically, it points out that 
there is simply insufficient data to reach any sound conclusions about 
the impact of the digital age on our current copyright system.
    As we move forward in conducting a comprehensive review of the 
copyright system in the digital age, our discussions (similar to 
discussions regarding patent policy) must be supported by credible 
empirical research. To generate reliable data, the study suggests a 
number of research projects such as case studies, international and 
sectoral comparisons, experiments, and surveys. Taking these actions 
will provide further insight on this debate and ensure that our policy 
decisions do not disturb the current balance between copyright 
protection for creators and flexible exceptions and limitations, which 
promote innovation and democratic discourse.



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