Don’t expect copyright law to change this year — but it might change next year, according to Representative Jerrold Nadler, speaking at the Association of American Publishers meeting in New York.
“I expect a number of hearings and not much else,” said Nadler, a Democrat from New York. “I don’t think we’re going to do major legislation this year — maybe next year.”
Nadler is the ranking member of the Congressional Subcommittee on Courts, Intellectual Property and the Internet, which considers issues of copyright, intellectual property, fair use, digital first sale doctrine and other issues important to publishers. He is the highest ranking Democrat, second to the Republican chairman of the committee.
The committee is moving slowly on issues around copyright, holding hearings on topics such as fair use and the outdated Digital Millennium Copyright Act (more commonly known as DMCA), which sets out the rules under which rights holders can have websites taken down if it contains infringing material.
Because copyright generally isn’t a partisan issues, Representative Nadler believes that new legislation has a chance of being passed, even in a very divided Congress. On the issue of DMCA, for instance, opinions weren’t split.
“The notice and take-down provision isn’t working,” said Nadler. “The DMCA was written in 1998, which was a couple millenniums ago, at the rate the digital world is changing.”
The problem with the DMCA is that when copyright holders issue take-down notices, minutes later new infringing websites are up, creating a “whack-a-mole” situation for rights-holders.
The issue that interested publishers in the audience most is the digital first sale doctrine, according to Tom Allen, president of the AAP and a former Congressman, who was interviewing Nadler on stage.
Currently, when consumers buy a print book, they have the right to re-sell it. The same isn’t true for ebooks. But there are companies — Apple, Amazon and ReKiosk, for instance — that would like to see the creation of a secondary market for digital content.
“Unlike print, ebooks never wear out and if they could be resold over and over again, there wouldn’t be much of a market for the original purchase,” said Allen. “For this industry, that’s a big deal.”
Representative Nadler acknowledged that there is a difference between physical and digital content when it comes to resale. The trick is whether other legislators agree.
“The ‘you bought it, you own it’ principle is an extreme digital view and I don’t think it will get much traction,” he said, referring to the mantra of proponents of the right to resell digital goods. “We’re going to have to look for some sort of balance. The debate will be where you put that limit.”
But that debate won’t conclude in earnest until at least next year, according to Nadler. The publishing industry will just have to wait.