Marybeth Peters Speaks at the Sixth Annual Finnegan Lecture
“The piece that Mike [Carroll] left out—when I walked into the administrative office of the Copyright Office, I said, ‘I deserve this job; I’ve been a teacher, and I know all about photocopying,’” Marybeth Peters explained about how she came to work at the Copyright Office on Thursday evening. “…I went to the public information office,” she continued, “they said, ‘Tell us more,’ I said, ‘I have a music background,’ they said, ‘You’ll be a music examiner; (don’t let that woman out in public!)’”
Peters would later become the 11th United States Register of Copyrights, a position she has held for the past sixteen years. She has also held the positions of acting general counsel of the Copyright Office and chief of both the Examining and Information Reference divisions, and has received numerous awards for her work. Peters was joined by two former colleagues, Art Levine and Jon Baumgarten, in discussing the history behind the Copyright Act of 1976 with a collection of intellectual property lawyers, advocates, students, and other interested parties gathered on the sixth floor of the Washington College of Law for the Sixth Annual Finnegan Distinguished Lecture on Intellectual Property. The lecture was preceded by a reception, and followed by a dinner in the WCL cafeteria. The event is sponsored and hosted by the firm of Finnegan, Henderson, Garrett & Dunner, LLP and PIJIP, the Program on Information Justice and Intellectual Property at WCL.
Peters began by discussing the history of the 1976 Copyright Act, and the issues feeding into its necessity. The 1909 Copyright Act, put together quickly and somewhat miraculously at the strong suggestion of President Roosevelt. Issues of compatibility with international copyright law (the US had not joined the Berne Convention) and most specifically the particularity of copyright notices led to post-war efforts to reform the copyright law. In 1955, Congress appropriated money to copyright research, which Peters suggested would not likely happen today, garnering a laugh. The studies were vast, and the discussions that followed were at one point open to all for suggestions. A 1961 report, though intended to be tentative, was met with considerable opposition, before some compromises were met. By the time the ’65 bill came about, it was beginning to look as if people were making their way toward some agreement on the issues.
When Peters came to the Copyright Office in February of 1966, she was told, “There’s going to be a revision; we’re not going to teach you the 1909 law—it will happen momentarily!” In 1967, a bill passed the House, the Copyright Office celebrated, and she still wasn’t being taught the copyright law. 1968 saw a Senate bill without provisions concerning cable television and antenna retransmission, and as Peters put it, “Nothing really happened until 1974…so [that’s when] I studied the 1909 Copyright law.”
The period from 1975 to 1976 brought many battles, including the issues of cable television, library photocopying, manufacturing clause, sound recordings and performance rights, works for hire, fair use, and those issues were debated with a decidedly less cooperative air than the discussions of the 1964-66 era. Peters recalls an air of surprise when, fairly quickly, the Copyright Act finally passed in 1976.
“We now had a single federal system for works of authorship from the moment that they were fixed,” Peters recalled. Suddenly there was a singular, clear term for copyright, an option of termination, and recognition of fair use. She remarks that there still were areas of contention, such as compulsory licenses for phonorecords, and the definitions of pantomime and choreography in regards to their protection. In case you were wondering, Peters and her colleagues did after some considerable time and effort determine that the “Electric Slide,” is in fact a “social dance” and not choreography.
Since 1976, there have been more than 50 amendments to the Copyright Act. Peters left us with a few issues that she believed the drafters would be surprised about. Among these are the development of fair use over time, the removal of formalities problems with orphan works arising with the joining of the Berne Convention, the Costco case and the doctrine of first sale, and, of course, the extension of the copyright term.
Peters asks recognizes that people are asking the question, “Is it time for another [Copyright Act]?” She emphasizes that if one believes the answer is yes, it is important to ask what oneself what it would look like, how successful it might be, and how to go about it. “How do you move forward to get the copyright law so that it is a whole new piece that takes into account all that has happened?” she asks.
Jon Baumgarten, IP partner at Proskauer and one time General Counsel of the United States Copyright Office, reminded us that with the 1976 Act, everything had to change. He posed that at that time, publishers felt just as threatened by the then new technology of photocopying as publishers today feel about digital technology. The debate today, he says, are devoid of the sort of real affection for the system that was present in those leading up to the 1976 Act. There is a lack of trust and civility in today’s copyright repartee. The discussion is about technology, and not humanistic the way it once was. We must respect the technology, he cautions, but we shouldn’t trample over proven fundamental ways copyright has used in the past.
Art Levine, counsel at Finnegan, previous employee of the Copyright Office and executive director of the National Commission on New Technological Uses of Copyrighted Works, seemed to share a similar view. He noted the relative lack of guidance on computers and Copyright in the 1976 Act, and also the mid-1978 amendments that made great strides in the area. Though he did not clearly state whether there should or should not be a new Copyright Act, he did express worry about highly increased role that money plays in Congress today, and that a new act may not fully take into consideration authors’ rights.
As Marybeth Peters concluded her lecture, she left us with this statement: “Is it time [for a new act?], or if you think it’s time, don’t tell me, (I won’t be there!) Tell Congress!”
The webcast of the event is available from PIJIP’s website.