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The Latest Battleground for Authors’ Rights

copyright - the authors guild

copyright - the authors guild

By Keith Kupferschmid

We are pleased to present a guest blog post from Keith Kupferschmid, the CEO of the Copyright Alliance. The Guild is a proud member of the Copyright Alliance, which represents the interests of thousands of individuals and organizations across the spectrum of copyright disciplines. We often conduct joint lobbying efforts, which allows us to address copyright issues as a united front with other groups also represented by the Alliance.

Over the years, groups and individuals who support weakening copyright law have lobbied Congress and the various Administrations for changes in the law that would reduce authors’ and other creators’ rights. So maybe it should come as no surprise to those of us who support the value of copyright and authors’ rights that they have now taken this fight to an entirely new venue.

The latest battleground for these copyright debates is the venerable and independent American Law Institute (ALI), which was founded in 1923 for the purposes of “producing scholarly work to clarify, modernize, and improve the law.” The ALI develops and publishes secondary sources, such as Restatements of the Law, which are used and relied on by many throughout the legal field, including judges.

Toward the beginning of the decade, several individuals who have openly voiced their dissatisfaction with the current state of copyright law, and who have advocated for various ways to narrow the scope of copyright protection, proposed that the ALI take on a copyright restatement project as a way of affecting the substantive changes in the law that they were unable to achieve through legislative reform. The ALI commenced the Copyright Restatement Project in September 2013 in response to a letter from one of these individuals, perhaps unware of the controversial nature of today’s copyright landscape.

A lead Reporter for the Restatement of Copyright Project was chosen. (A lead Reporter is the one responsible for drafting the restatement.) Unsurprisingly, this Reporter has argued for a restrictive view of copyright in just about every single court case he has participated in—or is currently participating in. He has also actively lobbied Congress, the Copyright Office, and federal agencies to take a narrow view of copyright. The other Reporters on the panel share the lead Reporter’s overly narrow view of copyright. They are all of the shared misbelief that strong copyright protection is an obstacle to the public’s ability to access and use creative works. This makes for a very unbalanced and one-sided restatement.

Prior to start of this project, several groups—including the Authors Guild—outlined their fundamental and substantial concerns with ALI purporting to restate the law of copyright. Since the beginning of this project, many of us have questioned both the utility of this project and the Reporters chosen. Despite our significant concerns, we and others in the broader copyright community have participated in the drafting process as advisers and liaisons to provide input and to ensure the ALI Copyright Restatement project reflects the law as accurately and consistently as possible. However, ultimately, we remain mindful that it doesn’t matter how representative the advisory group is if the Project Reporters are not balanced in their views and do not listen to us.

From the outset, we have all been concerned that this project would be used as a vehicle not to restate the law of copyright, but, rather, to rewrite it to benefit a particular view of copyright. Unfortunately, this now seems to be the case.

Not only are our concerns coming to fruition, but as more individuals and groups become aware of this project those concerns are spreading. Over the past eight weeks there have been close to thirty blogs and articles, a few of which can be found here:

Most recently, the Acting Register of Copyrights, Karyn A. Temple, sent a letter to ALI President David F. Levi, which made clear the U.S. Copyright Office’s concerns regarding the project, by stating that it would “create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it and one that will quickly become outdated…” When the primary agency responsible for administering the law you’re trying to restate raises concerns with what you’re doing, you ought to stand up and notice. And the ALI did.

In January, the ALI decided to reconsider their approach. They are presently meeting to decide whether to revise the format of the restatement in an effort to address some of the concerns raised. Unfortunately, merely changing the format won’t solve the larger problem, which is that the ALI is being used as a political tool to achieve the goal of weakening copyright law.

While the ALI contemplates what should be done, the project continues to garner significant media and blog criticism. The Copyright Alliance, joined by our members, including the Authors Guild and the Association of American Publishers, continue to recommend that this project be terminated or at least dramatically altered (beyond a mere format change).

Keith Kupferschmid is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.