Copyright Reform: Is it Time to Take Patent Reform Off the Table and Work on Copyright Reform?

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Given where we are on the patent reform debate, is it time to move patent reform off the table and work on copyright reform?

If you haven't heard many calls for this lately, you are not alone, but according to Wired, Judge Miriam Hall Patel, who presided over the Napster case has had time to think about the issue and believes that it is time to do just that. However, unlike in the case of patent reform, she does not believe that legislation is the answer. Instead, she believes that we need to establish a new administrative body.

Patel's specific recommendations included the following:

The new body needs to be a mix of public and private entities with all parties represented. It cannot be a purely governmental body because that is not likely to instill confidence in the public.

All copyrighted music would be part of this system and subject to a compulsory license, with possible opt-out provisions for certain rights holders.

Congress should abolish all current compulsory licenses and adopt a blanket licensing system. (Such a system may have allowed Napster to continue operating, assuming it could afford to pay labels under the compulsory licensing scheme.)

The body would administer all royalty payments and would replace all current systems for doing so.

An independent arm would arbitrate royalty disputes using music databases that allow arbitration to be done with speed and precision lacking in the current system.

Manufacturers and developers would need approval from this body before introducing an application or device capable of recording, distributing or copying music to consumers. The body would include technology experts to aid in making those decisions quickly -- Patel described this as "sort of like the FDA, but much faster."

Is the creation of a new administrative body the answer? It is an interesting proposal. I agree with Judge Patel--there is no question that the current system leaves much to be desired, but I am not sure myself as to what we should do to "improve" it.

Still, you have to admire her "out of the box" thinking. And she just may have something there: perhaps it would be better to move some of these royalty disputes into arbitration through a designated administrative body to hear them--wouldn't that be preferable over Recording Industry Association of America ("RIAA") lawsuits?

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