Live from the IP Symposium: The Future of the Nation's Patent and Copyright Systems03/21/2011
Paul Michel (former Chief Judge, Court of Appeals for the Federal Circuit)
Marybeth Peters (former US Register of Copyrights)
Register Peters started off her talk discussing the biggest challenges in her job as Register of Copyrights. These included the following:
- Formalities being voluntary as a result of joining the Berne Convention.
- DMCA requires the Copyright Office to create exemptions to access controls. These took a lot more time and effort than she expected.
- We're becoming a more digitized world and issues of territoriality are challenging. The suggestions for compulsory licensing are not a good idea.
- Making the Copyright Office more digital and accessible.
Next, she discussed the challenges in the future for copyright law. She commented that the challenges are:
- We have a digital networked worldwide society and content can travel all over the world very quickly.
- Even if you're not a pirate, getting licenses is "a distressing exercise." This is especially the case in a world where everyone wants everything immediately.
- The copyright law is pretty outdated. A complete revision is essential.
Finally, Register Peters discussed some proposed solutions to some of the currently existing problems, including and noting that:
- We need to revise the copyright law, but this isn't realistic. Nonetheless, individual problems can be solved legislatively.
- Giving the DOJ the power to shut down rogue web sites (proposed by Senator Leahy).
- Orphan works problem – limit the liability of people who do diligent searches for the copyright owner. Google Books has stifled this.
- The private sector – creators and users – need to sit down and work out solutions. Congress isn't going to do it. Guidelines and best practices can and should be done.
- Licensing innovations. Statutory licensing isn't a good idea, but collective licensing (along the lines of ASCAP and BMI) may be a good idea. Fair use is not a good enough solution because of its uncertainty.
Judge Michel began by discussing the challenge he faced while sitting on the Federal Circuit. He said, "The problem of being on the court is that you don't have 1st Amendment rights." He stepped down because he figured he could do more good off the court than on – trying to educate members of Congress and their staffers.
Judge Michel then explained that he thought the key players who will be involved in trying to rebalance patent law are: (1) Congress, (2) Supreme Court; (3) PTO; (4) Federal Circuit; (5) White House; (6) mainstream media; (7) K-Street lobbyists.
Judge Michel commented on the pending patent reform legislation. He predicted that a patent reform bill will pass, even if it doesn't do much. The three most contentious issues, according to Judge Michel are: (1) first-to-file; (2) post-grant review; and (3) financing of the PTO (fee diversion from PTO to other government programs). Judge Michel believes first-to-file will be adopted, but the scope of the grace period may be changed. With respect to post-grant review, Judge Michel thought one of the two procedures will pass, but what the thresholds should be is an open question, although will probably be more modest than what was proposed in the Senate. Finally, with respect to fee diversion, Judge Michel thought the House will not ban diversion.
Judge Michel concluded with a couple thoughts on Microsoft v. I4i and how the Federal Circuit will change. He thinks the Supreme Court will reverse the Federal Circuit and apply a preponderance of the evidence standard across the board (i.e. get rid of the clear and convincing standard altogether).
With respect to changes to the Federal Circuit, Judge Michel predicted that there will be three additional slots opening on the court in the next 18 months. The debate will be should the nominees be someone with an interest in patent law or more of a generalist. The White House will obviously play a major role in the development of the court.