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ALI Must Retract its Restatement on Copyright
By Frank Cullen, Vice President of U.S. Intellectual Property Policy
Throughout the COVID-19 pandemic, countless people have found solace and even joy in the creative output of musicians, filmmakers, video-game creators, artists, and performers. While these creators’ individual innovations are unique, their dependence on copyright unites them. Copyright safeguards their creations’ value in the marketplace and protects them from malicious reproduction.
Copyright also stimulates roaring creative economies around the world. Copyright-based industries add more than $1.5 trillion to the U.S. economy and support more than 11 million American jobs. But misguided policy proposals can put that growth and those jobs at risk: Proposals like the American Law Institute’s (“ALI”) proposed copyright restatement.
First and foremost, a restatement is simply not applicable, as the Copyright Act is a federal statute. Seven years ago, when ALI Director Richard Revesz addressed the U.S. Chamber of Commerce, he stated the ALI “think[s] of a restatement as what a great common law judge would do….” Restatement of common law on the federal level is already limited in scope, and then only when there is no controlling federal statute. When there is a controlling federal statute, as is the case with copyright, restatement is nearly obsolete.
Further, when restatement becomes rephrasing – as is the case in the ALI proposal – the practice can turn dangerous. Restatement is designed to inform and educate lawyers and judges on important legal provisions as they’re written. Unfortunately, the ALI has chosen in several instances to rephrase, even reinterpret, the statutory language of the Copyright Act, creating real worries about misinformation and bias.
The ALI has also chosen to conduct their work in isolation. Copyright scholars have noted that ALI leadership has been unwilling to accommodate legitimate comments and concerns about the substance of the draft restatements. As a result, there are legitimate fears that ALI is pursuing a predetermined outcome out of line with existing statutes or their interpretation by the courts. Just ask the experts.
Three successive Registers of Copyrights have publicly stated their concerns, as did the Director of the U.S. Patent and Trademark Office, and a bipartisan group of Members of Congress, including Senator Thom Tillis, then-Chairman and now Ranking Member of the Senate Intellectual Property Subcommittee.
Unfortunately, despite this chorus of criticism, ALI’s restatement efforts are progressing. As a result, the copyright system as we know it – and as creators use it – may regress. Markets function best when there are clear, consistent, and fair rules.The ALI restatement initiative may harm that certainty, consistency, and fairness, not just to the detriment of our creators, but to all of us who enjoy the fruits of their creative labor.