In a heated, often contentious, and exceedingly entertaining panel on the role of copyright in the face of a changing media landscape, panelists Fred Cannon (BMI), Ted Cohen (TAG Strategic), David M. Israelite (National Music Publishers’ Association - NMPA), Jonathan Potter (Digital Media Association), and Gigi Sohn (Public Knowledge) grappled with the issue.

Gigi Sohn suggested that Congress needs to change the way they approach copyright law. She suggested they have spent a good deal of time making it stronger and stronger, but they need to step back and look at the changing media landscape and revise the rules. She would like to see copyright reform including making Fair Use explicit and revising statutory damages if artists make a reasonably comprehensive effort to find the copyright holder.

Disagreeing with Sohn, David Israelite argued that Congress must make the law keep up with technology. Because the technology is changing doesn’t mean the basics of law protecting creators should not apply. Should the basis of copyright law be strengthened or weakened? That is a legitimate debate. He argues that it should not be weakened. People who create - music, film, software - should be compensated. There is a need for discussion and debate about what is fair and reasonable, but the law should not be weakened when violations are at a high and content is responsible for a ever-growing slice of the economy.

Jonathan Potter suggests that Fair Use has never been explicit, and probably should not be. Additionally, Fair Use has always been a litigation defense, but the risk of statutory damages is more intimidating to those without deep pockets (consumers) as opposed to those with (corporations).

Gigi revised her comments to say that the Fair Use clarification would apply to personal not commercial use. The personal use exemption should be added but for commercial use Fair Use should be left somewhat squishy.

Fred Cannon asserted that rate discussions are fine, but the creator of content should be protected by Congress. He also argued that music (content) drives innovation. People find new ways to deliver content and that leads to new products and technology advancement. It’s important, therefore, to find an equitable solution.

Cohen agreed that Fair Use needs to be revisited. He indicated there is a legitimate place for Fair Use but said it’s a slippery slope. For instance, he asked, can I make a copy of a CD and give it to a friend? He believes that yes, I probably can. Can I make a copy and give it to three or four family members? Again, he says, yes I probably can. Can I host an event for 300 people and give a copy away to all the attendees as a gift? Obviously not, but where does the dividing line fall?

Cohen also posed a question of how far a business can go in exploiting someone’s creative work before it crosses a line. Companies cannot exploit a content creator’s work without allowing them to be involved in the process.

Sohn posed the thought that obviously infringement models would need to be “slapped down”. If you build a business on infringing on someone else’s copyrighted work (she cited Grokster), they need to pay the price under existing law. She argued that there are laws on the books that allow enforcement already. Those should be used to address issues rather than trying to make tougher copyright laws that further muddy the water of what is a legitimate use.

Potter agreed and argued that the problem is people will not be held accountable on a large scale. Only the most egregious violators will be punished. If we create stricter laws, content infringers will simply move offshore. He then posed the question of how far we’re willing to go. If the infringers began operating offshore, will we become like China and block content solely to enforce the rights of creators? He also suggested that the cost of legal proceedings often exceeds the cost of the royalties in question.

Gigi suggested a new business model for copyrighted material that is based on consumption. As an example, rather than paying the same price (say 99 cents) for every song, the cost of a download could be based on popularity of the content. A Bing Crosby Christmas song would not sell for the same price as new tracks from Britney Spears. You can scale the model rather than force an arbitrary model of pricing.

Cohen also asked why licensing arrangements are device dependent. What does it matter if the content is consumed on a phone versus a TV or iPod? We should look instead at the value of the consumer experience, and price accordingly.

Israelite suggested copyrights should be protected like patents and trademarks, while Potter asserts that copyright holders cannot provide potential licensees an accounting of what rights they actually own, so infringement is a fact of life. All agree, however that payment must be made, but the mechanism is unclear. There is a need for a price setting mechanism that all sides say is fair.

This led to a heated exchange between Israelite and Potter. Potter questioned some of the methods used to determine value and Israelite claimed what Potter was describing was a way to “screw the musicians”.

Israelite went on the explain the old model was music was either sold or broadcast and was treated as either mechanical or performance with royalties set for each model. With new technologies new issues challenged the models and definitions. He argued that both mechanical and performance royalties are charged in most other countries, but varying definitions had been confounding the issue in the states and for several years rateless regulation has been in effect pending a rate proceeding to determine value. He charged that the Digital Media Association had, on the eve of that preceding, pulled the carpet out from under the content creators and is now arguing there is no right to payment.

After a prickly back-and-forth on the issue, the moderator called for some comments from the audience that extended the discussion, but didn’t bring much new insight.

In all, it really was one of the more interesting panels I’ve ever witnessed. For a moment I thought it might end in pistols at ten paces, but calmer heads prevailed. It did serve as an excellent look into the rigorous debate surrounding intellectual property and how it’s handled in the digital age.