Fish is Fish

Having young twins, I read alot of children's books, including the classic "Fish is Fish" by the great Leo Lionni, which is not about Stanley, but about a fish whose tadpole friend becomes a frog, goes on to the shore and comes back with stories about all of wondrous land-based things it has seen. The fish, jealous, flips itself on the ground, grasps for air, is saved by the frog who pushes him back into the water, and comes to realize that life in the water is wondrous too. I doubt my twins get the moral being taught, but they like the story and the pictures.

This week, if the House of Representatives marks up its "Section 115 Reform Act of 2006" (affectionately called SIRA), we may get a lesson about whether copyright rights may be frogs and fish; that is, whether one act may implicate two different rights. Since at the least the the debates in the early 1990s on providing a digital audio transmission right in what became Section 106(6), this issue has been the subject of contention, first by the performing rights societies, who wanted to make sure that rights granted to record companies didn't diminish money paid to them under Section 106(4), and second with the amendment to Section 115 expanding the compulsory license to include digital phonorecord deliveries: could a transmission be both a performance and a distribution, and more to the point, could two payments be required for the same transmission of the same work?

The issue is likely to be raised with interactive streams and the reproductions made to facilitate them. Giving things names usually indicates that those things have certain characteristics, characteristics that make them different from things that have another name and presumably have different characteristics, like reproduction and distribution. It is not that Congress can't give the same thing two different names, or that Congress can't define things in a way such that double payment might be required, but rather whether it has and if not whether it should.

Historically, the bundle of rights granted in the Act have been an effort to describe different acts, and in the U.S., different groups grew up to license those different acts. There is no doubt that digital technology has put pressure on this ancient system, and there was an effort awhile back by Chairman Smith and the Copyright Office to update matters, but that effort seems to have been abandoned. With that effort abandoned, the old divisions still exist and are likely to give rise to continuing problems in getting fish to be happy with being fish.