LEGAL ISSUES
What's Next for the U.S. Copyright Office
by George H. Pike
It was a battle between content producers and content owners. The law gave content publishers control and ownership over the works they published, including the right to decide what and what not to publish, leaving content creators with limited rights. Controversy ensued as the power given to these companies was seen as the government’s attempt to censure content it didn’t approve of by allowing them to refuse its publication. The controversy grew over the years, and, finally, new laws were passed that provided rights to content creators, as well as a public right of access to content after a limited monopoly period to protect publishers.
Sound familiar? These were the events leading up to and resulting in Great Britain’s 1710 passing of the Statute of Anne, which is widely regarded as the beginning of modern copyright law. But the more things change, the more they stay the same, as over the last 300-plus years, there has been conflict between copyright authors and owners and those who use and disseminate content. The digital age—a modern era that is barely 20 years old—has heightened that controversy through new and growing viral content distribution systems such as streaming media and peer-to-peer file sharing.
Reassignment, Then Resignation
The controversy over the goals and intentions of copyright law was re-energized recently with the removal of Maria A. Pallante from her position as Register of Copyrights, the head of the U.S. Copyright Office, which is a division of the Library of Congress (LC). The facts are relatively straightforward: On Oct. 21, 2016, Carla Hayden, the newly appointed Librarian of Congress, announced that Pallante was being reassigned to the position of senior advisor to the Librarian of Congress, with new duties to include developing an implementation plan for the deposit of digital works within the LC, developing best practices for determining the copyright status of works published between 1923 and 1963, and undertaking a “comprehensive study” of retail and licensing opportunities for the LC. Rather than accept the new appointment, Pallante submitted her resignation on Oct. 24.
Along with the basic facts are deeper and more difficult questions, which have arisen from both the circumstances that led to the change and the direction that the Copyright Office may go in the future. The mission of the Copyright Office is “[t]o administer the Nation’s copyright laws for the advancement of the public good; to offer services and support to authors and users of creative works; and to provide impartial assistance to Congress, the courts, and executive branch agencies on questions of copyright law and policy” (copyright.gov/about). The Register’s primary responsibility is to pursue that mission.
‘The Next Great Copyright Act’
Pallante’s tenure as the Register of Copyrights had occasionally raised questions about her pursuit of the office’s mission. Appointed in 2011 by James Billington, the previous Librarian of Congress, Pallante undertook several steps to modernize the office’s use of technology and became more actively involved in providing policy advice to Congress and other executive agencies. She also became outspoken in advocating an expansion of the role of the Copyright Office. In a 2013 lecture and paper, “The Next Great Copyright Act” (published in Volume 36, Number 3 of the Columbia Journal of Law & the Arts), she mentioned some possible initiatives, including creating a “small copyright claims tribunal,” offering arbitration or mediation services in copyright cases, issuing advisory opinions, and “ensuring the governance or transparency” of content registries or collective licensing organizations. She also actively advocated for an independent Copyright Office separate from the LC.
Pallante’s critics argued that her policy advice and other actions showed a specific bias toward content owners, particularly commercial ones such as publishers, recording companies, and movie studios. Two areas in particular were the subject of significant scrutiny in the months leading up to her departure. In January 2016, the Copyright Office spoke out against a Department of Justice (DoJ) recommendation over songwriter licensing, and in summer 2016, the Copyright Office weighed in to oppose a Federal Communications Commission (FCC) proposal in support of universal television set-top boxes.
Favoring Copyright Owners?
In both cases, the Copyright Office took positions that favored copyright owners—particularly corporate rightsholders such as movie and television producers and recording companies—over copyright users and aggregators. Public interest organizations, including the Electronic Frontier Foundation and Public Knowledge, blasted the office for what was claimed to be “systemic bias” toward and aggressive lobbying by groups such as the Motion Picture Association of America and the Recording Industry Association of America.
However, the critics have drawn their own conclusions in the wake of Pallante’s removal. A number of commentators have asserted that large content users—citing Google by name—had through their lobbying and influence encouraged change in the Copyright Office. In an article from Nov. 2, “A Copyright Coup in Washington,” The Wall Street Journal noted Google’s support for the FCC’s set-top box proposal, that a former counsel for Google was behind the DoJ songwriter recommendation, and Google’s financial contributions to Public Knowledge and the American Library Association, which was once run by Hayden.
Hearings and Roundtables
Pallante’s calls for “The Next Great Copyright Act” and for an independent Copyright Office have resonated with Congress and gained momentum there that will likely outlast her tenure as Register of Copyrights. While there has not been a specific legislative proposal for a wholesale revision of the existing Copyright Act of 1976, Congress has held regular hearings and roundtables on copyright issues in the 21st century. A legislative proposal was introduced in 2015 to make the Copyright Office an independent agency (HR 4241, the Copyright Office for the Digital Economy Act), although the bill remains in committee. Other commentators have suggested merging it with the U.S. Patent and Trademark Office (part of the Department of Commerce) to create a centralized office to manage all aspects of intellectual property law and administration.
Congressional leaders who are active in these efforts praised Pallante and raised concerns about her abrupt departure, suggesting that Congress should play a role in selecting a new Register and possibly giving support to an independent Copyright Office. Independent or otherwise, however, the Copyright Office and the new Register will be challenged by the 300-year-old continuing tension between copyright owners and those who want to use copyrighted materials.
This article originally appeared in the January/February 2017 issue of Information Today as "Influence and Independence: Intrigue and the Direction of the Copyright Office.")
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