Late on Friday, October 21, news broke that Maria Pallante, who had served as Register of Copyrights at the United States Copyright Office had been removed from her post, and reassigned as a special advisor to the Library of Congress on digital strategy. The move was made by newly confirmed Librarian of Congress Dr. Carla Hayden, who assumed her new role just six weeks ago.
It’s no overstatement to say that this news has been greeted with surprise, dismay, and a certain measure of panic from creator groups. It’s important to understand where this fear comes from, at a time when many changes to copyright law and to the copyright office itself are under consideration. The implications for musicians and composers of all scales and genres—from DIY upstarts to veteran hitmakers—could be massive.
While the actual regulatory power of the Copyright Office is fairly limited, the office plays an important role in assisting Congress, the executive branch, and the courts. As an advisory body staffed by experts, the Office is able to apply its expertise, conducting studies and giving detailed recommendations, and as the highest ranking official at the office, the Register’s work impacts anyone who writes, records, or performs music.
Pallante’s 2011 keynote address at the Future of Music Summit, entitled “Copyright and the Independent Creator” offers a typical example of her approach to thinking about copyright law, as well as an excellent overview of the work of the office. While FMC didn’t agree with Pallante on every issue, we’ve always found her to be thoughtful, balanced, and deeply knowledgeable. Crucially, Pallante understood the importance of crafting policies that benefit authors (in this context meaning the people who actually create the work, including musicians, composers, photographers, filmmakers, playwrights) rather than just copyright owners (record labels, movie studios, etc). She understood that government systems must be responsive to the full range of stakeholders, including small independent creators. While recurrent budget and resourcing issues have prevented the Copyright Office from implementing many of her ideas for improving recordation and registration practices and data management, she laid the groundwork for changes that are still possible and worth pursuing.
Pallante’s tenure was characterized by strong leadership. On issues like the AM/FM performance right, Pallante was not afraid to point out that the United States was badly out of step with the rest of the world, and functionally exporting our creative work for free. Yet in a Congress characterized by unprecedented partisanship, Pallante won the respect and praise of both parties. As Rep. Bob Goodlatte (R-VA) and Rep. John Conyers (D-MI) said in a joint statement:
We have had the pleasure of working closely with Maria over the last few years as the House Judiciary Committee conducted a comprehensive review of U.S. copyright law to determine whether the law is still working in the digital age to reward creativity and innovation. Maria has played an instrumental role in the Committee’s efforts. We have welcomed her thoughtful testimony on copyright law and policy a number of times and closely studied the reports produced by her office.
In leading the call for Congress to produce the Next Great Copyright Act, Pallante offered a compelling vision of the fundamental compatibility of the interests of authors and the public interest, telling Congress:
It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property. To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical —hardly a copyright law at all.”
Unfortunately, not everyone shares Pallante’s concern for advancing debates beyond polarizing rhetoric. Over the past months, Pallante and the Copyright Office were the subject of a series of cynical and aggressive attacks that essentially accused the Office of corruption, asserting that the Office elevated the interests of the “entertainment industry” over everyone else. As we will illuminate in a subsequent post, these attacks ranged from unfair to easily disprovable to outright nonsensical. This climate of hostility certainly informs how this abrupt news was received, leading some creators to worry that Dr. Hayden shares this unfair and unfortunate opinion of the Copyright Office and of copyright itself.
At this stage, it’s important to remember that speculation about the motives behind this change is just speculation. It might be as simple as a fundamental difference of opinion about the degree of independence the Copyright Office should have from the Library; Pallante had frequently indicated her preference for an independent agency apart from the LOC, a position that is fairly controversial. While we are surprised, disappointed, and concerned by this development, we don’t have cause to conclude that Dr. Hayden, herself a respected public servant, is an anticopyright ideologue. We look forward to working with Karyn Temple Claggett in her new role as Acting Register; we also look forward to sharing our views with Dr. Hayden about the qualities, perspectives and experiences that would constitute the best fit for the next Register.
Above all, we appreciate Pallante’s years of service at the Copyright Office. Though she declined the reassignment and opted to resign instead, we suspect that her hard work for creators and for the public good is far from over. As debates about reform continue, we’re committed to building on her foundation of good work advancing a perspective that emphasizes the possibility of win-win solutions, centers the needs of authors and the public interest, and endeavors to make the benefits of copyright available to every creator.