Removal of US Register of Copyrights Reflects Battle of Mega Powers on Creative Rights

October 31, 2016

BY SUSAN FONTAINE GODWIN: The recent removal of U.S. Register of Copyrights Maria Pallante leaves music business leaders and lawyers once again shaking their heads and wondering what this sudden move could portend for the future of copyright owners. The Dept. of Justice’s decision in August to leave the consent decree as is for ASCAP, BMI, and SESAC and institute 100% licensing was a shocking ruling for many. Both decisions cause many to question the value of intellectual property in Washington, D.C.

The mega powers of media and technology companies are waging a relentless battle against the rights of copyright owners, and this week it appears they may be moving to take new ground.

Regarding another recent copyright loophole tactic by Google and Amazon, Chris Castle recently wrote:

Two vastly wealthy multinational media companies are exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. Why? Because Google and Amazon–purveyors of Big Data–claim they “can’t” find contact information for song owners in a Google search. So these two companies are exploiting songs without paying royalties by filing millions of notices with the Copyright Office at a huge cost in filing fees. READ MORE…

“People I know who care about copyright are very disturbed,” says Marybeth Peters, Pallante’s predecessor as Register, who held the job from 1994 to 2010. “Nothing like this has ever happened there before.”

The Copyright Office’s role and work has become more vital and controversial in the past few years, as media and technology companies face off against one another in Washington on piracy and licensing issues. Pallante has been very active in recent years, proposing the current copyright reform process, issuing important recommendations for the future of music licensing, and beginning a study on the “safe harbor” provisions of the 1998 Digital Millennium Copyright Act, which record labels and other rights holders say allows YouTube to use music for less than its market value.

It’s not clear why Hayden removed Pallante, but media business lobbyists reacted with dismay and some politicians expressed concern. After Pallante resigned, Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), respectively the Chairman and Ranking Member of the House Judiciary Committee, which has responsibility for copyright issues, issued a statement that Pallante’s departure would be “a tremendous loss for the Copyright Office and for America’s creators, innovators and users of copyrighted works.”

Hayden’s stand on public access to creative works could be an issue, according to the Hollywood Reporter:

Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes as the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners.

In theory, the Register of Copyrights is subordinate to the Librarian of Congress, but no Register has been removed by a Librarian in the past 120 years, and in fact, the relationship between the two offices is much more complicated than this hierarchy would suggest. There’s quite a background of history required in order to unravel the shocking recent removal of the Register of Copyrights. Zvi S. Rosen unpacks complexities of the hierarchy of the two offices in an excellent article.

In calling for Congress to produce the Next Great Copyright Act, Pallante reflected the 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.

As the fierce battle for the rights of creators continues to be waged, it is hoped that creator rights organizations will be able to build on Pallante’s foundation and advancement of the position that emphasizes win-win solutions, focusing on the needs of authors and the public interest.

CCS’s Founder and CVO, Susan Fontaine Godwin is an educator and long-time member of the Christian arts community with 30 years of experience in the Christian media industry, church copyright administration, and copyright management. Susan is an author and speaker and frequently writes for several Christian magazines and online publications. She serves as an adjunct professor at the University of Mobile.

About Christian Copyright Solutions: CCS’s quest is to help churches and Christian ministries “do music right.” CCS is an expert on church music copyrights and our primary focus is providing licensing and clear educational resources to churches, as well as representation, administration, and advocacy for copyright owners. Follow us on TwitterFacebook, and YouTube. The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel.

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