On Friday, October 21, Librarian of Congress Carla Hayden summarily removed Maria Pallante as Register of Copyright and Director of the U.S. Copyright Office, the position she had held since 2011. It was the first time the head of the Copyright Office had been removed in 119 years! Ms. Pallante was reassigned as an advisor to the Librarian. Associate Register Karyn Temple Claggett was appointed Acting Register.
On Monday, October 24, Ms. Pallante resigned, telling Dr. Hayden, “I hope you will respect that I do not accept the reassignment…that was announced on Friday.” Having been locked out of her computer, she also added, “I would be grateful for your accommodation as I say goodbye to colleagues and collect personal items this week, and would appreciate the reinstatement of access to my computer and emails so that I may appropriately archive records and remove photos of my family.”
We have no inside knowledge of what may have led to these abrupt changes. But real issues are at stake in copyright policy, both at the Copyright Office and at the Library of Congress (of which the Copyright Office is a component).
More than twenty years ago, Maria Pallante served with distinction as the executive director of the NWU. Although her tenure with the NWU was relatively brief, we remember and honor her independence, her intelligence, and her ability to understand and work with our diverse membership — the same independence, intelligence, and ability to understand the perspectives of diverse interest groups that she demonstrated as Register of Copyright, and that has distinguished the work of the Copyright Office staff. We thank Maria Pallante for her contributions to our union, to the Copyright Office, and to the nation.
We have disagreed strongly with many of the proposals and recommendations made by the Copyright Office under Ms. Pallante, just as under her predecessors. Some of the priorities for our copyright advocacy are to oppose legislation the Copyright Office has proposed or endorsed during Ms. Pallante’s term, such as to create new exceptions to copyright to allow copying of so-called “orphaned” works without payment or permission of the writers , undercutting those writers’ incomes.
The NWU has never had any special access or influence at the Copyright Office. Nor should we. Nor should anyone else.
One anti-copyright advocacy group recently launched a smear campaign against Ms. Pallante, claiming that the Copyright Office had been “captured” because it hasn’t always agreed with their interpretations of the law and their policy proposals. This ignores the conflicts between readers and writers on one side and the publishers and Internet intermediaries that come between us on the other side. Equally importantly, it reflects an outlook where there are no neutrals, no possibility of consensus, and anyone who isn’t an ally can be written off as an enemy.
That’s not the way we try to work, not the way we think Congress should work, and not the way we want the Copyright Office to work.
The Register of Copyright has a regulatory role in the formulation and administration of Federal copyright regulations, and an advisory role to Congress in the formulation of copyright law. This requires public consultation and consideration by agency decision-makers of all input from the public, not just the opinions of those within the agency. Congress needs impartial advice that fairly represents the pros and cons and likely winners and losers from potential legislation, not one-sided internal lobbying that shuts out the public or ignores disfavored points of view.
The value that members of Congress on both sides of the aisle find in having a trusted nonpartisan advisor is reflected in the joint statement issued by the Chair and the Ranking Minority Member of the House Judiciary Committee following Ms. Pallante’s reassignment and resignation.
What we are entitled to is what we have received: a fair hearing by a neutral party who we could trust to listen and try to understand our point of view, just as we expect she would do with those such as publishers and intermediaries with whom we usually disagree.
Regardless of who is in charge at the Copyright Office, that willingness and ability to listen and learn will be even more important in light of the agenda for the Library of Congress and the Copyright Office revealed by Dr. Hayden in her letter reassigning Ms. Pallante. Ms. Pallante declined to accept this new job, but presumably someone else will now be given this assignment. The new Librarian’s first task for her newly-appointed advisor was to prepare a game plan of policies, regulations, and legislation to acquire digital works, including but not limited to Web pages and other “content from the Internet”, and to make them “as widely accessible as possible.” Notably, there’s no suggestion of any budget, strategy, or mechanism for paying writers for any of these rights to our work.
Of course, the one thing the anti-copyright lobby, publishers, and Internet companies can unite around is their mutual desire for writers not to get paid, even if librarians are getting salaries for distributing our work, and some of the intermediaries are getting rich off their profits from legal and illegal exploitation of our work.
Only by listening to writers will Congress, the Copyright Office, or the Librarian of Congress and other librarians learn about the innovative new ways that writers ourselves — under the radar of legacy publishers and old-school librarians — are reviving the backlists of our work that publishers have abandoned, and making them available again to readers. Only from writers will they lean how well-meaning proposals for digitization and redistribution by libraries (and possibly their commercial “partners” as well) will undercut the increasingly significant revenues we are already earning from our own digital editions of these works.
Last December, the NWU and allied writers’ submitted comments in response to a Copyright Office proposal for mass digitization of library collections. In August of this year, we submitted further comments on new business models for digital distribution of written work in response to another Copyright Office proposal to expand the requirements for writers and publishers (including self-publishers) to deposit copies of digital works with the Library of Congress.
Our submissions to the Copyright Office included imported factual information about the “new normal” of how writers’ make our living probably wouldn’t otherwise have been brought to the attention of the Copyright Office. That’s what public consultations are for.
Both of those important policy studies by the Copyright Office remain open. One of the first indications of whether there has been a change of course at the Copyright Office will be whether these issues and concerns are taken into consideration in the final report and recommendations of that office.
We hope that representatives of writers and other creators will be included in the search committee for the new permanent Register of Copyright. And we hope that the changes at the Copyright Office won’t mean a closed door or a closed mind to the concerns and interests of writers in the new administration ahead.