By: Sarah Hicks
In October, Maria Pallante stepped down as the Register of Copyrights after being given a different title by the Librarian of Congress, Carla Hayden. Instead of accepting the appointment as senior advisor for digital strategy, Pallante resigned. Her resignation has been pretty polarizing. Some see it as proof that the Librarian of Congress is interested in aggressively weakening copyright protections, while others see it as a possibility to finally start strengthening the public domain.
It’s no lie that Pallante was a strong champion of creators’ rights. Like many of her predecessors, Pallante had strong ties to the creative industries. (In fact, her new job is as the head of the Association of American Publishers. Before being Register of Copyrights, she worked with the National Writers Union and the Authors Guild.) Unfortunately, this wasn’t a good thing for everyone else.
According to a report by Public Knowledge — an organization that promotes balanced copyright, consumer rights, and open Internet policies — in recent years the Copyright Office has blatantly ignored the intended balance of copyright law. This includes things like supporting stricter standards of due diligence for orphan works (works for which the copyright holder can’t be found), advocating for increased “moral rights” over copyright holders that would allow them to put the kibosh on their work being used in a way that they disagreed with, endorsing both SOPA and PIPA, advocating for resale royalties, and deeming laws “ambiguous” so they can justify their increased limits. Many of these things have been struck down in court, or had pushback from Congress, but the fact remains that the Copyright Office wholeheartedly advocates for rights holders, and not for the public domain.
To many, creators having increased rights over their works doesn’t seem like a bad thing, so let’s talk about how things currently stand. The current copyright term is set for death of the author plus 70 years. So, for example, if J.K. Rowling died tomorrow, unless the law changed, her work wouldn’t become public domain until 2087. Given that the original maximum copyright length was 28 years, the current term seems more than adequate for the average creator. However, due to the current term of copyright (which was most recently extended in 1998), nothing is passing in the public domain in the U.S. until 2019, and hasn’t since at least 2010.
What’s more, unlike in the past where a creator had to opt-in to copyright, now copyright applies automatically. What’s covered by copyright? Almost anything that is a creative expression in a fixed medium. That could be your class notes or a watercolor painting of your cat, even though those kinds of things might not really benefit from copyright protection.
With automatic protection, less and less is available for people to use freely for their own creations, or for their research. Creators are definitely supposed to have control and rights over their work, but there should also be a balance. The initial idea of copyright was to incentivize innovation by granting the creator exclusive right for a limited number of years, but then it was supposed to be free for use by others. Stricter copyright laws means that today’s creators are more and more at risk of penalty if they infringe even a tiny, tiny bit on someone else’s work, whether it’s six notes from a sound recording sampled for a new song, a line of a poem used in a novel, or even a few seconds of The Simpsons in the background of a documentary. (All of these have really happened, by the way.)
In light of this, the Library of Congress has put up a survey, asking the people what they want from the Copyright Office. Why should librarians care? Well, there are two key issues. The first is that having more works in the public domain means that we have more free resources to use. Are you tired of only having subpar clipart to (legally) use for your programming marketing? A stronger public domain can help. Do you want to preserve historical photographs or documents, but you can’t find who owns them? A stronger public domain can help. The same goes for things that are open source or in the creative commons. While the creators of works under these licenses still hold the copyright, they allow others (such as libraries) to use them in specific ways, such as for educational purposes.
The second is that issues of copyright and intellectual property can have real ramifications for intellectual freedom. Currently, copyright law provides exceptions for things that are deemed “fair use” of copyrighted works, even without the rights holders’ permissions. Fair use covers things such as criticism, satire, news reporting, and (usually) research. All of these are paramount for exercising our First Amendment rights, which are currently very much under attack.
A more public domain-minded Register of Copyrights can help preserve and protect these vitally important aspects of copyright. A Register with ties to creative industries, that’s concerned with expanding protections and profits, will likely not fight for the public domain much at all. In times like these, as privatization becomes more and more common, there is a real risk in continued strengthening of copyright law.
There may not be much we can do to influence this appointment, as the Register of Copyrights has to be approved by Congress, but at least we can try to make our voices heard. If you’re interested in doing so, fill out this survey by Jan. 31.
Sarah Hicks is a current MLIS student at the University of Pittsburgh, and works in a local public library. She has long been passionate about issues regarding intellectual freedom, and believes that these issues are becoming increasingly important worldwide, especially those related to privacy, surveillance, and censorship. Perhaps unsurprisingly, as certain stereotypes about librarians are not wholly untrue, she is both an avid reader (of many genres) and a total cat lady. Sarah can sometimes be found @exactlibrarian.