In the following Q&A, Pallante discusses the many music copyright issues now under review, her office's role in creating copyright legislation and the challenges ahead.
Billboard.biz: What is the Copyright Office's role in copyright reform?
Maria Pallante: First of all, I've never used the word reform and, to my knowledge, nobody in Congress has used that word. From my perspective, Congress is engaged in reviewing the copyright law and possibly they'll undertake some revisions at their decision in whatever package they may or may not want to pursue.
Our role is twofold. First, we're the administrators of major provisions of the copyright law. So it affects us, and also, in the other direction, our ability to function well affects the marketplace. We're wrapped up in review of the law because how well the law works in the digital age includes how well the Copyright Office itself is working.
Secondly, we have a statutory role to advise the Congress on policy issues. Our expertise comes from the fact that we have administered the law since 1897, and we have an expert staff that's involved in a lot of different aspects of it—from registration to reporting, documents to advising on litigation, advising on training and domestic and international issues.
How would you describe the task of updating U.S. copyright law? Difficult? Unbelievably difficult? What lies ahead?
It's very difficult for Congress. They have a lot of stakeholders -- certainly a lot more than they ever had before when they undertook something like this. They have their hands full.
That said, I think there's been a lot of great leadership on copyright issues coming from Congress in the last year. Many of the stakeholders I talk to have their short list of issues they think should be addressed. I think it's getting people to understand they can't just have their issue, but other issues need to be addressed as well.
I think Congress is reminding people they have a role in copyright policy. The courts have an important role, but they apply the law to the facts before them. And private agreements have a role, but those affect the parties that are agreeing. The role of Congress is so important, even if they're not legislating, just to review and take stock and to make sure all equities are being considered. Obviously, I advise Congress so I believe in the Congressional process, but I really think it's a unique and necessary part of copyright law.
What kind of timeline are you expecting for the discussions that lead up to actual action by Congress?
I don't know. [Goodlatte] had six hearings, if you include the one he gave me, since March. We haven't had that many copyright hearings in a very, very long time. And he's announced three more. In the next few months there will be one on the scope of exclusive rights, there will be one on the scope of fair use, and there will be one on notice and take down provisions of the DMCA. From there I don't know what his next set of hearings will be or if he's going to start delving into pre-existing issues, or if he's going to ask stakeholders to prioritize issues.
I know, for example, that music issues are front and center. We think they are. I know Congress thinks they are. It's an area where stakeholders have tried to come together around some issues. So I wouldn't be surprised if music issues get teed up. But in terms of an overall agenda, I don't know if he'll try to pass a provision here and there or save everything for a bigger package. That's stuff only the chairman could answer.
And we're really only talking about the House at this point. The Senate doesn't have a subcommittee on I.P. right now and they've let the House take the lead. But they will have to weigh in. And the executive branch has issued a green paper and commenced a process where the executive branch will try to get to a white paper on copyright issues, which will be their recommendations on policy. And then Congress will presumably take that into account. That's at least another year of work, if not more.
There are a lot of moving pieces in a town with a bad reputation for working well together these days. Should people be alarmed by that?
I think it's remarkable there are so many pieces moving in the same direction. We interact with a lot of foreign governments as well and foreign copyright offices, and so many countries are looking at their copyright laws for the same reasons. Their provisions are out of date. There's kind of a desire to think about the future and to make (the law) a lot more intuitive but at the same time to validate the exclusive rights, to update enforcement.
It just so happens that in our Congress we have a chairman (Rep. Goodlatte) who was at the table when the DMCA was negotiated. He's the chairman of the Judiciary Committee. He's got a good staff.
We've signaled that we think it's the right time to at least look at things, take stock, do it more cohesively. My real message was, let's not just put enforcement bills on the table and then be surprised when the public doesn’t understand. We've got to tell a better story.
We've got other provisions we've been working on for a really long time. We've been working on the public performance in sound recordings issue for a decade, if not longer. We've got orphan works issues. We've got pre-'72 sound recordings that we think should be federalized. We've got analog library exception rules that don't translate into the digital age. We've got a lot of things going on, and maybe if we put them all on the table we can figure out how they relate to each other.