A Declaration of Independence for the Copyright Office

On April 29, the head of the Copyright Office, Register Maria A. Pallante, was the sole witness before the House Judiciary Committee at a hearing entitled The Register’s Perspective on Copyright Review. Both her oral and written statements — the latter consisting of a 32-page memorandum with copious footnotes and an appendix of proposed technical amendments to the Copyright Act — contained an even more urgent call for an independent Copyright Office than was stated in her lengthy March 23 letter to Rep. Conyers, which I discussed here.

The hearing, which was interrupted by the Japanese Prime Minister’s address to Congress, was largely a love fest for the Register, with most of the Committee members effusively praising her work. The only slightly sour note was sounded by Rep. Issa (R-CA), who felt that the Copyright Office was spending too much time on studies without making specific recommendations. But anyone who’s read recent studies from the Copyright Office, such as the music licensing study and the IT report, knows that they contain very specific recommendations, several of which were reiterated in the Register’s testimony.

The big takeaway is that the majority of the Committee seemed sympathetic to the Register’s recommendation that the Copyright Office cease to be a mere department of the Library of Congress and instead, become an independent agency, whose head would be appointed by the President and confirmed by the Senate. So as to retain agency independence and continuing to serve both the Executive and Legislative branches, the agency’s head would serve for a specified term set by Congress and not merely at the pleasure of the President.

The Register’s written statement opens with a statement of six themes, culminating in her declaration for independence:

(6) To properly administer the copyright laws in the digital era, facilitate the marketplace, and serve the Nation, the United States Copyright Office must be positioned for success. As stated by one Member of this Committee, “it is time to enact a restructured, empowered and more autonomous Copyright Office that’s genuinely capable of allowing America to compete and protect our citizen’s property in the global marketplace.”

To support her petition, Register Pallante, in her written statement, singled out IT issues, citing the GAO’s scathing report, detailing myriad IT deficiencies at the Library of Congress but recommending consolidation of IT resources. The Register obviously opposes a single IT team:

The Office’s current organizational structure is under strain because the copyright system has evolved and because digital advancements have changed the expectations of the public….The mission of the Copyright Office is fundamentally different from the mission of the Library, and I believe that the Copyright Office must have its own CIO, technology staff, and management authority, including the ability to implement IT investment and planning practices that focus not on agency-wide goals but on its own specific mission. As noted in my prior testimony, the Copyright Office sits at the center of a dynamic marketplace in which creative content drives a sophisticated chain of business in the information and entertainment sectors. A faster and more nimble Copyright Office must be a priority.

Although the discussion largely centered on the potential independence of the Copyright Office, many of the questions in the latter part of the hearing focused on topics discussed in the Copyright Office’s music licensing study, including pending legislation. With respect to the Fair Play Fair Pay Act, the Register voice her support and was particularly blunt in her view of the current state of the law where labels and artists do not get paid performance royalties on radio, stating the status quo was “indefensible as a matter of law and embarrassing as a matter of policy” as well as being “out of step with the rest of the world.” Take that, NAB!

With respect to the Songwriter Equity Act, the Register stated her support for Congressional action. When asked by Rep. Collins (R-GA), who sponsored the bill, what would happen if Congress doesn’t act, the Register replied in part that the existing legal regime is already “torturing” the music community.

The Register was also asked about the “anticircumvention” provisions of Section 1201 of the Copyright, enacted as part of the DMCA. She stated that as drafted, the fair use defense codified in Section 107 of the Act is not applicable to Section 1201. When questioned about potential problems with Section 1201 and cybersecurity issues, the Register wryly noted that having a potential cybersecurity exemption subject to a three-year Copyright Office review process was not in the best in the best interests of national security.

Given the importance of copyright to the economy, and the reactions sentiments of the Committee members, it’s possible that Congress may actually address copyright issues sometime soon.





Why the Register of Copyrights Wants to Turn In Her Library Card

Those who don’t practice copyright law might be surprised that the Copyright Office is neither an independent agency nor part of the Commerce Department, the home of the U.S. Patent & Trademark Office. Instead, as the Register of Copyrights, Maria A. Pallante, reminded us in a lengthy letter to the House Judiciary Committee, the Copyright Office is, for historical reasons, essentially a captive division of the Library of Congress (LOC).

Register Pallante wrote her March 23 letter to supplement the Judiciary Committee’s February 26 hearing: The U.S. Copyright Office: Its Functions and Resources. As Register Pallante points out, she and her “subordinate officers” are appointed by the Librarian of Congress. The Librarian is a Presidential appointee subject to Senate confirmation under the appointments” clause of the Constitution. Curiously, this makes the LOC, at least in the view of the Justice Department, part of the Executive branch of the government.

As part of the LOC, the Copyright Office lacks independent budget authority and it’s dependent upon the LOC for much of its resources, including IT. Moreover, the Copyright Office’s regulatory authority basically extends only to rules regarding registration and recordation – and even those are subject to approval by the Librarian. As a result, highly technical provisions that are regulatory in nature have to be included in the copyright statute and passed by Congress. This means they’re usually outdated before they’re even enacted. Moreover, policies that are in the LOC’s best interests don’t always align with overall copyright policy or the interests of other stakeholders in such policy debates.

Not surprisingly, the Register has called for the creation of an independent copyright agency. It would have autonomy over its own budget and the authority to issue substantive regulations. This agency would expand upon the current Copyright Office’s role as an independent adviser to Congress and other departments (e.g., Justice, State, Commerce) on domestic and foreign copyright policy, including advising on and interpreting legislation, litigation and trade agreements. An independent copyright agency would still be able to supply the LOC with whatever it selected from copyright registration deposit copies to add to its collection.

Register Pallante recommended against keeping the Copyright Office as a “sub-agency” within the Library of Congress as doing so would not grant it sufficient policy and regulatory autonomy. She also cautioned against moving the Copyright Office to the Commerce Department citing her predecessor in arguing that copyright law and policy go beyond merely promoting commerce and have a “unique influence on culture, education and the dissemination of knowledge.” The Register’s recommendation to move the Copyright Office out of the LOC is hardly new but, as we’ll see, it does have some urgency.

Among the things the Register requested was a Congressional mandate that the new agency’s leaders “present short-term and long-term priorities and investment justifications, including … urgent IT expenditures. “ This is particularly apt in light of two recent reports: the February 18 report of the Copyright Office’s Technical Upgrades Special Project Team (SPT), presented by the Copyright Office’s Chief Information Officer and the March 31 report from the Government Accountability Office (GAO), aptly entitled Library of Congress: Strong Leadership Needed to Address Serious Information Technology Management Issues. The lengthy and technical SPT and GAO reports fortunately include summary findings for non-geeks.

The SPT report focuses on the Copyright Office’s IT issues, with a particular emphasis on improvements to online services for the copyright community and general public. The SPT received comments from the usual suspects of stakeholders, including organizations representing music, film, publishing, photography, graphic artists and IP lawyers. Suggested improvements to the current online copyright registration system (eCO) included the ability to preview, print and share registration application data as well as improvements to submitting deposit copies that accompany a copyright registration. Other suggestions were the ability to make mass or high-volume online registrations and to file and search for assignments, transfers and terminations – none of which currently can be filed online. Still others related being able to search pre-1978 records online as well as being able to find assignments, terminations and other transfers associated with a particular registered work.

But the SPT report noted upfront:

All administrative control over the infrastructure, operating systems, database systems, storage systems, telecommunications systems, legacy systems, and other common IT resources are controlled by the Library of Congress. This arrangement is not optimal given the general IT challenges at the agency level, and perhaps difficult to rationalize given the specific importance of the Copyright Office to the overall national copyright system and global digital economy. Additionally, in some cases, the Library’s needs in relation to copyrighted works – which revolve around acquisition, preservation, and access – may compete with those of copyright owners, who are most concerned with legal protection and security.

With that in mind, let’s see what the GAO report had to say about how the LOC is handling its IT issues. Here’s a few of the highlights from the 133-page report:

– The Library does not have an IT strategic plan that is aligned with the overall agency strategic plan …. This leaves the Library without a clear direction for its use of IT.

– [T]he Library … is not effectively managing its [IT] investments.

– The Library’s implementation of key security and privacy management controls was uneven …. putting the Library’s systems and information at risk of compromise.

– The Library does not have the leadership needed to address these IT management weaknesses. For example, the agency’s chief information officer (CIO) position does not have adequate authority over or oversight of the Library’s IT. Additionally, the Library has not had a permanent CIO since 2012 and has had five temporary CIOs in the interim.

In its coverage of the GAO report, The Washington Post even more directly dumped the blame for the Library’s IT deficiencies on the Librarian’s desk:

Its leader [James H. Billington] is a Russia scholar appointed by Ronald Reagan who doesn’t use e-mail and rarely a cellphone, and who critics say has done nothing to fix the library’s ongoing problems. At 85, Billington is the oldest of the 13 executives who have led the agency since its founding in 1800.

Based upon the findings of the GAO report, it’s doubtful that the Copyright Office, given that its funding and IT support is totally tied to the LOC, will be able to implement the badly needed changes outlined in the SPT.

A 2013 report from the International Intellectual Property Alliance estimates that core copyright industries (computer software, videogames, books, journals, newspapers, periodicals, motion pictures, music and radio and television programming) contributed approximately $ 1 trillion, or 6.5% of the total GDP in 2012.These industries are not just vital to the US economy, but to our culture and to our stature in the world.

Yet we currently have a “system” where it takes months from the filing an online application just to get a registration certificate, where crucial deposit copies aren’t maintained and critical records can’t be accessed or even searched online.  While appointments to an independent copyright agency could become as politicized as we’ve seen with others, perhaps it’s finally time for the administration of our copyright laws to reflect 21st century realities with an independent, properly funded Copyright Office with robust IT.