On Dec. 8, 2016, Bob Goodlatte (R-Va.), chairman of the House of Representatives Committee on the Judiciary, and John Conyers Jr. (D-Mich.), the committee’s ranking member, introduced the first policy proposal on copyright reform, which reflects many of the reforms suggested in the Copyright Office for the Digital Economy (CODE) Act. The CODE Act was originally introduced to the House (as HR 4241) by Tom Marino (R-Pa.) and Judy Chu (D-Calif.) on Dec. 11, 2015, and was reintroduced by Marino and Chu on Feb. 6, 2017 (as HR 890).
Goodlatte and Conyers’ policy proposal requested that written comments from stakeholders be submitted by Jan. 31, 2017. As of April 2017, more than 70 interested parties—including the Copyright Alliance, Copyright Clearance Center, Motion Picture Association of America, Authors Guild, Library Copyright Alliance, and Electronic Frontier Foundation—have essentially agreed that the U.S. Copyright Office is in dire need of modernization and upgraded IT systems, but their opinions differ on whether the office should be separated from the Library of Congress (LC).
The proposal includes making the Register of Copyrights’ appointment subject to a nomination and consent process, creating copyright advisory committees, performing IT upgrades, and developing a searchable digital database of historical and current copyright ownership information. The Copyright Office is also encouraged to review the LC data center being built in Virginia to determine if it would match or exceed what a private sector provider could offer it.
The dust had barely settled on their proposal when on March 23, Goodlatte and Conyers introduced yet another bill, the Register of Copyrights Selection and Accountability Act of 2017 (HR 1695). Similar to the proposal, it outlines a new procedure for selecting the Register of Copyrights, thereby circumventing the Librarian of Congress’ potential appointment of a new Register to replace Maria Pallante. Pallante resigned in October 2016 after being removed by Librarian of Congress Carla Hayden and reassigned to an advisory role within the LC. Pallante was an ardent advocate of severing the Copyright Office from the LC and making it an independent agency.
Copyright Reform Then and Now
Copyright, particularly reforming the current structure of the Copyright Office, has been the subject of review by the House Committee on the Judiciary since March 2013. Starting in 1870, copyright activities were handled by the LC because the then Librarian of Congress, Ainsworth Rand Spofford, believed that it would be an efficient and less costly way to add copies of registered works to the LC’s collection. This process soon became overwhelming, causing the LC to lose focus. Therefore, in 1897, Congress approved the creation of the Copyright Office as a separate department within the LC and established the position of Register of Copyrights.
Consider the state of copyright submissions and the copyright industry at the time of the office’s founding and the state of copyright submissions and economic return in our current era of mass communication and distribution. The International Intellectual Property Alliance’s (IIPA) 2016 report, “Copyright Industries in the U.S. Economy,” says, “In 2015, the value added by the core copyright industries to U.S. GDP reached more than $1.2 trillion … accounting for 6.88% of the U.S. economy.” Additionally, “the value added by the total copyright industries to U.S. GDP approached $2.1 trillion … accounting for 11.69% of the U.S. economy. … The core copyright industries employed over 5.5 million workers in 2015, accounting for 3.87% of the entire U.S. workforce, and 4.57% of total private employment in the United States.”
To say that copyright is important in today’s wired world would be an understatement. It is critical, and as such, the office that administers it and advises on copyright policy is necessarily just as crucial to creators who rely on it. Certainly, modernization of the registration system, IT upgrades, and more autonomy from the LC on budgetary, IT, and data center issues are key items to be addressed and changed, but to what degree?
Responses to the Goodlatte-Conyers Proposal
In a letter to Goodlatte and Conyers, the Electronic Frontier Foundation (EFF) questions the necessity of having the Register of Copyrights subject to Senate confirmation. It says that “requiring the Register of Copyrights to undergo confirmation may risk further politicizing the position, aligning it more closely with well-represented special interests in Washington, D.C. Such a result would undermine the goal of ensuring that the advice the Register provides to Congress is non-partisan and objective.”
The Library Copyright Alliance (LCA), which is composed of three major library associations—the American Library Association (ALA), ACRL, and the Association of Research Libraries (ARL)—supports modernizing the Copyright Office “so that it can meet the challenges of the 21st Century. [As per the proposal, it] should maintain an up-to-date digital, searchable database of all copyrighted works and associated copyright information. We further agree that [it] should constitute advisory committees so that it can more quickly receive information concerning marketplace changes. We also agree that the Office should add the positions of Chief Economist and Chief Technologist.”
However, the LCA adds the following:
Over the past twenty years, the Copyright Office has failed to take full advantage of new technologies to keep pace with the growing demands of its users. This failure has many causes, including lack of financial resources, lack of technical expertise, and lack of sufficient attention from the leadership of the Office and the Library. There is no reason to believe that greater autonomy for the Office will resolve these problems. To the contrary, these problems suggest that the Office still requires supervision, provided that it is the right kind of supervision. There now is new leadership at the Library with the experience and commitment to manage significant technological improvements throughout the Library. The Office would benefit greatly from this new leadership team.
Moreover, there now is an opportunity to appoint a new Register with the necessary experience and commitment to focus on technological and administrative improvements. Converting the position of Register to a presidential appointment increases the likelihood of politicization, resulting in a Register more interested in policy than management—exactly what the Office does not need.