Time to modernize the Copyright Office for the digital age
November 6, 2015
This article originally appeared in The Hill on October 29, 2015
There is not much disagreement that the Copyright Office, which administers the U.S. copyright system and serves the over $1.1 trillion market for copyrighted works, needs to modernize. Even the federal government agrees. In March, the Government Accountability Office (GAO) released two reports concluding that the Library of Congress has been woefully mismanaged, and the Copyright Office, which resides in the Library, needs better IT systems. Taxpayers, and all citizens, should expect that government utilize technology and common sense when modernizing all operations.
But like all debates in Washington, the devil is in the details. For instance, as a capstone to Chairman Bob Goodlatte’s (R-Va.) two-year copyright review process, Reps. Tom Marino (R-Pa.) and Judy Chu (D-Calif.) circulated a discussion draft of the CODE Act suggesting that the Copyright Office become an independent agency. They reason that the office will have the best chance to modernize if granted increased independence, which would allow the office to focus on self-improvement as opposed to competing with other functions of the Library. Many free market organizations welcomed the draft as a good starting point for discussion. The Internet Association and anti-copyright coalition Re:Create did not. Indeed, on Sept. 30, Re:Create sent a letter to Congress stating:
[T]here are some claiming that there is consensus for making the Copyright Office an independent agency outside of the Library of Congress. However, there is no such consensus. The diverse groups signing onto this letter all agree the case has not been made for transforming the Copyright Office into an independent agency. There has yet to be any explanation of how that would change the information technology issues within the office, nor fix the ability of the Office to properly be responsive to the public.
That case has now been made.
On Oct. 13 the Hudson Institute published a white paper, authored by Steve Tepp and former Register of Copyrights Ralph Oman, articulating a principled conservative case for Copyright Office reform. They state:
The question is not whether the Copyright Office should modernize – it must. It is whether to do so through the filter of the Library of Congress and its other priorities, or in a way that allows the creation of systems designed for the needs of the Copyright Office? The answer is clear – the Copyright Office should have the authority to modernize for the needs of its customers.
Further, after establishing that the Copyright Office can be removed from the Library of Congress consistent with constitutional considerations, Tepp and Oman posit three options:
1. Make the Copyright Office an independent agency
2. Move the Copyright Office to the Department of Commerce
3. Remove the Copyright Office from the Library and give it autonomy within the Legislative Branch
As Tepp and Oman seem to suggest, the first two options present challenges. Recent history has demonstrated that independent agencies are vulnerable to regulatory overreach (Chairman Wheeler’s Federal Communications Commission comes to mind…). And as the paper notes, moving the Copyright Office to the Department of Commerce “merely trades one master (the Librarian of Congress) for another (the secretary of Commerce or director of USPTO).”
Alternatively, giving the Copyright Office more autonomy inside the legislative branch seems to provide the best path forward. The Constitution is respected. And the Copyright Office gains the autonomy and flexibility it needs to better serve consumers, creators, innovators and users. Everybody would appear to win in this scenario.
But there may be more at play here. With the recent retirement of longtime Librarian of Congress Dr. James Billington, copyright critics have been eagerly anticipating the installation of a Librarian who would advance their agenda at the Copyright Office. For instance, in a recent article in The Atlantic about a new Librarian, Professor Pamela Samuelson stated that “[t]hough formally the Librarian has power, that power has been delegated to the [Copyright] office… Now, that’s something that could be shifted if a new Librarian came in and also if the Copyright Office stays where it is.” And lawyer Jonathan Band stated “[i]n theory, the Librarian could do whatever he or she wants… They could be more aggressive and grant more exemptions and broader exemptions.”
These sentiments belie any true commitment to creating a Copyright Office that works for the marketplace. Instead of focusing on structural reforms that will lead to better services, advocates are attempting to weaken copyright through regulatory capture.
Rarely does government have the opportunity to improve its operations. Chairman Goodlatte’s thoughtful copyright review has provided a unique opportunity to achieve meaningful reform of a government agency sorely in need of restructuring. Tepp and Oman have helpfully provided Congress with a roadmap for reform. It would be a shame if cynical interests’ intent on weakening copyright through an activist political appointee squandered this opportunity.
Taxpayers, consumers, creators, innovators and users deserve better.