A little over a year ago Chris Reed wrote about the multi-year copyright review process then underway in the U.S. House of Representatives (see: The Next Great Copyright Act? A View from Washington). At the end of the piece, he mentioned that the Congress “appears poised to continue to discuss Copyright Office modernization issues sometime during the next Congress set to begin in January 2015.”
The first session of the 114th Congress has now drawn to a close. So where are we with the copyright review, and more specifically, what progress has been made on the issue of Copyright Office modernization?
Where We Are Now
Congress was less focused on copyright issues during 2015 than it has been over the past couple years, but it was still a busy time for copyright policy. In February, the House Judiciary Committee held a hearing on Copyright Office modernization issues, and in April it heard from the director of the Copyright Office, Maria Pallante, as she discussed her perspectives on the past two years’ worth of hearings. The Committee then embarked on a series of roundtable discussions in several cities – Nashville, Santa Clara, and Los Angeles – to hear copyright perspectives from outside the Beltway.
The Copyright Office also kept itself busy during 2015. Serving in its capacity as principal advisor to Congress on copyright related issues, it has undertaken (or concluded) a number of studies and reports. In June it issued a long-awaited report on orphan works and mass digitization (an update to its earlier study on the same topic) in which it again called for legislation to remedy the so-called “orphan works problem,” and proposed an extended collective licensing scheme for certain copyrighted works. It also launched several new studies, including one on copyright issues for visual artists, another on software embedded in consumer devices, and separate studies on each of the two major portions of the Digital Millennium Copyright Act: the notice-and-takedown provisions, and the anti-circumvention provisions.
The Office also turned its attention inward, issuing two reports relating to information technology challenges in the Office, something which has long been regarded as a critical issue for copyright stakeholders.
The CODE Act
Recognizing that the Copyright Office’s antiquated IT infrastructure is attributable at least in part to the fact that the Office is part of the Library of Congress, an agency which has been plagued by its own challenges in recent months, Representatives Marino (R-PA), Chu (D-CA), and Comstock (R-VA) introduced H.R. 4241, the Copyright Office for the Digital Economy (CODE) Act. The Act, introduced on December 11, 2015, would establish the U.S. Copyright Office as a separate independent agency within the legislative branch. Right now the Office is part of the Library of Congress, and its director, Register of Copyrights Maria Pallante, must report to the Librarian of Congress.
Under the proposed measure, the independent Copyright Office director would be appointed by the President, and confirmed by the Senate, just like most other political appointments. A commission consisting of certain Senate and House leadership would recommend candidates for the director position to the President who would then appoint the director. The director would serve a 10 year term, presumably to isolate him or her from political pressure, since the term would extend beyond the two potential terms of a presidential administration. The director could be removed from office, but only for cause.
The bill articulates a number of powers and duties of the new agency, drawn mostly from the authority of the current Copyright Office already found in the Copyright Act (specifically, Section 701). To ensure the new agency operates as an impartial advisor to Congress, just as the current Copyright Office does, the proposed legislation would prohibit the President’s administration from requiring review of legislative recommendations, testimony, or policy reports that the new agency would produce.
The CODE Act would also vest in the new agency’s director complete control over the administration of the new agency, including relatively mundane things such as managing office space. While such matters may seem relatively banal given the overall scope of the legislation, questions about the physical space of the Copyright Office, and which agency has authority over which aspects of its operations have long plagued the relationship between the Copyright Office and its parent institution, the Library of Congress.
Copyright Office Deposit Requirements
Perhaps one of the most significant operational changes contemplated by the CODE Act relates to deposit copies.
Currently, applicants for copyright registration are required to send deposit copies to the Copyright Office. These copies serve two purposes: they allow the Office to review the material to confirm that it qualifies for copyright protection; and to build the Library of Congress’s collection. Because of that second point, the formats that copyright owners have been required to submit to the Office are based largely on what the Library desires, not what is necessary for the Copyright Office’s examination.
The CODE Act might change all that. First, it would the name “deposit copy” to “examination copy,” in recognition of the fundamental purpose of the deposits. But second, and more importantly, it would give the director more direct authority over the formats that the Office might require (right now the “best edition” list is promulgated by the Librarian of Congress). The law would still allow the Library to demand a higher-quality deposit for its collections, but the default would very likely end up being a lower quality (read: cheaper, or less susceptible to piracy) copy in the initial instance to facilitate the Copyright Office’s review.
The Act doesn’t pull the rug out from under the Library entirely, however. It requires that the new copyright office undertake a study on “the future administration of mandatory deposit provisions” to include the history of the mandatory deposit provisions, the Library’s preferences regarding format or quality, the concerns of copyright owners relating to the Library’s retention of works (especially critical in the context of digital works), how Congress might transition oversight of the mandatory deposit provisions from the Copyright Office to the Library of Congress, a discussion of foreign experience on mandatory deposit issues, and ultimately, the Copyright Office’s recommendation for the future of the mandatory deposit scheme in the digital age.
While there is nearly unanimous agreement that something needs to be done with the Copyright Office, there is some dissention among copyright stakeholders about how best to address the challenges. Some assert the CODE Act approach – creating a new legislative-branch agency – is the way to go. Others, namely those in the tech sector, assert that copyright functions would be better placed in the executive branch, under the Commerce Department, where the U.S. Patent and Trademark Office presently resides. There are rumors that a competing Copyright Office modernization bill might be introduced soon, but details remain scant.
With respect to the larger copyright review, staff for the Judiciary Committee are quick to point out that the CODE Act is not part of the broader copyright review process, but rather, a separate proposal intended to recognize the dire circumstances of the Copyright Office today. There’s more to come from the copyright review, says Congress.
But what exactly is to come, and when we might see it, remains very much uncertain. Some assert that 2016 being an election year, we’re not likely to see anything of note out of Congress; but others point out that copyright is a much less prominent issue than healthcare, immigration, foreign relations, and the like, and that an election year may make for a political opportunity to legislate in that space as politicians seek to avoid divisive issues.