Copyright

Is a new Copyright Office on the Horizon?

Library of Congress
WASHINGTON, D.C. - APRIL 12, 2015: The Library of Congress in Washington. The library officially serves the U.S. Congress.

While there are many words or phrases used to describe the Copyright Office registration system,  “excellent,” “easy-to-use,” or “visually appealing,” are not among them.  In fact, don’t be surprised if the Obamacare rollout disaster has a higher approval rating than eCo; that is unless the user has a penchant for confusing interface and a site design reminiscent of websites from the early 1990s. Given the increasing importance copyright plays in economic growth, it is a bit surprising. In fact, IP-based businesses drive more economic growth than any other industry sector.  According to a 2014 report by the International Intellectual Property Alliance, copyright contributed more than $1.1 trillion to the U.S. economy in 2013 (or about 6.7% of GDP), and is responsible for creating almost 5.5 million jobs. Even the founding fathers knew the important role of intellectual property, enshrining its protection in the Constitution, Article I, Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The inclusion of the Copyright Clause in the Constitution is significant.  The Constitution is both the oldest and shortest (only about 4,400 words) written Constitution of any major government in the world.  Its main purpose is to lay out the functional framework for the federal governmental, including the three branches, the separation of powers, and the rights and responsibilities of state governments along with their relationship to the federal government. Within that short document, the writers specifically call out Copyright.  The Copyright Clause was one of the first to pass, unanimously in early 1787, whereas restrictions to government power and important civil liberties, such as freedom of speech and the right to bear arms, were added in later amendments.

Library of Congress
Continental Congress 1787

So it’s rather surprising that while the U.S. Patent and Trademark Office, (which governs the other two areas of intellectual property,) is a self-governing and self-funded agency (and the only Agency that operates solely on fees collected by its users, and not on taxpayer dollars), the Copyright Office is not independent, but part of the Library of Congress.  Unfortunately, that means ultimate control of the department falls within the purview of the Librarian of Congress, where copyright is just one of a broader portfolio of responsibilities.  The result is that the head of the Copyright Office has no autonomy, so content creators suffer the consequences.

While the Library has been praised for making government information accessible and creating the World Digital Library, James Billington, the current Librarian has also been criticized for not keeping up with advances in technology. A Government Accountability Office study found persisting failures in the Library’s computer management systems and cited Billington’s failure to hire a permanent chief information officer as a major roadblock. “The library does not have the leadership needed to address these IT management weaknesses,” the GAO said. So after 30 years as Librarian, On June 10, 2015, Billington announced he is stepping down, paving the way for a modernization of the Copyright Office.

Now, Reps. Judy Chu (D-Calif.) and Tom Marino (R-Pa) are taking up the call for change.  They have circulated a bipartisan draft bill, the Copyright Office for the Digital Economy [CODE] Act, that would make the Copyright Office an independent agency in an effort to make it more agile, with the ability to respond more easily and effectively to the unique challenges of the digital age.

Is the Copyright Office Registration System Necessary?

Since copyright is automatic, available as soon as the copyrighted work is fixed in a tangible medium, (i.e. putting pen to paper or a photo hitting he camera sensor) then why do we need to register works at all?  Registration does have some distinct advantages that are beneficial to  visual artists; specifically guaranteed monetary awards, known as statutory damages, and payment of the copyright holder’s legal fees by the infringer in a copyright infringement lawsuit.

Statutory Damages

Under the Copyright Act, the copyright holder will receive between $750 and $30,000 per infringement, plus attorney’s fees and costs if they win. Also, if the infringement is proven to be willful, (for example, the infringer continues to use the image even after a request is made for removal) then awards can go up to $150,000 per infringement. Because copyright infringement is a strict liability law, intent or any reason as to why the person infringed doesn’t matter. If the infringer displays, copies, makes derivatives or distributes the work, without permission, they are guilty, even if they thought they had the permission. So guilt is usually not the issue, its how much is the infringement worth. Without registration though, many infringement cases are only worth a small amount, often less than the cost of suing for the removal. With registration, the copyright holder is guaranteed at least $750, but since legal fees are almost always reimbursed by the infringer, the copyright holder will have no problem finding an attorney to assert their rights.

Unfortunately, less than 1% of visual artists register their work, despite the low cost and the high level of protection available through registration.  Primarily due to the difficult registration process and the lack of public awareness as to the benefits of registration.

The Dreaded Copyright Office Experience

Copyright Office
Mathew Broderick in Wargames (1983)

What makes registration such a difficult process?  Surprisingly, the Copyright Office is still primarily a paper based system. For example, newspapers must submit their works in microfiche.  Half the people reading this article probably don’t even know what microfiche is while the remainder haven’t seeing since Mathew Broderick used Microfiche to do research on Dr. Stephen Falken in the 1983 film, Wargames. The result is that newspapers have stopped registering their works with the Copyright Office.  Visual artists, on the other hand, do have an online system; the Electronic Copyright Office (eCo), but, unfortunately, other than alleviating the need for paper, eCo does little to ease the registration process. ECo provides only minimal functionality, lacking even some basic operations expected from an image-based system. As well, ECo’s user interface (UI) is more akin to something seen on AMCs Halt and Catch Fire rather than what we normally expect from a modern interface.

For example, one item conspicuously absent from eCo’s are images.  eCo only allows a user to view a written description of the images, although high-resolution images are uploaded as part of the registration process.  This can be a problem when a user needs the registration number for  someone else’s image since the description input by the user may not be sufficient to know whether it is the right image.   For photographers registering multiple photos together, without proper naming conventions, it may be difficult to know which images is which.

The Copyright Office generally requires that each work be registered separately at a cost of costs $35 per registration. However, under the photographer’s exception, up to 750 photos can be registered together for $55, if all the photos are created by the same person and all were taken in the same calendar year. Photographers will usually use a naming convention for the uploaded photos since camera file names are not unique.  Since naming individual photos would be too time consuming, man photographers will batch rename their photos using tools like Photoshop bridge or Lightroom.  A photographer shooting for a spread in Vogue might use a naming convention such as “Client_date_place_number” i.e. Vogue_01/05/2015_MiamiBeach-0003.jpg. The photographer uploads a zipped file of the photos to eCo. After the Copyright Office approves the registration, they will send the photographer a registration certificate which lists all of the photos by name, with their associated registration numbers; . . . but no images.

If the photographer loses the uploaded zip file or the folder containing the renamed photos (they may still have the original photos), then knowing which photos belong to which registration number may be impossible. To resolve the issue, the photographer must make a special request to the Copyright Office asking for a hard copy of the photos with their filenames; a process that can cost well over over $1000, especially if the service needs to be expedited. How many managerial levels were involved in approving a multimillion-dollar image-centric copyright registration system that fails to support viewable images?  Clearly, not enough. Plus, there are many instances where eCo just doesn’t work.  When the Software and Information Industry Association used the “Godfather,” for a test search, neither the movie nor the novel it was based on appeared in the first 25 results.

And photos aren’t the only problem area for the Copyright Office.  A recent article in the L.A. Times tells the story of documentary filmmaker working on a film about Jewish heroes but to find the records she needed, had to send someone, in person, to the Copyright Office headquarters in Washington to look through hard copies of old documents. She could have hired Copyright Office staff to do the search, but the Copyright Office charges $200 an hour, As well, the Office said that the search would take at least six weeks. Flying someone to D.C.  was both faster and less expensive

Of course, solving technology problems at Government institutions are often difficult due to the overwhelming bureaucracy, as well as budget cutting that frequently leaves technology updates on the chopping block. Some departments will turn to free-market solutions as a gap filler. Given eCo’s poor user interface and horrible user experience, one would expect to see several startups hit the market with their own software solutions, yet we see none.  Why?  Because the Copyright Office’s software development team also failed to provide an application program interface (API) that would allow outside software initiatives to connect with the eCo database. Facebook, LinkedIn, Amazon, Instagram, Twitter and just about any other major site have APIs.  Tinder’s ability to access Facebook profiles is determined by the Facebook API.  Without an API, no third party software can access data within the eCo database, so no free market solutions are forthcoming.

The New Copyright Office

With Billington on his way out, there is finally a push to resolve the technology and process issues plaguing the Copyright Office. Maria Pallante, the new head of the Copyright Office, believes that the only way for the Copyright Office to fix its gargantuan problems is to extricate itself from the Library of Congress and become an independent agency. The Copyright Office became part of the Library in Congress in 1890 mostly out of convenience. At that time, copyright was not automatic but required three things; a registration with the Copyright Office, the submission of two copies of the registered work, and a © notice affixed to the work. With photography not having matured and silent films only a future glimmer, the majority of registrations in 1890 were books, so it made sense for the Copyright Office to be part of the Library of Congress, especially given the two submitted copies were housed at the Library.

Copyright Office
Rotunda for the Charters of Freedom – National Archives.

Times have changed and it is time for the Copyright Office to change as well.  So, Pallante has launched a serious internal lobbying campaign to separate the Office from the Library, arguing publicly that the office needs independence. Unfortunately, Pallante feels she is hamstrung because she doesn’t have control over her Office.  The budget comes from the Library and the outlay is at the whim of the Librarian.  As well, the Librarian has final say on any regulations the Copyright Office issues. The Librarian has repeatedly denied what some consider a basic necessity; building an independent IT staff that would focus on Copyright Office needs. Currently, the Copyright Office maintain an IT staff of only 23 people, who are primarily liaisons to the Library’s much larger IT staff.

Pallante has no authority over the larger Library staff and as she stated in a recent report from the Government Accountability Office, is frustrated with the “breakdown in communication” about IT with the Library. With minimal control over IT staff and without the independent authority to request money to update the Office technology, there is little that can be done to improve things.  Although it remains to be seen how the next Librarian will handle requests for system updates and IT support, an important economic driver like copyright should not be subject to the Library or the Librarian’s shifting priorities.

The CODE Act

Finally, Pallante and her supporters may get just what they want if Representatives Chu and Marino can pull it off.  Both are senior members on the House Judiciary Committee, which has jurisdiction over the Copyright Office. Their draft legislation, Copyright Office for the Digital Economy Act (CODE Act), lays out suggested reforms regarding the way the U.S. Copyright Office operates.

A detailed summary of the Code ACT highlights the key initiatives:

  • Establishes the U.S. Copyright Office as an independent agency.
  • Provides that the President will appoint a Director for one 10-year term upon the advice of a bipartisan, bicameral commission, and with consent of the Senate.
  • Transfers administrative functions and legal duties from the Library to the Copyright Office.
  • Allows the Copyright Office to deliver any and all communications directly to the legislative branch, free of executive review
  • Would allow the Copyright Office to physically move out of the Library and into a new federal building

Of course, not everyone is happy about the proposed changes. There are always stakeholders with significant resources that may oppose a new initiative and the CODE Act is no different. One vocal critic is the President of the American Library Association (ALA), Courtney Young.  She says, “[t]he bill’s proposal to make the Copyright Office an independent agency does not address the longstanding problems facing the agency . . . specifically that the Copyright Office’s information technology systems are woefully inadequate in serving both rights holders and the public in the digital environment.” As an independent agency, there is no guarantee that Copyright Office will receive the funding they need to upgrade their technological infrastructure, however, in my opinion, it would be highly unlikely for Congress to take the huge step of making the Office an independent agency while at the same time refusing to provide the necessary resources to solve its problems.

Either way, don’t expect the CODE Act to be approved overnight. The bill is only in its draft phase and probably won’t be introduced, assuming it has the support, until late 2016 or early 2017.  On the bright side though, there are very few items other than the Code Act on the Congressional agenda that has the opportunity to gain bipartisan support.  This bill may turn out to be one of the things that Congress can rally around, showing its disillusioned constituencies that the legislative body can accomplish something.  Of course, the Obama administration has yet to weigh in on whether it supports the proposal, which can make or break the initiative. As well, there are other members of Congress who believe that rather than making the agency independent, it should be folded into the United States Patent and Trademark Office, combining all three major areas of Intellectual Property under one roof. So expect a competing proposal at some point.

_______

In the end, the one undeniable fact that almost everyone agrees on is that the Copyright Act has become progressively less comprehensible to creators while at the same time is increasingly important to those same creators as well as the overall economy. The status quo is just not cutting it.

As Senator Chu puts it: “We must act to bring the Copyright Office into the modern age. The copyright industries are responsible for millions of jobs and billions of dollars in our economy, yet the office responsible is running on analog in a digital world. We need a Copyright Office that serves the needs of owners, users, and the American public. This includes giving the office independence and sound legal ground to perform its core mission to administer the Copyright Act.”

What do you think about the proposed modernization of the Copyright Office?  Let us know in the comments section below.  As well, if you have any questions about this issue or other copyright-related questions, email me at [email protected]

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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