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Congress Moves Forward with Copyright Office Modernization

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On March 23, House Judiciary Committee chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.), introduced H.R. 1695, the Register of Copyrights Selection and Accountability Act, which would change the way the head of the U.S. Copyright Office — the Register of Copyrights — is selected. Unlike most federal legislation, H.R. 1695 is short and sweet (only five pages), and would require that the Register be nominated by the President and confirmed by the Senate, the same way that the heads of most federal department and agencies are appointed. As it stands now, the Register of Copyrights is selected by the Librarian of Congress and can be hired and fired at will, which has recently caused some consternation.

Last October, the new Librarian of Congress, Dr. Carla Hayden, ruffled some feathers by abruptly firing the Register of Copyrights, Maria Pallante, after telling stakeholders that she planned to make no substantial changes to the Copyright Office. Pallante was generally well liked among major copyright constituencies and regarded as fair, but in the months leading up to her removal she had been floating the idea of separating the Copyright Office from the Library, something which Congress and many copyright interest groups supported, but a proposal that very likely soured the relationship between Pallante and the new Librarian.

Adding insult to injury, following the Register’s sudden removal, Hayden began the search for a new Register by seeking public input through a web-based survey — a highly unorthodox move that drew great criticism. The survey asked three questions:

  1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?
  2. What should be the top three priorities for the Register of Copyrights?
  3. Are there other factors that should be considered?

The questions were especially odd because the copyright law itself prescribes the qualities required in a Register, albeit indirectly, by listing the specific duties and functions of the Copyright Office as well as the Register of Copyrights.

Apparently upset by Hayden’s eccentric approach to federal appointments, Congress responded with H.R. 1695 which, if passed, would remove the position from her purview, vesting it instead in the Executive Branch upon advice and consent of the Senate. In his statement supporting the legislation, Rep. Doug Collins (R-Ga.), the vice chair of the committee that oversees copyright issues, observed that:

[i]t has become increasingly clear that the Register of Copyrights needs greater autonomy from the Library of Congress in order to carry out its core mission. While Congress has been working toward that end, the Librarian of Congress has moved in a different direction by disregarding the qualifications set out in Title 17 of the U.S. Code in her efforts to fill the Register vacancy with her own candidate.

As a result, it’s become necessary to take swift, bipartisan action to give the Copyright Office the tools it needs to function properly, including a new leadership structure. While this legislation will provide crucial independence for the Copyright Office, work remains to be done to update the office’s infrastructure and technology to allow it to serve creators and end-users with excellence. This bill signals the beginning, not the end, of the journey toward meaningful copyright reform, and I am eager to see the Judiciary Committee introduce and consider related legislative efforts in the very near future.

In addition to elevating the Register to a presidential appointee, the bill would limit the Register to a ten-year term, but the same person could be reappointed for a subsequent ten-year term, and the only person who could remove the Register prior to the end of that term would be the President, just as the President can remove most other appointed officials. The bill also specifically requires that in addition to being a U.S. Citizen, the Register shall have “a professional background and experience in copyright law” — a seemingly obvious characteristic that, interestingly, Congress nevertheless thought essential to include.

Library of Congress
Library of Congress currently houses the Copyright Office.

What Has Happened and What’s Next for H.R. 1695?

The bill was debated before the House Judiciary Committee on March 29, just several days after it was first introduced — a speed at which Congress acts only when it deems an issue especially important. And it passed by an overwhelming majority, with 27 members voting in favor, and only one against. The lone “no” vote was, quite predictably, from Rep. Zoe Lofgren (D-Calif.), whose Silicon Valley constituency routinely leads her to take adversarial positions against copyright protection generally, as well as the instrumentalities of an equitable copyright system, such as the Copyright Office and the Register of Copyrights.

Before voting on the bill, Rep. Lofgren attempted to add three separate amendments: The first would have effectively permitted Dr. Hayden to select the new Register by delaying the effective date of the bill until the end of the Librarian’s ten-year term (in 2026). The second would have allowed the Librarian to remove the Register (just as the Librarian can now) which essentially undermines the bill’s entire purpose. The third amendment would have required the Register to have specific information technology experience. All three of Rep. Lofgren’s proposed amendments failed.

The Committee did adopt one amendment, though. Before voting on the bill, the Committee agreed to add one additional provision, which provides that the President will select his or her choice for Register from a pool of candidates put forth by a selection committee composed of the Speaker of the House, the President pro temper of the Senate, the majority and minority leaders of the House and Senate, and the Librarian of Congress. The selection committee model is occasionally used in the context of other presidential appointments — typically those that require a certain degree of technical sophistication or specialized knowledge — such as the Architect of the Capitol.

As we learned from Schoolhouse Rock, once a bill that originates in the House makes it out of committee, it goes to the full House of Representatives for a vote, and assuming that vote is successful, it goes over to the Senate, where it goes through the Committee process again, and ultimately to a full floor vote. Once both houses of Congress have signed off, it goes to the President where, upon his approval, the bill becomes a law.

We don’t really know what the future holds for H.R. 1695, but with such strong support in the Judiciary Committee, there is a strong chance that it will make it’s way out of the House and over to the Senate. And again, while we cannot be sure what will happen on the other side of Capitol Hill, because the measure essentially gives the Senate more authority than it has now — to approve a presidential nominee to serve as Register — it’s hard to imagine that it would be met with much resistance. Likewise, because the bill gives the President authority over a new appointed position, it seems unlikely that the White House would object.

Still, it goes without saying that these are unusual times for U.S. Politics, and it’s anyone’s guess as to what happens next. You can track the bill’s progress for yourself by using, ironically, the Library of Congress’s legislative portal, congress.gov and searching for H.R. 1695.

If you would like to read more about the bill, check out the Copyright Alliance’s recent blog post, Busting Myths Surrounding H.R. 1695 by copyright lawyer Terrica Carrington.

What’s Next for Copyright Office Modernization?

As Rep. Collins noted in the quote above, the Register of Copyrights Selection and Accountability Act “signals the beginning, not the end, of the journey towards meaningful copyright reform,” and many stakeholders believe that the next step will be a more significant bill to restructure the Copyright Office. As we wrote about previously, the Copyright Office for the Digital Economy Act (CODE Act), was introduced in the last Congress (the 113th) as H.R. 4241 and reintroduced in the current Congress (the 114th) as H.R. 890.

The CODE Act goes further than just making the Register a presidential appointment, by establishing the Office as a separate independent agency within the Legislative Branch and expressly giving it autonomy over it’s own administrative and technical needs, which, under the current regime, are overseen by the Library of Congress. Perhaps the most critical aspect of such autonomy would be control over its own information technology system, which has become severely outmoded over the years, largely as a result of the Library’s poor IT infrastructure and decades of mismanagement.

As we wrote in our earlier piece, there is nearly unanimous agreement that something needs to be done with the Copyright Office, though opinions still differ about whether the Copyright Office should be granted complete independence, or whether the Library remains an effective steward of the national copyright system. Others assert the Copyright Office would be better placed alongside the Patent and Trademark Office, which is nominally part of the Department of Commerce, squarely within the Executive Branch. H.R. 1695 adds an additional wildcard, as its passage (or unlikely failure) will very likely have an impact on people’s feelings on Copyright Office modernization more generally — whether those feelings become more negative or more positive remains to be seen.

About the author

Chris Reed

Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the  media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.

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