Today, the re:Create Coalition, of which the Center for Democracy & Technology is a member, sent a letter to Congress regarding Copyright Office modernization. As the letter notes, while we all share the goal of helping the Office meet the administrative and policy challenges of a digital age, there are diverse views of how to accomplish that goal. In CDT’s view, the debate about moving the Office distracts us from more important questions around improving core functions of the Office, particularly registering works and recording transfers of rights. These functions are essential to the Copyright Act fulfilling its purpose of putting works into the hands of users and ensuring that creators are compensated when that happens.
Shortly after becoming the Register of Copyrights, Maria Pallante set out an ambitious agenda for the “next great Copyright Act.” As CDT wrote at the time, her comprehensive reconsideration of copyright law contained promising proposals and some that raised serious concerns. The final suggestion focused on the Office itself. The Register said “it is difficult to see how a twenty-first century copyright law could function well without a twenty-first century agency,” but did not say precisely what it would take to turn the Office into such an agency. The Register spoke generally about the constituents who want the Office “to do better the things it already does and to do a host of new things to help make the copyright law more functional.” She also noted the technical capacity and resource challenges the Office faced in migrating to the “next generation of services,” such as online registration, which were “a primary focus of the Office at this time.”
More recently, discussions and proposals for modernizing the Copyright Office have morphed into conversations about moving the Office from the Library of Congress. One approach to the proposed divorce, set forth in draft legislation by Representatives Chu and Marino and favored by the Register, would establish the Office as an independent agency similar to the Federal Communications Commission or the Central Intelligence Agency. Supporters of this approach argue that conflicts of interest between the Office and the Library, constitutional concerns, and funding and technological challenges all militate in favor of an independent Copyright Office. None of these rationales is persuasive.
With respect to the potential conflict between “library interests” and other copyright interests, it is hard to detect the heavy hand of the Librarian of Congress or library interests behind the Office’s policy decisions. Library interests certainly did not dictate the Register’s written or oral testimony on the Stop Online Piracy Act or the Office’s views on mass digitization. In the handful of cases where the Librarian has countermanded the Office, the result (in CDT’s view) was better policy. For example, the Librarian renewed an exemption from anti-circumvention liability for enabling the read-aloud function of e-books, sought by the blind and print-disabled community, despite the Office not recommending renewal.
Some argue that rightsholders have more influence on the Office’s policy decisions than the Library itself. CDT’s view is that the Office tries to balance the interests of rightsholders, effectively the Office’s customers in terms of filing fees, with those of libraries and their patrons (that is, users of works). In any given case, one might quarrel with the policy balance struck by the Office, but it is hard to imagine that its policy decisions would be better balanced if it regarded the Library as a separate entity with potentially conflicting interests.
Relocating the Office to address constitutional concerns is another solution in search of a problem. The Copyright Office does carry out some executive functions, but when it comes to such functions, courts have held that the Library of Congress is “undoubtedly a component of the Executive Branch.” The constitutional crisis is generally one manufactured by parties unhappy with a decision of the Copyright Royalty Board rather than one driven by weighty separation-of-powers questions.
With respect to funding and technology concerns, supporters of an independent Office raise some valid concerns, but an independent agency is not the answer. Both the Office and the Library have experienced challenges in using digital technology to improve their core functions. In its March 2015 report “Copyright Office Needs to Develop Plans that Address Technical and Organizational Challenges,” the Government Accountability Office concludes that the Copyright Office has inadequately justified some IT investments and failed to present its proposed investments to the Library’s IT investment review board. But in the same month, the GAO released a report on the Library of Congress, entitled “Strong Leadership Needed to Address Serious Technology Management Weaknesses.” Putting the reports side-by-side, the GAO seems to be saying that the Office is not sufficiently engaging with the Library on IT management decisions and that the Library has serious problems with IT management decisions.
Obviously, there is room for improvement at both the Library and the Office. But upgrading technology and determining how to fund such an upgrade are issues that bedevil almost every federal department or agency. Just ask the Office of Personnel Management, the State Department, or the Federal Bureau of Investigation (and if independent agencies are supposed to be somehow immune, then someone forgot to tell the Federal Communications Commission).
Moreover, there are important reasons for the Office and the Library to improve their information technology systems in tandem. The Copyright Act contemplates cooperation between the Office and the Library in many places, such as Section 407’s deposit requirement. Separating the Office and the Library would introduce unnecessary cost and friction into that cooperation at a time when digital technology should be enhancing the process for registering works, recording transfers, and making both records and the actual works more accessible. For this reason, CDT is also concerned about proposals to move the Office to the Department of Commerce.
Registration and recordation can get lost in the debate over profound existential questions of whether the Office should remain where it is, become an independent agency, or join an existing department – but that’s a mistake. Although less flashy and law-review-article-ready than the constitutionality of the Copyright Office, registration and recordation are how we make sure that a person who wants to copy or make certain uses of a work can find and compensate the rightsholder. And the Library of Congress should ensure that the user can find the work in the first place. We know we have the technology to make this entire process work better, but for some reason that’s not happening.
When users cannot find either works or rightsholders, the copyright system has failed both parties. If the common goal of the Office and the Library is to “promote the Progress in Science and the useful Arts,” that’s the constitutional predicament Congress should be most concerned about. And it is the one best addressed by the Office and the Library working together, under the same roof.