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Free Expression, Open Internet

Putting Problems at the Copyright Office in Perspective

Last week, an audit report from the Office of the Inspector General (OIG) at the Library of Congress (LOC) was leaked to the public by Techdirt. The report found that the Copyright Office (USCO) mismanaged efforts to modernize its systems and that the Office failed to notify both the LOC and Congress regarding the scope of the subsequent problems. CDT has stressed the need for reform at USCO, arguing for the targeted modernization of essential functions of the Office and highlighting how recent legislative proposals may neglect or even exacerbate current problems. In light of this report, it is clear that Congress must reevaluate its current approach to copyright reform and pursue measures that will directly address the shortcomings at USCO.

The report examines the efforts of USCO to implement the Electronic Licensing System (eLi), which was supposed to help facilitate and track royalty payments. According to the audit, development of the system began in 2010 and was supposed to be completed by September 2013. Despite a final cost of $11.6 million, more than ten times the original budget of $1.1 million, the project was never operational and was eventually scrapped in October 2016.

In evaluating the project, the audit highlights the failure of USCO to adopt basic project management procedures as the root cause of the problem. More specifically, USCO did not outline “specific and detailed policies…related to program and project management” or establish an “oversight body with authority to halt project activities based on cost overruns, delivery delays, and/or lack of functionality.” Compounding the problem, USCO withheld information about the ensuing difficulties from both LOC and Congress, impeding oversight and foreclosing the possibility of an appropriately tailored remedy.

Yet, the copyright bill currently being rushed through Congress does not provide any measures to reduce such financial waste in the future and may actually exacerbate it. In introducing the Register of Copyrights Selection and Accountability Act (H.R. 1695), proponents of the legislation claimed that it was necessary to “ensure that future Registers are transparent and accountable to Congress.” The bill would change how the director of USCO is chosen, making the position subject to presidential appointment and Senate confirmation.  

But even if we accept this as a positive policy development, there are no provisions within the legislation that would provide Congress with greater oversight or powers to intervene in USCO operations. Rather, H.R. 1695 would only allow Congress to influence matters on the front end when screening and confirming nominees for Register. It would not provide increased transparency into the day-to-day work of the USCO or accountability for any problems that may develop.

Instead, H.R. 1695 would actually weaken the ability of the one person best positioned and perhaps most qualified to demand accountability and guide modernization at USCO. The legislation would dilute the ability of the Librarian of Congress, Carla Hayden, to provide meaningful oversight by outsourcing the authority to appoint and dismiss the Register to the president.

Hayden, who was confirmed by the Senate in July 2016, led the successful modernization of the Enoch Pratt Free Library system in Baltimore, increasing the number of computers available to patrons and expanding access to e-books. Her experience will provide a blueprint for similar efforts at both LOC and USCO, and close many of the gaps detailed in the audit report. With this in mind, CDT believes that Congress should reconsider efforts to curtail Hayden’s authority and instead work with the LOC to implement reforms that will improve the copyright system for rightsholders and users alike.