A Declaration of Independence for the Copyright Office
By Marc D. Ostrow
On April 29, the head of the Copyright Office, Register Maria A. Pallante, was the sole witness before the House Judiciary Committee at a hearing entitled The Register’s Perspective on Copyright Review. Both her oral and written statements — the latter consisting of a 32-page memorandum with copious footnotes and an appendix of proposed technical amendments to the Copyright Act — contained an even more urgent call for an independent Copyright Office than was stated in her lengthy March 23 letter to Rep. Conyers, which I discussed here.
The hearing, which was interrupted by the Japanese Prime Minister’s address to Congress, was largely a love fest for the Register, with most of the Committee members effusively praising her work. The only slightly sour note was sounded by Rep. Issa (R-CA), who felt that the Copyright Office was spending too much time on studies without making specific recommendations. But anyone who’s read recent studies from the Copyright Office, such as the music licensing study and the IT report, knows that they contain very specific recommendations, several of which were reiterated in the Register’s testimony.
The big takeaway is that the majority of the Committee seemed sympathetic to the Register’s recommendation that the Copyright Office cease to be a mere department of the Library of Congress and instead, become an independent agency, whose head would be appointed by the President and confirmed by the Senate. So as to retain agency independence and continuing to serve both the Executive and Legislative branches, the agency’s head would serve for a specified term set by Congress and not merely at the pleasure of the President.
The Register’s written statement opens with a statement of six themes, culminating in her declaration for independence:
(6) To properly administer the copyright laws in the digital era, facilitate the marketplace, and serve the Nation, the United States Copyright Office must be positioned for success. As stated by one Member of this Committee, “it is time to enact a restructured, empowered and more autonomous Copyright Office that’s genuinely capable of allowing America to compete and protect our citizen’s property in the global marketplace.”
To support her petition, Register Pallante, in her written statement, singled out IT issues, citing the GAO’s scathing report, detailing myriad IT deficiencies at the Library of Congress but recommending consolidation of IT resources. The Register obviously opposes a single IT team:
The Office’s current organizational structure is under strain because the copyright system has evolved and because digital advancements have changed the expectations of the public….The mission of the Copyright Office is fundamentally different from the mission of the Library, and I believe that the Copyright Office must have its own CIO, technology staff, and management authority, including the ability to implement IT investment and planning practices that focus not on agency-wide goals but on its own specific mission. As noted in my prior testimony, the Copyright Office sits at the center of a dynamic marketplace in which creative content drives a sophisticated chain of business in the information and entertainment sectors. A faster and more nimble Copyright Office must be a priority.
Although the discussion largely centered on the potential independence of the Copyright Office, many of the questions in the latter part of the hearing focused on topics discussed in the Copyright Office’s music licensing study, including pending legislation. With respect to the Fair Play Fair Pay Act, the Register voice her support and was particularly blunt in her view of the current state of the law where labels and artists do not get paid performance royalties on radio, stating the status quo was “indefensible as a matter of law and embarrassing as a matter of policy” as well as being “out of step with the rest of the world.” Take that, NAB!
With respect to the Songwriter Equity Act, the Register stated her support for Congressional action. When asked by Rep. Collins (R-GA), who sponsored the bill, what would happen if Congress doesn’t act, the Register replied in part that the existing legal regime is already “torturing” the music community.
The Register was also asked about the “anticircumvention” provisions of Section 1201 of the Copyright, enacted as part of the DMCA. She stated that as drafted, the fair use defense codified in Section 107 of the Act is not applicable to Section 1201. When questioned about potential problems with Section 1201 and cybersecurity issues, the Register wryly noted that having a potential cybersecurity exemption subject to a three-year Copyright Office review process was not in the best in the best interests of national security.
Given the importance of copyright to the economy, and the reactions sentiments of the Committee members, it’s possible that Congress may actually address copyright issues sometime soon.