The U.S. House Judiciary Committee has mulled its way through 16 well-attended and sometimes contentious hearings on comprehensive copyright reform since 2013. Thursday’s hearing—“the U.S. Copyright Office: Its Function and Resources—sounds like one that keen copyright followers might think is mundane enough to skip, but they would be wrong. The Office’s functions tremendously affect how libraries, businesses, authors, and other creators also operate, because the Office holds the official record of what works are protected and who holds the copyright. Plus there was a little excitement.
The witnesses were Keith Kupferschmid, Software & Information Industry Association general counsel; Lisa Dunner of Dunner Law on behalf of the American Bar Association; Nancy Mertzel of Schoeman Updike on behalf of the American Intellectual Property Law Association; and Bob Brauneis, George Washington University Law School professor.
In an unusual accord, the witnesses agreed, the Representatives agreed, probably everybody in the room agreed that the time is now for the modernization of the Copyright Office. Stuck in the 1970s, the Copyright Office is ill-equipped to manage its basic function—recording what works are protected by copyright and who holds the rights to those works. Based on their testimony, the panel agreed that the Copyright Office requires more technical expertise and additional resources to build a 21st century digital infrastructure for registration, recordation and search. The Judiciary committee member statements demonstrated that in light of the Office’s role in enabling an effective and efficient structure to enable transactions in the copyright industry— an industry that Representative Deutch said was worth over a trillion dollars—something must be done. A functioning, modern registration system would help alleviate the orphan works problem by making it possible to locate rights holders and track the provenance of copyrighted works. (Perhaps now all stakeholders can agree with the Library Copyright Alliance’s position that a full scale searchable and interoperable system that meets the needs of commerce, creators, and the public is preferable to an orphan works solution legislated by Congress).
Only Representative Zoe Lofgren went off script, asking cynically if modernization could also help the Copyright Office represent “a greater diversity of viewpoints?” Rep. Lofgren continued by saying the Office has made some “bone-headed mistakes.” Its strong endorsement of Stop Online Piracy Act (SOPA) did not take into account the public interest, and resulted in an unpreceded backlash. A recorded 14 million people contacted Congress to protest SOPA and the world witnessed the first internet blackout campaign. Lofgren continued that it was the Copyright Office that recommended not extending the 1201 exemption for cell phone unlocking, leading to another public outcry, a “We The People” petition to the President, and the need for Congress to pass the “Unlocking Consumer Choice and Wireless Competition Act.” Lofgren was not done. At an earlier 1201 rulemaking the Office advised against an exemption for circumvention of e-readers to enable to enable text to speech functionality for people with print disabilities. Really? Thankfully, this decision was overturned by the Librarian of Congress in his final decision.
Lofgren, who represents constituents in Silicon Valley, has butted heads with the Copyright Office in the past. At an earlier hearing, Register Maria Pallante was quizzed by Lofgren over the purpose of the copyright. In the American Bar Association Landslide Magazine, Pallante was quoted as saying that “copyright is for the author first and the nation second.” Lofgren countered “it seems to me when you look at the Constitution, which empowers Congress to grant exclusive rights in creative works in order, and I quote, “to promote the progress of science and the useful arts.” It seems to me that the Constitution is very clear that copyright does not exist inherently for the author but for the benefit for society at large.”
It is in the public interest to provide the necessary resources and expertise to upgrade the Copyright Office’s infrastructure. Whether the Copyright Office’s will be able to balance the interests of all parties for the benefit for society at large in other areas of copyright review is another more fundamental matter. Protection of legacy business models and copyright enforcement continue to dominate policy discussions in both the legislative and executive branches of government, so the Copyright Office is not alone in its perspective that the public interest is a secondary matter. Let’s hope that the public continues to pay close attention to the House Judiciary copyright review. They have been more than willing to speak up on their behalf.