In a long-awaited first move toward U.S. copyright reform, the House Judiciary Committee this week released a policy proposal that backed the creation of an autonomous Copyright Office, with control over its own budget and technology needs. Under the proposal, the Register of Copyrights would become a separate, term-limited post (10 years), subject to "advise and consent" rules. Currently, the Copyright Office resides in the Library of Congress, and the Librarian of Congress has sole discretion to hire or fire the register.
The proposal is the first to be made by the committee after a lengthy, recently-concluded review of the nation’s copyright laws. In addition to backing independence for the Copyright Office, the committee also proposed to expand the Copyright Office bureaucracy with new positions, including Chief Economist, Chief Technologist, and a Deputy Register. And the committee also proposed to establish a "small claims" tribunal within the Copyright Office.
“The 20th century statutory framework for the U.S. Copyright Office is not sufficient to meet the needs of a modern 21st century copyright system,” the policy proposal states, adding that “a significant investment" of both funds and "changes to how the Office operates" are required.
The committee now seeks written public comments on the proposal by January 31, 2017.
The committee’s proposal comes just weeks after the new Librarian of Congress, Carla Hayden, had abruptly ousted Register of Copyrights Maria Pallante. During her tenure as register, Pallante had strongly urged lawmakers to make her office independent.
Pallante’s sudden removal was met with dismay by many in the content industries—and, also by leaders of the House Judiciary Committee. In a joint statement, chairman Bob Goodlatte and ranking member John Conyers, who oversee the committee exploring potential copyright reforms, called Pallante’s departure "a tremendous loss.”
While the fate of the Copyright Office remains undecided, the question now is whether the committee's proposal might hamstring Hayden's efforts to recruit a new, full-time register of copyrights. In a statement, a coalition of library groups urged Hayden not to delay.
"While we enthusiastically support modernization of the Copyright Office and appropriation of the resources needed to accomplish it, the Librarian of Congress, confirmed in large part for her expertise in managing complicated library technology overhauls, should not defer the appointment of a new Register of Copyrights," the statement reads. "That need is simply too pressing to wait for what promises to be a long legislative debate over the Copyright Office’s possible autonomy from the Library of Congress to be concluded."
The House Judiciary Committee's first policy proposal comes after more than two years of work on potential copyright reform, which included some 20 hearings, testimony from over 100 stakeholders, as well as a two-year “listening tour” in various cities. And, it follows two similar recent proposals in Congress.
In July, Rep. Hakeem Jeffries (D-NY) introduced H.R. 5757, dubbed the CASE Act (Copyright Alternative in Small-Claims Enforcement), which proposed the creation of a “small claims” tribunal. Specifically, the bill proposed to establish a “Copyright Claims Board” consisting of three officers (which would be appointed by the Librarian of Congress) and two attorneys (to be appointed by the Register of Copyrights) that would oversee the handling of low-level copyright disputes. The bill was lobbied for and strongly supported by the Authors Guild.
And in June of 2015, Rep. Judy Chu (D-CA) and Rep. Tom Marino (R-PA) floated the idea of removing the U.S. Copyright Office from the purview of the Library of Congress, and establishing it as an independent agency. Under that proposal, dubbed the CODE Act (Copyright Office for the Digital Economy), the Register of Copyrights would become a presidential appointee.
Though there is broad consensus that the Copyright Office is in dire need of modernization, there is sharp disagreement among stakeholders as to whether a new, separate copyright bureaucracy is necessary.
Chu and Marino's 2015 proposal was supported by the content industries, including the Authors Guild, which issued a statement in favor of the proposal, and the Association of American Publishers, which called it a “critical first step towards crafting legislation to equip the Copyright Office with the tools and authority necessary to realize the full potential of copyright and creativity in the digital age.”
The library community, along with tech companies such as Amazon, Facebook, Google, and Netflix, opposed the move.
"Establishing the Copyright Office as an independent agency does nothing to address its challenges,” ALA officials concluded in a statement. “Instead of independent authority, the Copyright Office needs resources—both in the form of funding and technical expertise—to bring it out of the typewriter age.”
With a new administration set to take power, it is unclear how quickly copyright reform will be pursued. But in a joint statement, Goodlatte and Conyers said more policy proposals will follow.
“It is time to move forward into the next stage,” the statement noted, adding that the committee’s policy proposals are “not meant to be the final word on reform,” but “a starting point for further discussion by all stakeholders, with the goal of producing legislative text.”