In a short policy paper released this week, the American Library Association is pushing back against a key talking point in the recent bid to make the Register of Copyrights a presidential appointee: that the Copyright Office’s placement within the Library of Congress was “an accident” of history. In fact, in Lessons from History: The Copyright Office Belongs in the Library of Congress, Alisa Holahan writes that the Copyright Office’s placement in the library was “a logical, considered decision.” And despite various attempts to move it over the years, she observes, Congress has explicitly declined to do so.

“Congress’s rejection of multiple prior proposals to move the Copyright Office indicates that it recognized the important benefits of the Office’s location within the Library of Congress and the significant costs of severing that socially and economically valuable relationship,” Holahan writes.

The paper comes after the House of Representatives in April passed the Register of Copyrights Selection and Accountability Act (H.R. 1695) a bill that would empower the President (rather than the Librarian of Congress) to appoint the Register of Copyrights—a first step, the bill’s supporters claim, toward “modernizing” the Copyright Office.

Critics, however, (including the ALA) argue that the bill does nothing to modernize the Copyright Office—and in fact would hurt or delay modernization efforts.

In her paper, Holahan briefly outlines Congress’s previous attempts to reorganize the Copyright Office. The Copyright Reform Act of 1993, for example, also proposed that the President appoint the Register of Copyrights, and that the Register be vested with “independent control over the activities of the Copyright Office.”

That bill, however, met with strong resistance from the Librarian of Congress at the time, James H. Billington, who in testimony, Holahan writes, pointed out that his responsibilities as Librarian of Congress were “of fundamental importance in advancing the constitutional principle on which copyright is based: the promotion of the arts and sciences.” The bill died in the Senate.

Congress’s rejection of multiple prior proposals to move the Copyright Office indicates that it recognized the important benefits of the Office’s location within the Library of Congress

In 1996 the Omnibus Patent Act (S. 1961) proposed that copyrights, patents, and trademarks exist under a single government corporation. Holahan notes that bill was met with concern by a number of organizations including the American Society of Composers, Authors, and Publishers; the American Society of Journalists and Authors; members of the library, book publishing, and scholarly communities; and the Authors Guild, which all expressed “serious concerns” about the Copyright Office’s proposed move. The Omnibus Patent Act of 1996 also failed.

Efforts to move the Copyright Office again gained traction under the leadership of Maria Pallante, who took over as Register of Copyrights in 2011. Citing technological, organizational, and even constitutional challenges, Pallante strongly urged lawmakers to make the Copyright Office independent agency.

Last October, however, Pallante was abruptly removed by the newly appointed Librarian of Congress Carla Hayden—a move that was met with suspicion and dismay by many in the content industries, some of whom suggested the move was part of a Google-led conspiracy.

Pallante’s removal also met with concern by some in Congress—including Representatives Bob Goodlatte, and John Conyers, leaders of the House Judiciary Committee. In March, Goodlatte and Conyers (who had been working since 2013 on a committee exploring copyright reform, which was inspired by Pallante's work), introduced the Register of Copyrights Selection and Accountability Act (H.R. 1695).

In January, Pallante was tapped to lead the Association of American Publishers.

Now in the hands of the U.S. Senate (as S-1010) since May, the bill, which raced through the house in just one month, appears to have lost some momentum. Notably, while the House bill came up through the House Judiciary Committee, which oversees copyright (and is chaired by Goodlatte), the Senate has referred to the bill to the Committee on Rules and Administration, which oversees the Library of Congress.

While there is broad consensus that the Copyright Office is in dire need of modernization, there is sharp disagreement over how that should happen.

Holahan wrote the paper during her time as the ALA’s 2017 Google Policy Fellow. She is currently a candidate for the Master of Science in Information Science degree at the School of Information at the University of Texas, and has already completed her J.D. at the University of Texas Law School, graduating with honors.

The ALA's Google Policy Fellowship program offers "undergraduate, graduate, and law students interested in Internet and technology policy the opportunity to spend the summer contributing to the public dialogue on these issues, and exploring future academic and professional interests."

In a blog post, Alan Inouye, director of ALA's Office for Information Technology Policy (OITP), said the ALA would recommend Holahan’s research to “anyone contemplating whether the Register of Copyrights should be appointed by the President, or whether the Copyright Office should be relocated from the Library.”