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By Tamlin Bason
April 2 — “We have come to believe that the national copyright system would be better served by an independent copyright agency,” Register of Copyrights Maria Pallante said in a letter to Rep. John Conyers Jr. (D-Mich.) that was dated March 23, but published on the Copyright Office's website as of April 2.
A Feb. 26 House Judiciary Committee hearing was held to discuss the Copyright Office's “Functions and Resources,” but there were no representatives from the Copyright Office at the witness table. Accordingly, Conyers asked Pallante to submit her views on whether and how the Copyright Office should be restructured.
Notably, all of the witnesses and lawmakers agreed that the Copyright Office's current placement within—and under the complete control of—the Library of Congress was longer ideal, or even workable.
During the hearing, three potential solutions were discussed:
• giving the Copyright Office more autonomy within the Library of Congress;
• having the office be absorbed by the Patent and Trademark Office; or
• making the Copyright Office a standalone executive-level agency.
Pallante's letter touched on all three recommendations—sort of. Placing the Copyright Office under the PTO's direction was an unpopular solution at the Feb. 26 hearing, and it was apparently so unpalatable to the Copyright Office that Pallante's letter instead contemplated being placed within the Department of Commerce “as a sibling to” the PTO. That, too, is an imperfect solution, she said.
“At the core, what we are recommending is that Congress codify the structure that many assume to be the case already, by conferring independent agency status to the Copyright Office and making it a partner with, rather than a subordinate to, the Library,” the letter said.
Pallante, however, clarified that, “Concerns about how to position the Copyright Office for the digital age certainly should not be framed as criticism of the Library. These issues more aptly reflect the unprecedented importance and complexity of copyright law in modern times.”
But a March 31 report from the Government Accountability Office was in fact fairly critical of the Library of Congress, especially with regards to its crumbling IT infrastructure. “The Library does not have an IT strategic plan that is aligned with the overall agency strategic plan and establishes goals, measures, and strategies,” the report concluded.
Another March 31 report, however, said that the Copyright Office “has not adequately justified” its request for more than $7 million to help it update its own IT systems to better serve its constituents. And in addition to failing to adequately explain how it intended to use the funds, “The office also did not present the investments to the Library's IT investment review board, which was established to select investments for funding that meet defined criteria and ensure that such investments are not duplicative of existing investments or activities performed within the Library,” the GAO concluded.
The GAO recommended that the Copyright Office work with the Library to develop “aligned” IT strategies. Working with the Library, however, appears to be becoming increasing difficult for the Copyright Office for reasons that were both discussed in the Feb. 26 hearing, and raised in a Feb. 19 Copyright Office report on its IT projects.
At the hearing, witnesses noted that while both the Copyright Office and the Library need access to new works, the purposes for that access—protection for the former and preservation for the latter—may no longer be compatible in the digital age.
This is especially true since most copyright owners would welcome a system that better leveraged new technologies to allow efficient registration and recordation. Meanwhile, the Library requires that a “best edition” be deposited, and this usually means that a hard copy must be submitted.
The Feb. 19 report identified issues that went beyond the fact that two entities may have different goals. For instance, the report detailed certain problems that the office has had in accessing hardware and servers that it purchased when it was upgrading its electronic filing system, eCO. The report said:
Although the Copyright Office purchased this equipment using its funding (fees and designated appropriations), the Library permits Copyright Office technology staff limited access to the equipment; it allows application level access only. In other words, because the servers reside on the Library's network and because they are located within the Library's data center, it does not permit Copyright Office staff, including the Copyright Office CIO, to control the underlying hardware or operating system controls.
“There are mounting operational tensions with this arrangement,” Pallante said of the Copyright Office being accountable to the Library. However, Pallante noted that however the Copyright Office is restructured it will still need to work with the Library.
“An independent agency would ensure the most flexibility to continue the Copyright Office’s relationship with the Library of Congress, which is the beneficiary of mandatory deposit provisions administered by the Register as well as certain works submitted by authors and other copyright owners for registration purpose,” the letter said.
Pallante also said that, for purposes of her letter, she was “assuming that the [House Judiciary] Committee is likely to alter the status quo, in which all Copyright Office staff are part of the Library of Congress and the Librarian appoints, supervises, and may remove the Register and other subordinate officers.”
If Congress does alter the status quo, then the long-term interests of the nation's copyright system “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate,” Pallante said.
This is the first time that a sitting Register of Copyrights has advocated for a change in the status quo. The last time the issue came up in earnest was when Sen. Orrin G. Hatch (R-Utah) introduced the Omnibus Patent Act of 1996, which would have created an “Intellectual Property Organization” to oversee all of the nation's IP systems.
In a hearing on that legislation, then Register of Copyrights Marybeth Peters was critical of the effort, saying, among other things, that the proposal had not taken into account viewpoints of all of the impacted stakeholders or even been widely debated.
“My objections were not so much about substance but about process,” Peters, now with Oblon, McClelland, Maier & Neustadt LLP, Alexandria, Va., told Bloomberg BNA. “At the time, it was really a solution in search of a problem.”
Peters said that this time, “It has a lot more thought going into the process.”
Although Pallante's letter didn't directly address a scenario in which the Copyright Office was combined with the PTO, her statement that the Copyright Office “does not recommend” a move to the Department of Commerce left little doubt about her thoughts on the subject. She then listed a number of reasons why such a move might be problematic.
Among those reasons, Pallante said, is that if it were in the Department of Commerce, “the Copyright Office’s views would not be independent. Rather, its policy advice and legal interpretations would be subject to the coordination, clearances, and, as applicable, restraints that are normal for executive branch officials.”
A sub-agency structure, where the Register would be a presidential appointee but the office would remain in the Library of Congress, “would be an improvement over the current structure,” Pallante said.
But it would not be a total solution. For instance, “The Librarian would remain the constitutional head of the agency and the copyright system, and the Register would not necessarily have autonomy over copyright policy and regulations,” Pallante said.
“It is therefore difficult to imagine how a sub-agency would stabilize or solve the current problems for very long,” the letter said.
To contact the reporter on this story: Tamlin Bason in Washington at email@example.com
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Full text of Pallante's letter at http://pub.bna.com/ptcj/PallanteLetter3-23-15.pdf.
Peters is a member of a Bloomberg BNA journal's advisory board.
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