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What Is Copyright Office Modernization—and Why Does It Matter?

Congress continued its review of the U.S. copyright regime last week, when the House Judiciary Committee held a hearing on Copyright Office Modernization. The hearing, “The U.S. Copyright Office: Its Functions and Resources,” shed light on the structural and financial challenges that the Copyright Office faces in serving the twenty-first century copyright community.

The Judiciary Committee heard testimony from four witnesses, all of whom testified that the Copyright Office would benefit from increased funding, a long-overdue overhaul of its technology infrastructure, and increased autonomy. The Authors Guild agrees.

In November we submitted a written Statement to the House Judiciary Committee making the case that Congress should act to increase Copyright Office funding and establish it as an independent agency. After the hearing on the Office’s functions and resources, we followed up with Congress on March 9 of this year, submitting a supplementary statement asking the Committee to bear in mind that any meaningful efforts at copyright modernization must take full account of the individual authors and creators who are its core consumers.

Remove the Copyright Office from the Library of Congress?

Many people are surprised to learn the Copyright Office is housed in the Library of Congress and has been since 1890. It was put in the Library so that the Library could build up its collections with the books and other materials deposited for copyright registration purposes. But that rationale no longer stands. Today, it is preferable for many applicants to deposit electronic copies of the works with the Copyright Office when completing the online application and then separately send in hard copies for the Library’s purposes; and that certainly makes registration more efficient for everyone. At the same time, the Library’s technical infrastructure no longer meets the Copyright Office’s needs as a 24/7 online service bureau, and, further, its position in the Library creates potential conflicts of interest, given that libraries are now a vocal stakeholder in copyright policy. The head of the Office, Register of Copyrights Maria Pallante, has argued that regulatory and budgetary autonomy, as well as increased funding to upgrade its technology, are crucial for the Office to serve its users in the twenty-first century.

Although this might at first seem like a boring bureaucratic issue, stakeholders and Congressional members are starting to realize that upgrading the Copyright Office is in fact central to a properly functioning copyright law. Sandra Aistars, CEO of the Copyright Alliance, wrote an op-ed in The Hill calling Copyright Office modernization “the one copyright issue everyone should agree on.”

Why Care About the Copyright Office?

The Copyright Office is first and foremost a customer service agency. Its customers are the nation’s copyright holders—many of them individual creators such as authors—as well as copyright users. The Office works with authors and other creators to help them register their work, record transfers or assignments of copyrights, and perform the research necessary to secure licenses to use others’ work. Registration and recordation are no longer required to own a copyright, but they are necessary to enforce many rights under copyright law.

Due to lack of funding, the Office’s registration, recordation, and search technologies are sorely outdated, and those services also suffer severely from understaffing. Its paper-based recordation system is a relic of the analog era. The records need to be digitized and integrated with the registration system so that in the year 2015 authors can easily (and electronically) register, record, and search the database. A big infusion of capital is needed to improve the IT infrastructure.

Compounding the funding problem, the Copyright Office budget is submitted through the Library of Congress. Two bureaus with different mandates and potentially competing demands are splitting the same pool of funds—and the funding requests of the Copyright Office are frequently cut by the Library of Congress if it is determined that more money is needed in another division.

Perhaps most importantly, the Office needs the authority to issue its own regulations about the interpretation of copyright law. This is an essential policy function of the Copyright Office. Expertise in copyright law is not a requirement for the job of Librarian of Congress, and yet any regulations drafted by the Register of Copyrights by law must be issued by the Librarian. A Copyright Office with increased regulatory authority would be able to ensure that our copyright law keeps pace with technological developments—a task the legislative branch has not been able to accomplish.

The Testimony

The opening remarks by Chairman Goodlatte (R-VA) stressed the “vastly different technological needs of the Office and the Library,” as well as the fundamental issue at hand: the fact that the Office has been unable to respond to the needs of the copyright community, to the detriment of both copyright owners and users.

Mr. Keith Kupferschmid testifies on behalf of the SIIA.

For a copyright hearing, the testimony was remarkably harmonious. All witnesses were in agreement that the Copyright Office would benefit from greater autonomy and that it ought to have control of its own IT systems. The four witnesses—from the American Bar Association (ABA), American Intellectual Property Law Association, and the Software and Information Industry Association (SIIA), as well as Professor Robert Brauneis from George Washington University School of Law—spoke of the “immediate need to modernize” the Office, noting that its services have failed to keep pace with technology and the marketplace. One witness highlighted the necessity of digitizing copyright records and making them available to the public in a searchable, user-friendly, and secure manner. Lisa Dunner, representing the American Bar Association, focused on the fact that the Office’s searchable electronic database extends back only to 1978, and even records from post-1978 are hard to locate and often inconclusive. This serves to greatly increase the costs of copyright infringement lawsuits, she pointed out. Further, Ms. Dunner argued, a fully searchable database would mitigate the “orphan works” problem and enable mass digitization projects to be undertaken lawfully.

Guild Executive Director Mary Rasenberger attended the hearing and participated in the preparation of the ABA testimony in connection with committee work for the ABA Copyright Division.

The Questioning

After each of the witnesses testified, Chairman Goodlatte gave other members the floor to make statements and ask questions after questioning the witnesses himself. The Representatives who spoke were overwhelmingly supportive of the need for reform, recognizing the need for Copyright Office modernization. A few members tried to find some consensus among the witnesses as to where the Office should be moved and what the next steps should be. This was harder to come by. None of the witnesses had a clear recommendation for where the Copyright Office should go and how it should be given more autonomy. Only one member of Congress, Rep. Lofgren (D-CA), was critical of the Copyright Office, expressing concern with its support of SOPA and PIPA and suggesting it should stay in the Library of Congress to balance what she perceives as a bias in favor of copyright owners.

This hearing’s centrality to the Committee’s broader goal of copyright reform was reflected in many of the members’ questions. Rep. Deutch (D-FL) asked, “can we do anything before we fix the Copyright Office?”

“No,” replied Mr. Kupferschmid, “this is the most important issue of all those we will address.”

You can watch a recording of the proceedings, and read the written testimony, here.