February 27, 2017

Library Experts Weigh in On Next Register of Copyrights

600px-US-CopyrightOffice-Seal.svgIn the wake of the October 29 resignation of Maria Pallante, the former Register of Copyrights, the Library of Congress (LC) has put out a call to the public for input on the expertise needed by the next Register of Copyrights. (On January 17, Pallante will join the Association of American Publishers as president and CEO). The survey, posted on the LC website on December 16, invites the public to answer a series of questions about the knowledge, skills, abilities, and priorities that the incoming Register should possess.

But the title comes with more concerns than merely an appropriate skill set. The position, and the next person to fill it, will influence the changes that the United States copyright system is weathering, as well as the role LC will play in its next phase—particularly whether the Copyright Office (CO) should continue to be housed in LC, as it has been since its establishment in 1870 (the CO became a separate department of LC in 1897, with the appointment of the first Register). H.R. 4241, a bill introduced in December 2015 by Congresswoman Judy Chu (CA-27), Congressman Tom Marino (PA-10) and Congresswoman Barbara Comstock (VA-10)—also known as the CO for the Digital Economy Act or the CODE Act—proposes to relocate the CO to the legislative branch.

A recent letter drafted by Brandon Butler, director of information policy at the University of Virginia Library and signed by copyright lawyers, scholars, and expert librarians, called on members of the Committee for the Judiciary to consider a number of these factors when making their decision.

LJ asked four library copyright experts to give their opinions on what they see as important considerations for the incoming Register of Copyrights, and for LC as well.

The survey will be open through January 31.

Brandon ButlerBrandon Butler, Director of Information Policy, University of Virginia Library

Here’s a crazy idea: maybe the next Register of Copyrights should register copyrights.

The politics and policy of copyright are endlessly fascinating, and libraries have a stake in all of it, but the selection of the next Register of Copyrights need not bear the weight of all that drama. The future of the Copyright Act is up to congress, and the future of fair use is up to those of us who use it every day, and ultimately to the courts. The bulk of the Register’s work is administering the registration of copyrighted works. The next Register should focus on that.

Specifically, the next Register should make the registration system maximally accessible to all, using standard Internet tools and protocols: get all the relevant data in digital form and release an API so the public can build tools on top of it. It is impossible to overestimate the value of a digital system for creating and querying the official record of copyrighted works. Such a system would facilitate licensing deals and help to define the public domain, big wins for all.

Until the CO has the resources and the expertise to make this system available, everything else is a distraction. Administering the registration system has been the Office’s core responsibility from its inception (hence “Register of Copyrights”), but for years it has struggled to meet that responsibility. Searching for information about copyrighted works should be as easy as finding a book in a library catalog (which is one reason the Office could benefit from living inside the Library of Congress). Instead, it’s a painful, fragmented mess.

The next Register needs to be the kind of person who can focus the CO like a laser on this challenge. They need not be a technology expert, but they must know how to attract, organize, and lead technologists. They should look to successful gov-tech initiatives like 18F and the United States Digital Service, which have had substantial success modernizing federal technology, either as partners or as models.

The next Register should also appreciate the importance of registration as a policy matter, and be a champion for legal revisions to strengthen registration’s role in the copyright system. Robert Brauneis studied these issues as the Abraham L. Kaminstein Scholar in Residence at the CO from 2013–14 and argues that if copyright registration looked more like its counterparts in trademark and patent, with periodic renewal requirements and fees on a sliding scale (rather than our current practice of charging the same one-time fee to register a billion-dollar blockbuster film as we do for a bedroom-recorded songwriter demo tape), the Office could take in more than enough revenue to fund itself and its technology requirements, all while building a richer, more robust record of creation and ownership. Past Registers have perhaps been too skeptical of “formalities” to support these initiatives, but a Register who made a world-class registration system the Office’s highest priority would see things differently.

No doubt the Office has other responsibilities. Its role as an advisor to Congress on copyright policy certainly needs careful attention; the Office has been out of sync with the courts and with public opinion on key issues like the dreadful SOPA bill, siding consistently with the entertainment industries. The new Register should be more even-handed. But, more importantly, the new Register should not let this advisory role eclipse the Office’s core purpose: registering copyrights.

Kyle_CourtneyKyle K. Courtney, Copyright Advisor, Harvard University

Under §701 of U.S. copyright law, the Register of Copyrights is the director of the CO, which sits within the Library of Congress.  This role, which has existed since 1897, naturally has evolved over the last 120 years. Nevertheless, it should continue to represent the mission of our national library, serving the diverse interests of content creators, content users, and the public.

While the new Register of Copyrights should certainly have copyright expertise, also essential to serving in this Office is measured diplomacy. Our last two Registers, true experts in their own right, were often celebrated by the nation’s rightsholder organizations for their commitment to strong copyright interpretation, prioritizing the publishers’ policy objectives over the public good. They resisted calls for greater cooperation and collaboration with libraries, including those from Library of Congress leadership. While some of these problems were due to personality conflicts, Registers who have had roles such as the Executive Director of the National Writers Union and Assistant Director of the Authors Guild, or have served on the Board of Directors of the Copyright Clearance Center, for example, are not necessarily the balanced advocates who should preside over an Office that ultimately serves the interest of the public at large.

The purpose of copyright is to promote the useful arts and sciences. The mission and values associated with the Library of Congress, and all libraries and cultural institutions in the United States, are to similarly advance the public good by “document[ing] the history and further[ing] the creativity of the American people.”

The Register of Copyrights has a duty to uphold and serve this mission. Ideally, the new Register should also have a strategic vision to restore balance to the Office, and attempt to eliminate the “us versus them” mentality that has dominated the last decade of law, policy, and litigation in the copyright arena. As a result, over this decade the Office has had its views on copyright rejected by the courts and ignored by Congress. There is no reason for conflict to exist between the copyright and the public interest. Copyright law, in fact, balances both of those interests to promote the useful arts and sciences.

The balance that is asserted by copyright law should be reflected in the new relationship between the Office and libraries, archives, and other cultural institutions. And the new Register should have the passion, leadership, and boldness to embrace a new, inclusive copyright vision for the 21st century, reflecting both expertise and collaborative spirit of our nation’s library and the CO itself.

Mary MinowMary Minow, Senior Fellow, Harvard Advanced Leadership Initiative

The Library of Congress has an opportunity to swing back to a more balanced approach to copyright. Now is the time to appoint a Register with a background that advances our common interest in expanding both creation and access to creative content. It seems that most of the time people fall on one side or other of a copyright divide: content owners versus users. Let’s look for someone who aims to pursue the ultimate purpose of copyright: to promote progress. (See U.S. Constitution Article I, Section 8, Clause 8). As an advisor to congress on copyright policy and legislation, the new Register has a responsibility to ensure we can both preserve and make available new books, movies, songs, and more.

A strongly worded report outlining systematic bias at the CO that favors the content industry was recently issued by Public Knowledge, a nonprofit Washington, DC–based public interest group that promotes freedom of expression and an open Internet. While I do not argue in favor of an office that strongly favors the user and library communities, it is essential that the office position itself is balanced. That means allowing libraries and users to access and preserve works. Think about how authors develop their love of reading from having a good library filled with children’s and young adult books. How many times have we heard authors tell us they were deeply inspired by the armloads of books they borrowed as children? Think about the businesses that have been started by creative people based on material they found in their public library (Ben & Jerry’s ice cream comes to mind). If all new content is pay-per-use, we will be poorer for it. Unfortunately, that is the direction we are heading in a licensed digital world.

The new Register should work to update the copyright deposit requirements to include a wide range of digital materials. This builds the Library of Congress collection that is a key source of our nation’s memory. Keeping the Office as part of the Library of Congress is a vital part of the mix to connect with the nation’s library both by building it and staying close to emerging needs.

The new Register should have familiarity with emerging technologies and be able to oversee modernization of its information technology. The Office’s technological infrastructure was lambasted in a Government Accountability Office Report published in 2015. The CO needs vision, along with the resources of technical expertise and funding, to make it more useful to content providers and users.

Kevin L. SmithKevin Smith, Dean of Libraries at the University of Kansas

The Librarian of Congress has asked for input on qualities that the next Register of Copyright should possess. This is a smart move on her part, I believe. Dr. Hayden has been under fire from the legacy content industries due to the reassignment, and subsequent resignation, of former Register Maria Pallante, sometimes even adding the absurd claim that Hayden is some kind of “plant” working for Google. A call for broad input will help combat this simple-minded charge of favoritism (ironic given Pallante’s own history of one-sided support for bad ideas coming out of the legacy content industries) and it shows a genuine commitment, I think, to the public mission of the CO. So I strongly encourage librarians in all kinds of libraries to provide such input. The comments made recently from both legislators and rightsholder groups about a conflict of interest between libraries and the CO are deeply troubling, and suggest that the CO may have lost sight of its statutorily defined role, which is, above all, an efficient system for registering copyrights and locating rights holders. From that perspective, libraries and the Office are, or ought to be, deeply committed to the same mission.

The CO also has an important role as an advisor to Congress about how copyright law should work. This role demands a broad and inclusive perspective about how copyright works and where it fails, which is something the CO has failed to provide in recent years, when a revolving door between the Office and lobbying interests for the content industries has developed. But the CO, given its origin history and statutory role, must be a neutral arbiter that takes account equally of the interests of rights holders, users, content and tech industries, and, perhaps especially, libraries. Libraries, after all, are located in that same unique space between rights holders and users, and have the same interest in balancing law, that the CO is supposed to occupy.

So my response to the Librarian’s call for input will say emphatically that the next Register of Copyright needs a strong grounding in the law and the role it prescribes for the CO, a commitment to the public interest purpose of copyright, and a balanced perspective that understands the needs, concerns, and rights of all stakeholders who have an interest in a well-functioning system of rights and exceptions.

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