April 19, 2018

Does the Copyright Office Belong in a Library? | Peer to Peer Review

Kevin L. SmithIt has been a busy time for those of us who watch the doings of the Copyright Office. In addition to releasing a massive report on Orphan Works and Mass Digitization, about which I have written here, the Copyright Office (CO) is the subject of a piece of legislation introduced as a discussion draft on June 3. The bill, if it were officially introduced and ultimately enacted, would remove the CO from the Library of Congress (LC) and establish it as an independent agency of the federal government, under the Executive Branch. Then, while we were still considering the ramifications of this idea, came the announcement on June 10 of the pending retirement of Dr. James H. Billington, who has been the Librarian of Congress for the past 29 years.

These events suggest long-term changes for the copyright and library communities, and it is worth taking a moment to consider, especially, the impact of the idea of making the CO an independent agency.

The first thing that strikes me about the “discussion draft” of the proposed law to establish the Copyright Office as an independent agency—called the Copyright Office for the Digital Economy (CODE) Act—is that it never says why it is needed. This is not unusual, but many bills have a section, often called “Findings,” that outlines the reasons for a piece of legislation and provides justification that the bill is needed. Since the CODE Act is, so far, only a discussion draft, wouldn’t discussion be facilitated by some findings about what problem the bill actually intends to solve? The title implies that an independent (from LC) Copyright Office would better serve the digital economy, but it never says why that is the case or what would be different.

Perhaps we can get a clue, however, from some statements made about the bill when it was introduced. The two sponsors, Rep. Judy Chu from California and Rep. Tom Marino of Pennsylvania, both talk about “autonomy,” and Chu says that the CO should be given “independence and sound legal ground to perform its core mission.” What suggests that the office currently is not able to perform its core mission, or that its autonomy is impeded? This is coded language, in my opinion, for the claims made by entertainment industry lobbyists that the Copyright Office should not reside within a library because they believe that library interests are antithetical to their business needs. In short, they want the CO freed of the need to balance the public interest with the goals of the legacy content industry; they want more scope for “regulatory capture,” wherein an agency that was created to serve the public interest instead advances the agenda of the very industry it was designed to regulate. In this case, an “independent” Copyright Office would be less encumbered by antiquated notions of “promoting the progress of science and the useful arts” and more subservient to the desires of the publishing and entertainment industries for a stronger monopoly.

One of the lobbying groups supporting this change, the Software & Information Industry Association (SIIA), asserts that in its current location within the Library of Congress, the Copyright Office is “understaffed, underfunded, and forced to use the Library of Congress’s antiquated information technology systems.” This raises a couple of questions in my mind.

First, how much would it cost to establish an independent copyright office? There are lots of issues about office space, relocation, and purchase of technology that are referred to in the bill, but no indication of what they would cost or how they would be funded. Before this bill moves forward, I would hope to see a Government Accountability Office analysis of its potential cost. And it would be important, given the support from the SIIA, to see a plan for a truly “independent” bidding process for that new technology infrastructure.

The second question is about the impact that Billington’s retirement, and the appointment of a new Librarian of Congress, might have on all this. Most of the reports about his decision to retire mention criticism of LC’s infrastructure and technology management, and it is clear that modernizing both processes and machines will need to be a high priority for the next librarian. Many of the names being mentioned have significant experience in this area. So will the appointment of a new Librarian of Congress diminish the alleged need to remove the Copyright Office? If this is really about updating technology, perhaps the better course is to see what happens in the coming months at the library; a more efficient and less expensive alternative may well present itself in the form of a thoroughgoing update at LC .

However, I doubt that really is the issue; the point of this bill is to free the Copyright Office from an institution that so powerfully represents the public interest in government and especially in copyright policy. The Copyright Office has been a part of LC since 1870 (before that copyright registration was handled by the clerks of the U.S. district courts), and abandoning that long-standing tie at this moment in history clearly is a move to advance industry interests rather than simply to update the office’s network.

When we look at two of the major concerns addressed in the legislative discussion draft, this motive seems even more obvious.

The discussion draft gives significant attention to the “problem” of mandatory deposit. Of course, deposit, which has been the principal mechanism that has developed the collections of LC over the past centuries, is only a problem if the Copyright Office is divided from the library. In fact the attention to whether mandatory deposit should be continued is one of the best indications that what this bill proposes is a bad idea. The proposed bill would remove the requirement of deposit from the Copyright Act and insert instead language about “examination copies” that could be required at the discretion of the new director of the Copyright Office. Later in the draft, a study is ordered of mandatory deposit that would cover, among other things, “the concerns of copyright owners relating to the Library’s retention of works, copying of works for preservation purposes, and copying and sharing required to make such works, including digital works, available to Library patrons or the public at large.” This, I think, is the key to the language about limiting or eliminating mandatory deposit; content owners are afraid that LC or its users might use that frightening world of the Internet to do something nefarious. The oft-repeated bête noir of many in the content industries that libraries are looking for a chance to digitize “everything” and make it available online once again rears its chimerical head.

Finally, another oddity in the discussion draft is how often it mentions the role of the new, independent CO in international negotiations. As many who follow copyright debates know, one favored tactic by those who want ever-stronger copyright protections, and enforcement paid for by the federal government instead of by the Recording Industry Association of America or the Motion Picture Association of America, is to use international negotiations to convince other countries of the need to adopt pet provisions, then try to insist that the United States must adopt similar laws to “stay competitive.” These negotiations are often carried out by the office of the U.S. Trade Representative, but it seems obvious that the second step in the process—getting Congress to accept an otherwise objectionable increase in copyright protection because it has become an international “norm”—would be easier if the Copyright Office were more deeply involved in the process. So although this language seems benign, I read it as additional evidence that this is a proposal designed to increase the ability of the legacy content industries to co-opt the CO into the movement for stricter laws, more government-sponsored enforcement, and more secretly negotiated “trade” agreements about intellectual property.

In short, this bill seems like a solution in search of a problem, unless you accept that the problem is that music and movie companies are making less money than they would like. Rather than considering such an ill-advised bill, I hope that we will see, over the next year and a half or so, a new Librarian of Congress who will provide stronger leadership on many issues but especially on the need to keep copyright policy, and the Copyright Office, firmly grounded in the interests of all of the American public.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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  1. James P Higgins says:

    Lucid, insightful, enlightening, instructive, and bound to stir the RIAA and MPAA hornets who’ve spawned this squirrelly larva of a legislation.

  2. Kyle K. Courtney says:

    Spot on, Kevin. I hear others are tired of the Copyright Office (CO) complaining about being inside the Library of Congress. The CO staff has a lot of professional background with rightsholder organizations or law firms representing rightholder organizations (RIAA, MPAA, various Guilds, etc.) – they are supposed to serve the public and Congress – not the industries. I frequently suspect their anti-library bias. (Is there even a librarian among them in any of the senior positions?)

    Leaving the Library of Congress to become their own special snowflake (quasi-independent, Congressional super force)? I say this: The CO is right where they belong: working with and for librarians. They work for the Library of Congress, with, potentially, a NEW Librarian of Congress. Why shouldn’t they answer to The Librarian? And after all – we librarians are on the good side. We are the defenders of public access, privacy, and the right to the free flow of information. Why not lay down your arms, CO, and join our ranks?

  3. The CO has been under review:

    Judiciary Hearing: US CO its functions and resources (Feb 2015): http://www.gpo.gov/fdsys/pkg/CHRG-114hhrg93529/pdf/CHRG-114hhrg93529.pdf

    The GAO issued a report in March 2015: http://www.gao.gov/products/GAO-15-338

    I enjoyed M. Farkas’s piece in the New Republic that explains the climate of concern: http://www.newrepublic.com/article/123045/next-librarian-congress-should-be-actual-librarian (kudos)

  4. Jamie Bloss says:

    Thank you so much Kevin for bringing this important issue to our attention. I took your copyright MOOC a while back, and it has been so important to me since then to follow discussions such as these. I too think it would be a good idea to wait and see what changes are coming to the LOC rather than see this taken away in the interim.