The following op-ed was co-authored by R Street Governance Policy Fellow Jarrett Dieterle.
An obscure debate about whether the U.S. Copyright Office should be part of the executive branch or remain in the legislative branch could have surprisingly far-reaching implications for the future of the Internet.
Created in 1870, the body that registers U.S. copyrights is actually housed within the Library of Congress. That makes it formally a part of the legislative branch, even though the office of Librarian of Congress is actually appointed by the president.
The Copyright Office’s chief—known as the Register of Copyrights—historically has served at the pleasure of the Librarian of Congress. Contributing to the jurisdictional fog around the office is the fact that federal courts have held that the Copyright Office’s operations are executive in nature.
All of that would be nothing more than bureaucratic arcana to most citizens, were it not for the fact that the Copyright Office wields fairly significant influence over key questions involving content and communications. Given that role, it’s perhaps not surprising the office has seen its share of controversy in recent months. Former Register Maria Pallante was removed by Librarian of Congress Carla Hayden in October 2016, in what the Wall Street Journal suggested was a “coup,” though others noted it was the product of months of in-fighting. The office has operated under an acting register ever since.
It is against that backdrop of drama that various proposals are bubbling up to reorganize USCO, including modernizing its technology infrastructure and establishing a “small claims court” for minor copyright disputes. One bill, from Reps. Tom Marino, R-Pa., and Judy Chu, D-Calif., would transform the office into an independent agency.
More immediately, legislation cosponsored by House Judiciary Committee Chairman Bob Goodlatte, R-Va., and Ranking Member John Conyers, D-Mich., would establish the position of Register of Copyrights as appointed by the president, with advice and consent of the Senate. The appointment would be for a fixed ten-year term, with the option of multiple reappointments, and the register would be removable by the president. Dubbed the Register of Copyrights Selection and Accountability Act, the measure is set to be marked up on Wednesday by Goodlatte’s panel.
The bill has 29 cosponsors, as well as support from tech leaders like Oracle and the Chamber of Commerce Global IP Center. Proponents argue, essentially, that elevating the register of copyrights to a presidential appointment would give the office a seat in international trade negotiations, in addition to giving stakeholders a chance to lobby the Senate during the confirmation process.
Opponents like the Library Copyright Alliance, the Center for Democracy & Technology and the Electronic Frontier Foundation probably wouldn’t dispute any of that; they just see those as manifestly bad things. They fear a Copyright Office that would prove to be more politicized, more partisan and more likely to take sides in substantive policy debates, rather than serving as a neutral arbiter concerned mostly with competently executing its duties.
Clarifying the office’s lines of authority does have the benefit of making it more politically accountable. However, since the Librarian of Congress has ultimate authority over the substantive regulatory powers surrounding copyright, this whole endeavor could be viewed as purely procedural, rather than a real reform.
One way to defuse some of these concerns could be to transfer some of the substantive regulatory powers held both by the Copyright Office and the Library of Congress away from the legislative branch to executive branch agencies. For example, Internet-related procedural functions like notice-and-takedown and circumvention exemptions could be placed in the Commerce Department. Statutory licensing and rate-setting issues, such as through the Copyright Royalty Board, could be moved into the Department of Justice, which has substantial antitrust expertise. This would ensure the functions receive adequate oversight and funding, and would help depoliticize the offices.
While such changes would be a serious undertaking, they do offer the potential for compromise. The Judiciary Committee’s bill takes a positive step forward in promoting accountability, but doesn’t offer much more than a minimum viable product.
Image by Oleg Prokopenko