By Emmanuel Legrand
How should the Copyright Office be structured and what functions should it perform in the 21st Century? This are not simply rhetorical questions. The subject matters because of the central role that the United States Copyright Office (USCO) plays in shaping the country's copyright policies, administering existing copyright laws, and being the country's registry of copyrighted works.
“Copyright itself has grown in importance over the years and the role of CO has changed to a point that the CO is a centre for creative industries,” said Troy Dow, VP/Counsel at the The Walt Disney Company during a seminar titled “A Copyright Office for the 21st Century” organised in Washington, DC on March 18 by the Duke Law School Center for Innovation Policy and the New York University Law School’s Engelberg Center on Innovation Law & Policy.
“The CO has been critically important in the development of copyright law and has been heavily involved in shaping copyright law,” Dow added. “We have to make sure that its structure and status reflects its mission.”
But what should be the missions of the Office? The discussion is particularly timely at the moment because several key issues need to be addressed regarding the future of the USCO in the coming months and years. The USCO was established in 1897 by Congress as a separate department of the Library of Congress, and its initial task was to dealing with copyright registration, which was previously the responsibility of district courts. This function is still performed today by the USCO. It processes over 700,000 registrations a year of books, music, movies, software, photographs, and other works of authorship.
The USCO also works as an expert to Congress on copyright issues and works with a wide range of government agencies, from the Department of Justice to the US Trade Representative. The USCO has itself initiated the debate, first by publishing in 2015 a strategic plan covering the period 2016-2020, titled “Positioningthe United States Copyright Office for the Future” in which current Register of Copyrights Maria Pallante expressed her “vision” for the USCO: a “lean, nimble, results-driven, and future-focused” organisation.
In addition, acting at the request of the House Committee on Appropriations, the USCO has issued on February 29 a Notice of Inquiry seeking public comments on its funding strategies and implementation timeline for its Provisional Information TechnologyModernization Plan and Cost Analysis. (The deadline for submitting comments on the plan is March 31, 2016.)
This is particularly sensitive as the USCO's IT system is dependent on that of the Library of Congress and is in need a major overhaul to perform its tasks in a digital environment (anyone who has tried to register a work or researched past registrations can testify to that). If adopted (and financed by Congress), the $165m five-year plan would see the Office adopt a drastic new cloud-based system.
|USCO's Maria Pallante|
“It is clear that making incremental improvements will not be enough,” wrote Pallante in the report’s executive summary. “We must shift the approach entirely, and the IT Plan therefore provides a flexible platform that others can build upon for the effortless protection and licensing of copyrighted works.”
According to the participants to the Duke/NYU conference, the IT overhaul is a necessity, but the ways to get there are multiple. This investment would part of a larger picture which incorporates the two main functions that the USCO serves: The registration and recordation role; and the regulatory and adjudicatory functions.
Jim Griffin, Managing Director of digital consultancy company OneHouse, is of the opinion that the sheer mass of data that flows through the USCO's system requires drastic approaches. “If the purpose of copyright is to incentivise creativity then we're doing a fine job. Generally there's lots of creativity and content,” said Griffin. “But how do you keep up with all that stuff. The answer what the CO needs to be doing is MORE because there is more stuff, and the pot grows every single year. And the answer to dealing with more is to do less, and re-focus our priorities.”
Griffin believes that the CO alone cannot cope with the volume of data and advocates for a public-private partnership. “We cannot leave the CO confront this huge amount of content with the same resources,” said Griffin, who added that the answer would be to create bridges between public and private interests in order to create a market for registration.
For example, photographers could expedite registration of the pictures they take through existing platforms like Instagram or Flicker. Matt Schruers, VP for Law and Policy at the Computer & Communications Industry Association, said that it was not difficult to add a specific software to existing platforms to deal with a function of registration into the software.
Jeff Sedlik, President and CEO of the PLUS Coalition, which regroups various photographers' representative bodies, said that a news photographer could add up to 1,000 pictures a day and usually has neither the time nor the resources to register all these pictures. “When platforms can allow to identify the works, everybody benefits,” said Sedlik. “But we need to keep the registration control under the guidance of the new CO.”
Christopher Springman, from the NYU School of Law, suggested that the USCO should continue to play a role in registration, but as the “regulator of the registration system not the operator. The CO would set the rules for the system, how data should be stored, and it should be handled by private companies a little bit like the domain name system works.”
An independent agency?
The debate on the future of the USCO also turned on what should the mission of the new USCO be and where should the Office fit within the US government structure. Some advocated for the USCO to become an independent government agency, free from its affiliation with the Library of Congress, with a Register of Copyright, or a CEO, named by the President of the United States, serving at the request of both the White House and Congress. In recent communications, the current Register of Copyright, Maria Pallante, also seemed to favour such approach.
Pam Samuelson, Professor of Law at the University of California at Berkeley, said she favoured a CO as an independent agency, but she added a few caveats. To fully function and reflect the complexity of the situations it has to deal with, as well as taking into consideration different perspectives, the CO should add to its staff “a well respected” chief economist; a “very talented” chief technology officer who would not deal with internal IT issues but rather participate in advising the CO on technology issues; a social scientist to do qualitative and quantitative researches; and an ombudsman “who would take a higher perspective.” “Copyright affects everybody and the CO would benefit from people who would bring new perspectives,” said Samuelson.
For Sandra Aistars, Clinical Professor of Law at the George Mason University School of Law in Arlington, Virginia, a 21st Century version of the Copyright Office “needs to include more the individual creators and also the public” and should also take adjudicatory functions to help creatives.
There were, however, different views when it came to regulatory functions. Disney's Dow would want the USCO to have more regulatory responsibilities but warned that “you have to have the resources to make sure you succeed in that space.” His views were echoed by Joseph Liu, Professor of Law at Boston College Law School, who also suggested that the regulatory fields covered by the USCO should be selective. “Copyright law is as complex as tax law,” he said. “There are obviously lot of big issues to walk through.”
A dissonant voice came from William Patry, Senior Copyright Counsel at Google, who agreed that the USCO had “not been funded properly” to do what it was meant to do, but he drew the line with things that the Office currently does not do and could be tasked to do if it became a regulatory agency. “The Copyright Office has an institutional memory, and that is good," said Patry. “There are things that the CO does not do. It does not make fair use determination or damages in cases. These are all common law things. It does not make a lot of sense to give more responsibility [to the USCO] where it does not have institutional expertise. I'd say the same thing for a small claims tribunal.”
Patry added, “If you had a number of huge areas now handled by Congress or the courts [passed on to the USCO], you would still need to give guidance to the CO through the law. I don't see Congress delegating some fundamental issues without ensuring guidelines. I don't see much of an upside. I don't think Congress is actually that bad.”
[Patry also said, while Mary Rasenberger, Executive Director of The Authors Guild, was sitting next to him, that he saw no problem “in getting more money in authors' pockets.” As the case Google vs. Authors Guild on the digitisation of books is to be reviewed soon by the US Supreme Court, the irony of this statement was not lost on the audience...]
Rasenberger took the opposive of Patry's views by advocating for “an independent US CO that should not be within the LoC” and whose head should be a presidential appointee. She also would see the CO have “broader” regulatory powers. “In most countries, copyright law sets the principles, and then you create regulation along these lines,” she explained.
Rasenberger is also less keen to see Congress getting involved in copyright issues. “Congress can't keep pace with technological changes and when it does gets something like the DMCA [Digital Millennium Copyright Act], it is heavily negotiated and then when technology changes, [the law] can't keep up. The world so much more complex today. There are so many issues in which Congress has left gaps and the CO could help with those. Congress is the right place to discuss what the frame should be, then it should have to get the expert agency to implement the law. That is what other countries do.”