Thursday, April 27, 2017

Bill modifying the Register of Copyrights' selection process adopted by the House

By Emmanuel Legrand

The passing the Register of Copyrights Selection and Accountability Act (H.R. 1695) by the House of Representatives with a 378-48 vote is expected to be the first of several copyright-led bills to be discussed in the coming months by US Congress.  

The bipartisan bill, which was introduced on March 23, 2017 by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.), is the first meaningful piece of copyright legislation adopted by Congress since the DMCA in 1998. If adopted by the Senate, it would make the Register of Copyrights a Presidential appointee, subject to confirmation by the US Senate, and serving for a 10-year term. A selection panel made up of Members of Congress and the Librarian of Congress would be tasked with submitting a list of at least three qualified individuals to the President for his or her consideration.  

Speaking to this writer after delivering the closing remarks at the World IP Day event organised by the USPTO, Chairman Goodlatte said that he hoped H.R. 1695 would be adopted "quickly" by the Senate and then signed into law by the President of the USA. "It's not a new idea, we've been working on this for a while," said Goodlatte, who declined to discuss any other specific piece of legislation that could follow H.R. 1695 other than saying it would have to be policy proposals for which it is possible to "reach a consensus."  

Bills that could be considered include the Far Play Fair Pay Act that would introduce performance rights for sound recordings on terrestrial radio; the Songwriters Equity Act, that would simplify the way music is licensed by performance rights organisations; or the PROMOTE Act, which would allow performing artists to opt out of having their music played on the radio if they are not being paid an agreed-upon performance royalty.

A majority of Yeas

Creative industry professionals in Washington, DC welcomed the passing of H.R. 1695 on IP Day. Observers noted that the wide majority of Yeas to only 48 Nays illustrates the bipartisanship of the issue and bodes well for future policy proposals. Observers suspect that many Nays from Democrats are linked to the notion that they objected to having the Register becoming yet another Trump appointee.  

Chairman Goodlatte and Ranking Member Conyers said in a statement that the bill was "one product of the House Judiciary Committee’s multi-year comprehensive review of our copyright laws. This bipartisan review, which began under the tenure of the former Librarian of Congress in April 2013, has been focused on ensuring our copyright laws keep pace in the digital age and has included much discussion on the merits of giving the Copyright Office more autonomy with respect to the Library of Congress." 

They added, “While this legislation represents an important first step in the Committee’s efforts to update our nation’s copyright laws, we remain committed to working with all members and stakeholders to take additional steps to ensure the US Copyright Office is modernised so that it functions efficiently and effectively for all Americans.” 

An important piece of legislation

NMPA President & CEO David Israelite commented, “At a time when creators constantly must defend their rights, it is critical that the Register of Copyrights is chosen carefully and vetted properly. Making this a presidentially-appointed and Senate-confirmed position not only adds the oversight needed to ensure this critical role is filled by someone up to the challenge, it also elevates the position to where it always should have been – amongst the ranks of the top officials within the administration. Additionally, the 10-year term will assist in maintaining continuity in the role across administrations."

Daryl Friedman, Chief Industry, Government & Member Relations Officer of The Recording Academy, stated: “The nation’s foremost copyright expert just moved a step closer from ‘government employee’ to  ‘Presidential appointee with Senate confirmation.’ This important development in updating copyright laws illustrates Congress’ renewed priority of the issue.”
Copyright Alliance CEO Keith Kupferschmid commended "all who demonstrated backing for this important piece of legislation, enabling it to be passed through the House with tremendous bipartisan support, on the momentous occasion of World IP Day. Making the Register a presidential appointee as provided in H.R. 1695 will not only ensure that the selection process is more neutral, balanced, and transparent but it’s also critical to the continued modernization of the US Copyright Office. We look forward to continued support for this issue in the Senate."  

Politicising the Copyright Office

Dissenting voices came from the American Library Association who opposed the Bill.  ALA president-elect Jim Neal "urges all Senators to take special note of what the bill isn’t. Despite the arguments of its proponents, it isn’t related to modernisation of the Copyright Office, which it will impede. It isn’t about protecting or advancing the long-term interests of all Copy­right Office stakeholders, just its most powerful ones. And, by oddly out­sourc­ing appointment of the Legislative Branch’s own copyright advisor to the Executive Branch, it isn’t the way for Congress to get the nonpoliticised counsel about fairly balanced copyright law on which the economy and public interest depend."

Consumer group the Electronic Frontier Foundation also criticised the Bill, claiming that it will "effectively strip the Librarian of Congress of oversight over the Register, and is likely to increase industry influence over an already highly politicised office. The bill does nothing to improve the functioning of the Copyright Office, nor to fix any of the serious problems with copyright law, including its excessive and unpredictable penalties. We’re disappointed that so many in Congress chose to put the interests of powerful media and entertainment industries above those of the public as a whole, but the fight isn’t over yet. We’re urging the Senate to oppose the bill, and to push back against industry calls for an even more partisan Copyright Office."

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