IPR Committee Brief: Register of Copyrights Selection and Accountability Act

Welcome to IPR Briefs, an occasional series in which members of the VRA’s Intellectual Property Rights Committee cover rights issues of interest to the visual resources community. In today’s Brief, Amy Lazet gives an overview of H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017. Amy is Visual Resources Specialist at the College for Creative Studies in Detroit. Her article “The Unexplored Ethics of Copywork Image Manipulation” appeared in the October 2016 VRA Bulletin.

In April 2017, bill H.R. 1695: Register of Copyrights Selection and Accountability Act (LINK), which proposes moving the position of Register of Copyright to a presidential appointment followed by a Senate confirmation hearing, passed the U.S. House of Representatives. Reactions to the bill have been vehement; those supporting it say it will serve to modernize the Copyright Office (which should be distinct from the Library of Congress, given the Library’s mission to disseminate information freely) while those who oppose it argue that the bill is designed to serve the interests of those in the entertainment industry (namely Hollywood) and a presidential appointment will unnecessarily politicize the position.

This bill is the culmination of a process that started as a “comprehensive review of U.S. copyright law” on April 24, 2013. (It is worth noting that H.R. 3261: Stop Online Piracy Act [SOPA] was introduced in 2011 and would have allowed for, among other things, companies behind websites hosting user content [think YouTube] to be held accountable for any copyright infringement by users on their sites; the bill died that same year LINK). Twenty hearings with testimony from 100 witnesses were held and a tour of Nashville, Silicon Valley, and Los Angeles allowed “creators, innovators, technology professionals, and users of copyrighted works” to give input over the next several years. Finally, comments were accepted online through January 31, 2017 (1).

This information was taken into consideration by the House of Representatives Judiciary Committee, chaired by Bob Goodlatte (R-Va) (list of Committee members LINK), which released a statement in December 2016 urging reform of the Copyright Office in order to “update the Office for the future.” According to the statement, “The 20th Century statutory framework for the U.S. Copyright Office is not sufficient to meet the needs of a modern 21st Century copyright system. To update the Office for the future, a significant investment of funds and changes to how the Office operates are required…Currently, the Register is not subject to the same nomination and consent process as other senior government officials. To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination” (2).

In keeping with this statement, the bipartisan bill H.R. 1695 (LINK) was proposed by Bob Goodlatte (R-Va) and John Conyers, Jr. (D-Mich) on March 23, 2017 and passed the House on April 26, 2017 by a measure of 378 to 48, with four people not voting (both Goodlatte and Conyers were co-sponsors of SOPA) (3). Of the 378 votes for the bill, 233 were Republican and 145 were Democrat. Only two Republicans voted no, while 46 Democrats did likewise; two Republicans and two Democrats abstained from voting (4).

Prior to its passage, an amendment (H.Amdt. 109) was introduced by Theodore Deutch (D-Fl) that allows the Register to identify and supervise a Chief Information Officer responsible for managing information technology systems; the amendment passed by 410 to 14, with six abstaining (5). Should this bill pass the Senate and be approved by the President of the United States, it will modify Section 701 of Title 17 of the U.S. Code (text of Section 701 LINK).

Currently, the Register of Copyrights is appointed by the Librarian of Congress. H.R. 1695 would change this to a presidentially-appointed position, with confirmation by the senate (a process the Librarian of Congress currently undergoes). The bill proposes the formation of a selection panel, comprising Members of Congress and the Librarian of Congress, who would submit a list of recommended individuals to the President. The President would then select a person from the list who would undergo a confirmation hearing in the Senate. The appointment would last 10 years and could be renewed by another confirmation hearing; the Register would only be able to be removed for cause (6).

According to GovTrack.us, one reason for the bill is due to “court challenges to the Copyright Office’s authority to issue regulations because the Copyright Office is within the Library of Congress which is a legislative branch agency and not an executive branch agency.” H.R. 1695 would resolve this issue by making the Office into an executive branch agency (7). This bill, then, “identifies important reforms to help ensure the Copyright Office keeps pace in the digital age,” according to the Judiciary Committee website (8).

Many institutions have expressed their approval of the bill; support is particularly strong within the entertainment industry but proponents also include the Artist Rights Society and the Copyright Clearance Center, among many others (list of supporters of the bill LINK). The Copyright Alliance states that, “…the Register of Copyrights position is essential to the U.S. economy, creativity and culture, a status that should be acknowledged by making the role a presidential appointee subject to Senate confirmation. 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 U.S. Copyright Office” (9).

However, many associations of libraries/librarians and academic institutions have voiced their opposition to the bill, including the American Library Association (ALA), the Consortium of College and University Media Centers, and the Library Copyright Alliance which consists of the ALA, the ALA’s Association of Research Libraries, and the ALA’s Association of College and Research Libraries. The ALA states, “As this bill moves to the Senate, ALA urges all senators to take special note of what the bill isn’t. Despite the arguments of its proponents, it isn’t related to modernization 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” (10). The statement released by the Library Copyright Alliance suggests that, “It’s also difficult to understand how the public or Congress itself would benefit from politicization of the Register of Copyrights’ position by making it subject to presidential appointment and Senate confirmation, as this legislation proposes. Such politicization of the position necessarily would result in a Register more actively engaged in policy development than in competent management and modernization” (11).

One of the main concerns driving the creation and passage of this bill is that, currently, the Register is appointed by and serves under the Librarian of Congress, which is seen by some of the bill’s supporters as a negative due to libraries’ mandate to make information readily accessible. Proponents point out that the ALA is in opposition to the bill and the current Librarian of Congress, Dr. Carla Hayden, is a past president of the ALA and therefore (presumably) likely to concur with at least some of the sentiments expressed by the ALA in their statement on the topic (12).

Christopher Chambers, professor of media studies at Georgetown University told NBC BLK, “Big money is at stake and the [entertainment] industry wants someone who will see its side rather than the public interest in what the Constitution says is the ‘promotion of useful Arts.’ It is no secret that the industry lobbies and donates hard, regarding Democrats and Republicans alike…This [bill] basically surrenders congressional power over intellectual property right there in the Constitution, to the Executive Branch, hence President Trump” (13).

Finally, Mike Masnick, founder of Techdirt.com, points out that copyright is a moving target; historically, each time the copyright terms change within the U.S., protection is expanded. In 1976, the Copyright Act served to make copyright registration automatic (upon ideas being fixed in a medium) and extended the copyright to life plus 50 years. Prior to 1976, copyright protection only existed for 28 years after registration, with the option of a 28 year renewal. As Masnick states, “And when that term of copyright [established in 1976: life plus 50 years, for a maximum of 75 years] threatened to expire and move Mickey Mouse into the public domain, Congress rushed to Disney’s rescue and added another 20 years to make the term life plus 70 years. And it may do so again soon” (14). (No published, copyrighted works entered the public domain in the U.S. in 2017, nor will any become public domain in 2018; it is not until 2019 that the public domain in the U.S. will see new works) (15).

Masnick continues, “…the Copyright Office, historically, has not welcomed of the rise of the internet. Much of the leadership of the Copyright Office over the past few decades has come out of legacy industries — publishing, recorded music, movies — that had viewed copyright as a tool to serve a few big industries. The office has been accused of systemic bias from the revolving door of industry executives and lawyers going into the office, or leaving the office to go back to those same industries. Over the past few decades, the Copyright Office has continued to expand its own role, beyond just registering and managing copyrights, to getting deeply involved in various policy debates around copyright. For example, the last register, Maria Pallante, testified to Congress in support of SOPA [Stop Online Piracy Act] while another, previous register, Ralph Oman, literally argued to an appeals court that no new content delivery technologies should be allowed without first being approved by Congress if they might, in any way, upset the copyright industries” (16).

H.R. 1695 “…would effectively remove the Copyright Office from the library and remove the public interest mission of the library as a counterbalancing force on the Copyright Office and its recent one-sided focus on the law,” says Masnick. “The copyright-centric industries — who have always had an uneasy relationship with the internet — recognize one of the best ways to protect their interests is to have much more control over who will be in charge of the Copyright Office. The new bill gives the copyright industry the means to do that…The [entertainment industry] ha[s] tried to argue that by making the new Register of Copyright an office approved by the Senate, that will make it more democratic, where anyone can weigh in on the appointment and influence the Senate’s confirmation process. That would be great for the [industry] and their historic lobbying power over Congress, which is massive” (17).

Because H.R. 1695 has not passed the Senate, it is not yet known how this bill will affect industries dealing with copyrighted materials, including libraries, nor how it would advance the proposed modernization of the Copyright Office. At this time, the Office is no longer accepting comments, and the passage of the bill is now in the hands of the Senators and their (potentially vocal) constituents. Even if the bill passes the Senate, the wait to ascertain how U.S. copyright would be affected by it could be long, given the process for committee nomination, appointment, and confirmation.

Sources:

“LINK:”
Text of H.R. 1695: https://www.congress.gov/bill/115th-congress/house-bill/1695/text
Text of H.R. 3261: https://www.congress.gov/bill/112th-congress/house-bill/3261
Judiciary Committee Members: https://judiciary.house.gov/wp-content/uploads/2017/02/115th-House-Judiciary-Committee-Updated-21517.pdf

Citations:
1, 9. Judiciary Committee “Copyright Review” website:https://judiciary.house.gov/issue/us-copyright-law-review/
2. Judiciary Committee statement on “Reform of Copyright Office:”https://judiciary.house.gov/wp-content/uploads/2016/12/Copyright-Reform.pdf
3. H.R. 3261 (SOPA): https://www.congress.gov/bill/112th-congress/house-bill/3261
4-7. H.R. 1695 (Register of Copyrights): https://www.congress.gov/bill/115th-congress/house-bill/1695/text
8. Copyright Alliance statement: http://copyrightalliance.org/news-events/copyright-news-newsletters/compilation-register-copyrights-accountability/
10. American Library Association statement:http://www.ala.org/news/press-releases/2017/04/ala-urges-senate-reject-bill-make-register-copyrights-presidential-appointee
11. Library Copyright Alliance statement: http://www.districtdispatch.org/wp-content/uploads/2017/03/FINAL-DRAFT-LCA-Statement-re-Register-Appointment-Bill-032317PM.pdf
12. Blog on “The Hill” in support of H.R. 1695: http://thehill.com/blogs/congress-blog/politics/328189-enough-with-the-back-and-forth-hr-1695-is-a-no-brainer-get-it
13. Christopher Chambers statement: http://www.lawattstimes.com/index.php?option=com_content&view=article&id=4244:house-votes-to-limit-powers-of-first-black-librarian-of-congress&catid=11&Itemid=126
14, 16-17. Mike Masnick statement: https://www.theverge.com/2017/4/3/15161522/mpaa-riaa-copyright-office-library-of-congress-dmca-infringement
15. Resources entering the public domain in 2017:https://law.duke.edu/cspd/publicdomainday/2017/pre-1976/

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