CODE Act Draft Shows Interest in Making Independence First Copyright Act Revamp Issue, Stakeholders Say

The CODE Act would limit the CO director to one 10-year term and would create a commission that includes House and Senate Judiciary Committee leaders to recommend candidates for the job. The bill would prohibit the White House from having authority over the CO director’s decisions. The CODE Act would mandate that an independent CO continue to advise Congress on national and international copyright issues and direct the office to assist the White House and the judicial branch on copyright issues. An independent CO would participate in international intergovernmental meetings and organizations on copyright issues, would do copyright-related studies and perform other congressionally mandated functions, the CODE Act said. Works submitted to an independent CO for copyright registration would remain available to the Library of Congress for its collections, while the CO would have authority to issue requirements for copyright submission, the bill said. The CODE Act would mandate a study on the current mandatory CO copyrighted works deposit provisions, including what conditions would be necessary for the CO to transfer its obligation to administer deposits back to the Library of Congress.

Circulation of the CODE Act for stakeholder feedback has “laid the groundwork for a solid piece of legislation that everyone can get on board with,” Marino said in a statement, though “some may say this [is] a tough sell in Congress.” The Copyright Alliance and the Software & Information Industry Association were among the industry groups that strongly backed the CODE Act draft Thursday and Friday, but that support wasn't universal. The CODE Act as currently written “doesn’t seem to focus much on the major challenges the CO faces,” an industry lobbyist told us, noting ongoing issues with recordkeeping that have created uncertainty over the copyright status of some works. The CO has also been drawn into a debate over overarching IT issues at the Library of Congress, with the GAO saying in a March report that the agency lacks “clear direction” for its IT program (see 1503310046). It’s “peculiar” that “anyone would contemplate providing more resources, more autonomy and less oversight” to the CO without first addressing those issues, the industry lobbyist said. Internet Association President Michael Beckerman said in a statement that he was concerned about making the CO an independent agency before first making “wholesale changes” at the CO that would make the office “better represent all stakeholders through the incorporation of policies that facilitate consumers’ access to content, encourage innovation, and protect content-creators.”

Many stakeholders “have pointed to [CO independence] as the place to start” on legislation to revamp the Copyright Act, said Sentinel Worldwide CEO Steve Tepp, former U.S. Chamber of Commerce chief IP counsel. “If you want to have the best possible copyright system in the 21st century, you want to start with the best possible [CO]. That’s why there’s such broad support for restructuring.” Copyright Alliance CEO Sandra Aistars told us that detaching the CO from the Library of Congress “is something you want to accomplish first before turning to a larger Copyright Act revision because this sets up the CO to be a good partner for Congress in addressing some of these substantive issues. There may be less of a need to address all of those issues statutorily in the Copyright Act itself, which would be a benefit to copyright law and anyone who has to work with it.” Teeing up a bill on CO independence before launching into other Copyright Act revamp bills also provides stakeholders with a “substantive win, a strong win” before “we see what happens with the rest” of the myriad copyright issues up for debate, an industry lobbyist said.

Chu and Marino’s decision to debut the CODE Act only as a draft bill rather than immediately introduce it shows “it’s safe to say that we are very early into this conversation,” said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers. “We can anticipate a number of proposals" on CO independence and other copyright issues. Schruers said no other members have confirmed that they’re planning to introduce separate CO legislation, though Aistars and the industry lobbyist said Reps. Jason Chaffetz, R-Utah, and Ted Deutch, D-Fla., have indicated interest in the issue. Chaffetz "is looking into options that will address concerns raised by" the CO, a spokeswoman said. Copyright Act revamp legislation is also likely to be influenced by the Department of Justice’s ongoing review of consent decrees in the music industry, Schruers said. Stakeholders may also continue to influence future legislation on Copyright Act issues through a series of yet-to-be-scheduled “listening sessions” that House Judiciary Chairman Bob Goodlatte, R-Va., has pledged to hold, an industry lobbyist said. Goodlatte’s office didn’t comment on a timeline for those meetings.