IT Improvements, DMCA Section 1201 Revamp Called Most Important to CO Functionality
Improving the functionality of the U.S. copyright system shouldn’t center solely on proposals to modernize the Copyright Office, said Re:Create Coalition-affiliated lobbyists Tuesday during a group event. Fixes to the CO should center on improving its adaptation to modern technologies and narrow the scope of the Digital Millennium Copyright Act’s (DMCA) Section 1201 anti-circumvention rules so the CO isn’t bogged down with regulatory duties related to that statute, the lobbyists said. The House Judiciary Committee has been exploring a possible modernization of the CO as part of its ongoing Copyright Act review, including examining proposals to move CO out from the Library of Congress. The CO modernization issue has repeatedly been mentioned in House Judiciary’s recent copyright roundtable sessions (see 1511100063 and 1511120049).
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It’s too early for legislators to decide whether the CO should be moved out of LOC and made into an independent agency or become part of another federal agency like the Patent and Trademark Office, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers. “Changing where [copyright] responsibility sits is sort of like putting the cart before the horse,” he said. “It assumes that the reason we have a problem here is because the responsibility is better somewhere else. But we haven’t identified the problem yet. A lot of study needs to be done to find out if any problems would be solved by shifting [copyright] responsibility” elsewhere.
The best way to start to deal with the CO’s lag in dealing with new copyright registrations is to bring the CO’s “information technology infrastructure up to date,” said New America’s Open Technology Institute Senior Policy Counsel Laura Moy. The CO and LOC have faced significant criticism this year on technology issues, including a GAO report that criticized LOC for not modernizing critical systems (see 1503310046) and for a lengthy late summer outage of critical CO systems (see 1509080058). The CO has taken some steps to address those IT issues, including hiring Chief Information Officer Bernard Barton (see 1509080058). The CO will need to improve the copyright recording process “to allow for wholly digital filings,” Moy said. Registration with the CO isn’t required for claiming copyright in the U.S., so “it’s crucially important that we make it as easy as possible for rights holders to engage with the CO, and that means bringing their systems up to date,” Moy said. The CO didn't immediately comment.
Stakeholders are debating whether it’s realistic to continue to require the CO to act as a regulatory body dealing with DMCA Section 1201. Library Copyright Alliance Counsel Jonathan Band said the “easy solution would be to simply … amend Section 1201 or to have a resolution” of the current federal court split on Section 1201’s scope. The CO’s regulatory role related to the section has appeared to hinder its ability to efficiently handle core copyright functions, Band said. Copyright stakeholders have been urging a revamp of the section for years, but have been particularly vocal since the CO and LOC announced the newest set of 10 exemptions to Section 1201 (see 1510270056 and 1510280071). “If Section 1201 had a much narrower application, then you could say that’s something that’s more in the expertise of the CO,” Band said. “Certainly having the CO determining whether it makes sense to allow people to do security testing on heart pumps or to make modifications on software for tractors is absurd. But that’s a problem that can be easily addressed.”
Schruers urged the CO to offer incentives for copyright holders to formally register copyrights with the office as a way of increasing the rate of registration. “We’ve painted ourselves into a corner with keeping no records and giving extraordinarily long terms, and now we’ve blocked ourselves in by signing international treaties and trade agreements that say everyone has to paint themselves into this corner,” Schruers said. “You certainly can’t mandate that people register but you can give them incentives like benefits, access to new services the CO might deploy.”