Broad Support for Copyright Office Modernization but Little Direction Yet on Specific Solutions

There’s “complete unanimity that the CO must modernize,” said Sentinel Worldwide CEO Steve Tepp, former U.S. Chamber of Commerce chief IP counsel. “The only question is whether that should happen within the same construct” as currently exists, with the CO as part of LOC, he said. The “only approach not being seriously considered is keeping the status quo” of not granting further autonomy to CO within the LOC, said Copyright Alliance Executive Director Keith Kupferschmid. “There’s a strong belief that the CO needs to have greater autonomy,” though existing stakeholder proposals vary in the degree of autonomy they would grant to the CO, he said. The base level of additional autonomy the CO would need while remaining with LOC would be to have separate IT systems for the CO and LOC that reflect their separate priorities, Kupferschmid said. Higher levels of autonomy within the LOC would allow CO to have a separate budget or allow the president to directly appoint the register of copyrights.

The House Administration Committee has shown interest in reviewing the CO’s status alongside House Judiciary’s Copyright Act review, with House Administration now reportedly set to examine modernization in a Dec. 2 hearing. Though many details of the hearing aren’t set, Pallante and Acting Librarian of Congress David Mao are to testify, Kupferschmid said. A GAO official also will testify, though full details for the hearing weren’t set at our deadline. House Administration abandoned hearing from a second panel of industry stakeholders because it wasn’t able to find stakeholders in favor of preserving the CO’s current relationship with LOC, an industry lobbyist said. House Administration didn’t comment.

Pallante’s backing of making the CO an independent agency, coupled with circulation of the draft Copyright Office for the Digital Economy (CODE) Act (see 1506050057), have made relocation proposals the most high-profile modernization option, stakeholders said. The CODE Act would make the CO an independent agency, though other stakeholders who back relocation argue that a stand-alone CO should remain under Congress’ purview. “There’s very broad support for copyright office being moved out” of LOC, particularly given perceptions that larger LOC priorities so often stymie the CO’s ability to innovate on IT and other issues that complete separation is necessary, said Tepp, who co-authored a pro-CO relocation paper for the Hudson Institute with former Register of Copyrights Ralph Oman.

A separate CO could be equally effective as either an independent agency or as a stand-alone agency within Congress, since “the most important things are to give the register of copyrights the authority to run the office and modernize it in a way that’s suited to the particular needs of customers," Tepp said. Keeping a separate CO as part of Congress would have the “additional attraction of being respectful of the historic relationship of the CO to Congress while still giving the executive branch the authority to appoint the register directly, which would respect the president’s role as the executive,” Tepp said.

There’s also opposition among some stakeholders to focusing on relocating the CO in the short term, with New America’s Open Technology Institute (OTI) and other groups affiliated with the Re:Create Coalition opposing making separation a legislative priority for now. “It’s too soon to tell at this point whether the CO should actually be moved,” said OTI Senior Policy Counsel Laura Moy. “It’s better to focus on modernizing the CO’s IT systems and other internal issues and then evaluate.” The biggest practical problem to moving the CO out of LOC “is that when you start moving things around it creates chaos,” said Library Copyright Alliance Counsel Jonathan Band. “You just sort of delayed looking at the problem.”

There has been some past support for making the CO a Department of Commerce office or merging it directly with PTO, but such proposals have “fallen by the wayside” amid limited support from the Obama administration, an industry lobbyist told us. The Hudson Institute paper found that although moving the CO to either Commerce or PTO could “easily pass muster,” the move would “merely [trade] one master (the Librarian of Congress) for another (the Secretary of Commerce or Director of USPTO).”

“Simply moving the function from one building to another is not really going to solve the problem” of addressing the CO’s IT issues, Band said. “If anything it will delay the problem.” Band said the office needs more funding if it hopes to upgrade its current IT systems, and a focus should be on making sure the “right people are in the right positions.” Moving the CO into Commerce or the PTO “is probably problematic,” said Center for the Protection of Intellectual Property Director-Copyright Research and Policy Sandra Aistars. “In terms of feasibility, I think you should think about what the office has been saying about its needs.” The CO emphasized a desire in its strategic plan to become a model for 21st century government agencies, Aistars said. “I think merging it with such a large entity doesn’t line up well with [their] strategic plan,” she said. The PTO didn’t comment, but pointed us to a speech PTO Director Michelle Lee gave at the Technology Policy Institute in August in which she said that “as we determine the right, proper home for the Copyright Office, first and foremost they need to have the funding that they need to do the very import work for our companies and our businesses.” The Commerce Department didn’t comment.