CO Modernization Debate Raises Questions on Funding, Expertise
Lawyers for the House and Senate Judiciary committees urged copyright stakeholders Friday to be as active in advocating to congressional appropriators on Copyright Office funding as they are in advocating to Judiciary staffers for CO modernization. “I would encourage you to spend as much if not more time talking to” appropriators about CO issues and the degree to which funding can affect the office's ability to function, said Senate Judiciary Committee Democratic Counsel Garrett Levin. CO modernization has emerged as a top policy issue that copyright stakeholders have focused on amid the House Judiciary Committee's ongoing Copyright Act review (see 1511180063).
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The debate over CO modernization is tied directly to questions not only about the CO's funding but also whether the office is equipped to take on a more regulatory role, copyright stakeholders said during a Duke University School of Law Center for Innovation Policy-New York University School of Law Engelberg Center on Innovation Law & Policy event.
House and Senate Judiciary “are not the ones who control how much money the CO gets,” Levin said. The CO already estimates its IT modernization plan will cost $165 million to implement over five years (see 1602290071) “and that money has to come from somewhere,” he said: It's “time for folks who care” about CO modernization “to put money where their mouths are and actually advocate those things” before congressional appropriators. House IP Subcommittee GOP Counsel Joe Keeley said “it's critically important” that appropriators hear from stakeholders on CO funding. Some appropriators may not think the CO is “deserving” of a budget increase in the absence of strong stakeholder support, Keeley said. Stakeholders will need to “pretty bluntly” explain why CO funding “matters to you,” he said. The CO's $74 million FY 2017 budget proposal, which doesn't factor in the office's IT modernization plan, would focus on maintaining current operations and replenish the office's “depleted staff” (see 1603140073).
CO modernization is one of the top copyright issues that stakeholders have urged House Judiciary to focus on, in part because “everyone recognizes” that some sort of update to the CO's structure is necessary, Keeley said. Broad support for the “concept” of CO modernization also raises additional questions about the details of what level of modernization supporters can reach a consensus on, particularly whether Congress should increase the office's regulatory role, Keeley said. The IT modernization plan can be implemented without amending the Copyright Act, but the plan may raise questions about the CO's data storage that could require congressional action, Levin said.
Any discussion of CO modernization raises “important questions,” particularly whether there's enough funding to make modernization work, said Google Senior Copyright Counsel William Patry. “Before we give” the CO additional responsibilities" for the copyright system, “let's make sure they have the money” to implement them, Patry said. Congress can't ask the CO to “do more rulemakings without giving them additional” staff and resources, said The Authors Guild Executive Director Mary Rasenberger.
All copyright stakeholders “need to look closely” at how the CO's role would change via modernization, said Sandra Aistars, George Mason University School of Law Center for the Protection of Intellectual Property director-Copyright Research and Policy. Aistars noted the CO's support for creating a small claims copyright court, which she said would be “one of the most notable things” the CO could do in copyright adjudication. It “doesn't make a lot of sense” to increase the CO's responsibilities to include duties in areas in which they don't have expertise, Patry said. The CO likely can handle additional work on issues like registration recordation and administering statutory licenses on which the office has “institutional memory and expertise,” Patry said.
The CO would benefit from having additional regulatory authority, but Congress would “need to be careful and selective” about the areas where it would increase CO authority, said Boston College Law School professor Joseph Liu. The CO's most recent triennial review of exemptions to the Digital Millennium Copyright Act Section 1201 ban on circumvention of technological protection measures gives stakeholders reasons to be both optimistic and cautious about extending the CO's regulatory authority, Liu said. The CO's successful completion of that review, which produced 10 exemptions to Section 1201 (see 1510270056) shows the office can handle rulemakings, Liu said. Stakeholders' concerns about how the Section 1201 exemptions process works shows the CO's current rulemaking approach has “certain limitations,” but it's “worth working through” those issues “in order to” improve the office, he said.