Senate Judiciary Leaders Plan More Active Copyright Policymaking Role in 2017
The Senate Judiciary Committee is developing its first significant piece of copyright-specific legislation since its House counterpart began an ongoing Copyright Act review more than three years ago. Development of Senate Judiciary's Copyright Office modernization bill hasn't gotten beyond consultations on draft principles. Committee leaders told us last week they're planning during the 115th Congress to ramp up the committee's role in influencing the debate over copyright legislation. More active Senate Judiciary participation in crafting copyright legislation would be a shift from the committee's largely behind-the-scenes role on copyright policymaking during the House Judiciary Committee review of copyright law, copyright stakeholders told us.
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Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt., have been seeking input on a CO modernization bill aimed at giving the office and the register of copyrights more autonomy from the Library of Congress. Grassley and Leahy appear to be seeking a compromise that would increase CO autonomy without going as far as proposals like the Copyright Office for the Digital Economy (Code) Act (HR-4241), which would make the CO an independent agency or otherwise separate the office from the LOC, multiple copyright lobbyists told us. Grassley confirmed that he and Leahy are working on a CO modernization bill. But he told us, “I don’t expect we’ll be able to move it very far this year.”
Grassley and Leahy separately told us they want Senate Judiciary to play a more active role on copyright policymaking in 2017, given House Judiciary’s progress in its Copyright Act review. “We’ve been putting off” work on copyright legislation amid the House Judiciary review and “now we have to play catch-up,” to work with House Judiciary Chairman Bob Goodlatte, R-Va., on legislation next year, Grassley said in an interview. Development of the CO modernization bill shows that issue will be a priority for Senate Judiciary, but the committee is still deciding what other copyright issues it believes are ripe for targeting in legislation, he said. Leahy told us he would like Senate Judiciary to play a bigger role in writing “bipartisan copyright legislation,” but said he will be pushing for the committee to prioritize confirming a backlog of judicial nominees.
Several lobbyists said they welcome more active Senate Judiciary involvement in developing copyright legislation and believe any legislation coming out of the committee is likely have a limited scope. Grassley and Leahy have appeared to target CO modernization to start out their copyright legislative work because they’ve already decided most of the copyright policy issues that House Judiciary has explored in its Copyright Act review “are so controversial” that a consensus on such issues isn’t likely, a tech sector lobbyist said. “They’re trying to figure out the few issues on which some agreement is possible.” Even CO modernization “isn’t a slam dunk,” though it “has more potential for stakeholder consensus than there is on most other topics,” the lobbyist said. An initial focus on policy issues where there’s a known consensus is “a good place to start since those issues are ones that will benefit all parties,” said Sandra Aistars, George Mason University School of Law Center for the Protection of Intellectual Property director-copyright research and policy.
It’s reasonable for Grassley and Leahy to start their active copyright policymaking by focusing on policy issues on which a consensus is known to be possible, particularly since Senate Judiciary has been “following these issues closely from behind the scenes” throughout House Judiciary’s review, a publishing industry lobbyist told us. “It’s not like they’re actually just starting to look at these issues.” The lobbyist pointed to the Senate Judiciary leaders’ October request for a CO study on how provisions in U.S. copyright law affect the development of software-embedded products. The CO began its study in December (see 1512150050). A focused legislative review from Senate Judiciary would be a direct contrast to House Judiciary’s “top-to-bottom review of the copyright landscape, which has addressed lots of issues on which a consensus isn’t possible,” said Computer and Communications Industry Association Vice President-Law and Policy Matthew Schruers. He said that Senate Judiciary’s approach is “a more discreet and pragmatic function to getting done that which can get done.”
Drafts' Details
Development of the Grassley-Leahy bill hasn't moved beyond a set of draft principles. Those principles track with the provisions in a draft bill from Reps. Jason Chaffetz, R-Utah, and Ted Deutch, D-Fla., that has been circulating in recent months, stakeholders told us. The Grassley-Leahy draft principles and the Chaffetz-Deutch draft bill would keep the CO within the LOC and would make the register of copyrights a president-appointed position. Chaffetz-Deutch would set the register's term at five years, with the option of reappointment for up to four more terms, while Grassley-Leahy says only that the register would be “term-limited.” Chaffetz-Deutch proposes a bipartisan congressional commission that would recommend register candidates to the president but also would allow the president to seek additional recommendations. Neither of the draft proposals would expand the register's rulemaking powers, but both would remove the librarian's oversight of the register's rulemaking decisions.
Grassley-Leahy and Chaffetz-Deutch would establish an independent public advisory committee charged with advising the CO on operational and policymaking. Chaffetz-Deutch proposes a 15-member commission with members who would have up to two three-year terms. Chaffetz-Deutch would establish a revolving fund for CO-collected fees that the CO would have full access to, while Grassley-Leahy would give the register “independent decisionmaking” authority on budgetary issues. Both proposals would involve ongoing congressional oversight of the CO post-enactment that would include annual reports to both the House and Senate Judiciary committees.
Both proposals would require updates to CO recordation and registration processes to improve online access and transparency. Chaffetz-Deutch would require the CO to set up a framework for collecting electronic copyright deposits and set up a “secure” electronic depository. The CO would also be required to set up a recordkeeping database that would improve online access to copyright information. Grassley-Leahy would set up CO-led multistakeholder processes for developing tech solutions related to copyright data because “legislating a specific database result is a poor fit for the rapidly changing technological landscape.”
Grassley and Leahy set the conclusion of the congressional recess that ends after Labor Day as the deadline for stakeholders to comment on the draft principles. Further progress on the bill may depend on when Chaffetz-Deutch advances, two lobbyists told us. A formal introduction of Chaffetz-Deutch “may encourage” Grassley and Leahy to “move forward” on their bill's development, a music lobbyist told us. A formal introduction of Chaffetz-Deutch likely depends on Goodlatte’s timetable for the long-anticipated release of House Judiciary’s priority list of potential consensus copyright policy issues, the music lobbyist said. Goodlatte said in April that identification of House Judiciary’s copyright policy priorities would occur within weeks (see 1604260062). Multiple lobbyists said they are beginning to question how much longer the committee will take before it releases its announcement. House Judiciary anticipates “releasing our first policy proposal soon,” a committee aide said.