House Judiciary Legislative Proposal Focuses on CO-Centric Issues

The policy statement endorses the CO’s 2013 plan for establishing an alternative copyright small claims process (see report in the Oct. 1, 2013, issue) and recommends new requirements for updates to the CO’s IT infrastructure. Language in the submission calling for changes in the nomination process for future registers of copyrights appears to be a bid to effectively pre-empt Librarian of Congress Carla Hayden from advancing the process for finding a permanent replacement for ousted Register Maria Pallante, said industry lawyers and lobbyists. Associate Register of Copyrights Karyn Temple Claggett is acting register pending the completion of that process.

House Judiciary envisions the CO remaining “part of the Legislative Branch where it can provide independent and timely advice to Congress on copyright law and policy,” but believes the office “should have autonomy over its budget and technology needs.” The committee urged that the nominee to replace Pallante permanently “and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination.” Such a suggestion would align the process for selecting a register with the process for selecting a librarian of Congress as enacted in the 2015 Librarian of Congress Succession Modernization Act. That bill set the librarian’s term at 10 years but allowed renomination. The CO should also create positions for a deputy register, chief technologist and chief economist, the paper said.

The committee heads welcomed the CO’s $165 million IT modernization plan. They backed giving the CO the authority to “build up reserve accounts and offer additional fee-for-service options that would generate revenue for IT modernization. The draft would require the CO to “maintain a searchable, digital database of historical and current copyright ownership information and encourage the inclusion of additional information such as licensing agents that would be available to the public.” The database should allow including additional metadata, including standardized identifiers, and high-speed access to the database, the paper said. Both features should be subject to a fee, the committee said.

Goodlatte and Conyers said CO’s small claims process proposal should “handle low value infringement cases as well as bad faith [Digital Millennium Copyright Act] Section 512 notices.” The register “should be given the authority to promulgate regulations to ensure that the system works efficiently,” the framework said. The CO should set up a combination of permanent and ad-hoc advisory committees to advise the register “on critical issues,” it said. Permanent committees would focus on the CO’s registration and recordation system, public outreach, access for the visually impaired and issues related to libraries, museums and archives, the document said. The advisory committees’ membership “should reflect a wide range of views and interests,” with all members having a term limit, it said.

The proposal “is just the beginning of this stage of the copyright review, and we intend to release policy proposals on music licensing issues and other individual issue areas in time,” Goodlatte said in a YouTube video. “We intend to periodically release policy proposals on select individual issue areas within the larger copyright system that are in need of reform where there is a potential for consensus,” Conyers said. “These policy proposals are not meant to be the final word on reform in these individual issue areas, but rather a starting point for further discussion by all stakeholders, with the goal of producing legislative text within each issue area.” Copyright stakeholders can comment through Jan. 31, the committee said in a news release.

The Senate Judiciary Committee plans to work with its House counterpart during the “next Congress on this important issue,” said Senate Judiciary Chairman Chuck Grassley, R-Iowa, and committee ranking member Patrick Leahy, D-Vt., in a joint statement. “Based on our extensive consultation with a broad range of stakeholders, we believe the [CO] should have more independence, accountability, and authority to make decisions in areas such as IT, budget, and staffing.” The Grassley-Leahy CO modernization draft legislative principles have been seen as 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) that would make the office an independent agency or otherwise separate the office from the LOC (see 1607150022).

Many stakeholders said they view the call for a revamp of the nomination process for the register as a warning to Hayden following her controversial removal of Pallante as CO head (see 1610240052). Hayden didn't technically fire Pallante, having appointed her LOC adviser for digital strategy. Pallante resigned from the LOC soon afterward (see 1610250062). The language is a “clear statement” that House Judiciary leaders don’t believe Hayden should have the sole authority to nominate the next register, said Copyright Alliance CEO Keith Kupferschmid. The Association of American Publishers believes Pallante’s ouster “created uncertainty about how the next register would be appointed,” so “having Congress step in and seek to have the nomination authorized makes a great deal of sense,” said Vice President-Legal and Governmental Affairs Allan Adler.

Formal legislation revamping the register nomination process isn’t likely to appear before comments on today’s framework are due, but “I think this proposal really does handcuff Hayden from doing anything” about moving forward with the register selection process until the committee can legislate on the issue, Kupferschmid told us: “I’ll be interested to see if [LOC] moves forward with this process” now. Library Copyright Alliance counsel Jonathan Band said he’s more dubious about the extent to which the Goodlatte/Conyers announcement will constrain Hayden from moving forward with the selection process. “I don’t think she should allow this to delay” the selection process, Band said. “There isn’t even a bill yet, just a proposal.”

It could take years for such legislation to move through Congress even under ideal conditions, meaning the possibility of at least two additional years with Claggett in an acting capacity, Band said. Holding up the process because of possible legislation “makes no sense,” especially since it could make it “difficult for the CO to move forward” in the interim, he said. The uncertainty that possible legislation brings for any register’s future prospects should prompt a delay, Kupferschmid said: “Whoever would take this position now would have to be OK” with the possibility of needing to go through a confirmation process after less than a year in office. “I think you might see [Claggett] serve as acting register for quite a while,” Kupferschmid said.

The LOC had been expected to release information as soon as Friday on the process for selecting a new register, but Thursday's release may further delay that process, two industry lobbyists said. Hayden had apparently agreed to a “public process, meaning stakeholders will be able to offer input and guidance, and that it will be fully transparent,” said one tech sector lobbyist. “That’s important from our perspective because we wouldn’t want a new register to just be appointed in the dark of night and not have a sense of the metrics by which [Hayden] will make her decision.” An LOC spokeswoman confirmed before House Judiciary’s announcement that the library expects “to announce a timeline before the end of the year.”

Hayden “is in complete agreement that the [CO] needs to ‘meet the needs of a modern 21st Century copyright system,’” the LOC spokeswoman said Thursday. The representative said the LOC “looks forward to furthering that goal, working with Members of Congress as they consider various proposals and budgets that will impact the copyright office and the overall institution.”

The remainder of the CO-centric proposal is encouraging, because CO modernization “is an optimal place to begin” addressing the issues that the committee examined during its yearslong Copyright Act review, Adler said. That the House Judiciary statement mirrors elements in the Grassley-Leahy draft principles lays out a “promising path forward,” Adler said. The submission is “very balanced” and appears to have support from most sides of the copyright debate, Kupferschmid said. “I think we’re certainly getting closer to seeing legislation.”

Re:Create Coalition Executive Director Joshua Lamel gave a mixed review, noting that it won’t be possible to rate some elements of the plan until more specific language is available. Lamel said he’s in part concerned that the modernization proposal would result in the office existing “in name only” within the LOC, which could result in the office paying less attention to the views of consumers. Band said he believes it’s misguided to place an emphasis on CO modernization because restructuring the office “isn’t going to solve” the CO’s IT issues or other operational problems. “It’s a matter of having the right leadership and the right priorities” in place, Band said.

Lamel said he’s also concerned about House Judiciary’s endorsement of the CO’s small claims process proposal because “it’s constitutionally concerning that the legislative branch would be overseeing a small claims proceeding. How do you keep politics out of something like that?” Small claims provisions “have the potential to create a massive trolling industry,” as has occurred in patent litigation, Lamel said. “I have nerves about what type of creative business practices that would create.”

It’s wise to move modernization and IT fixes as separate legislation rather than lump it into a bill dealing with music licensing and other copyright policy issues, said music industry attorney Chris Castle. “This makes it less likely that [CO modernization] can become politicized,” he said. The general sense is that if House Judiciary attempted to move legislation “loaded up with too many kinds of issues, the opposition would be likelier to sink it,” Adler said: “Apart from issues associated with music licensing, there wasn’t great stakeholder agreement [during House Judiciary’s review] on any other set of issues” than there was on some form of CO modernization.

MPAA agrees with committee leadership's decision to initially focus on CO modernization since it “was identified as a critical issue” even “before the recent events surrounding” Pallante’s ouster, said Executive Vice President-Global Policy and External Affairs Joanna McIntosh in a statement. The CO’s “current structure dates back to the 19th century," she said. "As many members of Congress as well as past Registers have stated, in the 21st century the [CO] needs policy and operational autonomy to meet its statutory obligations to Congress and the public.”