Goodlatte/Conyers CO-Centric Proposal Vague Enough to Be Shaped, Stakeholders Say
The generalized language in House Judiciary Committee leaders' recent Copyright Office-centric policy proposal means legislation stemming from the proposal could include language from existing bills, depending on feedback lawmakers receive from all factions of the copyright community, officials said in interviews. The paper House Judiciary Chairman Bob Goodlatte, R-Va., and committee ranking member John Conyers, D-Mich., released earlier this month focused on the CO's operational and IT issues, including giving the office more autonomy from the Library of Congress (see 1612080061). 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.
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Elements of the Goodlatte/Conyers proposal were addressed in bills bowed over the course of the 114th Congress, along with draft legislation that was still circulating when Congress recessed this month. Only one formally filed bill -- the Copyright Office for the Digital Economy Act (HR-4241) -- dealt with CO modernization (see 1512140029). Two draft CO modernization proposals are continuing to circulate -- one from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt., and one from Reps. Jason Chaffetz, R-Utah, and Ted Deutch, D-Fla. Two other bills mirror the CO's copyright small claims proposal -- the Copyright Alternative in Small-Claims Enforcement Act (HR-5757) and the Fairness for American Small Creators Act (HR-6496).
It's “too early to say one way or the other” whether language from any of the filed bills or circulating drafts will make it into legislation from Goodlatte and Conyers, though “it wouldn't surprise me” if some elements of those bills made it in, said Copyright Alliance CEO Keith Kupferschmid. The very generalized language in the Goodlatte/Conyers proposal makes it clear the House Judiciary leaders are “coalescing around principles” for a CO-centric bill, but “they still want to go through the process to develop the minutia,” said an entertainment industry lobbyist. Multiple stakeholders said they will file comments on the Goodlatte/Conyers proposal, which are due Jan. 31.
The Goodlatte/Conyers proposal clarifies that the lawmakers favor at least a modest extension of the CO's autonomy from the LOC, though by design it's not specific on details, said Public Knowledge Policy Counsel Raza Panjwani. HR-4241 and the circulating draft legislation all propose keeping the CO within the legislative branch but vary on how autonomous the office should be. HR-4241 would make the CO an independent agency within the legislative branch, while the Chaffetz/Deutch and Grassley/Leahy proposals would seek to grant the office further autonomy but keep it within the LOC (see 1512140029 and 1607150022).
House Judiciary found a “consensus that there's a need for CO modernization,” particularly with giving the CO additional resources “necessary to put that modernization into place,” Deutch said earlier this month. He said he met with Librarian of Congress Carla Hayden on CO modernization issues after the October ouster of former Register of Copyrights Maria Pallante, but said the issues that caused increasing pressure for office autonomy “haven't changed.” Pallante's removal became a catalyst for increasing pressure to increase CO autonomy, though it also has the potential to make modernization a “wedge issue,” said a tech sector lobbyist.
Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz said discussions about the Goodlatte/Conyers proposal are “playing out in the aftermath” of Pallante's departure but said he also believes the House Judiciary leaders' proposal is “quite vague” on how it would affect CO modernization. “It's pretty hard to know what solution they're favoring at this point,” he said. He and others raised concerns about the presence of language on copyright small claims, with Stoltz saying it “raises questions for us about whether [House Judiciary] is open to reforms” proposed by digital rights groups or if “we'll only see reforms favored by entertainment industries.”
Language from HR-5757 and HR-6496 would certainly have a good chance of being included as filed in a larger bill since they similarly track with the CO's 2013 proposal, Kupferschmid said. Digital Media Association General Counsel Greg Barnes said the industry group wants to ensure legislation on small claims allows entities to opt out. The proposed small claims process “is somewhat controversial and seems far afield from the notion of restructuring” the CO, Stoltz said. “We're concerned it could result in creating a new mechanism for lawsuit abuse and extortionate conduct.” It “doesn't necessarily make sense to fold the copyright small claims issue in with CO modernization,” especially since the language needed to make a small claims office work will likely be “fairly complicated,” Panjwani said.