Senate Judiciary Leaders Considering Stand-Alone Register of Copyrights Appointment Process Bill
Senate Judiciary Committee leaders are considering whether to propose legislation that would narrowly target changes to the appointment process for the Register of Copyrights separately from a bill to tackle other Copyright Office modernization issues, lobbyists told us. It’s unclear how much traction such a bill would get given divisions within the copyright community over changing the appointment process, they said. Chairman Chuck Grassley, R-Iowa, began last Congress to consider CO modernization legislation that would in part make the register a Senate-confirmed position and to set a term limit for the register (see 1607150022). House Judiciary Chairman Bob Goodlatte, R-Va., and ranking member John Conyers, D-Mich., in December proposed changes to the register’s appointment process, including requiring Senate confirmation for future nominees (see 1612080061).
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Grassley and Senate Judiciary ranking member Dianne Feinstein, D-Calif., appear to still be in the early stages of developing a proposal that specifically focuses on the register’s appointment process, lobbyists said. The leaders haven't circulated draft language for such a proposal and haven't brought “rank and file committee leaders into discussions about the proposal just yet,” said a tech sector lobbyist. “It’s a matter of discussion,” said Association of American Publishers Vice President-Legal and Governmental Affairs Allan Adler. Grassley and Feinstein planned to meet with Librarian of Congress Carla Hayden about the appointment process but it’s unclear whether that meeting has taken place yet, the tech lobbyist said. Aides to Feinstein and Grassley didn’t comment.
Pressure from content-side stakeholders may be influencing Grassley and Feinstein to consider a stand-alone bill on the register’s appointment given those stakeholders’ ongoing concerns that Hayden “is a friend of tech,” a tech sector lobbyist said. Hayden removed former Register Maria Pallante from that role in October. Pallante then resigned (see 1610250062, 1610210061 and 1610240052).
Hayden indicated she’s “moving forward” with the process for selecting Pallante’s replacement, which included LOC collection of stakeholder feedback on qualifications for the next register, a lobbyist said. LOC’s survey drew content-side stakeholders’ criticism amid perceptions it could lead to a bigger conflict with the House and Senate Judiciary committees over the register’s role (see 1612160053).
Feinstein’s move to Senate Judiciary appears to have also been a partial catalyst for the decision to pursue a standalone register bill, two lobbyists said. Senate Democrats moved Feinstein to Senate Judiciary last year when they chose to make then-ranking member Patrick Leahy, D-Vt., the top Democrat on the Senate Appropriations Committee (see 1611160049). Leahy expressed “hesitance” last year “about taking the appointment process away” from Hayden “before she made the appointment” of a permanent successor to Pallante, a tech sector lobbyist noted. Feinstein “is from a very different tradition” than Leahy, “so I would not be surprised if they introduce legislation on the register” if she’s in agreement with Grassley, the lobbyist said.
"Optics" of Pallante's reassignment "were just awful,” so limiting the Librarian of Congress’ role in selecting future registers moved to the “top of the agenda” on CO modernization, a music industry lobbyist said. The proposal that Grassley and Feinstein are pursuing conforms to what AAP and other groups have pushed for in recent months, Adler said. The overarching idea of moving the power to appoint the register out of the librarian’s office “is obviously on the same wavelength” as what Goodlatte and Conyers proposed and is similar to what Grassley and Leahy sought in 2016 draft principles for CO modernization legislation, said copyright lawyer Jonathan Band.
Grassley and Feinstein could face significant headwinds on a narrow register-centric bill given the copyright community’s division over language on the register’s appointment process in the Goodlatte/Conyers CO proposal, Adler and others said. Tech sector stakeholders and digital rights groups opposed changes to the appointment process in comments to the House Judiciary leaders in late January (see 1701310047). “There are already folks who are somewhat wary” about Goodlatte/Conyers “who might be concerned about” a stand-alone register bill, particularly if it’s seen as preventing Hayden from appointing a successor to Pallante, Adler said. Policy Counsel Raza Panjwani noted Public Knowledge objections to the Goodlatte/Conyers proposal. A tech sector lobbyist predicted many in that industry would actively oppose a stand-alone register-centric bill as strongly as it did Goodlatte/Conyers.