Register of Copyrights Selection and Accountability Act Seen on Fast Track to Markup

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., joined HR-1695’s House sponsors in pushing Thursday for “quick action” on the bill. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., House IP Subcommittee ranking member Jerrold Nadler, D-N.Y., and subcommittee Vice Chairman Doug Collins, R-Ga., are among 29 House lawmakers that signed on Thursday as bill co-sponsors. Feinstein and Grassley have not yet filed a Senate companion to HR-1695 but intend to file “similar legislation in the Senate in the near future,” a Senate Judiciary spokesman said.

Conyers and Goodlatte appear to be on track to seek a markup of HR-1695 as early as this week and no later than the first week of April, ahead of the recess, lobbyists said. “If [House Judiciary] has the ability to do so given its schedule, I think they were intending to [mark up the bill] this week,” said Association of American Publishers (AAP) Vice President-Legal and Governmental Affairs Allan Adler Friday. The call from Conyers, Goodlatte and other HR-1695 supporters for “quick action” on the bill was clearly aimed at signaling a markup “before the recess,” Adler said. Ousted Register Maria Pallante became AAP president in January, months after Librarian of Congress Carla Hayden removed her as head of the Copyright Office (see 1610210061 and 1610240052 and 1701120027).

“I’ve been told that time is of the essence” on HR-1695 given Hayden’s insistence on pressing forward with her own process for selecting a new register to permanently replace Pallante, said a music industry lobbyist. “They want to press forward on this,” seeing “it as a test case” for future copyright legislation and “an opportunity to get something out of House Judiciary” after years of reviewing the existing copyright law landscape, the lobbyist said. “My understanding is that they are going to try to ram it through” as soon as possible, said a copyright lobbyist who opposes HR-1695. House Judiciary didn’t comment.

HR-1695 appears near certain to easily clear House Judiciary and stands a strong chance of passing the full House despite expected misgivings from the library and tech communities, Adler and other lobbyists said. The Library Copyright Alliance was the only stakeholder to declare publicly its opposition to the bill, saying in a statement it’s “hard to imagine” why “Congress would voluntarily cede its own confirmed Librarian’s authority to select and oversee a key Congressional advisor on copyright matters to the Executive Branch.” Shifting “the process of appointing the next Register would severely delay his or her installation,” LCA said. “That would be poor business practice and would slow implementation of much needed technological reform.” Public Knowledge said it wouldn't comment on the bill, and other tech-side groups hadn't released statements.

Tech Watches

The lack of an early coordinated tech sector response to HR-1695 shows the sector may not push strongly against the bill despite the sector’s stated concerns about changing the register’s selection process and other aspects of CO modernization proposals, an anti-HR-1695 copyright lobbyist said.

“They may be looking at this bill as a face-saving gesture for Goodlatte” so he can tout it as proof he passed some form of copyright legislation in case other future bills fail to move, the lobbyist said. The tech sector may not like HR-1695 but “may be saying better this” than a bill that deals more directly with changing existing law such as legislation to revamp aspects of the Digital Millennium Copyright Act Section 512 safe harbors, the lobbyist said.

The Electronic Frontier Foundation planned to issue a statement Friday evening urging House Judiciary to not rush through its consideration HR-1695 because the register’s selection process “is an issue that deserves a lot of close attention because it has a tendency to affect copyright policy and that touches every American,” said Senior Staff Attorney Mitch Stoltz. EFF believes that “how the register of copyrights is selected is not anyone’s idea of the most important issue in copyright law” but it’s still “important because of the decisions and choices that it could lead to down the road,” he said.

Supporters React

Many content-side stakeholders quickly issued statements embracing passage of HR-1695, including the Copyright Alliance and NAB. MPAA believes it’s “time to modernize the Copyright Office, which includes putting the Register -- a critical steward of the Constitutionally-enshrined principle of copyright -- on equal footing with fellow appointees who oversee similarly significant and vital industries,” said CEO Chris Dodd.

The Software & Information Industry Association believes HR-1695’s introduction “demonstrates the grave need for copyright office modernization, and for an appropriate process to select the next Register,” said Senior Vice President-Public Policy Mark MacCarthy. HR-1695 will “ensure that all stakeholders have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials,” said Oracle.

The register "impacts our members’ news media content, which must be protected by our copyright laws that are enacted by Congress pursuant to the United States Constitution,” said News Media Alliance CEO David Chavern. The Free State Foundation believes HR-1695 “will provide the Office with the autonomy that is needed to [overcome] administrative and technological obstacles that now keep the Office from carrying out its key registration and recordation functions as efficiently and effectively as it should,” said President Randolph May.

HR-1695’s private sector supporters see no reason for the tech sector to actively oppose the bill despite claims it politicizes the register’s role, Adler said. “This shouldn’t be controversial,” particularly since HR-1695 is modeled on the 2015 Librarian of Congress Succession Modernization Act, he said. That measure, which limited Hayden and all future librarians to a 10-year term, passed the House and Senate on voice votes. Making the head of a federal agency a Senate-confirmed position is “not uncommon,” Adler said. Some opponents still may attempt to frame HR-1695 as a way of increasing President Donald Trump's authority, but it’s unclear that it would be a “particularly effective line,” a tech sector lobbyist said.

The LOC “defers to Congress on legislative matters and will be closely monitoring this legislation, as we do any legislation that affects operations and responsibilities of the institution,” a representative emailed. “Ensuring an effective and efficient Copyright Office remains the responsibility and priority of the Librarian and she continues to believe the Copyright Office should have permanent leadership as soon as possible.”