Last Week in Tech Policy #40: Copyright Reform and the Copyright Office

(by Lindsey Knapton, Colorado Law 2L)

Copyright Week Logo[Editor’s note: This post is our contribution to Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake.]

In the weeks leading up to President-elect Trump’s inauguration, little has been said about where he stands on copyright reform. For clues on copyright reform that may materialize in the coming months, some observers have turned to the House Judiciary Committee’s Reform of the U.S. Copyright Office Report, released on December 8, 2016, which outlines potential copyright policy priorities for the 115th Congress:

  1. Restructuring the Copyright Office as an administrative agency;
  2. Creating Copyright Office advisory committees;
  3. Upgrading information technology within the Copyright Office; and
  4. Creating a copyright small claims system.

Copyright Office Independence

First, the report proposes that the Copyright Office should operate independently from the Library of Congress, an idea perhaps most notoriously proposed by former Register of Copyrights Maria Pallante. Currently, the Librarian of Congress oversees the Copyright Office. Conflict between President Obama’s recently appointed Librarian of Congress, Dr. Carla Haden, and former Register Pallante led to Pallante’s resignation. Under Chairman Goodlatte’s proposal, the Register of Copyrights would be nominated by the President subject to the consent of the Senate as many other senior level government officials are.

Under the proposal, the Register of Copyrights theoretically would be subject to oversight from members of Congress. However, opponents allege Congressional supervision will be inadequate given that the risk of agency capture remains high as the Copyright Office is historically susceptible to agency capture. In order to ensure that there is adequate accountability and oversight, Public Knowledge, among others, has called for the Copyright Office to remain a part of the Library of Congress and subject to oversight from the Librarian, whose interests, PK argues, are more directly aligned with those of the American people.

Advisory Panel and Committees

As the Office is restructured, the report recommends the creation of an advisory panel comprised of a Chief Economist, Chief Technologist, and Deputy Register. The report proposes the introduction of standing advisory committees to facilitate the transfer of knowledge from the private sector to the new federal agency. While the latter proposal also raises concerns of agency capture, the House Judiciary Report contends that the committees will reflect a wide range of views and interests, set term limits, and limit committee members to participation on a single committee.

IT Upgrades

The report suggests that the Copyright Office should pursue significant information technology upgrades. As a part of the restructuring process, the Report argues for authority to the Register to determine whether to continue use of the Library of Congress’s data center or to transition to a public-private partnership to meet the needs of the Copyright Office.

Copyright Small Claims

Finally, the Report proposes the creation of a small claims system. A small claims “court” for copyright disputes would provide jurisdiction for alleged victims of bad faith Section 512 notices and low value infringement cases to file lawsuits within the Copyright Office.

Proponents of the small claims system boast of potential improvements in efficiency over litigation. The small claims proposal sits amidst a broader debate about copyright litigation, where some advocates have blamed the courts for weakening copyright protections by strengthening fair use.

Opponents, however, question the need for an additional judiciary process within an agency, particularly when victims have the federal court systems to seek redress for injuries. Opponents have also raised questions about whether it is appropriate for the legislative branch of government to adjudicate disputes, rather than the judiciary, and warn that an additional adjudicatory process would be yet another venue that could fall prey to copyright trolls.

The Implications of Restructuring the Copyright Office

What is actually at stake by restructuring the Copyright Office and why it matters for the general public? The proposed restructuring matters for a would shift the venue where copyright reform happens and change the voices that influence the decision-makers, and issues that have fueled much debate over recent years could now be heard before a Copyright Office’s adjudicatory body, rather than in federal courts. The issues in turn feed into broader debates about the relationship between copyright, technology and the open internet, including continuing advocacy by the content industry for laws that could enable them to block entire websites with infringing users or force ISPs to disconnect infringing users from the Internet.