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Busting Myths Surrounding H.R. 1695 by Terrica Carrington

March 28, 2017

The Register of Copyrights Selection and Accountability Act was introduced in the House on March 23, by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI), with the bipartisan support of 29 co-sponsors, in addition to statements of support from Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Ranking Member Dianne Feinstein (D-CA), and Senate Judiciary Committee Member Patrick Leahy (D-VT).

The bill enjoys widespread support and little opposition because of the narrow and modest approach taken by the bill and the tremendous support for a more transparent process for selecting the next Register of Copyrights. Since so many groups either support or do not oppose the bill, the few groups and individuals that oppose the bill have taken desperate measures to try and slow the bill’s momentum by spreading falsehoods and hyperbole about the bill. This document is intended to clear things up.

 

  1. MYTH: It’s “mystifying” why congress would prefer a Presidentially appointed Register of Copyrights to one appointed by the Librarian of Congress

 

It’s quite clear why Congress would prefer a Presidentially appointed Register of Copyrights to one appointed by the Librarian of Congress. In 2013, the House Judiciary Committee began an ongoing comprehensive review of U.S. copyright law, including more than 20 hearings, testimony from 100 witnesses, and several meetings with stakeholders. In December 2016, after consideration of the issues addressed during the Committee’s review of the law, House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) released the first policy proposal in which they specifically voice their concern that the Register of Copyrights “is not subject to the same nomination and consent process as other senior government officials” and propose that the Register position be subject to a nomination and consent process and a 10-year limit “to ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials.”

There are numerous reasons that Congress should agree with the bipartisan conclusions reached by the Chairman and the Ranking Member. Some of these include:

  • Making the Register of Copyrights a Presidential Appointee subject to the Advice and Consent of the Senate (PAS) reflects the growing importance of copyright to our economy and culture. The two other intellectual property disciplines – patents and trademarks – are governed by a PAS, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). There is no reason for copyright to be treated with less significance given its importance to the U.S. economy and culture.
  • Making the Register a PAS ensures a more balanced and neutral selection process compared to the existing process, which does not require any direct input from the Administration or Congress. If there are concerns about a nominee for the Register position, this bill would allow those concerns to be voiced to Congress prior to confirmation. That opportunity does not exist today.
  • The Copyright Office is in dire need of modernization. Changing the Register to a PAS is a necessary first step to modernizing the Office.
  • Congress has historically enjoyed a direct line of communication to the Copyright Office for expert advice on copyright law and policy. Recent changes to the organizational structure of the Library have disrupted that direct line. A PAS would restore that direct line and ensure Congress continues to receive the expert independent advice it needs.
  • Congress – not the Librarian of Congress – should make copyright policy decisions. The Library is a stakeholder itself when it comes to copyright policy. No stakeholder, whether it’s a library, user group, or copyright owner, should have more of a say on policy matters than others. The Librarian’s present role in supervising the Register of Copyrights creates a potential conflict of interest.

 

  1. MYTH: A Presidentially appointed Register will become “more concerned with policy than modernization”

 

The notion that the Register of Copyrights should disengage from copyright policy contradicts the statutory role of the position as detailed in 17 U.SC. 701(b), which states, in part, that the Register of Copyrights “shall… Advise Congress on national and international issues relating to copyright.” It also flies in the face of decades of history and tradition in which Congress has enjoyed a direct line to the Copyright Office for expert advice on copyright law and policy. The very first Register, Thorvald Solberg, aided Congress in drafting the 1909 Copyright Act. Several other Registers have testified before Congress on policy matters, and Congress regularly calls on the Copyright Office for reports and studies on substantive copyright matters.

Significantly, it’s hypocritical for the Library community to endorse such a view given the fact that Librarian of Congress has been subject to Presidential appointment and Senate confirmation since 1897, and is currently tasked with modernizing the Library of Congress. In fact, Dr. Hayden recently requested $6.56 million for fiscal 2017 to update the Library’s IT infrastructure. Is it fair to suggest that Dr. Hayden, as a result of her status as a Presidential appointee, is so inundated with policy concerns that she is unable to address issues of modernization? Does the Director of the U.S. Patent and Trademark Office’s status as a Presidential appointee compromise her ability execute her duties as head of the USPTO? No. It makes no sense to suggest otherwise about the Register position.

 

  1. Myth: This bill is an attempt to take power away from Dr. Hayden and give it to President Trump

 

This bill isn’t about taking power away from Dr. Hayden or giving power to President Trump. It isn’t about any individual, whether it’s President Trump, Dr. Hayden, or Dr. Hayden’s would-be appointee. The copyright community has been vocal in its advocacy for a presidentially appointed Register since at least November 2014—only midway through President Obama’s second term, and nearly a year before Dr. Billington, predecessor to Dr. Hayden, announced his plan to retire. This also isn’t the first time that legislation has been introduced proposing that the Register be made a Presidential appointee—the Copyright Office for the Digital Economy Act, originally introduced in December 2015, also included a provision under which the Register would be appointed by the President, with the advice and consent of the Senate.

This suggestion is also flawed because it overlooks the fact that the President is presently empowered to exercise control over selection of the Register by 1) demanding that the Librarian, a Presidential appointee, select a particular Register, without the advice and consent of the Senate, or 2) removing the Librarian and replacing her with someone who will appoint a Register of his choosing, also without the advice and consent of Senate. The difference is that, under this bill, the American people, through their elected officials, are able to influence the selection process because the process is neutral and transparent. The existing selection process, on the other hand, is not transparent as the process for choosing the Register is solely at the Librarian’s discretion.

 

  1. Myth: Making the Register a Presidential appointee will politicize the position.

 

This bill—which has bipartisan, bicameral support—isn’t going to “politicize” the Register of Copyrights position. This bill is about implementing the best policy and process for the American public—one that (1) maintains a direct line of communication between the Register and Congress, (2) ensures that the American people have a voice in the selection of this important government official, and (3) guarantees that the decision is not made behind closed-doors by the Librarian. This bill will do just that.

 

  1. MYTH: There isn’t time to wait for a presidential appointee. A “new and qualified” Register must be appointed right away.

 

Since the constructive removal of former Register Maria Pallante in October 2016, Karyn Temple Claggett has served as acting Register of Copyrights. With six years of experience within the U.S. Copyright Office, “assist[ing] the Register of Copyrights with critical policy functions of the Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations” and “providing regular support to Congress and its committees on statutory amendments and construction” Ms. Claggett is more than qualified to lead the Copyright Office until Congress has had time to consider and pass this important legislation and a presidential appointee is selected to fill the position.

It’s not unusual for the acting head of the Copyright Office to serve for an extended period of time. Richard Crosby De Wolf served as the acting head of the Copyright Office for 13 months, and Barbara Ringer held the position for nine months. More recently, Michelle Lee served as acting head of the USPTO for 14 months.

The timing of the bill, which was introduced prior to the selection of an appointee by Dr. Hayden, allows this to remain a neutral, bipartisan, bicameral policy decision made without bias or regard to the identity of any particular appointee. This—in addition to structural changes within the Librarian that have severed the line of communication between the Register and Congress—is why it is important that this bill move forward now, before broader Copyright Office modernization takes place.

 

  1. MYTH: A 10-year term would make the Register “less accountable to Congress and the public.”

 

This position, taken by the Library Copyright Alliance (LCA), lacks merit in its entirety. It is illogical to suggest that a 10-year term limit, as compared to the status quo—a potential lifetime appointment made without the opportunity for Congress or the public to weigh in, would make the Register “less accountable to Congress and the public.”

The position is also hypocritical, given that this provision is modelled after the term of the Librarian of Congress. When the Librarian of Congress Succession Modernization Act of 2015—the bill that created a 10-year term for the Librarian of Congress—was introduced, the library community supported the 10-year term. The American Library Association (ALA), one of the three associations that make up the LCA and “the oldest and largest library association in the world,” described the legislation as “a bill [the ALA] could support.” Others in Library community were supportive of the ten-year term as well. Robert Darnton, Harvard University Librarian, Emeritus, said “I never understood why–apart from tradition–the librarian of Congress should have an unlimited term similar to that of a Supreme Court justice. A renewable, 10-year term strikes me as a good idea.” There was nothing from the library community to suggest that the 10-year term would make the Librarian of Congress less accountable to Congress or to the public. So to argue otherwise now, in light of the Register of Copyrights Selection and Accountability Act, suggests that the LCA’s position is motivated by self-interest rather than genuine concern about accountability.