US Congress Considers Plan For Presidential Appointment Of Copyright Register

Legislation authorising the president to appoint the Register of Copyright in the United States Copyright Office is working its way through Congress. The “Register of Copyrights Selection and Accountability Act” garnered strong bipartisan support in the House of Representatives Judiciary Committee as well as from the content community, but others fear it will politicise the Copyright Office and lead it to being captured by intellectual property rights owners.

The measure passed the House Judiciary Committee 27-1 on 29 March. The text is available here.

The bill “is the product of months of bicameral, bipartisan discussions” between leaders of the House and Senate Judiciary Committees, they said. It’s not known yet when the bill will be voted on by the full House or Senate.

According to the Copyright Office website: “The Register of Copyrights is the Director of the U.S. Copyright Office and a recognized leader and lawyer within the U.S. government. By statute, the Register works under the general direction of the Librarian of Congress.”

The Register of Copyrights is currently appointed by the Librarian of Congress. Under HR 1695, he or she would be presidentially appointed for a 10-year term. This is a good thing, said the Copyright Alliance.

“It’s quite clear why Congress would prefer” a presidentially appointed Register of Copyrights, the alliance said in a blog post. During the House Judiciary Committee’s ongoing review of US copyright law, the committee chairman and ranking member voiced concerns that the Register isn’t subject to the same nomination and consent process as other senior government officials, the alliance said.

Among other things, making the Register a presidential appointee “reflects the growing importance of copyright to our economy and culture,” and the other two IP disciplines, patents and trademarks, are governed by presidential appointees, it said. Moreover, it added, Congress, not the Librarian of Congress, should make copyright policy decisions since the Librarian is just another stakeholder.

The legislation also brought cheers from the International Center for Law & Economics. As ICLE noted in comments to the House Judiciary Committee, “it is time, or past time, to establish the proper foundations for the operation of the Copyright Office in light of its economic and cultural significance,” said Neil Turkewitz, senior policy counsel, intellectual property and the digital economy, and long-time attorney for the Recording Industry Association of America (RIAA). The legislation “will go a long way towards establishing a neutral administrator” of the US copyright system.

The US Chamber of Commerce Global IP Center, and the Intellectual Property Owners’ Association also issued statements of support for the bill.

Politicising the Position?

Making the Register of Copyrights a presidential appointee would make his or her selection more democratic “but also more a captive of special interests,” the Electronic Frontier Foundation said in a 27 March blog post. The Office is supposed to focus on the “mundane but important” job of registering copyrightable works and providing advice to Congress, it said. Policy-setting rests with Congress, the organisation said.

Over the last decade, however, the Copyright Office has played a more central role in policymaking and has not been a neutral advocate, said EFF. The Register has shifted from being a neutral expert to a political player, it said. In theory, the bill would help mitigate that by making the Register more accountable to the public, but in practice, “we fear it’s designed to do something else: allow powerful incumbent interests to use their lobbying power to control this increasingly politicized office. No president is going to select an appointee that will be shot down by special interests.”

EFF’s fears were echoed by an IP attorney, who spoke on background. The Register is really an administrator who doesn’t represent the president, he said in an interview. Allowing the president to become involved is problematic, as is the likelihood that the Office will be captured by the content industry, he said.

Copyright is a carefully crafted bargain between creators and the public, the IP attorney said. If the Copyright Office only hears from content providers, it could tend to be swayed by them, he said. This is a sensitive balance of interests and will become a “political mess” as industry representatives beat on the president’s door to persuade him to select a Register favourable to industry, the lawyer said. Who will lobby as strongly for the general public?

The Copyright Alliance, which represents the content providers, however, dismissed these concerns, saying the measure “is about implementing the best policy and process for the American public” – one that maintains a direct line of communications between the Register and Congress; ensures that the people have a voice in choosing “this important government official” and guarantees that the choice isn’t made behind closed doors by the Librarian of Congress.

 

 

Image Credits: Library of Congress