Tuesday, April 14, 2015

Protecting Copyright: Securing Rights and Improving the Copyright Office

While estimates concerning the precise impact may vary, there is no dispute that entrepreneurial activity associated with and dependent upon the protection of intellectual property is key to the overall health of the U.S. economy. According to a March 2012 report released by the U.S. Commerce Department, “[t]he entire U.S. economy relies on some form of IP, because virtually every industry either produces or uses it.” The report determined that: “IP-intensive industries directly accounted for 27.1 million American jobs, or 18.8 percent of all employment in the economy, in 2010.” Moreover, according to the Commerce Department, “IP-intensive industries accounted for about $5.06 trillion in value added, or 34.8 percent of U.S. gross domestic product (GDP), in 2010.”
Copyrighted works – including books and other literary works, films, sound recordings, and more – comprise a large portion of the overall economic benefit derived from the protection of intellectual property. Indeed, a December 2014 report claimed that the core U. S. copyright industries generated over $1.1 trillion dollars of economic output and employed nearly 5.5 million workers in 2013.
It should be obvious, therefore, that it is important for the social and economic well-being of the United States and its citizens that the nation have in place a strong copyright regime. There are two requisites for such a system – the establishment of secure legal rights and an institutional framework that facilitates the protection and transfer of such rights.
First, the rights to protection that copyright affords must be secured and recognized by law. Of course, here in the U.S., the Constitution’s Intellectual Property Clause, and our copyright laws enacted thereunder, secure copyright protection as a matter of law. (Just because the Constitution and our copyright laws secure copyright protection does not mean that everyone respects intellectual property rights. My colleague, Seth Cooper, and I have written a series of essays addressing foundational principles of intellectual property with the aim of increasing public understanding of these principles. A list of these papers, with links, is at the end of this piece.)
Second, even though copyright may be secured under law, there must be an effective, well-functioning institutional system for registering and recording the rights in order to effectuate the purpose of the rights-creating legal regime. In the U.S., that institutional role presently falls to the Copyright Office (CO), which is part of the Library of Congress, and under the supervision of the Librarian of Congress.
The U.S. Copyright Office is the place where copyright claims are registered and where documents relating to copyright may be recorded when the requirements of the copyright law are met. The Copyright Office also furnishes information about the provisions of the copyright law and the procedures for making a registration or recordation, explains the operations and practices of the Copyright Office, and reports on facts found in the public records of the Office.
According to a recent story in Network World, “IT Troubles Plague Federal Copyright Office,” last year the Copyright Office registered almost a half million creative works for copyright, including approximately 219,000 literary works and 65,000 sound recordings. It recorded about 7600 copyright records.
With this volume of copyright registrations and recordations, and the social and economic benefits associated with these processes, it is important the vital Copyright Office functions be carried out effectively and efficiently. These basic functions serve to secure copyright protection, provide constructive notice of copyright claims, and establish priority between conflicting transfers of rights. As a practical matter, the registration and recordation functions enable copyright holders to enter into business transactions, secure financing, and combat intellectual property theft.
The reality is that there appears to be much room for improvement in the functioning of the Copyright Office, especially with respect to implementing digital technologies. As the Network World story put it in the opening line: “The IT department at the nation’s Copyright Office needs more than a little work.” A just-released GAO report echoes this sentiment. The GAO report tellingly is titled: “Copyright Office Needs to Develop Plans that Address Technical and Organizational Challenges.”
My purpose here is not to denigrate the Copyright Office, its past actions, or its personnel. Rather, looking forward, it is to urge that serious attention be paid to improving the way the CO operates and to modernizing the office’s information technology infrastructure. In today’s digital environment, there is no reason why the office’s registration and recording functions – the guts of a working copyright system – should not employ up-to-date digital technologies in order to maximize efficiency and effectiveness. It may also be the case that the CO needs more personnel and funds in order to do its job.
In light of the just-released GAO report, and a spate of similar reports and comments, Congress should hold hearings soon on improving the functioning of the Copyright Office. These congressional hearings should focus both on information technology improvements, personnel resources, and budget requirements as well as fundamental structural issues involving the location of the Copyright Office within our government. (This structural issue is a subject we may well have more to say about in the future.)
In order for our copyright system to achieve its important purposes, it is necessary not only that the rights protected be secured by law, but also that the institution charged with administering the system do so in an effective and efficient manner.
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Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property," Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).
Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).
Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today," Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).
Randolph J. May and Seth L. Cooper, "The Constitution’s Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights,” Perspectives from FSF Scholars, Vol. 8, No. 20 (2013).
Randolph J. May and Seth L. Cooper, "The 'Reason and Nature' of Intellectual Property: Copyright and Patent inThe Federalist Papers," Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).
Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress," Perspectives from FSF Scholars, Vol. 9, No. 18 (2014).
Randolph J. May and Seth L. Cooper, "Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).
Randolph J. May and Seth L. Cooper, "Intellectual Property Rights Under the Constitution's Rule of Law,"Perspectives from FSF Scholars, Vol. 9, No. 31 (2014).
Randolph J. May and Seth L. Cooper, "Reaffirming the Foundation if IP Rights: Copyright and Patent in the Antebellum Era," Perspectives from FSF Scholars, Vol. 9, No. 38 (2014).

Randolph J. May and Seth L. Cooper, “Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property, ” Perspective from FSF Scholars, Vol. 10, No. 2 (2015).