On February 24, 2016, President Obama nominated Carla Hayden, the CEO of Enoch Pratt Free Library in Baltimore, to be Librarian of Congress. James Billington, a President Reagan appointee, retired last fall after 28 years in the post. If confirmed by the Senate, Ms. Hayden would become the 14th Librarian of Congress in U.S. history and first female and African American to hold the position.
Within the Library of Congress sits the Copyright Office (“CO”), which has not been the subject of any major reforms since the 1970’s. As I wrote in an April 2015 blog, the Copyright Office needs to be modernized to upgrade its IT infrastructure and digital capabilities.
A March 2015 GAO report addressed some of the upgrades necessary for the Copyright Office, and a year later these are still needed. The Library of Congress’s existing information technology capabilities are not sufficient for accomplishing the accessibility, efficiency and productivity objectives of the Copyright Office. For example, currently the Copyright Office still relies on a paper-based record-keeping system for many of its records and entirely for its recordation of copyright licenses, even though copyright-intensive industries, which generate over $1.1 trillion and employ nearly 5.5 million workers, operate almost entirely with digital technologies. In order to enable registration and recordation of copyrights on a readily accessible and efficient basis that facilitates free market transactions involving copyrights, the CO’s IT capabilities should be modernized.
Despite the lack of support from the Library, the Copyright Office has been responsive to its customers and Congress, preparing a comprehensive IT modernization plan, which it offered for public comment. Today, the House Appropriations Committee’s Subcommittee on the Legislative Branch will hold a hearing on the Library and the Copyright Office. The Acting Librarian likely will promise that the Library will support the Copyright Office, as he did in a hearing before the House Administration Committee last December. But such claims are not credible when one considers that the GAO has testified that the Library has still not implemented any of the recommendations on improving its IT system. Empty promises aren’t going to fix the problem.
And the ongoing Copyright Office problems have a structural element. Many of the technological capability and digital infrastructure issues, as well as CO functions relating to evaluating and improving copyright policy, can be more readily and easily addressed if the office is given independence from the Library of Congress, especially with respect to its ability to set priorities and allocate funds.
In December 2015, Representatives Tom Marino (R-PA), Judy Chu (D-CA) and Barbara Comstock (R-VA) introduced the Copyright Office for the Digital Economy Act. If enacted, the bill would restructure the Copyright Office as a stand-alone agency in the legislative branch. The Director of the Copyright Office would be nominated by the President, based on recommendations from a commission which would include the Speaker of the House, the President pro tempore of the Senate, the majority and minority leaders of the House and Senate, and the chairmen and ranking minority members of the Committee on the Judiciary of the House and the Committee on the Judiciary of the Senate. Upon Senate confirmation, the Director would serve for a term of 10 years.
If the Marino-Chu-Comstock bill, or a similar one, is enacted giving the Copyright Office at least some measure of independent authority, the agency presumably would be able more easily to acquire property, personnel, supplies, or technology needed for it to better fulfill its mission in today’s digital age. The bill would require an annual report to be published to notify the public of the work and accomplishments of the Copyright Office. The bill also contains instructions for cooperation from the Library of Congress to ensure a smooth and timely transition of personnel (including Copyright Royalty Judges), equipment, and technology.
If the “Copyright Office for the Digital Economy Act” or a similar bill is enacted into law soon, then the new Librarian of Congress nominee, if confirmed, may have a small role to play regarding the needed modernization of the Copyright Office, although, in any event, she would surely play an important role in transition efforts. But if legislation isn’t adopted to reorganize and modernize the Copyright Office, one of the most essential near-term tasks of the new Librarian of Congress should be to focus her efforts on supporting the Copyright Office’s plans for its modernization project so as to achieve an easily accessible, efficient, and reliable registration and recordation system.
The modernization project is necessary for our copyright system to achieve its important purposes of protecting artists’ and creators’ rights to earn a return on their labor and to facilitate market transactions in copyrights in a way that promotes “the Progress of Science and useful Arts.”