By Joshua Lamel
Mike has written many times on this website about various shenanigans at the Copyright Office. An obscure government agency to many, the Copyright Office actually has a huge influence over copyright policy and law, from Congress to the courts. With word that the appointment of a new Register of Copyrights is imminent, this is an opportunity to fix many of the challenges with the agency.
The Copyright Office was originally established as part of the Library of Congress to register works back when formal registration with the Office was required under Statute to receive copyright protection This registration requirement was created as a way to get a deposit copy for the Library of these works. The goal was to not only have copies for recordation purposes, but to create a vast library.
However, over the last 50 years, the role of the Copyright Office has greatly changed with the law. The formal registration requirement was ended, first requiring only that published works contain a copyright notice and then eventually expanding federal copyright protection to all works, published and unpublished, once they are fixed in a tangible form. Today registration with the Office is not required, but does provide certain statutory defined benefits. The Office was also given more and more copyright policy and law responsibilities. The result is that the Office has become much more of a policy and regulatory quasi-agency instead of its original role as part of a library and place to register works for federal copyright protection.
The Register of Copyrights runs the Copyright Office. This is an outdated title, as while you still can register works at the Office, the role of the Register is much more to provide policy and legal expertise to the rest of government on copyright, overseeing the DMCA 1201 triennial review, and additional to other important roles. This need means that the Office attracts many copyright attorneys and policy experts. Unfortunately, it has been a long time since the Register was not previously an attorney for traditional rights holders, and they often go back to work for traditional rightsholders after they leave government service. The last two heads are now the General Counsel of the Motion Picture Association and the head of the American Association of Publishers. A former Register was reportedly fired for not properly administering the basic functions of the office, gross negligence in the stewardship of taxpayer dollars and lying about this because all she cared about was fighting for traditional rightsholders via the policy side of the office consolidating power by separating the office from the Library. Most of the senior staff also move on to jobs representing traditional rightsholders (with just a few exceptions) after their time at the office.
The Copyright Office is seen by many as the lead on U.S. copyright policy, advising the government on everything from approaches to appellate court cases and trade agreement language to making suggestions on changes to Section 512 of the DMCA in its recent report. Based on another recommendation from the Office, members of Congress are trying to pass the CASE Act to hand over much of the judicial function in enforcing copyright law to the Office to be decided in quasi-judicial proceedings. This is especially bad because the Office’s 512 report was basically an attack on how the courts are getting DMCA wrong almost every time they decide against rightsholders. How can we trust the Office to follow what current law is based on these court decisions, when they have openly rejected these decisions?
The Copyright Office has seen itself as an advocate for traditional rightsholders for most of the last 50 years in its new and expanded policy and regulatory role. Former Register Maria Pallante made this point clear in testimony before the Senate Judiciary Intellectual Property Subcommittee:
I think the problem we have today in terms of imbalance that we might feel in the
copyright statute is that we have gotten away from that equation that puts the
authors as the primary beneficiaries, followed by the public good.
In other words, Pallante is saying, copyright needs to be unbalanced and focus on rightsholders needs. This is just wrong. The Constitution states clearly in enumerating what Congress can do that if it is to create copyright laws it is for this purpose:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
What Pallante missed is the framers wanted to ensure that the people’s legislature rather than the executive branch shall have the statutory power over copyright, and that this power is to give copyright for limited times to authors not to benefit authors, but rather to promote the progress of science and useful arts. They were rightfully concerned about the behavior of the British Crown and powerful Churches in Europe using copyright to give favor to preferred voices and hamper progress. At the same time, they wanted to encourage creative activities because it is in the public interest to do so. The public good should always be the most important thing – this is so obvious that anyone should realize this. The purpose of copyright should always be focused on promoting progress. When copyright gets in the way of progress, it is not serving the public good nor the grant of power to the legislative branch. Saying the purpose of copyright is to benefit authors above the public good of progress is an unbalanced, ahistorical, and extreme view.
One of the worst examples of how the Copyright Office has represented rightsholders and overreached, was its attack on the current Restatement of Copyright Law. Restatements of law have always been a common practice in helping to frame where the law currently is based on the decisions of the courts. Rightsholders are upset about this because they do not have influence over the restatement like they have influence over the Office and Congress. Amazingly, the problem is that public interest attorneys and copyright law professors are participating alongside rightsholder representatives and the Copyright Office. Only total control by people who have rightsholders worldview would make it a valid process.
In a normal world, the Copyright Office would not attack a Restatement, as it is not legally binding and is a private organization that has brought in top practitioners and scholars to interpret the law, especially for law students. I am still waiting for the Copyright Office to complain about Nimmer on Copyright, a treatise by a single private attorney that happens to not just be a scholar, but also represents rightsholders at a big Hollywood Law firm. It is frequently used to interpret copyright law by the Office, the courts and used in teaching, much like the restatement would be. The Copyright Office even held an event in 2013 celebrating Nimmer’s treatise. The big difference is Nimmer tends to take a rightsholder point of view in his treatise. Instead, the Office attacked the Restatement’s existence, wrongfully stating that only Congress makes copyright law, that Copyright is statutory in the U.S. when it is actually legally common law, denying the very basic Constitutional function of the courts in interpreting the law, and the right for a private organization to try and restate what the law is based on those decisions. The letter read like it was written by a content industry lobbyist, not a government “agency” looking out for what was in the public’s interest.
Despite this letter being sent by Register Karyn Temple, things did improve under her leadership. The Office actually welcomed and listened to stakeholders beyond rightsholders and hired some staff who have a more balanced view of copyright. The people working there are hardworking dedicated public servants trying to do their best. The aforementioned problematic 512 report would have been much worse under previous leadership, which famously endorsed SOPA-PIPA. It would likely have called for rightsholder-centric policies like notice-and-staydown, mandatory filtering and site blocking without due process, which the current Office thankfully rejected. These types of changes would have been declaring World War III on the ability of users to share any content of the Internet, far worse than even SOPA-PIPA.
But that is not enough. It is a sad statement that listening and making a couple of hires is a good first step, even though that has only occasionally led to tangible results. It is a sad statement that rejecting only the most extreme arguments made by traditional rightsholders is seen as an improvement from the days of the Office lobbying for SOPA-PIPA. The new Register needs to do more – they need to affirmatively support the role of fair use, the role of libraries and educational institutions, and understand how copyright law impacts the American public beyond rightsholders. We have watched during COVID as the Office did nothing to advocate for solutions to the problems copyright law was creating in the move to a digital-only world, including getting digital books into the hands of students, moving religious services online and allowing libraries to make their collections available while closed. Instead, they have solely focused on the challenges facing rightsholders.
The impending announcement of a new Register of Copyrights provides a historic opportunity to rebalance priorities and truly recenter the American public as the Copyright Office’s primary constituency, which is supposed to be the basic role of government. The Librarian of Congress must not fall victim to the financial heft and lobbying pressure by rightsholders and their allies in Congress. It is time for the Copyright Office to fulfill its true purpose, to do what is in the public interest. That is what the Constitution guaranteed. Progress demands nothing less.
Joshua Lamel is the Executive Director of Re:Create. Re:Create is a copyright focused organization that fights for the rights of Internet users, including consumers and the new generation of Internet Creators.