Senate Postpones Vote on Independently Nominated Copyright Head

The United States Senate indefinitely postponed its vote on the Register of Copyrights Selection and Accountability Act, also known as S. 1010. The bill, introduced in May 2017, proposes to amend title 17 of the United States Code to make the Register of Copyrights a presidential appointee.

Update: The bill was discharged by the Senate Rules Committee and went straight to the Senate Floor. At least two senators placed holds on the bill, so currently it is not proceeding to a vote.

The United States Senate indefinitely postponed its vote on the Register of Copyrights Selection and Accountability Act, also known as S. 1010. Full committee consideration and markup by the Senate Rules and Administration Committee—initially due on December 4—had been rescheduled for Wednesday, December 12. The postponement was announced on the evening of December 11, and as of press time no new date has been set.

The bill, introduced in May 2017 by Sen. Charles Grassley (R-IA) and cosponsors Dianne Feinstein (D-CA), Orrin Hatch (R-UT), and Patrick Leahy (D-VT), proposes to amend title 17 of the United States Code to make the Register of Copyrights a presidential appointee, subject to confirmation by the Senate. It would also set a ten-year term limit for the position. Under current law the Register is appointed by the Librarian of Congress, as it has been since the position was created in 1897, and has no term limit.

The American Library Association (ALA), the Society of American Archivists, the Electronic Frontier Foundation (EFF), and many others in the library community oppose the bill, which would effectively transfer authority over the United States Copyright Office from the Library of Congress (LC) to the president.

A companion bill, H.R. 1695, was passed in the House of Representatives 378–48 in April 2017. The bipartisan bill saw strong support on both sides of the aisle, including the approval of two former Registers of Copyright, but met with strong criticism from many sectors of the information field, including the Library Copyright Alliance (LCA), which consists of ALA, the Association of Research Libraries, and the Association of College and Research Libraries.

If S. 1010 passes out of committee before the 2018 session adjourns, then it will go to the full Senate for vote. Because these are the final weeks of the 115th U.S. Congress, there is additional pressure to pass any outstanding legislation; the Senate calendar targets adjournment on December 14th, but that is subject to change. The 116th Congress is scheduled to convene on January 3, 2019; any legislation not already passed will need to be reintroduced in both chambers.

“To push it through this late in the session” is inadvisable, noted Alan Inouye, ALA senior director of public policy and government relations. “If there's a serious issue here, let's examine it—not get it done at the last minute.”

COMPETING INTERESTS

S. 1010 passed the House of Representatives in March, and a full Senate committee hearing was held on September 26. Testimony was given by Jonathan Band, adjunct professor of law at Georgetown University, and Keith Kupferschmid, CEO of the Copyright Alliance.

In his testimony Band, who also serves as counsel to LCA, stated in part, “[I]t is difficult to understand how the public or Congress itself would benefit from politicization of the Register’s position by making it subject to presidential appointment and Senate confirmation, as this legislation proposes. Such politicization of the position necessarily would result in a Register more actively engaged in policy development than in competent management and modernization. Additionally, a politicized selection process likely would result in a Register who does not balance the competing interests of all stakeholders in the copyright system.”

This potential conflict of interest has raised red flags for many of the bill’s opponents, who feel that such legislation would favor commercial interests over the information community. Making the position a presidential appointment, they feel, would needlessly politicize a role that benefits from remaining politically neutral.

As EFF pointed out on its website, “It’s important to note that, except in rare, narrow circumstances, the Register of Copyrights does not make copyright policy. Congress does.”

The Copyright Office’s mission, at present, is to provide registration and renewal of copyrights, keep records of the process, and provide public access to those activities. As SAA noted in an open letter to Senators Roy Blunt and Amy Klobuchar, of the Senate Rules and Administration Committee, “Managing data and receiving, preserving, cataloging, and making accessible the huge volume of requests received each year. This is work that librarians are uniquely qualified to handle.”

Several opponents to the legislation have also noted that it would represent a decrease of power for Carla Hayden—the first African American and the first woman to serve as Librarian of Congress, as well as one of the few credentialed librarians to do so, not to mention a former ALA president.

“I find it highly suspicious that this current bill immediately waters down [Hayden’s] hiring authority in a critical area of public concern,” said Kyle K. Courtney, Copyright Advisor for Harvard University and a 2015 LJ Mover & Shaker. “The bill contemplates changing the Register of Copyrights from a direct hire by Dr. Hayden, to a muddled reporting structure by President[ial] appointment, advised by a Congressional panel composed of the Speaker of the House, the President of the Senate, the majority and minority leaders of both houses, and, finally, the Librarian of Congress. How will diluting Dr. Hayden’s power to hire and supervise the Register and the Copyright Office…’modernize’ the Copyright Office?”

CONTINUED PROGRESS AT LC

In the two years since S. 1010 and H.R. 1695 were first introduced, LC has continued to make progress on its mandate to modernize and provide access to its materials.

“I think that events have overtaken the rationale for this bill,” Brandon Butler, director of information policy at the University of Virginia Library, told LJ. “It was introduced in a moment of panic, because the copyright industries were concerned that Dr. Hayden would exert unwelcome control over the Office’s policy advocacy, which has typically aligned with those industries. In fact, under Dr. Hayden the Office has functioned as well as it ever has, focusing on its core responsibility of maintaining a world-class copyright registration system. Recent reports and rulemakings have been some of the most efficient and constructive in the Office’s history. Two years later it seems clear nothing is broken, so what is this bill trying to fix?”

Mary Minow, library law consultant at LibraryLaw.com and affiliate at the Berkman Klein Center for Internet and Society at Harvard University, agreed that much progress has been made under the leadership of Hayden and acting Register of Copyrights Karyn Temple.

Some of those projects, Minow told LJ, include “work on the automated recordation system; next generation user interfaces; ‘proof of concept’ Virtual Card Catalog for public access to historical copyright records; and a model for federated searches across registration, recordation, and licensing databases, according to the Library Copyright Alliance. Not only is there no need to change the selection of the Register from the Librarian of Congress to the President in order to modernize the Office, it would be harmful to turn the position into a political appointee.”

The past two years have also seen great progress in copyright advocacy [for libraries] that benefits the public, noted Courtney. These include the September passage of the Marrakesh Treaty Implementation Act (S. 2559), which provides a copyright exception for “authorized entities”—including libraries—to make materials available across borders to people with print disabilities, and the Music Modernization Act package, which now includes library, preservation, and educational use provisions.

This demonstrates, explained Courtney, that “modernization can happen without a complete undermining of the Librarian’s authority…. Modernization comes through collaboration, strategizing, prioritization, and smart budgeting. We have already seen greater cooperation and collaboration than under previous leaders.”

He added, “Let’s continue that balance of representing multiple interests, and finding common ground. Copyright law, in fact, balances both creator’s and user’s interests to promote the useful arts and sciences. The balance that is asserted by copyright law should be reflected in the new relationship between the Office and libraries, archives, and other cultural institutions—and also in the upcoming strategic budgeting that will be necessary to truly modernize the Copyright Office. If Congress wants a fully functioning Copyright Office, then it must stop trying to water down authority, and instead provide funding and expertise to aid the modernization of the Copyright Office. Which, in turn, will benefit the public at large.”

Concerned parties are encouraged to contact their senators—particularly those from Alabama, California, Illinois, Kansas, Kentucky, Maine, Mississippi, Nebraska, Nevada, New Mexico,  New York, Tennessee, Texas, Vermont, Virginia, or West Virginia, whose senators sit on the Rules and Administration Committee. ALA has provided an online form to do so.

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