A bill empowering the president to appoint the next Register of Copyrights, which would effectively remove jurisdiction over the position from the Librarian of Congress, sailed through the House of Representatives 378–48 on April 26 and will now continue to the Senate. The Register of Copyrights Selection and Accountability Act, also known as HR 1695, was introduced on March 23, and would make the Register—who has traditionally been appointed by the Librarian of Congress—a presidential appointment, with the advice and consent of the senate. The Register would serve a ten-year term limit renewable by another presidential nomination and Senate confirmation, as the Librarian of Congress since the passage of the bipartisan “Librarian of Congress Succession Modernization Act of 2015.” Recommendations for the position would be made by a panel consisting of the Speaker of the House of Representatives, the President pro tempore of the Senate, the majority and minority leaders of the House and Senate, and the Librarian of Congress. The bill would also authorize the president to remove the Register of Copyrights with notification to both houses of Congress.

HR 1695 amends 17 U.S. Code § 701, which previously provided the Librarian of Congress the power to appoint and direct the Register of Copyrights, and did not set term limits for the position.

An earlier bill, the Copyright Office for the Digital Economy Act, or HR 890, was introduced in the House of Representatives on February 6. HR 890, introduced by representatives Tom Marino (R-PA), Judy Chu (D-CA), and Barbara Comstock (R-VA), would establish the Copyright Office as a separate independent agency of the legislative branch, as well as incorporating the changes specified in HR 1695. The Copyright Office has been located within LC since its creation in 1897.

On May 2 a bill containing language nearly identical to that of HR 1695, the Copyright Accountability Act (S 1010), was introduced in the Senate Judiciary Committee. The bill was sponsored by Judiciary Committee chairman Chuck Grassley (R-IA), ranking member Dianne Feinstein (D-CA), and senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT) and has been championed by music industry professionals.

BIPARTISAN SUPPORT—BUT NOT UNANIMOUS

Introduced by House Judiciary Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers Jr. (D-MI), HR 1695 immediately garnered strong support on both sides of the aisle, including the approval of former Registers of Copyright Ralph Oman (who served from 1985–93) and Marybeth Peters (1994–2010). On March 29 the House Judiciary Committee passed the bill 27–1.

The sole dissenter, Rep. Zoe Lofgren (D-CA), is a longtime opponent of punitive copyright restrictions, having introduced the Digital Choice and Freedom Act of 2002—which would have given consumers the right to copy CDs, DVDs, and other digital works for personal use—as a response to the Digital Millennium Copyright Act.

Lofgren, whose district includes Silicon Valley, led congressional opposition to the Stop Online Piracy Act, in 2011, and in 2012 received the American Library Association (ALA) James Madison Award, created to honor individuals or groups who have championed, protected, and promoted public access to government information and the public’s right to know at the national level. Lofgren was also one of the sponsors of the Fair Access to Science and Technology Research Act (FASTR), introduced to expedite open access to the products of taxpayer-funded research.

“If Congress enacts this bill we will make a grievous error,” Lofgren said of HR 1695 in the opening of her dissent, going on to add, “The only possible result of this change is more conflict between the Library and the Copyright Office, not less. It is unfair to put the hardworking employees of the Copyright Office into this lose-lose situation because of the incompetence of previous leadership. Especially when the new Librarian was taking responsibility to remedy the deficiencies created by her predecessor's inaction.”

The bill has been referred to the House Committee on the Judiciary.

APPROVAL, DISSENT OFF THE HILL

While the bill has seen bipartisan support on Capitol Hill, commenters outside of Washington disagree on its advisability.

Critics claim that the bill will give the executive branch too much power over the Copyright Office, and that the interests of commercial stakeholders, such as the entertainment industry, would be disproportionately represented.

However, supporters praise the control the bill would give Congress in selecting candidates, as well as potentially improved accountability to Congress and increased transparency. In a joint statement from Goodlatte and Conyers on the passage of HR 1695, they noted that “While we are fully committed to continuing the work of our copyright review and our efforts to modernize the Copyright Office, there is an immediate need when it comes to the selection process for the next Register of Copyrights.”

The Association of American Publishers (AAP) praised the bill in a statement issued on its passage in the House, as did the Authors Guild. Maria Pallante, who was named president and CEO of AAP in January, was formerly Register of Copyrights and head of the U.S. Copyright Office. She resigned following her reassignment by Librarian of Congress Carla Hayden to a nonmanagerial advisory role.

Both are strong proponents of stricter copyright legislation favoring rights holders, as are many in the entertainment industry; an open letter signed by more than 50 entertainment industry organizations urged Congress to vote in support of the bill, citing the importance of copyright control to the national economy, jobs, and culture, “with core copyright industries contributing over $1.2 trillion to the U.S. GDP and employing more than 5.5 million U.S. workers.”

The American Library Association (ALA), on the other hand, issued a statement from president-elect James Neal that read, in part, “As this bill moves to the Senate, ALA urges all senators to take special note of what the bill isn’t. Despite the arguments of its proponents, it isn’t related to modernization of the Copyright Office, which it will impede. It isn’t about protecting or advancing the long-term interests of all Copyright Office stakeholders, just its most powerful ones. And, by oddly outsourcing appointment of the Legislative Branch’s own copyright advisor to the Executive Branch, it isn’t the way for Congress to get the nonpoliticized counsel about fairly balanced copyright law on which the economy and public interest depend.”

Neal added, “The Senate overwhelmingly confirmed the Librarian of Congress just nine months ago because she is an expert in modernizing complex information systems in libraries and a proven manager of them: exactly what the Copyright Office needs. ALA urges the Senate to let Dr. Hayden build her own team, including the Register of Copyrights, to accomplish that mission without further delay. H.R. 1695 isn’t the way to get there.”

The Library Copyright Alliance and the Society of American Archivists, among numerous other library stakeholders, similarly condemned HR 1695. In a letter to Goodlatte and Conyers, Society of American Archivists president Nancy Y. McGovern cautioned them to “give this bill due time for consideration in the Judiciary Committee and the Subcommittee on Courts, Intellectual Property and the Internet in order to develop provisions which truly address the problems currently affecting the Copyright Office.”

Electronic Frontier Foundation legal director Corynne McSherry said in a statement to LJ, "We’re deeply concerned about this bill. The Register of Copyrights is an increasingly politicized position—and not a neutral one. Making the position a Presidential appointment won’t help. What is more, this would undermine the Librarian of Congress at the very beginning of her tenure. By contrast, keeping the Register under the direct supervision of the Librarian of Congress, who is tasked with and has a long history of serving the public interest, offers the twin benefits of making sure the Register also serves the public interest, and giving the new Librarian a chance to put in place much needed reforms to Copyright Office operations.''

As for the Library itself, an LC spokesman told LJ, “The Library defers to Congress on legislative matters and will continue to monitor this legislation, as we do any legislation that affects operations and responsibilities of the institution. Ensuring an effective and efficient Copyright Office remains the responsibility and priority of the Librarian and she continues to believe the Copyright Office should have permanent leadership as soon as possible. The Register—along with the expertise of the entire Copyright Office—[is] crucial to America's creative economy.”

A POSITION IN TRANSITION

Pallante served as register of copyrights from 2011, when she was appointed by then–Librarian of Congress James Billington, until her resignation in October 2016. Many considered Hayden’s reassigment of Pallante to be an effective dismissal. At that time, Hayden declared her intention to conduct a nationwide search for Pallante’s replacement.

In March 2015, Pallante wrote Conyers a ten-page letter presenting her views on the position and the Copyright Office. In testimony before the Judiciary Committee and the House Administration committee she spoke in favor of the Copyright Office’s removal from LC to become an independent entity, and stated that the Register should be appointed by the president.

While some at the time speculated that Pallante’s reassignment represented a reprisal for her position on removing the Copyright Office from LC’s control, later news suggested other possible reasons: a February 2017 report from the Inspector General found that under Pallante’s leadership the office spent $11 million on a computer system originally budgeted at a tenth that amount, then scrapped it, while Techdirt reported that Pallante improperly added a “placeholder” amount of $25 million to LC’s budget request.

Currently Karyn Temple Claggett, who served as associate register of copyrights and director of policy and international affairs for the Copyright Office since 2013, is acting Register of Copyrights. Prior to joining the Copyright Office, Temple Claggett was senior counsel to the United States deputy attorney general, where she helped formulate Department of Justice policy and manage the Department of Justice’s Task Force on Intellectual Property.

In an April 14 article for The Hill, Oman and Peters stated that issues involving the role predated Trump’s presidency and Pallante’s term as Register: “Neither Pallante’s endorsement in principle of greater autonomy for the Copyright Office nor Hayden’s decision to remove her created these tensions. Rather, they are inevitable given the divergent roles of the two organizations. Stripped to its basics, the choice is stark: Does Congress want modernization and independent copyright advice straight and true from the expert agency, or does it want copyright administration and advice filtered through the lens—and shaped by the perspective—of the head of the national library?”

A panel of experts convened by LJ in January, on the other hand, was unanimous in its response that the Copyright Office remain in place at LC and that the next Register of Copyrights take a balanced approach to copyright that considers rights holders, content creators, and access to intellectual property.