The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office. The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department. That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while. But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary. Her letter was requested after a hearing about the functions and resources of the CO held back in February.
Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like. The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate. There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.
The first issue is why the Copyright Office should leave the Library of Congress in the first place. Registrar Pallante offers several reasons in her letter. One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative. While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service. Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma. There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.
The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay. All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days. But, again, it is not obvious that a new agency would necessarily be better. Everything would depend on the personnel and the budget. More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.
Is there a conflict of interest between a library and the office that administers our national copyright policy? If there is, what does that tell us? To my mind, it suggests that our copyright policy has gotten out-of-line. We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.
This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO. To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger. But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress. Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.
In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions. The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain. The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley. An office in the Commerce Department would be less able to take sides.
In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this. If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered. The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science. If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.