The U.S. Copyright Office has been a major topic of discussion lately. A few weeks ago Register of Copyrights Maria Pallante resigned, following her removal by new Librarian of Congress Carla Hayden from her post as Register and into a new advisory position in the Library. Beyond the speculation about what exactly led to Pallante’s reassignment, the move has reignited debate about the relationship between the Copyright Office and the Library of Congress. The Library of Congress has overseen the Copyright Office since the Office’s inception more than a century ago, but there are increasingly serious calls (including from Congress) for changing that relationship and possibly moving the Office outside the Library. Earlier this week Duke Libraries weighed in with a letter to Congress, and I know several others will too in the next few days. [Edit: this includes a letter drafted by Brandon Butler on behalf of himself and 42 individual copyright-library experts (including me!), that was sent today].
Why the Copyright Office matters
While the Copyright Office doesn’t actually have a lot of say in interpreting copyright law, it does make recommendations to Congress on copyright policy and plays an important role in shaping new copyright legislation. I think because of that, the question about where the Office resides has turned into a sort of proxy debate about the broader question of who should be exerting control over the Office and over copyright policy more generally. Putting a finer point on the issue, Ralph Oman and Marybeth Peters—the two Registers of Copyrights who immediately preceded Pallante—recently sent a letter to the leadership of the two relevant House and Senate committees. Oman and Peters are apparently not fans of Library of Congress supervision, and this quote sums up their overall point:
[T]he competing missions and differing priorities of the Library and the Copyright Office have increasingly emerged as a source of tension. . . . [T]hey 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 . . . of the head of the national library?
Their letter is loaded with some bad assumptions, and so earlier this week and thanks to Duke Libraries’ director Deborah Jakubs, Duke Libraries sent this letter to Congress to correct some of those inaccuracies and makes the case for why the Library of Congress is the best choice of home for the Copyright Office.
Libraries and the copyright system
The Duke Libraries letter first addresses the idea that there is an irresolvable conflict between the missions of libraries and the Copyright Office. Oman and Peters suggest that Libraries have only a “limited goal” of “offering to the public the greatest possible volume of material, often at little or no direct cost to their patrons.” That’s a pretty narrow conception of what libraries do and suggests a bias with respect to copyright that just does not exist. Here’s how the Duke Libraries’ letter responds:
Libraries like ours have perhaps the most well-rounded and balanced relationship with copyright of any group of institutions in the world. Duke Libraries, like many other libraries, spends millions of dollars every year on services for our faculty and students to help them navigate the legal, technological, and economic choices they face as creators. Our libraries partner with those creators . . . on publishing. Duke Libraries also administer the rights to thousands of works for which we own copyright, primarily in our rare book and archival collections. . . . Duke Libraries also invest millions of dollars each year into the publishing system by purchasing content and supporting new and emerging publishing platforms. . . .[W]e now spend even more money on developing strategies to carefully respect the rights of copyright owners as we seek to preserve and provide access to those materials in forms that are useful to researchers.
While all of that is true about Duke Libraries, we’re not unique. This is what libraries do, and to suggest a much narrower mission as Oman and Peters do obscures the far more balanced role that libraries play within the copyright system.
Impartiality of the Copyright Office
The second issue the Duke Libraries letter addresses is this idea that the Copyright Office has acted impartially and that more oversight from the Library of Congress would corrupt that impartial approach. As the letter points out “in recent years and without meaningful Library of Congress oversight, the Copyright Office has drifted into a markedly content industry-centric approach to copyright policy while at the same time failing in its core function of promoting and making accessible copyright registration information.” Highlighting some of the recent failings of the Office in its policy positions—some of which have recently and very publicly been rejected by the courts—and the lack of focus on core registration functions, the letter concludes with this:
The Office has not offered for some time the “straight and true” copyright policy advice that Oman and Peters suggest it should, nor has it adequately worked to achieve its core function of facilitating registration information. . . . The solution for the Copyright Office is not less oversight from the Library of Congress but more. Leadership from an experienced administrator such as Dr. Hayden who can guide the Office back to a position of impartiality and to a focus on its core function is a welcome development for Duke Libraries and for the public that has been so often ignored by the Office in favor of the content industry.
As many others have pointed out, copyright’s Constitutional purpose derived from the IP clause, “to promote the progress of science and [the] useful arts”, closely matches our own mission as a university and library. Like most university libraries, Duke Libraries are at the heart of creative process at our university. Likewise, the Library of Congress should stand at the heart of our national system to promote progress and creativity.
2 thoughts on “Where should the Copyright Office live? A response from Duke Libraries”
I think the Copyright Office should be on Washington DC.
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