Lawmakers advance measure to strip Librarian of Congress of power to appoint copyrights Register, giving authority, instead, to the president, with congressional assistance

Congress is sending a rebuke to the bureaucrats who run a system that’s critical to Entertainment Law: The House has passed and sent to the Senate a proposal to strip The Librarian of Congress of the power to appoint the Register of Copyrights, giving that authority, instead, to the president.

HR 1695, the Register of Copyrights Selection and Accountability Act,  has passed the House Judiciary Committee in a 27-1 bipartisan vote, and it has advanced out of the House in a 378-48 vote. It now rests with the Senate Rules and Administration Committee.

Whether it goes beyond, it has become the legislative equivalent of baseball’s brush-back pitch, with lawmakers expressing some degree of displeasure with the nation’s copyright administrators—and creating a colloquy over how this potential change might affect innovators and creators.

How did this tussle blow up?

A history of appointment

The Register of Copyrights directs the U.S. Copyright Office within the Library of Congress. The holder of this post long has been appointed by, and responsible to, the Librarian of Congress. While the copyright office rarely sticks its nose into applications of copyright law, and its staff are not meant to influence policy, complaints have arisen recently that bureaucrats have overstepped their typically anonymous bounds. And critics and advocates have recognized that the Register has played a larger role than assumed, backing policy changes beneficial to major media and entertainment companies, some say.

The Copyright Office itself has come under fire for what some see as systemic bias in favor of entertainment companies to the detriment of Internet users, technology companies, and independent creators.  Critics who hold this view argue that, if the Register is taking political positions on copyright law, the post ought to fall to the nation’s top law enforcer and politician: the president. Lawmakers are pushing, then, for presidential appointment for the post from a qualified, experienced pool, with congressional nomination and advice and consent by the Senate. That would reverse a practice that has held since the creation of the Copyright Office in 1897.

Some see this as a detrimental change, allowing special interests to influence future copyright policy, while others see it as a necessary move.

Calls for change

John Conyers Jr. —a Michigan Democrat, a ranking member of the House Judicial Committee, and an original co-sponsor of the bill to do so— has praised the prospective change with the Copyright Office and Register, saying this move would make the rights’ bureaucracy more accountable to Congress and “responsive to all stakeholders in the copyright ecosystem.” He and others argue that this also would improve the system’s transparency, because voters would get a say in the Register’s selection through their elected representatives.

The Intellectual Property Owners Association, a major trade group, has endorsed HR 1695, with its leader in a published Op-Ed calling it an “excellent first step that will pave the way for other long overdue improvements to the agency’s authority and infrastructure.” The American Association of Publishers  also has supported the measure, arguing “there is broad consensus that the Copyright Office is in need of an overhaul, and the passage of this bill would achieve that.” The publishing trade group’s site also links to the Copyright Alliance, another organization that says it “represents the interests of authors, photographers, performers, artists, software developers, musicians, journalists, directors, songwriters, game designers and many other individual creators.” The alliance supports the bill, noting that it is joined in doing so by the Motion Picture Association of American, the Professional Photographers of America, and the Recording Academy.

The Copyright Office’s mission is to: administer copyright laws; support authors and users of creative works; and provide expert, impartial assistance to Congress, the courts, and agencies on questions of copyright law and policy. The Library of Congress is charged by law to “make its resources available and useful to the American people and to preserve a collection of knowledge and creativity for future generations.” Some critics see conflicts in these roles, with one administering laws to reward and provide incentives to creation by giving innovators a period of exclusive rights, while the other seeks to make works widely available to the public. Given the Library of Congress’ superior role, might this create the potential for a conflict of interest?

Politicizing the process?

HR 1695 has its critics, those suspicious of how the bill might affect copyrights, giving interest groups more lobbying power to take control of a newly politicized office, according to this view. Critics also say by making the Register an appointed post, its occupant inevitably will be political and tied to a president—not an independent, nonpartisan public servant. Further, there are concerns that the bill fails to address an operational concern, with the Librarian of Congress ultimately still responsible for the U.S. Copyright Office, though it will be headed by the appointed Register. Things could get sticky if the Register and Librarian fail to see eye to eye.