Copyright Principles Project: Increasing the US Copyright Office’s Role

November 01, 2010 · · 1 comment

On September 28, a group of leading copyright academics and practitioners released the Copyright Principles Project: Directions for Reform (full report [pdf] available here). According to the press release, the Project “attempts to ignite an informed debate about how to best balance the interests of copyright owners and users” by examining “several ways to improve and update the law in an era of rapid technological change.”

The project is well worth a read. Participants in the project come from a variety of perspectives, including academics like project leader Pamela Samuelson, Jessica Litman, Michael Carroll, and Christopher Sprigman; copyright practitioners like Jon A. Baumgarten of Proskauer Rose LLP and Kate Spelman of Cobalt LLC; and corporate attorneys like Troy Dow of Walt Disney, Terry Ilardi of IBM, Jule Sigall of Microsoft, and Jeremy Williams of Warner Bros. Entertainment. Working together, they crafted twenty-five specific proposals that address “how current copyright law could be improved and how the law’s current problems could be mitigated.”1

The Copyright Principles Project came about in part from Samuelson’s idea of creating a “model copyright law” — akin to projects like the American Law Institute’s Model Penal Code — which could provide “an inchoate vision of a ‘good’ copyright law”; “provide a platform from which to launch specific copyright reforms”; and “prove useful as a resource to courts and commentators as they try to interpret ambiguous provisions of the existing statutes” and apply the statute to novel and unforeseen circumstances.2

Reaction to the report from the Copyright Principles Project has been generally positive. I haven’t been able to find too much analysis of the individual recommendations online, though there has been some. Copyright Chronicle’s Thomas Gulick, for example, points to recommendations that seem to “create imbalance for the sake of ease.”

Today, I want to look at those recommendations in the Project that call for an increased role for the US Copyright Office within copyright law. This topic is of special interest to me. In Copyright Reform Step Zero, I make the case for delegating substantive rulemaking authority to the Copyright Office as an important first step to maintaining an up-to-date and effective copyright law. Several of the recommendations in the Copyright Principles Project take the same approach while also envisioning adding adjudicatory functions to the Office.

Recommendation #3: The Copyright Office should develop additional policy expertise and research capability, particularly in the area of economics and technology.

The Copyright Principles Project specifically calls for two new positions to be created within the US Copyright Office: Chief Economist and Chief Technologist. These positions would help ensure that those areas of expertise which are most important for developing copyright policy in today’s world can be led by dedicated individuals. The Copyright Office already plays an important role preparing studies of specific copyright issues, advising Congress and other federal agencies on policy matters, and interacting with foreign and international organizations; so even if the Office didn’t take on a greater role in actual policymaking, it could still benefit by beefing up its expertise in these areas.

Recommendation #4: The Copyright Office should give serious consideration to developing some mechanism(s) through which users could receive guidance on “fair use.”

One of the mechanisms suggested by the Copyright Principles Project is the idea of a fair use “opinion letter,” likely inspired by an existing proposal from Project contributor Michael Carroll. In Fixing Fair Use, Carroll envisions as body within the Copyright Office that would hear from companies or individuals contemplating the use of a copyrighted work. The body would analyze if the contemplated use would legally be a fair use and issue an advisory letter with its opinion, similar to advisory letters that the IRS and SEC currently issue.

Recommendation #5: A small claims procedure should be available for resolving small-scale copyright disputes.

Interestingly, after orphan works, this recommendation may have the best chance for being adopted out of all the Copyright Principles Project’s recommendations. Although orphan works legislation failed to pass in 2006 and 2008 (and wasn’t even introduced in 2010), it is still considered by many to eventually become law. Both orphan works bills contained a provision commissioning the US Copyright Office to study the idea of a “small claims court” for copyright disputes which would otherwise stay out of courts because of legal costs.3

Recommendation #23: Contributions to computer programs should be considered as a new category of specially commissioned work eligible for treatment as works made for hire.

The Copyright Principles Project discussion of this recommendation included the following: “We considered, for instance, whether the U.S. Copyright Office should be given rule-making authority to add computer software contributions or other types of works to the specially commissioned work for hire rule. We did not reach consensus on this approach.” This statement describes an example of how substantive rulemaking authority would be exercised by the US Copyright Office as I contemplate it in my paper. Congress incorporates a doctrine like “work for hire” into the Copyright Act. It lays out the broad strokes of the purpose and principles behind the doctrine. But it then delegates the nuts and bolts to the Copyright Office. In this example, the Copyright Office would have the authority to add additional categories to types of works eligible for treatment as works made for hire — within the limits of the statute and guided by the principles expressed by Congress.

Footnotes

  1. Copyright Principles Project, pg. 2. [↩]
  2. Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 3 Utah L. Rev. 551 (2007). Samuelson discusses how the model copyright law project served as a genesis for the Copyright Principles Project during her remarks at Berkeley Law’s “Copyright @ 300” conference, audio available under Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century. [↩]
  3. HR 5439 — Orphan Works Act of 2006, Sec. 4; HR 5889 — Orphan Works Act of 2008, Sec. 6. [↩]
Posted in: Copyright reform · 1 comment

Share: Reddit Google+ LinkedIn

Marybeth Peters to Retire as Register of Copyrights

September 15, 2010 · · Comments Off

On September 13, 2010, the Library of Congress released the following:

Register of Copyrights Marybeth Peters has announced her intention to retire effective December 31, 2010. Ms. Peters has served as Register of Copyrights since August 7, 1994, a tenure longer than any other Register with the exception of Thorvald Solberg, the first Register. Her exemplary service to the nation began in the Library of Congress in October 1965, and she began working in the Copyright Office in 1966. During her 45-year career, she has held positions at all levels in the Office including acting general counsel, policy planning advisor, chief of the Examining Division, chief of the Information and Reference Division, attorney-advisor, and music examiner. She also served as a consultant on copyright law to the World Intellectual Property Organization in Geneva (1989-1990). For further information, go to the Copyright Office website. The Library of Congress has posted a vacancy announcement for the position of Register of Copyrights. Interested parties are invited to apply. For further information, go to the Library of Congress website.

I would like to extend my thanks to Marybeth Peters for her exemplary service as this nation’s 11th Register of Copyrights. Marybeth Peters presided over the US Copyright Office during a period of significant changes not only in technology and communications, but in the role of the Office itself.

When Peters assumed her post, Friends had yet to premiere. More importantly, the internet was still on the outskirts of public awareness. In a 1993 article, the New York Times covered the introduction of the Mosaic web browser – “the first ‘killer app’ of network computing”, credited elsewhere as popularizing the world wide web. Only 994 .com domains were registered at the beginning of 1994, growing to 3,712 by the end of the year.1 Since then, we’ve seen the introduction of internet services like Google, YouTube, Napster, iTunes, and Hulu. It’s fascinating to see how much the technological landscape has changed during Peters’ time as Register. Consider this: in the last round of DMCA exemption proceedings that went into effect this past July, her Office recommended an exemption for circumventing protection on DVDs for certain educational and noncommercial uses. When she took office, DVDs had not yet been invented.2

Peters saw – and played varying roles shaping – changes in United States copyright law to address these rapid technological advances: the Digital Performance Right in Sound Recordings Act of 1995, the Digital Millennium Copyright Act of 1998 (DMCA), the Copyright Term Extension Act of 1998, and the PRO-IP Act (2008), to give a few notable examples. Internationally, she was there to see the inception of the World Trade Organization and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), considered “the most important multilateral instrument for the globalization of intellectual property laws.” It should not be surprising, then, that the nature of the Copyright Office itself also changed significantly while Peters was at the helm.

The US Copyright Office

Despite the increasingly public discourse on copyright law, the role of the executive agency3 that is the Copyright Office is still somewhat mysterious. The United States Copyright Office was formed in 1897 as a department within the Library of Congress. Historically, the Office’s duties have been limited – accepting and recording copyright registrations. It should be noted that the Office’s duty here is ministerial. Its granting or denial of registrations is not determinative of what precisely is protected by copyright, but rather whether the work fulfills the minimum requirements for protection – is it proper subject matter as defined by the Copyright Act, is the form properly filled out, did the check accompanying the application clear, etc.

The Copyright Office does play an important advisory role to Congress, other executive departments, international bodies, and foreign governments regarding copyright law and policy. It played a pivotal part in the efforts which lead to the 1909 and 1976 Copyright Acts. Congress often relies on the Office to prepare studies on specific areas involving copyright or contribute testimony at Congressional hearings.

But until recently, the Copyright Office had almost no role in directly administering substantive copyright law and policy.4 This changed with the passage of the DMCA, which gave the Office the authority to conduct triennial rulemaking procedures to determine exceptions to the anti-circumvention provisions of 17 USC § 1201. For the first time in its history, the Office had substantive rule-making authority. As the issues presented in copyright law become more complex, it’s not hard to imagine that Congress will rely on the Copyright Office to administer that law more.

What’s Next

Whoever the next Register of Copyrights will be, he or she is guaranteed to preside over an office with an increasingly expanded role. Peters’ term coincided with the federal government placing increased priority on enforcing intellectual property rights. Undoubtedly, this trend will continue during the next Register’s term, and I think it’s fair to say the Copyright Office itself will continue to see a growing role in administering copyright law and policy.5 The scope of international copyright law will continue to expand; the final draft of the Anti-counterfeiting Trade Agreement is expected to be completed by the end of this year, with the acceptance and implementation by the US likely to be a major issue during the first couple years of the new Register.

I certainly have no inside information about likely candidates for the next Register of Copyrights, and I have yet to come across any predictions. Still, I’d like to hazard some guesses based on historical practice. Most previous Registers have come from within the Copyright Office itself. The very first Register, Thorvald Solberg, had played an active role in the copyright functions of the Library of Congress prior to being tapped by Librarian John Russell Young to head up the newly created department. Since then, only four of the fourteen Registers and Acting Registers – Clement Lincoln Bouvé, Sam Bass Warner, David L. Ladd, and Ralph Oman - had not worked within the Copyright Office before being appointed (though it should be noted that even those four have had some experience in the federal government).

If we look at the chart showing the Organization of the US Copyright Office, we can see several candidates for the position if selection follows the historical pattern: David O. Carson, Maria Pallante, and Nanette Petruzelli (who spearheaded the change from separate registration forms for different subject matter to a consolidated form) are all “next in line” in the hierarchy. All seem fine candidates, all have a combination of public and private experience and actively involved in copyright policy outside their work at the Copyright Office. I expect we’ll hear more details about the next United States Register of Copyrights very shortly.

Footnotes

  1. http://www.vb.com/domain-timeline.htm [↩]
  2. According to Wikipedia, the specification for DVDs was finalized December 1995 and introduced to the market in November 1996. [↩]
  3. Despite some lingering doubts, the Copyright Office is indeed an executive agency. I have the proof, let me show you it. [↩]
  4. For a detailed look at the institutional evolution of copyright law administration, check out Joseph P. Liu, Regulatory Copyright, 83 North Carolina Law Review 87 (2004). [↩]
  5. Another plug for my paper, Copyright Reform Step Zero, where I argue that Congress should, in fact, delegate the bulk of administering copyright law to the Copyright Office. [↩]
Posted in: Copyright news · Comments Off

Share: Reddit Google+ LinkedIn

Copyright Reform Step Zero

August 23, 2010 · · Comments Off

I’m happy to announce that my article, Copyright Reform Step Zero, has just been published in volume 19, issue 2, of the journal Information & Communications Technology Law. I’m especially happy since this is my first published article. You can find the article at http://www.informaworld.com/openurl?genre=article&issn=1360-0834&volume=19&issue=2&spage=147; I have a pre-print version on my ‘about me’ page for those who don’t have access to the journal.

Take a moment to think of all the purposes copyrighted works fulfill: entertainment, art, culture, knowledge, teaching, information, communications, etc. Now factor in how rapid technological changes can shift the balance of power between stakeholders almost over night. Crafting copyright policy that takes all that into consideration is a huge challenge. My article proposes one way which may more effectively meet that challenge.

The abstract reads:

‘A reasonable person might well think it’s a fool’s errand to contemplate a [copyright] reform project of any sort.’ The US Copyright Act of 1976 and its subsequent amendments is contained in over 200 pages of incomprehensible, sometimes inconsistent, and highly technical provisions. Attempts to reform this law are doomed from the start. They are doomed not because they lack merit, but because of the way copyright law is made. This article argues that before any meaningful copyright reform is passed, the institutional framework that makes copyright law must be changed. It proposes delegating substantive rulemaking authority to the US Copyright Office as part of that change. The article explores the benefits and drawbacks to this approach and concludes that without the type of institutional reform envisioned by this proposal, copyright law will continue to become increasingly unable to keep up with technological and other challenges while also becoming increasingly resistant to reform efforts.

Since finishing the article several months ago, I’ve noted a few developments that continue this theme of a movement toward wholesale copyright reform and the challenges any reform effort faces. For starters, in June 2010, IP Czar Victoria Espinel released the first Joint Strategic Plan on Intellectual Property Enforcement, as directed by the PRO-IP Act – illustrating the priority that the federal government has placed on coordinating agency efforts to enforce intellectual property. Outside groups continue to push for their own versions of reform; in February 2010, Public Knowledge announced the start of its Copyright Reform Act project. Finally, Copyrights and Campaigns author Ben Sheffner asked, Is it time to completely reform US copyright law? – getting to the heart of the institutional roadblocks of copyright reform efforts that I address in my article.

Posted in: Copyright reform · Comments Off

Share: Reddit Google+ LinkedIn