Copyhype

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. ¹http://www.vb.com/domain-timeline.htm 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. ²According to Wikipedia, the specification for DVDs was finalized December 1995 and introduced to the market in November 1996.

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 agency ³Despite some lingering doubts, the Copyright Office is indeed an executive agency. I have the proof, let me show you it. 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. ⁴For 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). 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. ⁵Another 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. 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.