Copyhype

On Sunday, September 6, US Copyright Office systems, including its electronic registration system, came back online. The systems had been down for over a week, having failed to come back online after being shut down for routine maintenance by the Library of Congress.

The Washington Post reported on Thursday, six days into the nine day outage, that the outage “cost[] the office an estimated $650,000 in lost fees and caus[ed] headaches for approximately 12,000 customers.” The final numbers are higher.

Unfortunately for the Copyright Office and its constituents, this outage was beyond its control. “The Copyright Office does not have its own Information Technology (IT) infrastructure,” said Keith Kupferschmid during a House Judiciary Committee hearing on the functions and resources of the Office earlier this year. “[I]t uses the network, servers, telecommunications, security and all other IT operations controlled and managed by the Library of Congress.” ¹The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Keith Kupferschmid, General Counsel and Senior Vice President, Intellectual Property Software & Information Industry Association). This outage underscores the critical need to give the US Copyright Office the tools and resources it needs in order to function efficiently and effectively in the twenty-first century.

The first step in that process is giving the Office greater autonomy over its own functions and resources. Maintaining Library authority over the US Copyright Office creates a number of structural barriers to modernization, with little concomitant benefit. Indeed, there is very little logic regarding the housing of the Copyright Office within the Library in the first place. This wasn’t the result of any deliberative process at all, but rather through the ambition of Librarian of Congress Ainsworth Spofford, who served in that position 1864-1897.

Building a Library

This story begins with legal deposit—that is, a legal requirement to submit a copy of a published work to a specified institution. As a 1960 Copyright Office study explains:

The deposit of copies of copyrighted works serves two purposes: to identify the copyrighted work in connection with copyright registration, and to provide copies for the use of the Library of Congress. The deposit of copies for the first purpose has been an integral part of the U.S. copyright system since its beginning in 1790. Deposit for the Library of Congress was inaugurated in 1846. Before 1870. the deposit for each purpose was made separately. Since the administration of the registry system was placed in the Library of Congress in 1870, a single deposit has served both purposes. ²Elizabeth K. Dunne, Deposit of Copyrighted Works, Copyright Law Revision Study No. 20 (1960).

It was this centralization in 1870 which would eventually lead to the creation of the US Copyright Office. Spofford was a huge proponent of deposit as a mechanism for Library acquisitions. To that end, he sought throughout his tenure as Librarian to increase the effectiveness of deposit by, for example, introducing legal penalties for failure to deposit works. But, as historian John Y. Cole has explained, this was still insufficient to Spofford.

He found that even with the “utmost diligence” it was impossible to obtain all the copyrighted publications, since he was forced to pursue delinquent publishers and authors through the 44 U.S. district courts where the original copyright registrations were still being made.

The entire system needed changing, and Spofford proposed to eliminate the district courts and the Patent Office from the copyright system altogether by centralizing all registration and deposit activities at the Library of Congress. According to his plan, both deposit copies-the copy for legal record and the copy for library use-would be sent directly to the Library of Congress. The Librarian would be responsible for registration and for keeping the copies deposited as legal evidence separate from the general collection. ³John Y. Cole, Of Copyright, Men & a National Library, Library of Congress (1995) (originally published in 28 Quarterly Journal of the Library of Congress, 1971.

Spofford was, according to Cole, “a skillful politician”, and he shepherded his plan from idea to legislative reality in little over a year. ⁴Id. But his success was double-edged. Cole writes that centralization “created serious problems. Spofford was overwhelmed by the unceasing flow of deposits into his cramped Library. He cried to Congress for help almost immediately.” But the new arrangement only drew more and more works to the Library. “In 1875 Spofford warned Congress that its Librarian would soon be presiding over the ‘greatest chaos in America,’ and by 1877 more than 70,000 books were ‘piled on the floor in all directions.'” Too many books might seem a nice problem for a library to have. But Cole notes several problems that weighed down the benefits. “The most serious problem was the chaotic condition of the deposits themselves. Virtually inaccessible without the aid of Librarian Spofford’s remarkable memory, the accumulated wealth of the collections was not fully appreciated until they were transferred into the new building and cleaned, sorted, examined, and counted.” Consequently, many deposits were also damaged or lost before becoming available to the public. (Or stolen from Spofford’s office.)

Spofford made his case to Congress for a separate building to house the Library. Congress concurred, and on November 1, 1897, the Thomas Jefferson building opened its doors to the public. That same year, Congress also established a separate Copyright Department within the Library of Congress, headed by a Register of Copyrights, to administer registration and deposits. The first Register, Thorvald Solberg, was ambitious, and almost immediately transformed the office from a ministerial department to an expert agency. Under his leadership, the office “served as substantive experts within the U.S. government, provided policy advice to Congress, and represented the United States at international meetings,” a role the Office continues to this day. ⁵Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 316 (2013).

Distinct Missions

So from its beginning, the Copyright Office has had a distinct mission from the Library of Congress. Aside from legal deposit (which doesn’t necessitate having the Copyright Office under the authority of the Library of Congress), there is little benefit to either institution from the historic arrangement, a point the recent outage demonstrates well, and one supported by two recent GAO reports on the Library of Congress and the Copyright Office.

By law, the Office must perform a number of functions. Among these, it must be able to “receive and examine copyright registration applications, collect and maintain deposited copies of copyrighted works as necessary to support the production of ‘facsimile reproductions’ and retention of works up to 120 years, produce certificates of registration and certified copies of applications, and maintain records of the transfer of copyright ownership.” ⁶GAO Copyright Office Report at 7. These functions rely heavily (if not entirely) on technology. The Library of Congress, in contrast, deploys information technology for a different set of purposes, such as “bibliographic cataloging and electronic archiving of important historical works.” ⁷The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Robert Brauneis, Professor, George Washington University Law School).

The Library and the Copyright Office also have different administrative needs. Unlike Library actions, actions taken by the Register to implement the Copyright Act are subject to the Administrative Procedure Act. ⁸GAO Copyright Office Report at 8. This means, among other things, that copyright records are governed by the Freedom of Information Act and the Privacy Act. ⁹Id. The result, as the GAO concluded, is that legal requirements “requirements necessitate actions by the Copyright Office that differ from otherwise-standard Library processes.” ¹⁰GAO Copyright Office Report at 8-9. Add to this the different data retention and security requirements of a library and a registration system.

It doesn’t appear that either department realizes any synergies from this arrangement. Indeed, it seems as though it may be that having the two systems integrated is worse than having the two separate. In its report, the GAO noted a number of “duplicative or overlapping efforts” between the two systems, “for example, the Copyright Office provides Internet management and desktop support services, which overlap similar services by ITS.” ¹¹GAO Copyright Office Report at 22.

In addition, the GAO’s audit of the Library of Congress’s own IT found significant weaknesses in strategic planning, governance and investment management, Â information security and privacy, service management, and leadership. Addressing these will take considerable time and attention. Under the current structure, that could mean continued delays in modernizing Copyright Office systes.

The conclusion to be drawn from this discussion seems unavoidable, and best stated by Register Pallante in testimony to the House Judiciary Committee earlier this year. “The mission of the Copyright Office is fundamentally different from the mission of the Library, and I believe that the Copyright Office must have its own CIO, technology staff, and management autonomy, including the ability to implement IT investment and planning practices that focus not on agency-wide goals but on its own specific mission.”

This recent outage demonstrates that at the very minimum, Congress should address the acute technological and administrative challenges facing the Office by giving it the autonomy and resources it needs, without further delay.