Feature

The Next Great Copyright Office

Joshua L. Simmons

©2015. Published in Landslide, Vol. 7, No. 6, July/August 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Just over two years ago, Register of Copyrights Maria Pallante issued a call to the copyright community for a general revision of the Copyright Act.1 The U.S. House of Representatives Committee on the Judiciary has answered Register Pallante by holding 20 hearings with 100 witnesses to review the state of U.S. copyright law.2 While those hearings resulted in testimony from a broad spectrum of the copyright community on a wide variety of issues,3 the conversation appears to have shifted from a general revision to more targeted updates. In particular, all members of the copyright community—whether authors or users, companies or individuals, or the media or computer industries—seem to agree that it is time to modernize the U.S. Copyright Office (Office).

In some ways, the focus on the Office is appropriate in light of its central role in the adoption of the Copyright Act of 1976, the last major revision of U.S. copyright law. In the years leading to the 1976 Act, the Office conducted studies on a range of issues relevant to the copyright system that mirror the Judiciary Committee’s review hearings. Then, as with today’s hearings, the studies revealed divergent views on the copyright system, including disparate and conflicting perspectives on how to improve it that appeared unlikely to be resolved. Yet, the Office charted a path toward consensus through negotiation and leadership. Now, it is Copyright Office modernization that may prove the linchpin to critical changes that will bring U.S. copyright law into the twenty-first century.

This article proceeds in three parts. First, it will review the developments that led to the last major revision of the Copyright Act, including similarities between that process and the review process today. Second, it will discuss Congress’s focus since 1976 on narrower copyright bills, rather than a wholesale revision of U.S. copyright law, and the developments that have led to the review hearings. Finally, it will consider the growing focus on Copyright Office modernization, with particular emphasis on the hearing “The U.S. Copyright Office: Its Functions and Resources.”

The Road to the Copyright Act of 1976

The Copyright Act of 1976 was the last general revision of U.S. copyright law. The process of adopting that statute, however, began many years earlier in the 1950s. After World War II, the United States’ copyright policy focus was on the Universal Copyright Convention.4 As the Convention was consistent with much of the existing U.S. copyright law at that time, when the United States adhered to the Convention in 1955, few changes to the U.S. statute were required.5

In August 1955, Congress authorized the Copyright Office to prepare a comprehensive study of potential revisions to the Copyright Act. By the end of its thorough examination in 1959, the Copyright Office had prepared 34 legal and factual reports on issues ranging from The Moral Right of the Author,6 to Fair Use of Copyrighted Works,7 to The Damage Provisions of the Copyright Law.8 Despite the fact that they are now 60 years old, the issues on which the Copyright Office focused in the studies remain live controversies in the modern copyright discourse.9 Moreover, in preparing the studies, the Office engaged members of the copyright bar and community in a wide-ranging exchange of ideas and suggestions, not unlike the review hearings today.

Once the studies were completed, then Register of Copyrights Abraham Kaminstein prepared a report summarizing the Office’s findings and making “tentative recommendations” on how to solve the important issues raised therein.10 The report covered a number of topics, including copyright protection for architecture, choreography, and sound recordings;11 the fair use doctrine;12 library photocopying;13 performance rights;14 the duration of copyright protection and copyright formalities;15 ownership of copyright;16 actual damages and profits;17 and the idea of statutory damages.18

The Office hoped that its recommendations would result in a period of public comment followed by a new general copyright law. After issuing the report, the Office held a number of panels to discuss its recommendations.19 In a supplementary report delivered to Congress in 1965, Register Kaminstein remarked that, while the Office “expected the Report to be controversial,” it was not “prepared for the fervent opposition to some of [the Report’s] major recommendations.”20 Nevertheless, the Office considered the entire process to be a success as, “although various provisions of the preliminary draft attracted considerable adverse criticism and opposition at the time, the draft as a whole served its intended purpose” by laying “the foundation for a consensus on some of the issues previously in controversy” and eliciting “a large number of meaningful and constructive comments and suggestions.”21 Over the next several years, under the Office’s leadership, a draft bill was circulated and refined.22

Only on July 20, 1964, nearly a decade after the studies began, did the legislative process begin in earnest with the introduction of identical revision bills in the House and Senate.23 Showing the primacy of the Office’s work, the bills were largely identical to the Office’s working draft.24 In the years that followed, Congress held hearings and debated the provisions of several different versions of the bills. As explained by Register of Copyrights Barbara Ringer, among the issues being debated in 1967 were jukebox performance rights, CATV transmissions, and educational broadcasting, as well as the use of copyrighted works in computers.25 Despite vested interests, the stakeholders were able to reach important compromises at that time.26

Nevertheless, legislative momentum slowed, and it was not until the mid-1970s that a new bill was introduced and hearings resumed. As explained by Register Ringer, “the most immediate cause of the revision bill’s new momentum was the Supreme Court decision in CBS v. Teleprompter, holding that under the 1909 statute cable systems are not liable for copyright infringement when they import distant signals.”27 Again, these issues that were so critical to the passage of the Copyright Act of 1976 remain important issues today.28

At last, in 1976, Congress passed and President Ford signed the Copyright Act of 1976.29 After such a long history of negotiation, perhaps it was not surprising that, although Register Ringer thought that the 1976 Act was “certainly a substantial improvement over the Act of 1909,” she believed it was “a good 1950 copyright law.”30 Even by 1981, she felt that “its inadequacies [were] already becoming apparent, and no prophet is needed to foretell the need for substantial restructuring of our copyright system before the end of this century.”31 Similarly, Register Pallante, in considering what lessons to learn from the passage of the Act, has noted:

What might be obvious today, but nonetheless is instructive, is that the long revision process that led to the 1976 Act reflected a spectrum of issues, from small or technical fixes to wholly new or controversial provisions. Small decisions were important then, as they can be now, because they added a degree of certainty to the statute, making it more user-friendly for those who need to interpret and rely upon its provisions. . . . More tedious were the issues where policy consensus was achieved in principle, but later compromised or undermined by overnegotiation.32

Copyright Legislation since the 1976 Act and the Call for New Updates

Despite Register Ringer’s call for a “substantial restructuring of our copyright system,” the years following the enactment of the Copyright Act instead saw the passage of a series of smaller bills intended to make modest revisions to the Act.33 Even after the United States became a signatory to the Berne Convention in 1988, the bill bringing the United States into compliance with Berne’s requirements and the other copyright bills that followed focused on narrow issues, rather than a complete revision of the Copyright Act.34 In fact, in the years between the Act’s enactment and today, the two legislative developments that have had the farthest-reaching effect on U.S. copyright law probably are the Sonny Bono Copyright Term Extension Act,35 and the Digital Millennium Copyright Act (DMCA),36 both passed in October 1998. As noted by Register Pallante, “During this time, Congress, though legislating in a charged atmosphere, acted on copyright policy with authority, leaving a very visible and far-reaching imprint on the development of both law and commerce.”37 Yet, in recent years, “Congress primarily has made minor adjustments or technical corrections.”38

Different conclusions can be drawn from Congress’s focus on narrow amendments to the existing Copyright Act. On the one hand, such amendments allow for discrete adjustments to copyright policy without upsetting the vested interests of stakeholders in the existing copyright system.39 One might argue that a complete revision of the Act, with every provision on the table for renegotiation, would lead to uncertainty among authors and users alike and to potentially unexpected consequences. As Chairman Goodlatte remarked, “Clearly, the Register’s call to revise, rather than update, the Copyright Act is one that is certain to hearten some and, quite frankly, scare others.”40

On the other hand, comprehensive revision based on concerted study and forward-thinking leadership could result in a copyright statute that better reflects the issues of the day. As Register Pallante noted in her statement to Congress, “The law is showing the strain of its age and requires [Congress’s] attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” by “the state of our copyright law.”41 In her view, “it is no longer viable to proceed piecemeal,” but rather the United States should “consider the ways in which provisions of the law relate to one another and to the statute as a whole.”42

This author, like other commentators, takes no position on which conclusion will win the day.43 In truth, despite the extensive series of review hearings, it remains to be seen whether complete revision is desirable or achievable.44 Regardless of the outcome, however, it is clear that an airing of the copyright issues facing the United States has resulted in a range of proposals for new or revised legislation for Congress to consider. It also has exposed the deep divisions among the members of the copyright community. In light of the 1976 Act’s history, these divisions are not new or surprising, but rather suggest that any revision process will span many years.

The Growing Focus on Copyright Office Modernization

Despite the divergent views discussed above, one issue has become a beacon for revision: Copyright Office modernization. When Register Pallante first spoke at the Kernochan Center, she specifically called for an evolution of the Office.45 During the review hearings, a growing consensus has developed supporting it. Even Chairman Goodlatte noted that changes to the Office warranted consideration as it “faces challenges in meeting the growing needs of its customers—the American public.”46

The Office’s role continually has expanded over time. Originally, there was no Office and the federal courts registered copyrighted works.47 Then, in 1870, Congress centralized the copyright registration and deposit system in the Library of Congress.48 Yet, only in 1897 was the Office first made a separate Library department.49 Since then, the Office has been tasked with a portfolio that includes:

[E]xamining and registering copyright claims; recording assignments, licenses, termination notices, security interests, and other copyright documents; administering statutory licenses (affecting online music services, cable operators, satellite carriers, and broadcasters); delivering policy assistance and expert studies to Congress; providing legal assistance to federal agencies, for example the Department of Justice, the U.S. Trade Representative, and the Department of Commerce; participating in negotiations and international meetings; conducting rulemakings and public hearings; reviewing final determinations of rates and terms for statutory licenses as set by the Copyright Royalty Judges; and maintaining public databases, an authoritative website, and related information and education services.50

The Office also plays a critical role in the negotiation of treaties and trade agreements; administration of mandatory deposits; recordation of online service providers’ designated agents; recommendation of circumvention exceptions under the DMCA; and provision of guidance to the courts, copyright practitioners, and the general public.51

Despite its important role, however, there is near universal agreement that the Office has not been given the resources or authority to keep pace with the needs of its users. As ABA-IPL Section Chair Lisa Dunner noted:

The speed of technical innovation, the needs of the public (as both users and creators of material subject to copyright), the increasing importance of international markets, and the potentially high stakes of infringement in our interconnected world require a Copyright Office that can effectively and efficiently supply information and provide services to its users.52

Similarly, Register Pallante has recognized that “stakeholders today want a twenty-first century enterprise.”53 Yet the Office appears to be stymied by three interconnected issues: a lack of funding, an inadequate and outdated IT system, and a lack of autonomy and authority. Based on testimony from the last review hearing, legislation addressing these three issues may be possible in the near term.

Increased Funding

There appears to be consensus that the Office needs to be better funded.54 As Chairman Goodlatte remarked, “Although the Copyright Office has managed to direct its resources to maximize their efficiency, it is clear that what was expected of the Office in the 20th Century is not what is expected of it in the 21st Century.”55 Yet the Office’s spending authority has been reduced by 7.2 percent since its 2010 appropriation.56 Moreover, it is limited by statute in its ability to raise funds through fees, including lacking the authority to collect fees for capital improvements.57

The witnesses at the last hearing agreed that the Office’s lack of funding has hampered its ability to perform its critical registration, recordation, policy, and litigation functions. For example, the Office currently operates with approximately 360 full-time employees, which is below its authorized ceiling of 439 and farther below the 483 full-time staff that it employed in 2010, leaving the Office without a full complement of copyright lawyers, technical professionals, and other specialists.58 In fact, in September 2014, there were 48 vacancies out of 180 positions in the Office’s registration program.59 As a direct result, a backlog of copyright applications has developed.60 Similarly, the Office’s recordation division is staffed by only nine employees, resulting in significant processing delays.61 Furthermore, the Office’s lack of funds has prohibited its participation in treaty negotiations and investment in operational improvements.62

The witnesses also agreed that the Office should have greater control over its fees and the ability to set its own budget.63 In particular, Ms. Dunner noted that the Library’s budget request for the Office may not reflect the Office’s own calculations, as “the Library must balance the Office’s needs against those of its many other departments and ultimately decide what to request for the Copyright Office after considering the needs of all of its service units.”64

Concerns were raised as to whether the Office’s lack of funding could be solved by raising fees, particularly as many of its users are individuals.65 The Authors Guild, for example, submitted testimony indicating that “[r]aising fees for individual customers would burden the copyright owners who choose to utilize the Office’s services and disincentivize other individuals from using those services.”66 Instead, it suggested a tiered fee structure with some users paying more for additional services.67

Many of the witnesses focused on increased appropriations as a possible solution. In some ways greater appropriations would make sense as the Office provides huge financial benefits to taxpayers. Indeed, “the value of the works acquired by the Library through the Copyright Office . . . is almost double the Office’s annual appropriation,” seemingly “a remarkable positive return on [the Office’s] funding, making it one of the greatest government bargains for taxpayers.”68

Improved IT System

There also was consensus that the Office’s IT system requires improvement. The witnesses noted that the Office’s electronic registration system has dramatically reduced application pendency,69 but the Office’s services have “failed to keep pace with technology and the marketplace.”70

There is no shortage of requested improvements for the Office’s IT system. Among those suggested at the hearing were an informative and intuitive user interface, a flexible and interoperable registration system, an electronic recordation system that quickly processes documents and links them to existing registrations, digitization of pre-1978 records, and inclusion of standardized unique identifiers.71 The witnesses also called for improved search functionality and possibly new search technology so that nonliterary works could be searched effectively.72 In addition, witnesses focused on deposit security as copyright owners may bypass the registration system if their works are not secure.73 Others in the copyright community have made similar requests.74

Greater Autonomy and Authority

The final point of agreement at the hearing was the Office’s need for greater autonomy and authority. In some ways, this suggestion is the key to the issues raised in the other review hearings, as it would allow the Office “more authority to promulgate regulations that can more quickly interpret fundamental copyright principles set by Congress rather than wait for Congress to act.”75 While some groups actively support the move for greater authority,76 others would prefer to study the issue first.77

Across the board, however, the witnesses noted that perceived conflicts between the Library and the Office are concerning. At present, the Library must approve any actions by the Office, whether related to budget, operations, or policy.78 On budgetary issues, while the Office desperately needs appropriations to fund capital investments, because it is situated within the Library, those requests are weighed against other needs within the Library.79

Similarly, sometimes their operational interests diverge. For example, the Library insists on physical copies of deposited works, even though the Office’s registration functions are better served by electronic filing and review.80 In fact, “many newspapers are no longer registering their works with the Copyright Office because the Library requires that newspaper deposits be in microfilm format,” which places an “undue financial and administrative burden on newspaper copyright owners.”81 In another instance, during the 2012 government shutdown, even though the Office requested that its website remain online, the Library’s IT staff took it offline along with the Library’s website.82 It took several days to restore the Office’s website.83 Additionally, copyright owners are concerned that the Library’s IT system may not be sufficiently secure to store their deposits.

Finally, the Library’s approval of the Office’s policy decisions was questioned. “It might have made sense to have the Librarian sign off on copyright regulations a hundred years ago when copyright law was a relatively simple matter, but that is not true today,” wrote the Author’s Guild.84 Moreover, some questioned whether the Library’s involvement in the Office’s policy studies and rulemaking proceedings presents the potential for a conflict of interest.85 As a result, it was suggested that “[p]roviding the Office with greater autonomy will remove the conflict or appearance of conflict on the part of the Library.”86

In addition to greater autonomy, there were proposals that the Office receive greater rulemaking authority. The Office already administers the triannual circumvention rulemaking.87 It also routinely conducts policy studies, but “there is often no follow-on action taken as a result of these efforts because the Office lacks substantive rulemaking authority to take the next logical step.”88 But the Office could be given such authority over certain matters, such as adjudication of copyright infringement claims of relatively small economic value, issuance of advisory opinions in fair use cases, or developing recommended practices for finding copyright owners as part of orphan works legislation.89

Conclusion

As the copyright review process continues, there is no doubt that additional proposals with broad-based support can be identified.90 But for the moment, Copyright Office modernization appears promising, even though the details of how to achieve modernization may reveal significant differences of opinion.91 For now, we must be content to envision the panacea that could be the Next Great Copyright Office.

Endnotes

1. Maria A. Pallante, The Next Great Copyright Act, 36 Colum. J.L. & Arts 315 (2013) [hereinafter Next Great Copyright Act].

2. See Press Release, U.S. House of Representatives, Chairman Goodlatte Announces Comprehensive Review of Copyright Law (Apr. 24, 2013), http://judiciary.house.gov/index.cfm/2013/4/chairmangoodlatteannouncescomprehensivereviewofcopyrightlaw[hereinafter Goodlatte Announcement]; The Register’s Perspective on Copyright Review: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H. Comm. on the Judiciary, 113th Cong. (2015) [hereinafter Register’s Perspective Hearing] (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary), available at http://judiciary.house.gov/index.cfm/hearings?Id=FE596B62-4638-400C-973E-CDC7761A074A&Statement_id=571003AF-E805-44A9-B169-F7E98D228A21.

3. See Congressional Hearings on the Review of the Copyright Law, U.S. Copyright Office, http://copyright.gov/laws/hearings/ (last visited Apr. 15, 2015).

4. Universal Copyright Convention, Sept. 6, 1952, 6 U.S.T. 2732, 753 U.N.T.S. 368; see also Joseph S. Dubin, The Universal Copyright Convention, 42 Cal. L. Rev. 89 (1954).

5. Pub. L. No. 83-743, 61 Stat. 655 (1954).

6. Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 86th Cong., 1st Sess., Copyright Law Revision Study No. 4: The Moral Right of the Author 109 (Comm. Print 1959) (report by William Strauss).

7. Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 86th Cong., 2d Sess., Copyright Law Revision Study No. 14: Fair Use of Copyrighted Works 1 (Comm. Print 1958) (report by Alan Latman).

8. Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 86th Cong., 2d Sess., Copyright Law Revision Study No. 22: The Damage Provisions of the Copyright Law, at ix (Comm. Print 1956) (report by William S. Strauss).

9. A complete set of the studies is available at http://copyright.gov/history/studies.html.

10. H. Comm. on the Judiciary, 87th Cong., 1st Sess., Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, at iv (Comm. Print 1961).

11. Id. at 15–17.

12. Id. at 24.

13. Id. at 25.

14. Id. at 27–32.

15. Id. at 45–82.

16. Id. at 83–98.

17. Id. at 101–02.

18. Id. at 102–06.

19. See H. Comm. on the Judiciary, 88th Cong., 1st Sess., Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law (Comm. Print 1963).

20. H. Comm. on the Judiciary, 89th Cong., 1st Sess., Copyright Law Revision Part 6: Supplementary Report of the Register on the General Revision of the U.S. Copyright Law 3 (Comm. Print 1965).

21. Id. at 4. The Register specifically thanked the ABA for its assistance. Id.

22. See H. Comm. on the Judiciary, 88th Cong., 2d Sess., Copyright Law Revision Part 3: Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft (Comm. Print 1964); H. Comm. on the Judiciary, 88th Cong., 2d Sess., Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U.S. Copyright Law (Comm. Print 1964).

23. S. 3008, H.R. 11947, H.R. 12354, 88th Cong., 2d Sess. (1964).

24. See H. Comm. on the Judiciary, 89th Cong., 1st Sess., Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments (Comm. Print 1965).

25. Copyright Law Revision: Hearing Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 94th Cong. 98–99 (1976) (statement of Barbara Ringer, Register of Copyrights).

26. Id. at 98.

27. Id. at 99. Congress also established the National Commission on New Technological Uses of Copyrighted Works (CONTU). Pub. L. No. 93-573, § 201(b), 88 Stat. 1873 (1974).

28. See Am. Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498, 2505–06 (2014) (revisiting Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974), and Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968)).

29. Pub. L. No. 94-553, 90 Stat. 2541 (1976).

30. Barbara Ringer, Authors’ Rights in the Electronic Age: Beyond the Copyright Act of 1976, 1 Loy. L.A. Ent. L. Rev. 1, 4 (1981). The legislation passed in 1976 was identical in many respects to the 1965 bills.

31. Id.; see also 1 William F. Patry, Patry on Copyright § 1.71.

32. Next Great Copyright Act, supra note 1, at 316.

33. See 1 Patry, supra note 31, §§ 1.85, .86.

34. See, e.g., Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.

35. Pub. L. No. 105-298, 112 Stat. 2827 (1998).

36. Pub. L. No. 105-304, 112 Stat. 2860 (1998).

37. Next Great Copyright Act, supra note 1, at 320.

38. Id. at 319–20.

39. See id. at 320.

40. The Register’s Call for Updates to U.S. Copyright Law: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H. Comm. on the Judiciary, 113th Cong. 44 (2013) (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary).

41. Id. at 6 (statement of Maria A. Pallante, Register of Copyrights).

42. Maria A. Pallante, Review and Reflection: Copyright Hearings and Related Discourse in the Nation’s Capital, 13 J. Marshall Rev. Intell. Prop. L. 487, 489 (2014).

43. See Hayden W. Gregory, From the Hill: The Next Great Copyright Act?, Landslide, Nov./Dec. 2014, at 2 (noting that “it remains to be seen” whether there is a course for revision).

44. Compare id. at 59 (noting that members of Congress may be reticent to spend time on a process that may take “longer than most of them will be around,” particularly as “[f]undamental reform can require members to take positions and vote on politically difficult issues”) with Register’s Perspective Hearing, supra note 2 (statement of Maria A. Pallante, Register of Copyrights) (discussing eight comprehensive policy issues that “are ready for legislative process”), available at http://judiciary.house.gov/_cache/files/1c82a3a6-3b1b-4a51-b212-281454d1e56e/written-testimony-of-register-maria-a-pallante.pdf.

45. Next Great Copyright Act, supra note 1, at 341.

46. Goodlatte Announcement, supra note 2.

47. Terry Hart, The Future of the US Copyright Office, Copyhype (Feb. 26, 2015), http://www.copyhype.com/2015/02/the-future-of-the-us-copyright-office/ (noting that the Copyright Office “is currently underfunded, understaffed, and faces structural and technological impediments to its mission”).

48. Patent Act of 1870, 16 Stat. 198.

49. Act of Feb. 19, 1897, 29 Stat. 538, 545.

50. Maria A. Pallante, The Next Generation Copyright Office: What It Means and Why It Matters, 61 J. Copyright Soc’y 213, 217 n.14 (2014) [hereinafter Next Generation Copyright Office]; see also U.S. Copyright Office: Its Functions and Resources: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 40 (2015) [hereinafter Copyright Office Review Hearing] (statement of Nancy J. Mertzel, AIPLA).

51. Next Great Copyright Act, supra note 1, at 341; Hart, supra note 47; see also Copyright Office Review Hearing, supra note 50, at 27 (statement of Lisa A. Dunner, Chair, ABA-IPL Section); Oversight of the U.S. Copyright Office: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H. Comm. on the Judiciary, 114th Cong. 31–32 (2014) (statement of Maria A. Pallante, Register of Copyrights) [hereinafter Pallante Oversight Statement].

52. Copyright Office Review Hearing, supra note 50, at 26 (Dunner statement); see also id. at 120 (statement of Allan Adler, AAP); Hart, supra note 47.

53. Next Generation Copyright Office, supra note 50, at 217.

54. Copyright Office Review Hearing, supra note 50, at 9 (statement of Keith Kupferschmid, General Counsel & Senior Vice President of Intellectual Property, Software & Information Industry Associates) (noting that the Office is “significantly underfunded and understaffed”); id. at 56 (statement of Robert Brauneis, Professor, George Washington University Law School) (noting “chronic underinvestment” in the information technology necessary “to support the current copyright marketplace”); id. at 41 (Mertzel statement).

55. Copyright Office Review Hearing, supra note 50, at 2 (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary).

56. Pallante Oversight Statement, supra note 51, at 38; Copyright Office Review Hearing, supra note 50, at 33 (Dunner statement).

57. Pallante Oversight Statement, supra note 51, at 38; see also 17 U.S.C. § 708.

58. Copyright Office Review Hearing, supra note 50, at 33 (Dunner statement); id. at 18 (Kupferschmid statement) (noting that the Library “gradually reduced Copyright Office staff over the past several years”).

59. Id. at 42 (Mertzel statement).

60. Id. at 11 (Kupferschmid statement) (“At the start of fiscal year 2012, there were 183,676 registration applications pending with the Office and at end of the fiscal year 194,689 applications were pending.”).

61. Id. at 18; Pallante Oversight Statement, supra note 51, at 8–9.

62. Copyright Office Review Hearing, supra note 50, at 33 (Dunner statement); id. at 10, 16–17 (Kupferschmid statement) (noting that “due to budget constraints, the Office has been unable to attend several meetings at [WIPO]”); Pallante Oversight Statement, supra note 51, at 38.

63. Copyright Office Review Hearing, supra note 50, at 33 (Dunner statement).

64. Id. at 34.

65. Id. at 33 (noting that there “comes a point at which higher fees can discourage registration and recordation, and undermine the important goal of a providing a comprehensive, accurate database of copyright information”).

66. Id. at 131 (statement of Mary Rasenberger, Authors Guild).

67. Id.

68. Pallante Oversight Statement, supra note 51, at 38.

69. Copyright Office Review Hearing, supra note 50, at 28 (Dunner statement).

70. Id. at 9 (Kupferschmid statement).

71. Id. at 13; id. at 28–31 (Dunner statement); see also Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office, Transforming Document Recordation at the United States Copyright Office (2014).

72. Copyright Office Review Hearing, supra note 50, at 13 (Kupferschmid statement) (discussing poor results returned from the Office’s database for the phrase “The Godfather”); id. at 31 (Dunner statement) (discussing search issues unique to visual artwork and musical works).

73. Id. at 30 (Dunner statement); id. at 16 (Kupferschmid statement).

74. For example, comments in response to the Office’s March 22, 2013, notice of inquiry included: Broadcast Music Inc. suggested adding short digital samples of musical works to the Office’s registry to assist in identification; the American Society of Media Photographers and the Graphic Artists Guild suggested image recognition technologies to identify works of visual art; the Association of American Publishers suggested that the Office adopt commercially successful metadata standards for digital content; SoundExchange suggested that the Office develop application programming interfaces; the American Intellectual Property Law Association recommended that the Office’s data be processed “in a way that can be easily printed, viewed, and forwarded outside of the system”; and Educational Testing Service recommended that multiple account profiles be linked to a single deposit account. See Technological Upgrades to Registration and Recordation Functions: Comments, U.S. Copyright Office, http://copyright.gov/docs/technical_upgrades/comments/ (last visited Apr. 15, 2015).

75. Copyright Office Review Hearing, supra note 50, at 2 (Goodlatte statement).

76. Id. at 34–35 (Dunner statement); id. at 50 (Mertzel statement); id. at 128 (Rasenberger statement) (agreeing that “the Copyright Office needs greater operational, financial, technological and rule-making autonomy from the Library of Congress”).

77. Id. at 10, 20 (Kupferschmid statement); id. at 125 (Adler statement).

78. Id. at 41 (Mertzel statement).

79. Id. at 56 (Brauneis statement).

80. Id. at 29 (Dunner statement).

81. Id. at 12–13 (Kupferschmid statement).

82. Id. at 32 (Dunner statement).

83. Id.; see also Nanette Petruzzelli, Comments Submitted in Response to U.S. Copyright Office’s Mar. 22, 2013, Notice of Inquiry, at 3 (2013) (“Although the Office is a department of the Library of Congress, the Office now creates (unlike the Library) records of works which . . . give copyright information as opposed to bibliographic (library) information.”).

84. Copyright Office Review Hearing, supra note 50, at 129 (Rasenberger statement).

85. Id. at 35 (Dunner statement) (“Libraries, including the Library of Congress, regularly take positions on various policy matters that are the subject of Copyright Office studies and rulemaking proceedings. At the same time, the Copyright Office’s conclusions and recommendations are subject to review by the Library. In short, the Library’s control of the Copyright Office presents a conflict of interest, regardless of whether or not the Library formally weighs in with comments.”).

86. Id.

87. 17 U.S.C. § 1201(a)(1)(C). Although the Library ultimately issues the regulations, it has traditionally followed the Office’s recommendations. But see Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control, 75 Fed. Reg. 43,825, 43,838–39 (July 27, 2010).

88. Copyright Office Review Hearing, supra note 50, at 14 (Kupferschmid statement).

89. See Maria A. Pallante, U.S. Copyright Office, Copyright Small Claims 97 (2013); Michael W. Carroll, Fixing Fair Use, 85 N.C. L. Rev. 1087, 1090 (2007); see also Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong., 2d Sess. (2008).

90. See Register’s Perspective Hearing, supra note 2 (Pallante statement), at 10–21.

91. See Copyright Office Review Hearing, supra note 50, at 113–18 (letter from Maria A. Pallante, Register of Copyrights); Sandra M. Aistars, The Next Great Copyright Act ,or a New Great Copyright Agency? Responding to Register Maria Pallante’s Manges Lecture, Forthcoming Colum. J.L. & Arts.

Joshua L. Simmons

Joshua L. Simmons is an intellectual property litigator at Kirkland & Ellis LLP. He focuses his practice on copyrights, patents, and trademarks, and represents clients from various industries.