From the Hill

Congress Looks at the Copyright Office

Hayden W. Gregory

©2015. Published in Landslide, Vol. 7, No. 5, May/June 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.

Recent hearings in the House Judiciary Committee have produced calls for changes in the structure and operations of the Copyright Office of the United States. Most of the changes being proposed would move the Office in the direction of greater autonomy and independence from the Library of Congress. Some would go so far as to remove the Office, physically and legally, from the Library, or from the legislative branch entirely if in fact it currently resides there—an issue on which authorities and policy makers disagree. Options under discussion include reestablishing the Office as an independent government agency, completely separate from the Library of Congress. Discussion has also included dusting off and revisiting a mid-1990s Senate proposal for reorganizing U.S. governmental activities in patent, trademark, and copyright matters in a single government corporation.

During 2013 and 2014 in the 113th Congress, Register of Copyrights Maria Pallante testified twice before the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet on reforms needed by the Office. On February 26, 2015, the full Judiciary Committee of the House invited representatives of academia and private sector stakeholders, including the American Bar Association’s Section of Intellectual Property Law, to testify with their recommendations for Copyright Office reform.

The Copyright Office is located within the Library of Congress. It has been there since 1897 when the Office was established as a separate department of the Library. It is not clear what the thinking was in that placement of the copyright function of the federal government. Perhaps the explanation lies in that when the question of placement was being considered, the Librarian just raised his hand and said “I want it.”

The Copyright Office does perform one function that is closely related to essential library functions. Section 407 of the Copyright Act provides that, within three months of publication, every owner of copyright in a work published in the United States must deposit two complete copies with the Copyright Office “for the use or disposition of the Library of Congress.”

Beyond this important role in building and maintaining the Library’s national collection of published works, the responsibilities of the Copyright Office do not relate to the work of the Library. Nonetheless, the Office continues as a subordinate unit of the Library. Section 701 of the Copyright Act mandates that the Register of Copyrights and the Office’s “subordinate officers and employees” be appointed by the Librarian and act under the Librarian’s general supervision.

The Register’s authority to issue regulations is limited to regulations “for the administration of the functions of the Register” under title 17, and even these regulations for internal operation of the Office are subject to the approval of the Librarian. Although the Librarian is not required to be knowledgeable in copyright law, rulemaking affecting substantive copyright law is not just subject to the Librarian’s approval, but must be rulemaking by the Librarian.

For example, the Digital Millennium Copyright Act empowers the Librarian to make the complex and copyright-intensive determination of the classes of copyrighted works for which certain noninfringing uses are likely to be adversely affected by the DMCA’s prohibition against circumventing technological access protections on the works, and as a result those classes of works will then be exempt from liability under the DMCA.

The subservience of the Register of Copyrights and the Copyright Office to the Librarian of Congress and the Library manifests itself in many dimensions of the operations of the Office that are injurious to the efficient and effective operation of the Office and the U.S. copyright system—operations that were detailed in the recent House hearings. In addition to the lack of independence or autonomy as exemplified by personnel and rule-making authority for Copyright Office matters residing in the Librarian and not in the Register, the Office also has no independent authority over its information technology and security systems, its systems for registration of copyrights, and its own budgeting. Despite substantial increases in demand for the Office’s copyright services, many of which are statutorily imposed requirements for studies, reports, and recommendations for Congress, its actual funding has decreased from its 2010 level, as have its staffing levels. The Register does not have authority to make her own best case to Congress for necessary funding, but must go hat-in-hand to—and through—the Librarian, while competing with all the other departments in the Library of Congress for support for their functions and activities. The needs of the Library always come first, and those needs sometime conflict with the needs of the Office. The law specifies that the mandatory deposit of all published works must be of “the best edition.” In the Library’s interest in assembling and preserving its national collection, this procedure ordinarily calls for hard copy editions. However, the best interest of the copyright system in registering copyrights and building searchable data systems is often better served by the deposit of an electronic edition of the work.

The relative lack of authority suffered by the Copyright Office not only results from its placement within the Library of Congress, but is arguably required by that placement. This is due to the nature of the functions performed by the Office and the requirements of the U.S. Constitution concerning persons authorized to perform those functions.

Article II of the Constitution vests the “executive Power” of the United States in a President, and § 2, clause 2 provides that the President shall nominate, and with the advice and consent of the Senate, appoint officials such as ambassadors, judges of the Supreme Court, and “all other Officers of the United States” whose appointments are not otherwise provided for in the Constitution. This provision, known as the Appointments Clause, also provides that by way of exception, Congress may vest the appointment of “such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

In determining the applicability of Article II and its Appointments Clause to the Copyright Office, the first question to answer is whether the Office exercises “executive Power.” Its placement within the Library of Congress supports the view held by most members of Congress that it is part of the legislative branch of government, and not an agency of the executive. However, in interpreting and applying the Appointments Clause, courts look to the functions performed by the entity in question as determinative, rather than to physical location, placement on governmental organizational charts, or even perception and treatment by Congress as a part of the legislative branch.

In a leading case decided by the U.S. Court of Appeals for the Fourth Circuit in 19781, the determination of the eligibility of a work for copyright registration—a core function of the Register—was held to be a discretionary executive function. More recently, a review by the D.C. Circuit of the function of copyright royalty judges in setting copyright royalty rates reached the same result. Copyright Royalty judges are appointed by the Librarian of Congress and operate in accordance with regulations issued by the Librarian.

If the Register of Copyrights is performing executive functions, then she must hold office in compliance with the Appointments Clause. Since she is appointed by the Librarian and not by the President with Senate confirmation, the Register cannot qualify as a “principal officer” under the “Officers of the United States” branch of the Appointments Clause. Alternatively, the appointment can qualify if it is determined to be a congressionally authorized appointment of an “inferior Officer” by the “Head of a Department.” To meet constitutional muster, the appointment of the Register must clear two hurdles. One, the appointing authority must qualify as “the head of a department.”

Second, the appointing authority must qualify as an “Officer of the United States” under the principal officer’s branch of the Appointments Clause. Considering the second of these requirements first, the Librarian unquestionably clears the “appointed by the President with the advice and consent of the Senate” hurdle. However, to qualify as a “principal officer,” the appointment must also be to perform executive functions, and the Librarian is arguably an officer of the legislative branch who provides legislative support services for the Congress. This argument was unsuccessfully advanced in Intercollegiate Broadcasting System v. Copyright Royalty Board,2 where the U.S. Court of Appeals for the D.C. Circuit found that the role of Librarian in supervising executive agency type activities of the Copyright Office qualified the Librarian as a principal officer of the United States within the meaning of the Appointments Clause.

Following similar reasoning that function trumps form, the D.C. Circuit ruled that while the Librarian is not a “Head of Department” within the conventional understanding of that term and performs many functions that are legislative in nature, the performance of executive functions relating to copyright are sufficient to qualify the Librarian as the head of a department.

The House Judiciary Committee hearings on the Copyright Office the past two years produced encouraging signs for meaningful reform. The proposals for reform advanced by the private sector witnesses at the February hearing all called for essentially comparable directional changes, and those directional changes are not in any fundamental way in conflict with the reform measures identified as needed by Register Pallante in her testimony and other public pronouncements over the past two years. Perhaps even more important, the hearings in the Judiciary Committee reveal a congressional committee whose members are sensitive to the need for reform, committed to the effort, well-informed of realistic options for achieving such reform, and of course well-positioned in the power structure to initiate and effectuate the needed reforms.

Given the near unanimity in support of greater autonomy and independence from the Library of Congress for the Copyright Office, in seems reasonable to expect that any such reforms will move in that direction. It may not be impossible to achieve the requisite degree of independence while leaving the appointment of the Register in the hands of the Librarian, but it will be a lot more difficult to achieve that independence if appointment is left there. The Appointments Clause virtually dictates that if the position of Register is left as an inferior office appointed by Librarian, the Register must remain subservient and subject to removal by the Librarian.

Testifying at the February hearing, Professor Robert Brauneis, Co-Director of the Intellectual Property Law Program at the George Washington School Law, who recently studied the structure and operations of the Copyright Office while serving there as a Scholar in Residence, recommended that Congress give serious consideration to establishing the Copyright Office as an independent agency, the head of which would be appointed by the President, subject to advice and consent of the Senate (PAS).

This proposal has attractive features, both legal and political. The PAS appointment avoids any Appointments Clause problems and should provide the requisite autonomy and independence to the head of the agency. Congress depends heavily on the Copyright Office for legal and technical assistance, and is very attentive to the needs and prerogatives of the Office, which inures to the benefit of the Office and the copyright system. In short, Congress—or at least the two key Judiciary Committees—tends to view the Copyright Office as a member of the legislative family, and in the past has not looked favorably on proposals to totally sever the copyright function from the legislative branch and merge the function with patents and trademark in a traditional executive branch department.

The independent agency approach would not entail such a radical change and should present a lesser threat to Congress’s special relationship with the Copyright Office, as well as a lesser temptation for micro-managing or mischief from executive branch authorities. In fact, it might be possible for Congress to deem the new agency an independent legislative agency. Under the courts’ interpretation of the Constitution, to the extent that a governmental entity performs executive branch functions—and the new copyright office will be—it will be treated as an executive branch agency. It will not really matter what Congress calls it or where Congress places it, but if it makes them feel better then so much the better.

Endnotes

1. Eltra Corporation v. Ringer, 579 F.2d 294.

2. 684 F.3d 1332 (2012).

Hayden W. Gregory

Hayden W. Gregory is legislative consultant for the ABA Section of Intellectual Property Law in Washington, D.C.