©2016. Published in Landslide, Vol. 8, No. , March/April 2016, 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.
Perspective
Information Technology Reform for the Copyright Office: Help for a Beleaguered but Mission-Critical Federal Agency
Theodore H. Davis Jr.
On December 11, 2015, Representative Tom Marino introduced the proposed Copyright Office for the Digital Economy Act (CODE),1 which, if enacted, would work the most substantive revisions to federal copyright law since the passage of the Digital Millennium Copyright Act of 1998.2 The bill has been referred to, and is likely to remain for some time under the consideration of, the House Judiciary Committee. Nevertheless, even its initial iteration addresses a number of issues of which full-time and occasional copyright practitioners should be aware. In short, comprehensive copyright reform may be on the way.
One of the more noteworthy proposals advanced by the proposed legislation would remove the Copyright Office from the auspices of the Library of Congress and establish it as a standalone agency within the legislative branch. As suggested by the presence of the word “economy” in the title of the bill, many of the reasons for the proposed relocation are driven by the economic realities of the effective administration of the federal copyright system. According to Maria Pallante, the Register of Copyrights, “the Office serves an economically significant marketplace, requires a sophisticated technology enterprise, has funding needs that are distinct from the Library’s, and would benefit from the kind of management authority that would allow an expert staff to adapt nimbly and responsibly to the changing landscape.”3 Whether the Office’s funding allows it to implement the required technology enterprise, however, is in doubt: “[T]he Office is working in an institutional paradigm designed for the analog world, roughly the 1970s, and is dependent upon funding strategies from that same era.”4
Perhaps in no other area are the Office’s funding-related exigencies more apparent than that of information technology (IT). From a global perspective, a General Accountability Office survey conducted in early 2015 disclosed that “customers of the Library’s IT services were generally not satisfied. Respondents cited a number of factors that contributed to their dissatisfaction, including a lack of transparency, poor service quality, inconsistent implementation of IT management processes, inconsistent communication, and use of outdated technology.”5 That dissatisfaction extended—and continues to extend—to users of the Copyright Office in particular, who suffered through an extended systems failure in August 2015 that took the Office’s online registration functionality down with it. The loss of that functionality is no small matter. Rather, “[w]henever the Copyright Office is taken offline, it affects customers around the world. They cannot submit registrations, check the status of pending applications, complete business transactions, or obtain documents required by courts (other than through burdensome paper processes).”6 Moreover, solutions to these issues are beyond the current capacity of the Office because they are within the jurisdiction and control of the larger Library of Congress.
To its credit, the Library of Congress is neither unaware of nor wholly unresponsive to the IT-related issues partially underlying the proposed relocation of the Office outside of the Library. For example, it has hired a permanent CIO, rather than continuing its practice of temporary rotations into that position.7 In addition to global changes to the Library’s IT infrastructure, it also has committed itself to working with the Office “to develop modernized copyright systems and practices, in accordance with the copyright law and public objectives.”8 As Acting Librarian of Congress David S. Mao has explained in testimony before Congress:
Success with this strategy entails supporting modernization of the U.S. Copyright Office with respect to technology and infrastructure, registration services, and the accuracy, timeliness, and searchability of copyright records. Also important is working to assure the effective exchange of bibliographic data and the smooth transfer of the copyright deposits most critical to the current and future national collection.9
Whatever the mechanism chosen—institutional changes within the Library of Congress or the more far-reaching alternative of establishing the Copyright Office as a standalone entity—the Copyright Office is an agency critically in need of IT reform and access to the resources necessary to effect that reform. The Office is in no better a position to accomplish its mission without an adequate infrastructure than any private company or law firm would be. Whether the Office’s acquisition of such an infrastructure results from the proposed legislation or from reform within the Library, and wholly independent of the Office’s long-term relationship with the Library, it is a necessary first step for the Office to navigate successfully the myriad challenges it faces now and will face in the future.
Endnotes
1. H.R. 4241, 114th Cong. (2015). As of its introduction, the bill was cosponsored by Representatives Judy Chu and Barbara Comstock.
2. Pub. L. No. 105-304, 112 Stat. 2860 (1998).
3. Register’s Perspective on Copyright Review: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 8 (2015) (written testimony of Maria A. Pallante, Register of Copyrights), available at http://copyright.gov/laws/testimonies/042915-testimony-pallante.pdf.
4. Improving Customer Service for the Copyright Community: Ensuring the Copyright Office and the Library of Congress Are Able to Meet the Demands of the Digital Age: Hearing Before the H. Comm. on H. Admin., 114th Cong. 3 (2015) (statement of Maria A. Pallante, Register of Copyrights) [hereinafter Pallante, Improving Customer Service], available at http://copyright.gov/laws/testimonies/120215-testimony-pallante.pdf.
5. U.S. Gov’t Accountability Office, GAO-16-197T, Information Technology: Library of Congress Needs to Implement Recommendations to Management Weaknesses 10 (2015), available at http://www.gao.gov/assets/680/673955.pdf.
6. Pallante, Improving Customer Service, supra note 4, at 4.
7. Improving Customer Service for the Copyright Community: Ensuring the Copyright Office and the Library of Congress Are Able to Meet the Demands of the Digital Age: Hearing Before the H. Comm. on H. Admin., 114th Cong. 5 (2015) (statement of David S. Mao, Acting Librarian of Congress), available at http://docs.house.gov/meetings/HA/HA00/20151202/104119/HHRG-114-HA00-20151202-SD005.pdf.
8. Id. 5.
9. Id.