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Copyright

IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights

Washington D.C. at nightIn a letter submitted to House Judiciary Committee today, nine IP scholars (organized by CPIP’s Sandra Aistars) express their support for the Committee’s proposal to modernize the Copyright Office. The letter identifies three major challenges facing the Copyright Office, including “(1) insufficient funds, staff, and infrastructure to efficiently perform its core functions; (2) operational impediments stemming from its integration with the Library of Congress; and (3) potential risk of constitutional challenges to its decision-making authority should the Office take on increased regulatory or adjudicatory responsibility.”

The IP scholars laud the Committee’s recommendation that the Office be led by a principal officer of the government, nominated and confirmed like other senior government officials. The scholars also express their concern with the Library’s highly-unusual method of using a SurveyMonkey questionnaire to identify the knowledge, skills, and abilities required to run the Copyright Office.

On December 16th, the newly-appointed Librarian solicited the public to “provide input to the Library of Congress on expertise needed by the Register of Copyrights.” The survey consists of the following three questions:

    1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

 

    1. What should be the top three priorities for the Register of Copyrights?

 

  1. Are there other factors that should be considered?

The survey then provides an area to upload additional comments and assures that the feedback “will be reviewed and will inform development of knowledge, skills and abilities requirements for the position.”

While there may be benefits to soliciting public input on the knowledge, skills, and abilities a Register of Copyrights should embody, as the IP scholars’ letter points out, relying on a limited SurveyMonkey experiment discounts the guidance codified in Section 701(b) of the Copyright Act. Section 701(b) already lists the functions and duties of the Register of Copyrights, including:

(b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions:

 

(1) Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.(2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters.

(3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority.

(4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations.

(5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.

Rather than crowd sourcing the job description, the Librarian should review the Copyright Act and consider candidates that would be best qualified to fulfill the explicit and established standards of 701(b).

By handing this over to anyone willing to fill out a SurveyMonkey form, the Library of Congress is politicizing a process that shouldn’t be politicized. The letter warns that “[w]hile it is often laudable to seek public input on important issues of policy, an online survey seeking input on job competencies from any internet user is an inefficient and inappropriate approach for developing selection criteria for this important role, particularly where such minimal background is provided to survey-takers and where there appears to be no mechanism to encourage constructive comments.”

As recently as April of last year, Fight for the Future incited an effort to spam the Copyright Office while it solicited comments regarding the DMCA notice and takedown process. Engaging in a campaign of misinformation, the advocacy group flooded the Office with automated “comments” that crippled the regulations.gov website during the last 48 hours of an important collection period. The Register’s selection process should not be handed over to Internet bullies and trolls.

The next Register of Copyrights will have an immediate and lasting effect on the administration of copyright laws, and the Library of Congress should respect long-standing norms as well as Congress’s instructions as embodied in the Copyright Act. The IP scholars’ letter reiterates that the statutory obligations of Section 701(b) require certain competencies of a Register of Copyrights and ensures that “the successful candidate can meet the management and leadership expectations attendant to a senior executive officer position in the federal government.” This is an important process that deserves more serious consideration than a SurveyMonkey poll.

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Administrative Agency Copyright Uncategorized

A New Librarian of Congress and a New Copyright Office

By Sandra Aistars

U.S. Capitol buildingWith the Senate considering the confirmation of Dr. Carla Hayden as the next Librarian of Congress, I have joined thirteen other intellectual property law professors in an Open Letter suggesting that her confirmation should serve as an important reminder that the U.S. Copyright Office, a department within the Library of Congress, needs to be updated so that it can best serve the needs of the American people in the digital age.

As President Obama stated in his announcement of the nomination, “Dr. Hayden has devoted her career to modernizing libraries so that everyone can participate in today’s digital culture.” Indeed, I share Dr. Hayden’s enthusiasm for modernizing our libraries so that they can better promote and preserve our nation’s collective learning and culture for all to enjoy. This is especially important when it comes to the Library of Congress, the oldest and largest cultural institution in the United States.

However, it’s also important to provide the Copyright Office with the resources and authority it needs to perform its role as the nation’s leading expert on copyright law and a major facilitator of the marketplace for creative and scholarly works. Members of Congress and numerous stakeholders have been calling for modernization of the Copyright Office for years. They recognize that the Office faces significant structural challenges that limit its effectiveness in serving the American public. As the Office notes in its recent strategic plan, “there is no question that it must now modernize to meet current and future needs.”

Even though the Copyright Office and the Library of Congress have significantly different business needs, the Office is stuck using the Library’s information technology (IT) systems, which are not only antiquated, but were designed to serve a different purpose. A recent report by the Government Accountability Office finds that “serious weaknesses” in the Library’s IT systems are thwarting the Office’s ability to fulfill its mission in registering, recording, and depositing copyrighted works. The Office needs funding to improve these essential IT systems and to tailor them to its specific needs.

The legal structure of the Copyright Office should also be updated to best position it for success. There is currently no agency with independent, comprehensive rulemaking authority when it comes to copyright law. The Register of Copyrights can only establish regulations for administering the duties and functions of the Copyright Office, subject to approval by the Librarian of Congress. This inefficient structure burdens the Librarian with responsibilities that more appropriately should fall on the Register—the fully-vetted, leading expert in the Copyright Act.

Moreover, the Register of Copyrights is not appointed as a principal officer of the United States by the President. This means that should the Office take on additional duties like administering a small copyright claims court, the Register could not appoint and oversee the administrative law judges that would run this process. Likewise, the Register currently has no power over the three judges of the Copyright Royalty Board that determine the rates and terms of statutory copyright licenses. Congress has consistently assigned the Office more duties and relied upon its vast proficiency in copyright law, but the authority of the Register has not been updated accordingly.

Although I and the other signatories of the Open Letter do not all agree on every issue in copyright law, including where the Copyright Office should be positioned within our government, we do all agree that the Register of Copyrights should be a principal officer of the government. Only when the Register is appointed by the President and confirmed by the Senate will she have the authority and accountability appropriate to administer our nation’s copyright system.

The confirmation of Dr. Hayden as the new Librarian of Congress promises us the much-needed modernization of the Library of Congress, and it also provides us with the opportunity to reflect upon the needs of the Copyright Office. Both the Librarian and the Register play important roles in promoting and preserving our nation’s culture, but those roles are fundamentally different in nature. These two talented leaders should work closely with each other as partners, each possessing the authority and responsibility suitable for their differing areas of expertise.

The time to modernize the Copyright Office is now. Congress can ensure the continuing success of our copyright system by providing the Office with the resources and authority it needs to better serve us all in the digital age.

To read the full Open Letter, please click here.