George Mason University Antonin Scalia Law School

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.