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June 11, 2015

Modernizing the Copyright Office

 
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For the past two years, Chairman Goodlatte of the House Judiciary Committee has been conducting a comprehensive review of the copyright system, mostly through a series of topical hearings. Many of us who defend copyright against the barbarians saw this process as a threat--as an opportunity for copyright critics to vent before Congress and demand wholesale changes to copyright law. Fortunately, and rather surprisingly, that’s really not what happened. In the course of the hearings, very few aspects of copyright law were revealed as being out-of-step with today’s marketplace and current technology.

In fact, in a recent letter, the Internet Association itself said that existing U.S. copyright law “has adapted well to Internet era.”

One thing that DID come out of the hearings, however, is the need to modernize the Copyright Office itself. Even though the copyright industries now contribute more than $1 trillion to U.S. GDP and comprise 6.7% of the U.S. economy, the Copyright Office itself is still housed as a subset within the Library of Congress, and is widely recognized to be underfunded.

The key question is: Are at least some of the complaints about the copyright system more matters of the limitations of the Copyright Office than they are limitations of copyright law? The answer seems to be yes, and with more autonomy and better infrastructure, a 21st Century Copyright Office should be able to solve some of the logistical problems consumers face when trying to use creative works.

What if it were much easier to find out who owns the rights to a particular work, the same way you can find out through a “whois” search who controls an Internet domain, or the same way you can search and renew trademarks through the USPTO web portal? You can do online patent searches—why not online copyright searches? Such changes would seem to be a benefit both to owners of works and to consumers and other creative types who wish to access and license creative works.

And the solution to the orphan works problem has always been more technical than legal.

Reps. Tom Marino (R-PA) and Judy Chu (D-CA) have introduced a “discussion draft” of proposed legislation to modernize the Copyright Office. It’s very early in what should be a lengthy process of consideration and discussion. Nothing in the discussion draft should be viewed as anything other than exactly what it is described as—an attempt to provoke thought and discussion. I haven’t seen anyone endorse any of the specific provisions in the discussion draft.

But here’s my key takeaway: Other than the anti-copyright ideologues, I believe that many of the complaints about the unwieldiness of copyright stem not from failures in the law itself, but rather from data about copyright that should be easier to access. This points more to modernization of the office than to changes in law and erosions in critical property rights for creators.

It will be no easy task to update these functions, and federal agencies do not have uniformly good track records when it comes to developing IT infrastructure. But with such a large part of our U.S. economy depending on a functioning copyright system, it does seem overdue to start modernizing the Copyright Office, and such would be an excellent outcome of Chairman Goodlatte’s copyright review.

So I hope the Judiciary Committee will take up the matter of Copyright Office modernization as a real matter of discussion, and not let this good idea die on the vine.




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