On December 8th, the House Judiciary Committee announced its first policy proposal since beginning its review of the copyright law in the Summer of 2013. Among these early recommendations is that the Copyright Office should operate independent of the Library of Congress while remaining part of the Legislative Branch.
Not surprisingly, copyright critics have already complained about this proposal, including a number of university librarians who took umbrage at a November 28 letter to the Committee written by former Registers of Copyright Ralph Oman and Marybeth Peters. The former Registers voiced their immediate displeasure at the tone and timing of the dismissal of Register Pallante on October 21 by the new Librarian of Congress Dr. Hayden; but they further expressed the view that this sudden and unprecedented firing signaled that it is finally time for the Copyright Office to operate independent of the Library.
Brandon Butler, J.D., Director of Information Policy at University of Virginia Library is the author of a letter signed by 41 other college and university librarians, which rebuts Oman and Peters and the proposal to move the Copyright Office out from under the auspices of the LOC. The letter itself stresses what may be described as a semantic and cultural kinship between copyright and librarians. For instance, in citing the goal “to promote progress” from the IP clause, Butler writes, “Libraries share this core purpose and promote cultural progress in numerous ways, from massive financial investments in the acquisition and licensing of copyrighted works to the curation and preservation of our cultural heritage.”
This is certainly true, and nobody should doubt the vital role of libraries in general or the treasure that is the Library of Congress in particular. But many institutions, both public and private, promote cultural progress without anything to recommend them as the nation’s copyright authority. Although Butler correctly notes that he and many other librarians have considerable expertise and, thus, provide many authors and users of works with guidance in copyright, this is hardly germane to the larger point. Simply because universities have fine medical schools and hospitals, that doesn’t mean the Surgeon General’s office should operate within the Department of Education.
Yes, librarians perform a wide range of incredibly valuable tasks, including assisting their users with copyright law, as Butler describes. But the mere fact that he and others fail to acknowledge a distinction between these functions and those of the Copyright Office is proof in itself of the need for separation. Moreover, the Butler letter—albeit in lighter tones than other critics—does not scruple to jump on the bandwagon in accusing the Copyright Office of serving a narrow group of beneficiaries (i.e. corporate rights holders) of the copyright law. This is an accusation without merit, and librarians should be more rigorous than to cite the undisciplined PR of activist groups.
That PublicKnowledge has made this assertion, based on its own cobbled-together “report” composed of innuendo and opinion, is no surprise; but the librarians of these institutions should be more forthright in their presentation of both the historic and contemporary functions of the Copyright Office. Again, this lack of rigor is evidence that librarians can be as culturally biased as any other group and, therefore, ought to be represented at the table rather than preside over it. Additionally, Butler’s letter does not acknowledge that indeed his colleagues have advocated that the Librarian of Congress take a more active policy-shaping role, which would effectively overturn the historic role of the Register under the current organizational structure.
As described in a previous post, the Librarian of Congress has never truly shaped copyright policy in the United States. Oman and Peters call the organizational relationship between the LOC and the USCO an “accident of history,” and although Mr. Butler rejects this statement, he is simply incorrect. The initial relationship was very much circumstantial, with precedents set during the Lincoln administration—a time when American courts were just figuring out what our copyright law actually means, while the Librarian was trying to find a place for all the manuscripts literally piling up on the Library floors. This was a period marked more by extemporaneous troubleshooting rather than any kind of fleshed-out policy role for either the Library or the soon-to-be-established Copyright Office.
When the Copyright Office was created in 1897, it was predicated on a clerical relationship between registration and the growing collection; and copyright law itself had barely begun to deal, for instance, with the influence of machines on creative works. As the law evolved in complexity through the 20th century, the Copyright Office likewise evolved as a multi-faceted agency that advises the courts, Congress, and the public on a dynamic range of issues specific to copyright law. Although the USCO has operated within the Library, the Librarian has historically deferred to the Register as the nation’s copyright authority. Hence the current proposal to make the Office independent is consistent with the role played by the Copyright Office for more than a century.
It is only fairly recently—with the introduction of digital technology—that more pronounced policy differences have become manifest between the Librarian and the Register—culminating with the surprise firing of Maria Pallante without so much as a heads-up to Congress. Digital technology poses new challenges and opportunities for authors, rights holders, and libraries. Butler’s overemphasis of his and his colleagues’ expertise in copyright implies that the Librarian’s views on future copyright policy should become dominant for the first time in history, purely by virtue of a traditional hierarchy that has no foundation in serving the Legislature, the courts, or the public.
In Butler’s letter, he writes, “Cultural institutions and the Copyright Office are natural allies.” He is absolutely right. Allies meet on equal terms to discuss matters of cooperation and conflict. The librarians’ suggestion that there are no conflicts, or that such conflicts are best solved by one ally remaining subservient to other, is once again proof that the Judiciary Committee’s proposal for separation is as timely as it is soundly reasoned.
© 2016, David Newhoff. All rights reserved.