The Librarian of Congress is not the nation’s copyright authority.

Library of Congress Main Hall Washington DC, USA Photo by Marco Rubino Pond5
Library of Congress Main Hall Washington DC, USA
Photo by Marco Rubino Pond5

Just because the surgeon general serves at the pleasure of the president, that doesn’t mean we think the president is, therefore, the more qualified expert in medicine.  We want a president to have views on domestic healthcare in general but not to have opinions about actual medical practice.  That would be scary.

Yet, solely on the grounds that the U.S. Copyright Office operates within the Library of Congress, many of the usual copyright antagonists—Public Knowledge, EFF, et al—are lately promoting the idea that the Register of Copyrights is meant to follow the Librarian’s lead with regard to copyright policy.  This rhetoric has been buzzing a little louder since the nomination of Dr. Carla Hayden to the position of Librarian, who copyright skeptics view as an ideological ally, and who will be sworn in on September 14th. Although Dr. Hayden is exceptionally qualified for this position and, like all librarians, has her own views about the role of copyright, the office she is about to hold has at no time in history performed the duty of the nation’s authority on copyright law and policy.

For the first 107 years after the 1790 Copyright Act was passed, there was no U.S. Copyright Office at all. Copyright law itself was a patchwork of state and federal statutes; the courts were still parsing the meaning of the IP clause and looking to England for precedent; and authors’ works were registered by depositing copies with the federal courts in each state.  Meanwhile, the Library of Congress was exactly that—a department located in the front of the U.S. Capitol, staffed by fewer than ten people, and containing a book collection of some 80,000 volumes by the early 1860s.

In 1864, President Lincoln appointed Ainsworth Spofford to the position of Librarian of Congress, and it was Spofford who had the first grand ambitions for what the Library could become.  His vision included growing a vast collection of works for the nation and building a monumental facility where the collection would be housed.  In order to expand the collection, Spofford lobbied to have the copyright registration and deposit functions centralized at the Library, a procedural change that became policy with the second general revision of the copyright law in 1870.  Moving deposits to the Library worked to so great effect that by 1874, according to the LOC website, there were more than 70,000 books piled on the floors of the office.

So, the procedural change in deposits grew the collection rather quickly, but Spofford lacked the funding (and the room) to fully handle the workload he’d asked for. An 1893 New York Times story refers to an eight-week delay in issuing copyright certificates as well as a significant backlog of filings and correspondence pertaining to copyright.

New York Times - January 1893
New York Times – January 1893

Most of Spofford’s energy by then was focused on building the new facility itself, but when the doors opened in 1897, figures as notable as Melvil Dewey were already advocating a new role for the Library that went beyond merely amassing the largest repository in the world. Dewey’s view was that the Library of Congress should become “a center to which the libraries of the whole country can turn for inspiration, guidance, and practical help.”

So, in July of 1897, Spofford stepped into an assistant role, and the Library was reorganized as an institution that would fulfill this new mission of which Dr. Hayden will now be the new custodian and leader.  Later that same month, the Copyright Office was established as a separate entity within the Library; and a figure with specific expertise in copyright law, Thorvald Solberg, was appointed as the first Register.  Solberg was directly involved in drafting the 1909 Copyright Act and in directing American policy with regard to international copyright and trade. Every Register since Solberg has fulfilled this advisory role on copyright policy.

New York Times - August 1893
New York Times – August 1893

Spofford’s legacy of deposits to the Library via the copyright registration process has been maintained, and this keeps the public collection growing as intended. At the same time, the Librarian of Congress has often provided comments and views on various issues to the Copyright Office but historically defers to the Register with regard to specific policy recommendations.  Just like every other agency in the country, the USCO has grown along with copyright law’s increased complexity as  protectable works have scaled in volume, variety, and means of distribution.

In 1897, when this division of labor was first established, the medium of motion pictures was in its infancy, and the first Pianola (player piano) had just been invented two years prior. Copyright law was likewise still relatively primitive and about to collide with the mechanical age when the 1909 Act would truly begin to reflect to the modern world we know today.   In contrast to the 1890s, when the first registered “movie” at the LOC was 45 frames long, the 21st century USCO has a separate Visual Arts Division that operates under one of three Associate Registers.

The complexity of contemporary copyright touches multiple sectors of the American economy, representing more than 5.5 million jobs and an estimated 6.5% of GDP. As such, the Copyright Office is called upon to provide counsel and guidance to courts, Congress, other federal agencies, and the general public on a wide range of topics that implicate copyright law. Although the Register of Copyrights is organizationally subordinate to the Librarian, it would be a huge mistake to confuse this with a functional subordination.  The two offices perform very different and very necessary roles. The parties who are recently seeking to dismiss the Copyright Office as having neither authority nor expertise to perform its mandated duties are standing on historical quicksand.  Nobody should throw them a rope.

© 2016, David Newhoff. All rights reserved.

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