How the Battle Over Control of the U.S. Copyright Office Could Affect the Music Industry

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The United States Capitol photographed on Oct. 31, 2016 in Washington D.C.

Update (8:24 p.m.): This post has been updated following the official introduction of the Congressional bill discussed within the original article.

The struggle over who will be the next Register of Copyrights is about to begin with the expected introduction of a bill to make the position a presidential appointee.

In October, Maria Pallante was removed from her job as Register of Copyrights by Dr. Carla Hayden, the Librarian of Congress, who has authority over the Copyright Office. (Pallante subsequently resigned.) Although the position has no lawmaking authority, it comes with significant power to shape policy -- and it’s an especially important position for the music industry as Congress begins its long-awaited copyright reform process. As Librarian, Hayden, who took office in September, has the authority to appoint a new Register. But media business lobbyists worry that she will choose someone more skeptical of copyright than Pallante, whose sudden removal upset some members of Congress.

Now, as Hayden moves forward with her plan to choose a new Register, lawmakers are preparing to take away her authority to do so with a bill that is expected to be introduced within the next several days. At a March 1 meeting, several Senators and Representatives asked Hayden to wait before making the appointment, according to two sources, since they were planning to introduce a bill to make the position a presidential appointee.

But in a March 7 letter to Senators Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) as well as Congressmen Bob Goodlatte (R-Va.) and John Conyers (D-Mich.), Hayden said she planned to proceed anyway. "This office needs permanent leadership with the authority and responsibility to move forward on our shared objective of a modernized office," Hayden wrote in the letter, which was shared with Billboard.

Since the Library operates under the authority of Congress, this is considered a bold move -- and one with potentially significant repercussions for the music business.

"The position is incredibly important to the music community," says a music-business lobbyist who favors making the position a presidential appointee. "Given all that went down between the Librarian of Congress and the former Register, this has understandably generated a significant amount of attention from key members of Congress -- and for good reason."

Ultimately, how the new Register is chosen matters less than who will fill the job. Pallante was generally seen as fair to creators and content companies. She weighed in against the Justice Department’s plan for "100 percent licensing," the idea -- disliked by music publishers -- that ASCAP and BMI should license all rights to any song for which they represent at least some of the rights. Hayden, who spoke about the importance of copyright during her confirmation hearings, is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works -- sometimes at the expense of creators.

Questions about the future of the Copyright Office have already set creators and copyright holders against technology companies. After Pallante was removed, Public Knowledge, a nonprofit organization that receives some funding from technology companies, tweeted that this represents “a great opportunity to bring balance to the Office's policy work.” 

For years, policymakers have contemplated moving the Copyright Office out of the Library of Congress; the United States Patent and Trademark Office is an agency in the Department of Commerce, and the respective missions of the Librarian and the Register -- to disseminate works and to help determine the appropriate level of protection for them -- naturally conflict. Before her removal, Pallante had advocated moving the Copyright Office out of the Library, which could have alienated Hayden, since overseeing the Office is one of her more important responsibilities.

Update (8:24 p.m.): The Register of Copyrights Selection and Accountability Act was introduced following the publication of this article, and can be found in full here. Below is a statement released by the four aforementioned members of Congress and Senator Dianne Feinstein (D-Calif.) in conjunction with the bill.

"We are pleased to join together in a bipartisan, bicameral effort to make important and necessary improvements to the selection process for the position of Register of Copyrights. We remain absolutely committed to working on modernizing the Copyright Office. Reforms being considered include public advisory committees, improvements to Copyright Office systems for data inputs and outputs, and copyright ownership transparency. However, time is of the essence when it comes to the selection process for a new Register of Copyrights.

"America’s creativity is the envy of the world and the Copyright Office is at the center of it. With the current Register serving only on an acting basis, now is the time to make changes to ensure that future Registers are transparent and accountable to Congress.  We must ensure that any new Register is a good manager and fully qualified to lead and make this office more operationally effective as he or she continues to directly advise Congress on copyrights. The next Register of Copyrights should be dedicated to serving all stakeholders in the copyright ecosystem."