Recently, in the House of Representatives, a bill was introduced called the “Register of Copyrights Selection and Accountability Act of 2017” to change how the Register of Copyrights is selected.  Why is this position important? Why might the appointment of the Register of Copyrights be critical in determining the future of copyright law in the United States?

History of the Register

Since the appointment of the first Register of Copyrights, Thorvald Solberg, on July 22, 1897, the Register is appointed by and reports to the Librarian of Congress.  The duties of the Register of Copyrights are enumerated in U.S. law, specifically 17 U.S.C. § 701.  These duties include, but are not limited to, advising Congress on copyright matters, conducting studies regarding copyright, and providing “information and assistance to Federal departments and agencies and the Judiciary” on copyright matters.

Why is the Register of Copyrights important?

The Register of Copyrights is the highest-ranking official in the federal government dealing directly and exclusively with copyright.  This position oversees the U.S. Copyright Office, whose mission is “to administer the Nation’s copyright laws for the advancement of the public good; to offer services and support to authors and users of creative works; and to provide expert impartial assistance to Congress, the courts, and executive branch agencies on questions of copyright law and policy.”

In trying to serve these three groups, the public, creators, and Congress, the U.S. Copyright Office encapsulates the national tension over copyright law.  The public – users and consumers of books, music, media, and other creative works – have one set of expectations of copyright law.  Their expectations may include a well-fed and robust public domain, and a simple process for obtaining and utilizing the fair use defense.  The expectations of authors and other creators of works may be very different.  Their expectations may include longer and stricter protections for their copyrighted works, thus keeping the works out of the public domain for a longer time.  Creators may also expect more stringent protection of their works.  Congress can often find itself in the middle of this argument between the public and creators, looking to the Copyright Office, and the Register in particular, for guidance.

How, then, should the Register handle the tensions between these groups?  Creating longer and stricter copyright protections would provide a great service to authors and other creators, but could be a disservice to the public and their ability to use and build off works.  Similarly, creating and continuing a multitude of exceptions to copyright law may provide a great service to the public, but could be a disservice to creators who want to protect their works from unauthorized uses.  The opinions of the Register of Copyrights on these and other issues, when provided to Congress as testimony, or to Executive agencies as advice, can have an influence on the future of United States copyright law.

Why does it matter who appoints the Register of Copyrights?

Currently, the Register of Copyrights is “appointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision.”  The Register of Copyrights Selection and Accountability Act seeks to change this, so that the Register is “appointed by the President, by and with the advice and consent of the Senate.” Currently, the Register does not have to go through the confirmation process, and is instead appointed by their supervisor, the Librarian of Congress.  Changing the method of selection could politicize the Register’s position, and increase the possible conflicts in serving multiple types of patrons.

Why does it matter if the Register works for the Librarian of Congress?

The U.S. Copyright Office currently functions under the umbrella of the Library of Congress.  Some creators-rights groups say this ties the Register too closely to the public, as the Library’s mission directly involves freely providing content to Congress and the public.  Other groups say that housing the Copyright Office in the Library of Congress reminds us all that copyright is intended to be secured only “for limited times”.  This temporal limitation on copyright ownership is what allows us to have a public domain, and is part of the “Copyright Clause” in the U.S. Constitution.

Why is any of this important?

Arguments over the placement of the Copyright Office and the appointment of the Register of Copyrights are echoes of larger arguments over the purpose of and philosophy behind copyright law.  Is the fundamental purpose of the Register to ensure that creators can control their works and earn a living by creating?  Or is the fundamental purpose of the Register to ensure that the public has access to a vast and diverse public domain, where they can share in the creations of others and build a common culture?

The real answer may be that the fundamental purpose of the Register lies somewhere in the middle.  The Register is not a weight to be added to one side of the scales of justice.  Rather, they are the fulcrum in the center, balancing the rights of all parties and ensuring a fair outcome.  Providing incentives for creators through copyright ownership allows many individuals to earn a living creating content.  The exceptions in copyright law also allow creators to consume works in ways that could otherwise be a violation. Providing for a robust public domain allows the public free access to existing works of literature, music, dance, and architecture, to name a few.  Providing access also invites the public to become creators by building on existing works and, eventually, enhancing the public domain with their own contributions.  By balancing the interests of all parties, the Register not only maintains the integrity of copyright law, but also reminds everyone that the lines between categories – Congress, creator, and the public – are often blurry and sometimes disappear.

Give us your thoughts!

We want to hear what you think about the placement of the Register of Copyrights and the Copyright Office.  Leave us a comment, or Tweet us with your response!  We are @OSUCopyright, and we can’t wait to hear from you.

 

_____________________________________________________________________________________

By Marley C. Nelson, Rights Management Specialist, Copyright Resources Center, The Ohio State University Libraries