Judiciary Committee votes for a 21st century Copyright Office

The House Judiciary Committee favorably reported H.R. 1695, the Register of Copyrights Selection and Accountability Act, sponsored by Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member (and dean of the House) John Conyers (D-Mich.), on Wednesday by the bipartisan vote of 27-1. This lopsided outcome was the product of a committee review process on copyright law that began almost exactly four years earlier with the testimony of then-Register of Copyrights Maria Pallante. The approval of this legislation is a critical step towards modernizing the Copyright Office to meet the 21st century needs of copyright holders, licensees, and the public, as well as to increase accountability to Congress and public transparency in the selection of the Register.

The bill does not represent any sort of “referendum” on current Librarian Carla Hayden. As Rep. Jamie Raskin (D-Md.) pointed out, structural issues lay at the core of many of the Copyright Office’s current challenges. Rep. Darrell Issa (R-Calif.), who chairs the Intellectual Property Subcommittee, shared that view, noting that whoever the next Register is needs to modernize the Copyright Office. What’s more, Congress was considering reforming the Register selection process before Dr. Hayden was the Librarian. Indeed, Reps. Tom Marino (R-Pa.) and Judy Chu (D-Calif.) introduced the Copyright Office for the Digital Economy Act—which would have made the Register a presidentially appointed, Senate confirmed position like HR 1695—on Dec. 11, 2015. Dr. Carla Hayden wasn’t even nominated by President Obama until February 24, 2016.

{mosads}Making the matter personal—targeting either the current Librarian or the former Register, Maria Pallante—serves no purpose. Claiming, for example, that former Register Pallante had done nothing on IT modernization rings hollow when it was Pallante who initiated and implemented a public consultation process, which led to publication of the most forward-looking IT modernization plan in the history of the Copyright Office.

The Library has thus far blocked implementation of that plan. While GAO reports have catalogued IT shortcomings at both the Library and the Copyright Office, these reports acknowledge that the problems at the Copyright Office are relatively few. Indeed the GAO has concluded these problems stem from the much larger, fundamental problems with the Library IT department, to which the Copyright Office is beholden.

Although we heard no mention at the Wednesday markup of the week-long outage of the Copyright Office’s systems caused by the Library, Congress should keep in mind that but for the Copyright Office’s CIO, the entire electronic registration database would have been lost forever.

During the bill’s consideration in committee, Rep. Doug Collins (R-Ga.), Vice Chairman of the Intellectual Property Subcommittee, and Chairman Goodlatte deftly thwarted an attempt to make out-of-context quotes from an Inspector General’s report (heretofore publicly unavailable) a part of the record by ensuring Congress and the public will be able to see the full text of the report.

Members of Congress need neither re-litigate Dr. Hayden’s removal of Register Pallante nor denigrate Ms. Pallante’s legacy. The reality is that the idea of making the Register a nominated and confirmed position dates back years. It is emphatically not about any individual Librarian of Congress, Register of Copyrights, member of Congress, or president. It is about creating a structure that allows the Librarian to focus on improving the Library; the Register to modernize the Copyright Office and serve its customers and the public; and Congress to have a more direct role in the selection of its copyright advisor, upon whom it relies for expert, objective, and unfiltered advice on a complex area of the law.

If I’ve learned one thing from my time in Washington, it’s that even when there are disagreements over policy, a good outcome can be achieved through mutual respect and focus on the merits of the issue. I was gratified to see such an overwhelming, bipartisan vote of approval in the Judiciary Committee and look forward to similar success as the bill makes its way through the legislative process. This is one of the rare cases of true, good government bipartisanship that we should all appreciate.

Berman served in Congress from 1983-2013 and is former chairman of the Intellectual Property Subcommittee. Currently, Berman is a Senior Advisor at Covington & Burling where he represents a variety of clients in the creative industries.

The views expressed by this author are their own and are not the views of The Hill.