[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]



 
                        U.S. COPYRIGHT OFFICE: 
                      ITS FUNCTIONS AND RESOURCES

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 26, 2015

                               __________

                            Serial No. 114-4

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho                HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                            C O N T E N T S

                              ----------                              

                           FEBRUARY 26, 2015

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2

                               WITNESSES

Keith Kupferschmid, General Counsel, Software & Information 
  Industry Association
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7
Lisa A. Dunner, Partner, Dunner Law PLLC, on behalf of the 
  American Bar Association
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Nancy J. Mertzel, Schoeman Updike Kaufman & Stern LLP, on behalf 
  of the American Intellectual Property Law Association
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38
Robert Brauneis, Professor, George Washington University Law 
  School
  Oral Testimony.................................................    52
  Prepared Statement.............................................    54

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Member, Committee on the Judiciary.............................    75
Material submitted by the Honorable Doug Collins, a 
  Representative in Congress from the State of Georgia, and 
  Member, Committee on the Judiciary.............................   100
Material submitted by the Honorable Judy Chu, a Representative in 
  Congress from the State of California, and Member, Committee on 
  the Judiciary..................................................   104

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by Maria A. Pallante, Register of Copyrights 
  and Director, U.S. Copyright Office............................   110
Prepared Statement of the Association of American Publishers 
  (AAP)..........................................................   120
Prepared Statement of Mary Rasenberger on behalf of the Authors 
  Guild..........................................................   128
Prepared Statement of the Motion Picture Association of America..   134
Letter from Cary Sherman, Chairman and CEO, the Recording 
  Industry Association of America (RIAA).........................   138


                        U.S. COPYRIGHT OFFICE: 
                      ITS FUNCTIONS AND RESOURCES

                              ----------                              


                      THURSDAY, FEBRUARY 26, 2015

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 1:30 p.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Chabot, Issa, King, 
Gohmert, Jordan, Marino, Collins, DeSantis, Walters, Buck, 
Ratcliffe, Trott, Bishop, Conyers, Nadler, Lofgren, Johnson, 
Chu, Deutch, DelBene, Jeffries, Cicilline, and Peters.
    Staff present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Joe Keeley, Counsel; Kelsey Williams, Clerk; (Minority) Perry 
Apelbaum, Staff Director & Chief Counsel; Danielle Brown, 
Parliamentarian; and Jason Everett, Counsel.
    Mr. Goodlatte. Good afternoon. The Judiciary Committee will 
come to order, and without objection, the Chair is authorized 
to declare recesses of the Committee at any time.
    We welcome everyone to this afternoon's hearing on the 
``U.S. Copyright Office: Its Functions and Resources.'' And I 
will begin by recognizing myself for an opening statement.
    Two hundred twenty-five years ago, the Nation's first 
Copyright Act was signed into law, but the U.S. Copyright 
Office itself is a more recent creation, if you can describe 
118 years as recent. Although small in size, the Office is not 
small in importance. The copyright economy that the Office 
oversees is an expanding component of the U.S. economy.
    The endless creativity of our citizens generates new works 
every year. As two of our copyright review hearings in 2013 
demonstrated, the copyright world is intertwined with the 
technology world in a symbiotic relationship that benefits both 
sectors. Although most of the works referenced in the more than 
half a million copyright claims received each year by the 
Copyright Office may never become widely known, some are seen, 
heard, and read by millions of Americans, if not billions of 
people around the world.
    America's creativity is the envy of the world, and the 
Copyright Office is at the center of it. However, many have 
highlighted the fact that one cannot have a Copyright Office 
whose technologies and processes are of the analog era when the 
economy has become a digital one. Although the Copyright Office 
has managed to direct its resources to maximize their 
efficiency, it is clear that what was expected of the Office in 
the 20th century is not what is expected of it in the 21st 
century.
    Today, most Americans carry one or more smart devices in 
their pocketbooks, backpacks, and purses. They store their 
favorite books, songs, movies, games, and more on their device, 
and they use the internet to find more. Yet trying to find much 
information about the works themselves from the Copyright 
Office records is not a useful effort for most. Burdened by a 
lack of funds and dependent upon the vastly different 
technology needs of the Library of Congress, the Copyright 
Office has been unable to respond to the needs of the copyright 
community, harming copyright owners and users alike.
    I have worked with three outstanding registrars of the 
copyright over the years: Barbara Ringer, Mary Beth Peters, and 
Maria Pallante. All have been strong advocates for a robust 
Copyright Office that can serve the needs of the copyright 
community while providing wise counsel to this and other 
Committees. In response to the quality of their efforts, 
Congress vested more power with the Copyright Office through 
rulemaking authority over the past several decades.
    Some now believe that part of the problem with copyright 
law today is that it is unable to adapt quickly enough to new 
technologies and business models. One possible solution would 
be to give the Office more authority to promulgate regulations 
that can more quickly interpret fundamental copyright 
principles set by Congress rather than wait for Congress to 
act. I look forward to hearing more about that possibility.
    I am also interested in learning about the potential 
constitutional concerns that might result by adding more 
regulatory powers to the Copyright Office or creating new 
programs, such as a small copyright claims remedies system, as 
some have suggested.
    The witnesses this afternoon are well positioned to explain 
the impact of poor funding and marginal IT systems upon the 
copyright system and those who interact with the Copyright 
Office on a daily basis. I look forward to hearing from them on 
these topics as well.
    Thank you all again for being here this afternoon, and it 
is now my pleasure to recognize the Ranking Member of the 
Committee, the gentleman from Michigan, Mr. Conyers, for his 
opening statement.
    Mr. Conyers. Thank you, Chairman Goodlatte. Members of the 
Committee, the United States Copyright Office plays a critical 
role in promoting and protecting our Nation's copyright system. 
The Office examines and registers copyright claims, records 
copyright documents, and administers statutory licenses. It 
provides expert copyright advice to Congress as well as various 
Federal agencies concerning trade agreements, treaty 
negotiations, and court proceedings. And the Office recommends 
much needed improvements to the copyright system based on its 
research and analysis.
    Unfortunately, the existing Copyright Office itself is ill 
equipped to handle certain challenges presented by 
technological developments and the growing demands of the 
copyright system. While the Copyright Office is well aware of 
its limitations, it cannot fully overcome them without 
congressional action.
    Today's hearing provides us an opportunity to examine how 
the Copyright Office should function and how we can best 
prepare for the coming decades to benefit the overall copyright 
system. To that end, Congress should first consider whether the 
Copyright Office requires wholesale structural and operational 
changes to better meet the needs of the present and future 
copyright system.
    Although a strong copyright system necessitates an 
efficient and effective United States Copyright Office, there 
are serious concerns that the Office, in fact, lacks sufficient 
autonomy and infrastructure to meet the needs of the copyright 
community. Therefore, I would ask the witnesses, whom I join in 
welcoming to this hearing, to discuss how best to address these 
structural and operational constraints.
    Another factor integral to the success of the copyright 
system is for the Copyright Office to become more user 
friendly. For example, the Office's recordation system 
continues to be a cumbersome and costly process that requires 
manual examination and data entry. In addition, the 
functionality of the Office's databases and the usability of 
the Office's website must be improved. Further, the security of 
deposited digital works must be strengthened, and the copyright 
community needs a system which provides a more usable and 
searchable public record of copyrighted material.
    The Copyright Office is aware of the need to modernize so 
that it can adapt to ever-evolving technology and the needs of 
the copyright community. We must help it do so, which leads me 
to my final observation. A strong copyright system requires 
that we fully fund the Copyright Office. As I have previously 
stated, the Copyright Office performs several critical roles in 
our copyright system. Yet since 2010, Congress has reduced the 
Copyright Office's budget over 7 percent, while continuing to 
ask it to do more. Decreased funding reduces any operating 
cushion the Copyright Office could otherwise use for long-term 
planning, such as overhauling its entire information technology 
system.
    It has also undermined the Office's ability to hire staff 
to fulfill its many statutory duties. For instance, its 
registration program currently has 48 vacancies out of 180 
staff slots, and the Office has been prevented from 
representing the interests of the United States in 
international meetings and multinational treaty negotiations as 
a result of budget constraints.
    In Fiscal Year 2014, the Copyright Office had an overall 
budget of about $50 million. When considering that total 
copyright industries contribute nearly $2 trillion or more than 
11 percent in value to the United States gross domestic 
product, Congress, we should realize the importance of the 
Copyright Office and increase its budget. Fully funding the 
Copyright Office will make our copyright system become even 
more effective and efficient, and enhance our country's 
competitiveness.
    I thank the Chairman for holding today's hearings, and I 
look forward to hearing from the witnesses. Thank you.
    Mr. Goodlatte. Thank you, Mr. Conyers, and without 
objection all other Members' opening statements will be made a 
part of the record.
    We welcome our distinguished panel today, and if you would 
all rise, I will begin by swearing in the witnesses.
    Do you and each of you swear that the testimony that you 
are about to give shall be the truth, the whole truth, and 
nothing but the truth, so help you God?
    [A chorus of ayes.]
    Mr. Goodlatte. Thank you very much. Let the record reflect 
that all the witnesses responded in the affirmative.
    I will now begin by introducing our witnesses. Our first 
witness is Keith Kupferschmid, the general counsel and senior 
vice president for intellectual property for the Software and 
Information Industry Association. Mr. Kupferschmid specializes 
in intellectual property policy, legal, and enforcement 
matters. He received his bachelors of science in mechanical 
engineering from the University of Rochester. Additionally, he 
holds a J.D. from American University Washington College of 
Law.
    Our second witness is Lisa Dunner, chair of the American 
Bar Association's Section of Intellectual Property. Ms. Dunner 
is the founding editor-in-chief of the ABA's Intellectual 
Property Law Section's IP magazine, Landslide, and has written 
about numerous trademark and copyright issues. Ms. Dunner 
attended Rollins College for her bachelors of arts degree, and 
she continued on to receive her J.D. from the John Marshall Law 
School.
    Our third witness is Nancy Mertzel, who is testifying on 
behalf of the American Intellectual Property Law Association. 
Ms. Mertzel is a partner with Schoeman Updike Kaufman & Stern, 
where she focuses on intellectual property matters. Since 2009, 
she has been named annually to the list of New York's super 
lawyers for intellectual property litigation. Ms. Mertzel 
attended the University of Rochester for her bachelors of arts 
degree. She then went on to receive her juris doctorate from 
American University Washington College of Law.
    Professor Bob Brauneis, a professor of law at the George 
Washington University School of Law, and the Kaminstein 
Scholar-in-Residence at the Copyright Office. At GW, Professor 
Brauneis is the co-director of the intellectual property 
program. He has written numerous scholarly articles on 
intellectual property and constitutional law. Professor 
Brauneis received his B.A. from the University of California. 
He additionally holds a J.D. from Harvard University.
    I would like to thank all of our witnesses for their 
appearance. Your written statements will be entered into the 
record in their entirety, and I ask that you each summarize 
your testimony in 5 minutes or less. To help you stay within 
that time, there is a timing light on the table in front of 
you. When the light switches from green to yellow, you have 1 
minute to conclude your testimony. When the light turns red, 
that concludes your testimony.
    Mr. Kupferschmid, we will begin with you. You will want to 
turn on that microphone.

 TESTIMONY OF KEITH KUPFERSCHMID, GENERAL COUNSEL, SOFTWARE & 
                INFORMATION INDUSTRY ASSOCIATION

    Mr. Kupferschmid. Chairman Goodlatte, Ranking Member 
Conyers, and Members of the Committee, thank you for the 
opportunity to testify before you today to discuss the 
functions and resources of the U.S. Copyright Office.
    I am Keith Kupferschmid, general counsel and senior vice 
president for intellectual property for the Software and 
Information Industry Association. Today I hope to assist the 
Committee in better understanding the important role the 
Copyright Office plays in the creation and distribution of 
innovative new products and services, the concern we have 
relating to the Office's operations, IT infrastructure, 
staffing, and budget, and the immediate need to take steps to 
modernize the Office.
    As the Office responsible for administering all matters 
relating to copyright, few other offices are more important to 
the growth of creativity and commercial activity in our Nation 
than the United States Copyright Office. Despite the critical 
nature of the services provided by the Office, many of these 
services have failed to keep pace with technology and the 
marketplace.
    Our major concerns are the Library of Congress' demand for 
deposit copies in certain formats causes friction with the 
Copyright Office and copyright applicants. Some SIIA members do 
not register their works with the Copyright Office because it 
is too expensive and too cumbersome, and because they are 
concerned about the security of their deposits. For example, 
many newspapers are no longer registering their works with the 
Copyright Office because the Library requires that newspaper 
deposits be in microfilm format.
    Also, the functionality of the Copyright Office registry is 
drastically out of date relative to today's technologies. For 
instance, a search of the registry for The Godfather does not 
display either the Oscar winning movie or the bestselling book 
within the first 25 search results.
    The present recordation process is also shockingly 
antiquated, cumbersome, and costly. It requires manual 
examination and data entry from paper documents, much in the 
same way as when the recordation was first launched in the 
1870's. It takes the Office 12 to 18 months to enter the data. 
This is much too long in today's copyright marketplace.
    So what can be done to address these problems? First, the 
Office needs a more advanced IT infrastructure that is 
specifically to the Office and can better support the needs of 
its users. The Copyright Office is obligated to use the 
Library's IT systems, which are meant to service the Library 
and its associated function. But the Copyright Office has a 
very different mission. It provides services that affect the 
legal rights and economic interests of those who rely on the 
Copyright Act.
    Second, the Copyright Office funding needs to be increased. 
From 2010 to 2013, funding was reduced by over 20 percent, 
causing staffing shortages and technology lapses. The Copyright 
Office is unable to increase user fees enough to offset the 
shortfall because it must limit its fees to the costs incurred 
for providing its services. Third, the Copyright Office needs 
more staff. The number of Copyright Office staff has dropped 
over the past 5 years from close to 500 FTEs to less than 400. 
This dramatic reduction in staff has placed an impossible 
burden on the Office to accomplish its responsibilities in a 
timely and effective manner.
    The Copyright Office customers want the Office to do the 
things it already does, but do them better and faster, and also 
to do many new innovative things to make the copyright law more 
functional, more efficient, and more user friendly. The 
prospects of the Copyright Office being able to meet these 
demands are slim under the present structure and funding 
levels.
    Accordingly, SIIA recommends the following steps be taken 
to address these problems. Congress should authorize a study to 
determine the best long-term solution for the Office. 
Alternatives include retaining the Copyright Office within the 
Library while increasing its autonomy, making the Copyright 
Office a freestanding independent agency within the executive 
branch, and relocating the Copyright Office into the PTO. This 
study should also examine whether the head of the Office should 
be a presidential appointee.
    Congress should also increase the Copyright Office's 
funding to enable the Office to make immediate critical 
improvements. Considering how important the Copyright Office 
and the copyright industries are to the U.S. economy, 
increasing the Office's appropriations for modernization 
purposes is definitely justified.
    Lastly, Congress should pass legislation immediately that 
vests the Copyright Office with the same type of operational 
autonomy that Congress has granted to the Congressional 
Research Service. Unlike the Copyright Office, the Library has 
no authority to supervise or direct the activities of CRS. To 
the contrary, the Library is statutorily required to encourage, 
assist, and promote CRS. By giving the Copyright Office more 
autonomy, many of the operational problems previously 
identified could be resolved.
    I look forward to working with the Committee and other 
stakeholders as this and other copyright issues are considered 
by the Committee, and happy to answer any questions. Thank you.
    [The prepared statement of Mr. Kupferschmid follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
   
                               __________
    Mr. Goodlatte. Thank you.
    Ms. Dunner, welcome.

   TESTIMONY OF LISA A. DUNNER, PARTNER, DUNNER LAW PLLC, ON 
             BEHALF OF THE AMERICAN BAR ASSOCIATION

    Ms. Dunner. Chairman Goodlatte, Ranking Member Conyers, 
Members of the Committee, thank you for your invitation to the 
American Bar Association's Section of Intellectual Property Law 
to participate in this hearing.
    The Copyright Office of today is a far cry from what it was 
in 1897 when it became a separate department of the Library of 
Congress to process registrations and acquire deposit copies 
for the Library's use. The Office remains part of the Library, 
but its responsibilities have multiplied to include recording 
transfers and terminations; providing copyright information to 
the public; administering certain statutory licenses; providing 
support to Congress through consultation and studies on issues, 
such as copyright, small claims, and music licensing; providing 
legal assistance to executive agencies and the courts; 
participating in negotiations on trade agreements and 
international treaties; and conducting rulemaking proceedings.
    The Copyright Office provides essential services to our 
copyright industries, a vital segment of the U.S. economy. A 
recent report found that the core copyright industries 
contributed $1.1 trillion to the U.S. gross domestic product in 
2013, and accounted for $156 billion in foreign sales and 
exports. They employ nearly 5.5 million U.S. workers, more than 
4 percent of the entire U.S. workforce. The 2009 through 2013 
annual growth rate of these industries was 70 percent more than 
the growth rate of the U.S. economy as a whole.
    The ever-increasing functions of the Copyright Office 
reflect the expansion of the copyright industries and their 
increasing sophistication, as well as the broader scope of 
copyright law itself. Over time, international issues have 
occupied more of the Office's attention, and the U.S. has 
joined many bilateral and multilateral copyright and trade 
treaties. The internet has expanded markets for U.S. works 
throughout the world. Unfortunately, the resources available to 
the Office have not let it keep pace with the fast-moving 
copyright role of the 21st century.
    The ABA Section of Intellectual Property views the 
resources needs of the Office from three perspectives: 
autonomy, technology, and funding. The Copyright Office should 
have greater autonomy because efficient Copyright Office 
operations and sound copyright policy are paramount. The 
Librarian's broad authority over Copyright Office functions is 
problematic on multiple levels. Not only is copyright expertise 
not part of the Librarian's job requirements, but there is an 
inherent conflict-of-interest in having the Library sign off on 
and control regulations formulated by the Office. Especially 
since the Library, and like other libraries, often takes a 
position on policy matters that are the subject of the Office's 
studies and rulemaking proceedings.
    Greater autonomy would allow the Office to more effectively 
support copyright owners and users of the 21st century, and it 
would expand the substantive role of the Office by granting it 
appropriately crafted rulemaking authority. Importantly, it 
would allow both the Copyright Office and the Library of 
Congress to focus their energies on what they each do best.
    The Copyright Office needs a sophisticated, efficient IT 
system responsive to its needs and those of its users. 
Currently, it must work through the Library's IT system, which 
is developed and managed with the Library's different 
priorities in mind. Minor changes to online forms can take 
months. The system lacks adequate security.
    Moreover, the Library's IT department is not always 
responsive to the Office's needs. During the 2012 government 
shutdown, the IT department took the Office's website offline. 
It took the Registrar of Copyrights days to get it restored. 
This is unacceptable for a Copyright Office that serves a vital 
segment of the U.S. economy.
    In these times of budget austerity, many government 
agencies are called upon to provide substantially increase 
services with less than substantial resources. With the 
Copyright Office it is even worse. Since 2010, its budget has 
dropped by $3.51 million, or 7.2 percent. The Office now 
operates with 360 full-time employees, well below its 
authorized ceiling of 439.
    As a step toward securing adequate funding, the Office 
needs authority to make its own budget request. Currently, the 
Office presents its budget needs to the Librarian. The Office's 
budget needs should be evaluated on their own, rather than 
being evaluated in competition with all the other divisions in 
the Library.
    As I hope my comments will reveal, enhanced autonomy, 
technology, and funding for the Copyright Office are 
interdependent and inextricably linked. Increased autonomy 
would enable the Office to make it more effective case for 
adequate funding, which in turn could provide much needed 
improvements in technology.
    On behalf of the 20,000-plus members of the American Bar 
Association's Section of Intellectual Property Law, let me in 
closing express gratitude to the Committee for its sustained 
commitment to bringing the Copyright Office into the 21st 
century. Thank you.
    [The prepared statement of Ms. Dunner follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
        
                               __________
    Mr. Goodlatte. Thank you, Ms. Dunner.
    Ms. Mertzel, welcome.

TESTIMONY OF NANCY J. MERTZEL, SCHOEMAN UPDIKE KAUFMAN & STERN 
   LLP, ON BEHALF OF THE AMERICAN INTELLECTUAL PROPERTY LAW 
                          ASSOCIATION

    Ms. Mertzel. Chairman Goodlatte, Ranking Member Conyers, 
and distinguished Members of the Judiciary Committee, I am 
Nancy Mertzel, a partner at Schoeman Updike Kaufman & Stern in 
New York City. Thank you for allowing me to testify today on 
behalf of the American Intellectual Property Law Association, 
and for your continued interest in the Copyright Office.
    AIPLA is a bar association of approximately 15,000 members, 
including individuals who represent both copyright owners and 
users. Many of our members interact with the Copyright Office 
on a regular basis. I serve on AIPLA's board of directors and 
recently chaired its Copyright Law Committee. I am a member of 
the Copyright Society of the USA, and previously served as a 
trustee of that organization. I have spent more than 2 decades 
practicing in this area of the law.
    Creative expression is a key driver of our Nation's social 
and economic wellbeing, and the Copyright Office plays a 
critical role in our Nation's copyright system. We recognize 
and appreciate the strong leadership of Registrar Pallante and 
her excellent staff. However, in our view, inadequate resources 
and lack of autonomy have left the Office understaffed and its 
technology outdated, preventing the Office from operating as 
well as it should. Today I will briefly describe some of the 
difficulties faced by those who used the Office's services on a 
regular basis.
    A copyright registration or a refusal is a prerequisite to 
a suit for infringement of a United States work. Timely 
registration also creates a public record, entitles the owner 
to prima facie evidence of validity, and the potential to 
recover statutory damages and attorneys' fees in cases of 
infringement.
    However, the electronic system for registering copyrights 
online is severely lacking. For example, it needs a more 
intuitive interface and the ability to print, view, and forward 
draft applications to third parties for signature. Otherwise 
some practitioners will continue to use paper applications. The 
deposit system also needs substantial improvement. Instead of a 
manual deposit of physical materials, applications should be 
evaluated based upon submission of electronic materials. We 
need to continue building the Library's important collection 
and simultaneously improve the registration process.
    Because of staffing constraints, it also takes too long to 
retrieve deposit material from the Office. In copyright 
disputes, it is usually important to compare the accused 
material to the deposit material. However, it can take the 
Office 8 to 12 weeks to provide deposit material, which is 
simply too long for a party to wait if they are facing 
litigation.
    Recording documents that affect copyright, such as 
assignments and licenses, is also too cumbersome. We have to 
file documents with original signatures, we do not usually get 
a receipt, and the information takes far too long to appear 
online. Professor Brauneis' report describes these issues in 
much more detail.
    To continue to thrive, our copyright system needs a better 
database. The Office has in its possession a wealth of 
information concerning the registration status and ownership of 
creative works. However, its online catalog only dates back to 
1978. To search older works which may still be under copyright, 
it is often necessary to hire a trained searcher to review card 
catalogues, printed materials, and even microfiche. The online 
catalogue of post-1978 works is also difficult to search, and 
some perceive its results as inaccurate, over inclusive, or 
under inclusive.
    The absence of a trusted database creates uncertainty, 
increases the cost of copyright-related transactions, and 
hinders sound business decisions. Creating a robust database 
may also help mitigate the issue of orphan works and masked 
digitization as it will be less burdensome and expensive to 
identify copyright owners.
    AIPLA believes that the Copyright Office needs increased 
resources and greater autonomy over its budget and IT systems. 
Others have made suggestions about necessary changes, including 
where the Office should be located within our Federal system. 
AIPLA takes no position on that issue today, and recommends 
further study. In today's digital world, copyright will 
continue to grow in importance as an economic and cultural 
force. A well-functioning copyright office is not only 
desirable, it is essential.
    Thank you for continued interest in these issues. We stand 
ready to assist you, and the Office, and others in any way we 
can.
    [The prepared statement of Ms. Mertzel follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
        
                               __________
    Mr. Goodlatte. Thank you, Ms. Mertzel.
    Mr. Brauneis, welcome.

           TESTIMONY OF ROBERT BRAUNEIS, PROFESSOR, 
            GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Brauneis. Chairman Goodlatte, Ranking Member Conyers, 
and Members of the Committee, thank you for inviting me to 
testify here today. I have been teaching copyright law for over 
a decade, and during the last academic year, as Chairman 
Goodlatte mentioned, I had the privilege of working at the 
Copyright Office as the inaugural Abraham L. Kaminstein 
Scholar-in-Residence. Through that experience, I have come to 
know and respect the work of that office, and also to learn 
about some of its challenges and opportunities. I am honored to 
have the occasion to present some of my views.
    There are three topics on which I want to focus today: the 
registration and recordation functions of the Copyright Office, 
its independent legislative advisory role, and the 
constitutional challenges to the structure of the Copyright 
Office and of the Library of Congress.
    Copyright registration and recordation are core functions 
of the Copyright Office that occupy the majority of its 
personnel. They provide essential information and evidence to 
support the copyright marketplace. Because of the emerging 
importance of information technology to those functions, the 
funding and control models that once worked to support them no 
longer work.
    Information technology has made those functions capital 
intensive, requiring large multiyear investments to build the 
most efficient systems. Information technology has also 
rendered registration and recordation personnel dependent on a 
separate IT staff. Unfortunately, funding and control 
limitations have resulted in chronic underinvestment and 
ineffective management of necessary computer systems.
    To remedy these deficiencies, I recommend that Congress 
explicitly authorize the Copyright Office to collect fees that 
cover future capital investments and to build a reserve fund 
that is not depleted annually by an adjustment to the Office's 
appropriation. I also recommend that the Office be given 
greater control over the computer systems on which recordation 
and registration depend, which are now run outside the 
Copyright Office by the Library of Congress.
    For over a century, the Copyright Office has provided 
independent advice and support on copyright matters to Congress 
and to executive branch agencies using the expertise that it 
has developed from administering copyright law. As I have 
studied the history of the Copyright Office, I have repeatedly 
been impressed by the depth of its contributions to copyright 
legislation, including the comprehensive revisions of 1909 and 
1976.
    The traditional assumption is that the Copyright Office can 
provide independent advice to Congress because it and the 
Library of Congress are in the legislative branch of 
government. Recent litigation, however, has challenged that 
assumption. Courts have held that the function of the Copyright 
Office in developing and applying registration policy and the 
function of the copyright royalty judges in setting statutory 
licensing rates are essentially executive in character.
    In order to uphold registration and rate-making decisions, 
the courts have clarified that the Librarian of Congress is the 
head of an executive department, who is fully responsible to 
the President, just as every Cabinet member is. They have also 
held that the Registrar and the copyright royalty judges must 
be fully responsible to the Librarian and removable at will by 
him. Thus, under current rulings the Library and the Copyright 
Office are in the executive branch. The President has already 
informed Congress that he is asserting control over the 
Librarian's power to shift resources between the Copyright 
Office and other divisions of the Library.
    In the face of these developments, Congress may want to 
consider a number of options. Congress can preserve and 
reinforce congressional control over the non-copyright 
functions of the Library, including the Congressional Research 
Service, because they are not executive in character. Thus, if 
Congress placed the copyright functions of the Library in a 
separate agency, it could provide that the Librarian be 
appointed by a Member or Committee of Congress.
    Congress must place the executive functions of the 
Copyright Office in an executive agency. Although it has a 
number of options in that regard, I recommend that it consider 
an independent agency. An independent agency can be empowered 
to continue to give Congress and executive branch departments 
impartial expert copyright advice without clearing that advice 
through the President. An independent copyright commission 
could thus continue to provide the trusted advice that has 
benefited Congress for over a century, while also administering 
the copyright laws on the day-to-day basis that is the source 
of much of its expertise.
    Thank you very much.
    [The prepared statement of Mr. Brauneis follows:]
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                                       __________
                                       
    Mr. Goodlatte. Thank you all for your testimony. We will 
begin our questioning under the 5-minute rule, and I will begin 
by recognizing myself. I have a question for each of you, in 
fact, two, and if you could be brief, we will get through all 
of you and both questions. And I have another question I would 
like to ask Mr. Brauneis.
    So the first question is, it appears that a significant 
effort will be required to modernize the Copyright Office 
systems, but there is always the balance between resources and 
priorities. With change needed in electronic registrations, 
document recordations, and digitization of older copyright 
records, which of these problems should be addressed first? Mr. 
Kupferschmid, we will start with you.
    Mr. Kupferschmid. Thank you. First off, I will be quick, 
but I want to thank you for holding this hearing. I cannot say 
enough how important this topic is.
    Mr. Goodlatte. Do not say it now because I need you to 
answer the question. [Laughter.]
    Mr. Kupferschmid. Okay. Well, with regard to that, I mean, 
the biggest, the most important change is changing the IT 
system because everything you mentioned here--digitization, and 
document retention, and searchability--that all has to do with 
improving the IT system.
    Mr. Goodlatte. No question about it, but of those three, 
which should come first?
    Mr. Kupferschmid. Well, I guess before you do anything, you 
have got to be able to actually digitize everything to be able 
to put it in a form where it can be searchable and usable.
    Mr. Goodlatte. So you would start with digitization of 
older copyright works?
    Mr. Kupferschmid. I think so. If you could repeat the list 
again.
    Mr. Goodlatte. That, document recordations, and electronic 
registrations. Ms. Dunner?
    Ms. Dunner. That is a tough question, but I think I would 
start with recordation because it is so out of date. It affects 
so many business transactions today. I agree with Mr. 
Kupferschmid that you really need to upgrade the IT system as a 
whole, but recordation would be my first choice.
    Mr. Goodlatte. Ms. Mertzel?
    Ms. Mertzel. I am speaking personally, not on behalf of 
AIPLA. But I am inclined to start with registration because 
people are registering copyrights every day, and people are 
avoiding registration because of the problems with it, and 
still using paper. And I think as you build as a database that 
can handle online registration, you can work on implementing 
recordation and digitization in the background.
    Mr. Goodlatte. Good point. So, Mr. Brauneis, we have one 
for each. How do you break the tie here?
    Mr. Brauneis. Recordation. I was the author of a report 
recently released on recordation, and so I will go with 
recordation. [Laughter.]
    Mr. Goodlatte. Okay, thank you. Now, here is my second 
question, and we have got some idea that there is disagreement 
on what to prioritize, but we still have got to figure out how 
to pay for whatever we do. So these efforts are going to 
require significant financial investments. Is this something 
that should borne by the copyright community, taxpayers as a 
whole, or some combination of both? And we will do it in 
reverse order here, so you get the benefit of listening to the 
answer. Mr. Brauneis?
    Mr. Brauneis. I think the answer is both. I think that 
there needs to be increased appropriations, but I also think 
there needs to be increased attention paid to differentiation 
of copyright fees.
    Mr. Goodlatte. All right. Ms. Mertzel?
    Ms. Mertzel. I would agree that differentiation is an area 
to explore. I do not have a specific answer on the allocation 
between fees versus appropriations.
    Mr. Goodlatte. All right. Ms. Dunner?
    Ms. Dunner. It is a scary slope or a slippery slope when 
you talk about increasing fees because I think that can start a 
whole different conversation. So I think increased 
appropriations would probably be the best.
    Mr. Goodlatte. It certainly is. Mr. Kupferschmid?
    Mr. Kupferschmid. Yes, very clearly I think it is a 
combination of both. I think there are things that the 
Copyright Office can do, maybe increase fees, but lessen the 
total costs that the copyright registrant is paying to offset 
that. So I think certainly it is a combination of both, 
appropriations and copyright owners paying additional fees, as 
well as users.
    Mr. Goodlatte. Very good. So we have a clear majority on 
that. Now, Mr. Brauneis, I said a question for you as well.
    Mr. Brauneis. Indeed.
    Mr. Goodlatte. You have seen the impact of low funding of 
the Copyright Office from the inside.
    Mr. Brauneis. I have.
    Mr. Goodlatte. How would you describe the morale of 
Copyright Office employees?
    Mr. Brauneis. Challenging. I think Copyright Office 
employees are working hard, but when they do not have enough 
personnel and they do not have enough colleagues to spread it 
around, I think I have seen some real challenges.
    Mr. Goodlatte. Very good. Thank you. Anybody else want to 
comment on that from the outside? Do you have a perspective on 
that, Ms. Dunner?
    Ms. Dunner. I think the Copyright Office is doing the best 
it can with what it has.
    Mr. Goodlatte. All right, thank you. The gentleman from 
Michigan, Mr. Conyers, is recognized for 5 minutes.
    Mr. Conyers. Thank you, and thank you all for your 
testimony. I would like to direct this to Mr. Kupferschmid. In 
your written testimony, you suggest that Congress should 
authorize a study to determine the benefits of a different 
structure for the Copyright Office. Would you elaborate on why 
you believe the status quo will not work for the Copyright 
Office for the 21st century? And before you respond, although 
the Copyright Office is not testifying here, I would like Ms. 
Pallante, the registrar, if she is listening, and I suspect she 
is, to submit for the record her views on the testimony today 
about whether and how reorganizing the Copyright Office would 
benefit the copyright community.
    Mr. Kupferschmid. Thank you. Yes, in my written testimony 
and statement, I mentioned the fact that the one option that 
frankly is not agreeable is the status quo. And the reason for 
that is because, as we have heard here today already, that the 
Copyright Office needs more funding to accomplish what it needs 
to accomplish, to make improvements to the regulation system 
and the recordation system. But it also needs more autonomy, 
and those go hand-in-hand, and if there is one without the 
other, it is frankly not going to be able to accomplish what it 
needs to accomplish and improve.
    Mr. Conyers. Thank you. Ms. Dunner, in your testimony, you 
mentioned that the Office's budget has decreased by over 7 
percent since 2010. What effect has that had on the ability of 
the Office to interact with the copyright community?
    Ms. Dunner. I think it is reflected in a number of ways, 
one of which is its IT systems are very out of date, and so it 
is unable to keep up with the fast pace of the current 
copyright community. The community wants things more readily 
available, more easily accessible, and the Copyright Office is 
unable to provide that with its current IT system.
    Mr. Conyers. Professor Brauneis, we are here today to 
discuss the future of the Copyright Office, and all the 
witnesses have suggested that we consider reorganizing it, and 
have provided several alternatives for how that would look. I 
would like to know what is the timeline for when Congress needs 
to make a decision to ensure that we prepare the Copyright 
Office for the 21st century?
    Mr. Brauneis. Well, as soon as possible with an adequate 
time for study, so I am not sure whether I can put a number of 
months on that, but I hope it does not stretch into years.
    Mr. Conyers. I suspected you would be for the immediate 
action. Now, Ms. Mertzel, in your written testimony, you 
suggest that increased autonomy is essential for the Copyright 
Office of the future. How would budget autonomy strengthen the 
copyright ecosystem?
    Ms. Mertzel. Well, budget autonomy would allow the Office 
to make decisions about how to spend the money it has without 
having to involve the Library and the Librarian. I think that 
that would be very important with regard to IT, with regard to 
space and purchasing of equipment and materials. And I think 
that the Office should be able to request its own budget and 
not be included and wrapped up in the larger Library budget.
    Mr. Conyers. Right. Thank you, Mr. Chairman. I return any 
unused time.
    Mr. Goodlatte. The Chair appreciates that greatly, and is 
now pleased to recognize the gentleman from California, Mr. 
Issa, for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman. I would have gladly 
taken the Ranking Members' time. I am going to follow up on 
where the Ranking Member left off, and I will use the 
Chairman's technique of going right down the row. How many 
people here believe that regardless of where the entity is, 
that as it is currently structured and it is not structured, 
forget about being constitutional for a moment. It is not 
structured to be efficient, nimble, modern, and progressive in 
a way that the 21st century would demand?
    Mr. Kupferschmid. 100 percent agree with that.
    Ms. Dunner. 100 percent agree with that.
    Ms. Mertzel. Yes, 100 percent.
    Mr. Brauneis. I will join them.
    Mr. Issa. Okay. So we have the consensus so seldom seen in 
Washington. [Laughter.]
    So if I understand the various options, we can obviously 
correct a separation of powers question with and without 
retaining historic assets, the Librarian, the actual body that 
belongs historically to this body, to this branch.
    But I want to explore the independent commission for a 
moment. I want you to tell me in a perfect world, because when 
you talk about major restructuring, all of which falls under 
this Committee's jurisdiction from the standpoint of the 
entities, not necessarily the restructuring plan. When you talk 
about major restructuring, you normally say if we had it to do 
over again what would be good. And then you figure if there is 
a road that leads from where you are to where you would like to 
be in a perfect world.
    In a perfect world, would all of you agree that the Patent 
Office, that Patent, Trademark, and Copyright would have huge 
independence, would be funded in a way in which the funds and 
fees were collected and retained, in which there was both 
congressional and executive branch oversight and control 
sufficient to insist that those funds be well spent, and in 
which the stakeholders, whether it's the copyright community or 
the patenting community, had a real seat at the table to see as 
customers that they were well served?
    Mr. Kupferschmid. I think that is correct, but there are 
additional issues that come up if you are saying move the 
Copyright Office into the Patent and Trademark Office.
    Mr. Issa. I am not. I am not. I am saying in a perfect 
world they would both be independent commissions. They would 
have both have those three properties: a level of independence 
that allowed them to be guardians of the constitutional 
responsibility, input from the executive branch from a 
standpoint of waste, fraud, and abuse, but enough independence 
that it is not a tool of a policy of any particular president. 
Obviously the oversight of this body from a standpoint, as we 
do all executive branch. And last but not least, the 
stakeholders having a real seat at the table so that it was 
efficient, effective for their services, because you have all 
told us in your opening statements that they are not that 
today.
    But unfortunately I also hear some of the same complaints 
about the Patent Office, so that is why I have included in a 
perfect world, would each of those two entities be equally 
independent, self-governing in that sense, have oversight from 
both the executive branch and the legislative branch, and, in 
fact, have a customer looking responsibility. We will go the 
other direction this time.
    Mr. Brauneis. Yes, I think that is exactly right.
    Mr. Issa. Just a quick yes or no, and then I have got a 
final question.
    Ms. Mertzel. I think that is right. I am not sure about the 
comparison between Copyright and PTO, and whether they raise 
the exact same issues.
    Mr. Issa. Okay. Then just answer for Copyright. Should it 
meet those requirements?
    Ms. Mertzel. Yes.
    Ms. Dunner. Yes.
    Mr. Kupferschmid. Yes.
    Mr. Issa. Then would you all agree, and hopefully I will 
get a trifecta, and I will quit for today. Would you all agree 
that, in fact, this Committee's goal should be, in fact, to set 
up that criteria or a process to get to that structure that 
reviews how we would make sure the executive branch had input, 
but not, if you will, policy distortion, that they, in fact, 
had sufficient autonomy while, in fact, being responsive to 
Congress, and, most of all, responsive to the community of 
their users, all of which you have said today the Copyright 
Office as structured is not doing, not just because of a ``lack 
of funds?''
    Mr. Brauneis. Yes, exactly right.
    Ms. Mertzel. Just one point on that is that I think that 
some of the role the Copyright Office plays requires more than 
just input from the executive branch, for example, 
internationally. That is part of our foreign policy to some 
degree, and it does involve other----
    Mr. Issa. Okay. I will come back to you. Quickly, anymore?
    Ms. Dunner. I should just note that the American Bar 
Association Section of Intellectual Property Law does not take 
a position as to where the Office should be moved.
    Mr. Issa. Right. I am only talking about what the 
structure----
    Ms. Dunner. And since you are proposing a hypothetical, I 
would say yes.
    Mr. Kupferschmid. Yes, it would be a huge improvement over 
what the situation is today.
    Mr. Issa. Okay. And, Mr. Chairman, my time has expired. I 
wanted to comment on Ms. Metzler's comment. One of the reasons 
I asked those questions and got your near unanimity on all of 
these is that as a Member who has looked at free and fair 
trade, but has also looked at Administrations using an 
international agenda to essentially distort or potentially 
distort decisions made here by having trade agreements, and 
then, back washing them into copyright and patent activities, 
that, in fact, I asked that question for a reason, because I 
think this Committee in a structure needs to ensure that these 
decisions are made domestically first.
    And if they are going to be looked at by a delegation in 
international, that, in fact, the Copyright Office not be a 
tool of the executive branch, but rather an independent agency 
with a voice and a reporting requirement equally to the other 
two branches, which I think is part of what we heard in the 
testimony. And I thank the Chairman for his indulgence.
    Mr. Goodlatte. I thank the gentleman, and the Chair 
recognizes the gentleman from New York, Mr. Nadler, for 5 
minutes.
    Mr. Nadler. I thank the Chairman. It is clear the Copyright 
Office is facing a series of challenges from improving its tech 
abilities to enhancing it security through retaining highly-
trained staff. What is less clear is how best to address these 
issues.
    The Copyright Office has maintained a high level of service 
to the public and to Congress in spite of very limited funding 
and serious staffing shortages. But as we contemplate a new 
Copyright Act, we need a 21st century Copyright Office that can 
fulfill the numerous responsibilities we place on it.
    In addition to its regulatory administrative functions, the 
Office provides expert advice to Congress, conducts studies, 
and makes policy recommendations, any attempt to strengthen and 
not jeopardize the Office's ability to freely perform these 
critical duties.
    I would like to introduce into the record a forthcoming 
article by Sandra Aistars titled ``The Next Great Copyright Act 
or a New Great Copyright Agency?'' which will appear in the 
next issue of the Columbia Journal of Law and the Arts. I would 
like to make sure all Members of the Committee are aware of the 
article, but also the entire issue in which the article will 
appear.
    [The information referred to follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
                                   __________
                                   
    Mr. Nadler. The article recommends that Congress should 
continue to examine how copyright laws are crafted and 
administered, and seek to remove practical, structural, and 
constitutional impediments to make more efficient laws and 
regulations. It is important for us to explore different ideas 
and proposals in more detail and evaluate the implications of 
any proposed changes.
    From the witness testimony, I gather there is agreement 
that the Copyright Office as currently structured faces a 
variety of challenges in executing the basic functions 
stakeholders expect from it, and that it lacks independent 
budget and administrative authority. While the Copyright Office 
under the current registrar, Maria Pallante, has taken the 
initiative to address some of these challenges, only Congress 
can provide the resources and flexibility the Office needs to 
continue serving the public and Congress.
    And I would like to ask Professor Brauneis, if I pronounced 
it correctly.
    Mr. Brauneis. Indeed.
    Mr. Nadler. Would additional resources alone be sufficient 
to address the challenges the Copyright Office faces?
    Mr. Brauneis. No, I do not think so. I guess, as I 
mentioned, I think that control over information technology is 
important, and that spending money when you do not have the 
control does not work. And I do think that putting the Office 
on a sound constitutional basis is important for the long haul 
as well.
    Mr. Nadler. Thank you. Mr. Kupferschmid, there are a 
variety of options that could be considered if we were to 
modernize the Copyright Office. How might we best evaluate the 
pros and cons of each? Do you have a strong opinion about the 
preferred approach?
    Mr. Kupferschmid. I mean, we put three options on the 
table. For that matter, there may even be more options of that. 
I think we need to get the people who have the experience from 
the Copyright Office, from the Patent and Trademark Office, and 
the Library of Congress, and other stakeholders and users, and 
folks from the Copyright Office community all together to 
figure out what is the best solution. All I know is the best 
solution is not the one that is working right now today.
    Mr. Nadler. Okay. And, Ms. Dunner, how might improvements 
to the structure of the Copyright Office contribute to making 
the act, the Copyright Act, more understandable and accessible 
for all parties?
    Ms. Dunner. I think that, first of all, if the Copyright 
Office had more autonomy and was given more control over its 
own rules and regulations, I think it would have great 
improvements to the act, which has just been added on, and 
added on, and added on. I think if the Copyright Office had the 
strongest voice where its rules and regulations were given more 
deference, it would ultimately help to clear up the act.
    Mr. Nadler. Thank you. Let me continue, and, in fact, ask 
each of the witnesses, starting with Ms. Dunner, the following 
question. In Ms. Aistar's article that I referred to, she 
argues that the Copyright Office's duties have grown over time, 
and that it has evolved to serve not only a crucially important 
administrative function, but also to provide technical and 
policy expertise to all three branches of government, as well 
as to the public directly, and that it would be wise to 
consider, at a minimum, elevating the position of registrar to 
a presidential appointee confirmed by the Senate.
    What are your thoughts about this, about elevating the 
registrar to a Senate confirmed presidential appointee?
    Ms. Dunner. Well, I do not know if am the best person to 
reply to that, but I would say that the recent IBS case helps 
lean toward creating an independent agency where potentially 
the registrar is a presidential appointee, given more authority 
over the statute and the rulemaking, and all the things that 
Copyright Office currently does. So I think it would not be a 
bad idea.
    Mr. Nadler. Thank you. Ms. Mertzel, same question.
    Ms. Mertzel. I am sorry, but AIPLA does not have a 
position, and I do not personally have a position yet on that. 
I need to study it more.
    Mr. Nadler. Mr. Brauneis?
    Mr. Brauneis. I think it would be appropriate to give the 
registrar that stature, yes.
    Mr. Nadler. Mr. Kupferschmid?
    Mr. Kupferschmid. There is certainly some advantages like 
transparency and accountability to doing that, but there are 
also some concerns. If you are going to evaluate other options, 
I think evaluating whether the registrar needs to be a 
presidential appointee should be considered in that mix.
    Mr. Nadler. Well, what are some of the advantages of that 
and the disadvantages? You said----
    Mr. Kupferschmid. Well, so an advantage is you have got 
transparency and accountability which you do not have today 
because the registrar reports only to the Librarian, and the 
Librarian is the only person who can get rid of the registrar. 
You hopefully will get somebody who assuredly has expertise in 
copyright. The Librarian could appoint somebody who is just 
another librarian to head up the office who has no authority.
    In terms of the concern, there are some people who believe 
that it vests too much power in one person at the Office, or 
that the commissioner of patents and the commissioner of 
trademarks are not presidential appointees, so why should the 
head of the Copyright Office be? So there are opinions on both 
sides, and I think it is something that should definitely be 
considered.
    Mr. Nadler. Thank you. My time has expired.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from Pennsylvania, Mr. Marino, for 5 
minutes.
    Mr. Marino. Thank you, Chairman. Good afternoon. First of 
all, I agree with everything that each of you have said. The 
Copyright Office that we know today faces strict limitations by 
way of its position within the Library of Congress. Not only 
does the Copyright Office lack autonomy in how best to run the 
office, but it also lacks the critical ability to set up and 
manage its own budget.
    I have had the pleasure of meeting with the Registrar of 
Copyrights, Ms. Maria Pallante, and I have heard firsthand the 
kind of impact these severe limitations have on her ability to 
do her day-to-day job. The registrar of copyrights does not 
have the same level of power and authority the director of the 
United States Patent and Trademark Office holds, which I 
believe undercuts the position.
    The copyright industries are a vital part of the U.S. 
economy, which is why it is time we bring the Copyright Office 
into the 21st century. So being an old business guy who has run 
a factory, therefore, I take this position. Ms. Pallante should 
be made the director of the Copyright Office yesterday. Ask her 
to improve what she can without an increase in cost 
immediately, and then submit to Congress a prioritized list, 
along with that list the cost and a timeframe in which to 
implement that.
    With that, I yield back my time.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentlewoman from California, Ms. Lofgren, for 5 
minutes.
    Ms. Lofgren. Thank you, Mr. Chairman. I think this a very 
useful hearing to kind of focus our minds on the issues before 
us. And it is apparent that there is general agreement that 
something needs to be done to update the Copyright Office's IT 
systems. I do not think any Members are disagreeing, and the 
witnesses are not disagreeing.
    You know, we will discuss this further, but I think a lot 
of Members favor the idea of fully supporting the Office 
through fees as the Patent Office has done, although I hear 
some disagreement from the witnesses. So I think we will need 
discussion on that.
    But one of the concerns I have is, whatever structure we 
end up with, how do we make sure that we have a diversity of 
views in the Office? And I am going to give you some examples. 
Ms. Dunner, you testified that having the Librarian was a 
conflict of interest, but looking back at some decisions, 
actually I was grateful that the Librarian was there. For 
example, in 2010, the Registrar recommended against renewing 
the DMCA exception that allowed the visually impaired to use 
text to speech software for e-books. Now, there was not a 
single comment in the comment period who said that the blind 
should be denied that exception, but the registrar opposed the 
exception. And luckily, the Librarian overruled the Office, and 
that was important.
    We remember the Stop Online Piracy Act, so-called SOPA, 
where the Copyright Office came in with all guns blaring in 
favor of SOPA, and we all know the backlash against that bill, 
and really the meltdown of the proposal in the House. Her 
advice I do not think really helped the Congress much in terms 
of getting to the right answer. And then most recently, the 
Copyright Office failed to renew the exception for cell phone 
unlocking. The Congress had to step forward and do it. It 
created a lot of upset in the country. It was, in my opinion, a 
nonsensical decision, and it caused a lot of work for the 
Committee to undo that problem.
    I mean, sometimes there is tensions between the tech world 
and the so-called content world that I think for the most part 
is quite unnecessary. There should be partnerships. There 
should be a mutually supportive world, and yet there is no 
voice to actually keep the Office from making these just 
boneheaded mistakes when it comes to technology.
    I am not sure that moving the Copyright Office or the 
Patent Office would fix that. I am just wondering what ideas do 
each of you have in terms of structuring to make sure that 
broad voices are heard and these mistakes do not continue to 
get made. And I would like each of you to respond, if you 
could.
    Mr. Kupferschmid. If I could begin here. The issues you 
mentioned, I am not sure that it is due to a lack of diversity 
of views. It could be very well because of a different reason. 
And you mentioned sort of the, you know, technology and 
content, that their views are oftentimes intentioned. I do not 
think there is anybody more qualified to speak to that issue 
than the Software Information Industry Association. And I can 
tell you, on this issue, copyright modernization, there is no 
diversity of views.
    Ms. Lofgren. No, no, I understand that, and I premised my 
comments with that.
    Mr. Kupferschmid. But let me get directly to your question. 
There are some who believe that instead of having a registrar 
of the Office, having like a panel of experts, like FTC 
commissioners, that type of approach might be a solution to 
address that type of concern. Like I said earlier, I think that 
is one thing that needs to be on the table to be discussed, 
along with making the registrar a presidential appointee.
    Ms. Lofgren. Ms. Dunner?
    Ms. Dunner. Again, the ABA IP Section does not have a 
position on this. Our Section is advocating more autonomy for 
the Office. And I could tell you generally if pushed that we 
would not advocate that the Office be moved to the PTO for a 
number of reasons, and the status quo is unacceptable as well.
    Ms. Lofgren. Ms. Mertzel?
    Ms. Mertzel. I think the registrar and the Copyright Office 
do typically solicit views from the stakeholders, and so a lot 
of copyright law evolved through negotiation, as you know. So I 
think that that type of process has to continue. I do not know 
the best way to avoid errors.
    Mr. Brauneis. I think there was a time when copyright was 
really more about business regulation and the business insiders 
had the inner, you know, run. But I think that, as you 
mentioned, the experience with SOPA and PIPA, I think that it 
has been a bumpy road. But over the last couple of decades as 
copyright has come to affect individuals more directly, 
individuals have found ways to organize and made their voices 
heard. And I think the Copyright Office, they are getting 
inside the Copyright Office's hearings and so forth. So I am 
not so sure that the Copyright Office needs to do something 
about that. I think it is a movement outside of the Copyright 
Office that has brought those views to the Office.
    Ms. Lofgren. Well, my time has expired. But I am just 
looking for how do we get consideration so the Congress does 
not have to do the cell phone unlocking bill every year. I 
mean, there has got to be a better way. Thank you, Mr. Chair. 
My time has expired.
    Mr. Goodlatte. The Chair thanks the gentlewoman. We do have 
a vote coming. We can get one or two more series of questions 
in. How many of you plan to return? We will probably get to Mr. 
Collins and Mr. Johnson. Are you going to come back? So we are 
going to have at least one person coming back, and I believe, 
Mr. Marino, you agreed you can take the Chair because I cannot, 
so you may want to head over to vote, and you might want to, 
too. So we will have a short recess because I think there is 
just one vote. I correct myself. Do not worry about it. Three 
votes, so it is going to be a while anyway.
    Mr. Johnson. And, Mr. Chairman, I will probably just yield.
    Mr. Goodlatte. Right. Well, let us go ahead to Mr. Collins. 
The gentleman is recognized for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate it. This 
is a great hearing, and I appreciate the testimony here because 
I think this is one of the key issues that we have been working 
on now over, you know, my whole time I have been here, and 
looking forward to continuing, because the topic of the United 
States Copyright Office is probably one of the most relevant 
and timely in this bigger discussion of the Copyright Act and 
where do we go forward. I have always said that this is a 
discussion that needs to be had not in the immediate.
    And what I mean by that is not what we are doing right this 
moment. It has got to look at where we are going to be 5, 10, 
15, 20 years down the road. If we do not do that, then we are 
basically--and I agree with my friends across the aisle. We are 
not doing what we are supposed to be doing here because we have 
got to get some direction and also some certainty into this.
    We can all agree that the Copyright Office should be able 
to meet both the needs of the users and the creators, and also 
act independently to carry out the intent and directives of 
Congress. But there will be difficult choices that we are going 
to have to make in order to have the Copyright Office worthy of 
its constitutional task. We have the leadership and the talent 
in place at the Office to meet the challenges of the 21st 
century, but unfortunately the resources and technologies at 
their disposal are inadequate.
    I will just state at this point, I think right now Maria 
Pallante and her staff are excellent. I think she is a forward 
thinking person who has come to this Committee on many 
occasions and challenged us to think about things in a 
different way.
    What concerns me is, frankly, it seems to me we have 
someone who I may not always agree with, but who is willing to 
put the mental mind power to saying what should my office look 
at, how should we be able to do this, and what should we look 
for. And, frankly, the system, including being under the 
Library of Congress, is straddling that and stopping that. I 
think there is a problem here that we have got to look at.
    And so, the question that comes to mind, you know, really 
is what comes first, a modernization of the Copyright Office or 
a modernization of the Copyright Act? You know, sort of what is 
the question here, because if you modernize the Copyright Act 
but the Office is not able to handle it, then you are setting 
yourself up with another road block. And if you modernize the 
Office but do not modernize the Act, you have got a problem, so 
I think we have got to work cohesively here as we go forward.
    I am interested, and it is something that has come up 
before, and it is just a short answer, but, I mean, if you have 
watched before, you know this is something I have asked before. 
Small claims court pilot program administered through the 
Copyright Office. Based on the status of the Office and 
resources, and I have done a lot of looking into this as well, 
do you think that they are able to handle such a pilot program 
if it was enacted today? And just start, and you can sort of go 
down whichever way. We can start at this end, and we will start 
the next down on this end.
    Mr. Kupferschmid. Is the question does the Copyright Office 
have the resources?
    Mr. Collins. Yes, to do a pilot program, a small claims 
kind of----
    Mr. Kupferschmid. I mean, that would further drain the 
Copyright Office resources, which they do not have enough 
already. Resources is a big, big issue, which comes back to 
funding.
    Ms. Dunner. I think anything you add to their plate will 
drain their resources. But the ABA IP Section suggested a 
virtual small claims court, which would lessen the amount of 
resources that you would need as opposed to an in-person type 
of panel.
    Mr. Collins. Thank you.
    Ms. Mertzel. Same. I agree with my predecessors.
    Mr. Brauneis. As do I.
    Mr. Collins. Okay, because I think that is the issue is it 
is a drain, but it goes back to the basic question here. One of 
the issues is what is not happening now in the marketplace, you 
know, what is, and it is probably the answer to the question, 
that could happen if the Copyright Office had the ability to 
more efficiently serve its customers. If we were able to get 
what we need there, quick answer, what would the marketplace 
see if we were able to do that, get it out of the restraints? I 
would love to hear an answer.
    Mr. Brauneis. I think it would see a large number of new 
copyright transactions, particularly smaller transactions that 
now are priced out by the high cost of registration and 
recordation.
    Mr. Collins. Okay.
    Ms. Mertzel. Yes, I think we would see more licensed 
projects that are just either under the radar where money could 
be paid and would be paid if it was easy enough to do that. 
Instead it is either not being licensed and not being found, or 
you end up with a suit where there is billions of dollars at 
issue because there are a lot of small actors.
    Mr. Collins. Right.
    Ms. Dunner. I think you would see increased registration. 
You would see better recordation, more searchability, better 
databases, happier Copyright Office employees.
    Mr. Collins. Outstanding.
    Mr. Kupferschmid. Everything that they said. A properly 
functioning Copyright Office would be just a huge boon to the 
U.S. economy, to the creative community, and certainly to the 
public.
    Mr. Collins. And I appreciate what you just said because 
the creative community, this is something that I have fought 
for and will continue to fight for, and as many on this 
Committee. If we do not protect the content, we do not protect 
the creative minds in our country, then we are losing the next 
generation of the great books, the great music, the stuff that 
we long for, you know, that excitement that builds when you 
hear the song for the first time, when you open the page. I 
still love to have a book and smell the ink.
    Those are the kind of great things that are protected by a 
Copyright Office that works properly, and we have got to get it 
out of the antiquated system it is currently in and move 
forward. Thank you so much for your coming today. Mr. Chairman, 
I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from Florida, Mr. Deutch.
    Mr. Deutch. Thanks, Mr. Chairman, for holding this 
important hearing. Thanks for your leadership on these issues. 
During the last Congress and into this session, we have held I 
think over a dozen copyright review hearings. It is a complex 
and difficult issue, and these hearings have, I think, been 
helpful in clearing up some of the confusion and pinpointing 
areas where we really can make progress.
    Currently, we allow the Copyright Office, an entity 
responsible for a trillion dollars in GDP spending and 5 and a 
half million jobs to operate with an antiquated and inefficient 
structure. We need the stature, I believe, the stature and 
power of this Office to reflect its real world impact on our 
economy. It is time to enact a restructured, empowered, and 
more autonomous Copyright Office that is genuinely capable of 
allowing America to compete and to protect our citizens' 
property in a global marketplace.
    Now, I am sorry. I had another hearing at the same time, 
but I just want to get a basic sense of this. Frankly, even if 
just by a show of hands, just if you agree that the Copyright 
Office needs serious reform and modernization or just nod.
    [Nonverbal response.]
    Mr. Deutch. We are all in agreement there, which I 
appreciate. So there is widespread agreement across the board 
on this issue. And in the days ahead, Mr. Chairman, I would 
appreciate very much the opportunity to work with you and our 
other colleagues on a bipartisan legislative effort to address 
these critical issues in the coming months.
    My question for the panel today is really, again, getting 
back to the role that the Office plays, and the changes in 
technology, and the impact on our economy. Should there be 
within the Copyright Office, should there be a separate focus? 
Should there be a chief economist? Should there be someone 
whose sole focus is technology, a chief technologist? Should 
there be other positions to better enable the Office to 
understand and respond to new technologies and to new business 
models, which are ultimately impacted by the work that they do?
    Mr. Kupferschmid. I guess I will start. Absolutely. I mean, 
if you look at the Patent and Trademark Office, they have 
exactly those offices you are talking about, and it helps the 
Patent and Trademark Office decide sort of what improvements 
and how to make those improvements. I think that would be 
essential for an improved Copyright Office.
    Ms. Dunner. I think that is really a question for the 
registrar, but I would think that in order to act like any 
other business that is not so crippled in the way the Copyright 
Office is right now, that that would not be a bad idea.
    Mr. Deutch. Thanks.
    Ms. Mertzel. I agree as well, and I would just note the 
Registrar did recently appoint, I believe this week, a new 
person in a technology position.
    Mr. Brauneis. Yes, I particularly think it would be 
important to have something like an office of chief economist 
to take advantage of the data that the Copyright Office has and 
collects, and to analyze it in order to understand the needs of 
the community, and the changing output of the United States.
    Mr. Deutch. And finally just before we head to votes and 
follow up on my colleague, Mr. Collins' question, beyond the 
issue that we have been grappling with about the structure, the 
power of the Copyright Office, we have also been working on, as 
I referred to earlier, many issues that have arisen as 
technology has changed. Copyright crime and piracy has grown. 
They have adopted changes in law enforcement. The real question 
is, can we ultimately do anything to fix these issues, to 
address these issues in a meaningful way before we first fix 
the Copyright Office?
    Mr. Kupferschmid. No, I do not think so. I mean, the most 
important issue is a copyright issue. Of all the hearings, of 
all the issues that have come up, the most important one is 
fixing the Copyright Office because you can try to address 
those other ones, but you are just going to only make so much 
progress if you do not fix the Office. That has got to come 
first.
    Ms. Dunner. I would agree. I think the place to start is 
protecting and securing copyrighted works.
    Mr. Deutch. Great, thanks.
    Ms. Mertzel. I agree with these people.
    Mr. Brauneis. I actually think it can proceed on a parallel 
track. There are some improvements that can be made to the 
Office that will help in administering some new laws. But if 
you are considering major revisions, which are necessary, I do 
not think there is any need to wait until the Copyright Office 
is perfect in order to start considering the need for a change 
in the law.
    Mr. Deutch. Okay. I thank the witnesses. Mr. Chairman, 
thanks for letting me----
    Mr. Goodlatte. I thank the gentleman. The gentleman from 
Pennsylvania would return after votes. We have at least one 
Member, Ms. Chu, who wishes to ask questions, so we apologize, 
but if you can wait while this vote is going on, we will 
reconvene after the vote. But Mr. Collins had a motion to make.
    Mr. Collins. Mr. Chairman, in my excitement for this topic, 
I ask unanimous consent for an article by Dina LaPolt on 
copyright and also an article by Sandra Aistars entitled, ``The 
one copyright issue everyone should agree on,'' to be added to 
the record.
    Mr. Goodlatte. Without objection, they will be made a part 
of the record.
    [The information referred to follows:]
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    Mr. Goodlatte. The Committee stands in recess. We have 3 
and a half minutes to get to the vote.
    [Recess.]
    Mr. Marino [presiding]. The full Judiciary Committee 
hearing will come to order. And are you ready?
    Ms. Chu. Yes.
    Mr. Marino. Okay. The Chair recognizes the gentlewoman from 
California, Congresswoman Dr. Chu.
    Ms. Chu. Thank you, Mr. Chairman, for holding this 
important hearing. I cannot stress how critical it is for our 
country to have a robust central entity to support our 
copyright system. We have heard the witnesses stress today that 
our core copyright industries added over a trillion dollars to 
our economy per year while providing jobs to over 5 million 
people.
    At the center of it all is the Copyright Office, which has 
proven to be such an invaluable resource and important partner 
to lawmakers, international counterparts, and creative 
industries. I believe that Registrar Pallante and her team do a 
remarkable job in carrying out the Office's mission, but at the 
same time they face challenges. They work on very complex 
issues without technology, policies, and very limited 
resources.
    And so, it is time that we have a serious discussion about 
how we can bring the Copyright Office into the modern age and 
give it the tools and resources necessary to perform the job 
that we have tasked them to do. That includes not only more 
funding, but the flexibility to the Office to invest in a 21st 
century IT infrastructure. We also have to consider the level 
of independence that the Office needs to perform its core 
mission so that it can administer the Copyright Act. So I look 
forward to working with my colleagues on the Committee, the 
Registrar, and impacted stakeholders to make sure that we 
overcome the existing challenges and get it right.
    I would also like to enter into the record an op-ed that 
speaks to the importance of today's examination of the 
Copyright Office written by former chairperson of the IP 
Subcommittee, Howard Berman, and Senator Leahy's former IP 
counsel, Aaron Cooper.
    Mr. Marino. Without objection.
    [The information referred to follows:]
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                               __________
    Ms. Chu. Thank you. Now, I would like to ask Mr. Brauneis, 
you state that if Congress decides to restructure the Copyright 
Office, we need to give serious thought to the vehicle of an 
independent agency. One reason that we are here in Congress is 
that we are hearing Congress and the executive branch agencies 
benefit from the advisory role that the Office performs. Could 
you describe why you think it is important to maintain these 
advisory functions in any proposed reorganization?
    Mr. Brauneis. Yes, absolutely, I will give you one example. 
The Office has become very intimately aware of the problems of 
identifying and locating owners of older copyrighted works, and 
so it has taken a position that orphan works are something that 
we really need to look into and do something about. And that is 
expertise that it has developed that it has wanted to explore 
the policy implications of.
    And it seems to me that its continued ability to do that 
without having to go through many levels of executive clearance 
before advising Congress is something important to maintain. It 
is an important role that it can play to maintain.
    Ms. Chu. Thank you for that. Ms. Dunner, I think most 
people are surprised when they learn that our Nation's 
Copyright Office is housed under the Library of Congress 
because the missions are so different. The Library is focused 
on preservation, while the Copyright Office is focused on 
recording and registering works, and, most importantly, 
instituting legal and economic rights protection. The Registrar 
also does not have independent rulemaking authority, but she 
must have the Librarian officially establish regulations.
    Why is it important for the Office to gain autonomy in the 
rulemaking process? Is there a conflict of interest between the 
two, and, if so, why?
    Ms. Dunner. I think the short answer is the Registrar and 
the Copyright Office, they have the expertise that the Library 
does not have on copyright law. So that is a primary reason for 
the Copyright Office being able to speak without having to run 
everything through the Librarian. And in terms of a conflict, 
what I have articulated earlier was that often the Library, 
because the Librarian has the last word, they are often having 
the last word on something that they may oppose policy wise 
that has been brought forward by the Copyright Office.
    Ms. Chu. In fact, Mr. Kupferschmid, you described the 
differences and the need for deposit copies by the Copyright 
Office and the Library of Congress. Could you describe the 
Library's desire to receive the deposit in the physical form 
and what obstacles this presents?
    Mr. Kupferschmid. Yes, thank you. That is a huge obstacle. 
The example I gave in the testimony is if newspapers, which are 
required to deposit copies of their newspapers in microfiche 
format, which is certainly being phased or has been phased out 
already. So that is too expensive for these newspapers to 
produce, too cumbersome, and a lot of them are not registering 
their newspapers with the Copyright Office because of that. And 
that is just one example.
    Ms. Chu. Thank you. I yield back.
    Mr. Marino. We are waiting for one of our colleagues to 
come back. Dr. Chu, if you have any more questions----
    Ms. Chu. Yes.
    Mr. Marino. I am just going to throw one out until you come 
up with one----
    [Laughing.]
    Mr. Marino [continuing]. Just to stretch this. Is that how 
they do it on TV? I am going to stretch this thing out now.
    Can any of you respond to the statement that I made earlier 
about--I think Ms. Pallante is incredible--I think she is one 
of the smartest women that I have ever met, and I truly believe 
that she could take that ball and run with it if we gave her 
authority. What, if there is anything, that she could do that 
is not going to increase the cost, but yet try and make things 
more efficient at this point until we resolve where money is 
coming from? Anyone have any input on that?
    Ms. Dunner. If I may respond, I really think Registrar 
Pallante has been doing everything she can do that would not 
cost extra money, for example, seeking comments from the users, 
bringing in scholars, like Professor Brauneis, to perform 
studies and reports. I think she is really doing as much as she 
can possibly do.
    Mr. Marino. Let me expand that for one moment. If she had 
the authority, not just based on what has taken place, but if 
she had unfettered authority, if she were the director just 
like this, is there anything that you would add to your 
statement?
    Ms. Dunner. Well, not much these does not cost money. So, I 
mean, I am sure that we could probably think about some things 
and submit report on possible items and action items that she 
may utilize. But I do not have a direct answer to that.
    Mr. Marino. Okay.
    Mr. Brauneis. I think if your question is what could be 
done without changing the Library's budget as a whole, the 
answer might be reallocate some of the IT budget of the Library 
and give the Copyright Office greater control over its own IT. 
The Copyright Office does receive a kind of budget subsidy from 
the Library because it is the Library's IT budget that is 
serving the Copyright Office. But it is not serving it very 
well because the Office and the Library have different 
missions.
    So without increasing the budget of the Library as a whole, 
I think that giving the Copyright Office greater control over 
the portion of the IT budget that is serving it is something 
that would give a great advantage to the Copyright Office.
    Mr. Marino. Anyone else?
    Mr. Kupferschmid. I mentioned the deposit issue, right? So 
if the Copyright Office is independent from the Library, they 
could presumably allow different type of deposits. The 
Copyright Office uses deposits for a different purpose. They do 
not need the best quality deposits. The Library needs the best 
quality because they are using them for archival purposes, so I 
think without any change to funding they could do that. But 
quite honestly, the vast majority of changes, there needs to be 
an increased funding component.
    Mr. Marino. Sure, I agree. The Chair now recognizes the 
gentleman from New York, Congressman Jeffries.
    Mr. Jeffries. I thank my good friend, the Chair, from the 
great State of Pennsylvania, and I thank all of the witnesses 
for their presence here today. I think I will start with 
Professor Brauneis. Can you just elaborate on what you think 
the fundamental mission of the Copyright Office or the Library 
of Congress is, and how is that mission either consistent or 
inconsistent with the mission of the Copyright Office?
    Mr. Brauneis. Well, the mission of the Library of Congress, 
I think, is to serve as an archive of American and world 
culture, and to promote that, and to disseminate works, and I 
think it does that very well. The mission of the Copyright 
Office, I think, is to sort of promote and facilitate the 
copyright ecosystem, which includes, you know, both licensed 
uses of works, and also fair use of works, and everything else. 
But, in particular, the kinds of registration and recordation 
functions, which take up most of the Copyright Office's 
personnel time, that is really to collect and provide 
information about particular copyrighted works in a way that 
enables copyright transactions. And that needs to be done at a 
far greater speed than the Library's other functions need to be 
performed.
    Mr. Jeffries. And has the fact that we are now in a digital 
era and that raises new challenges as it relates to the 
Copyright Office's functions sort of accelerated the 
incompatibility between the Library of Congress and the 
Copyright Office?
    Mr. Brauneis. I think there is no question about that, 
that, you know, 20, 30, 40 years ago, the Office could sort of 
operate in synchrony, and there was not as much problem. Now, 
it would facilitate matters if the Copyright Office computers 
could be communicating directly and automatically with 
computers of outside users to provide them with information, 
and they do not do that. They do not have the capability of 
doing that.
    Mr. Jeffries. Thank you. And, Ms. Dunner, there are a 
variety of different configurations that have been discussed in 
terms of how you might realign the Copyright Office. I am 
wondering if you can comment on a simple change that would have 
the copyright registrar appointed by the President of the 
United States. Would that be sufficient to establish a degree 
of independence, or do we really need to contemplate 
independently placing the Copyright Office someplace else?
    Ms. Dunner. As I mentioned earlier, the ABA IP Section does 
not have policy on this, but my personal view is that the 
simplest way to go would be to have a registrar appointed by 
the President and make the Copyright Office an independent 
agency where it would have its own autonomy. Decisions over 
technology, and funding, and rulemaking would be optimal for 
the Copyright Office.
    Mr. Jeffries. One of the options, and anyone on the panel 
can respond. One of the options that has been contemplated is 
placing the Copyright Office within the Department of Commerce 
and perhaps partnering it with the PTO. Would that be a 
combination that would also create some incompatibility 
problems?
    Ms. Mertzel. I would be happy to answer that if I may. I 
think that it would not be a good idea to put the Copyright 
Office inside the PTO. That question feels a little bit like 
Back to the Future because it came up about 22 years ago when 
there was proposed legislation to put the Copyright Office 
inside the PTO. At the time, the Registrar, Mary Beth Peters, 
came and testified, I believe it was in the Subcommittee, about 
her views on that.
    And I think she expressed it very articulately that there 
are incompatibilities in the nature of what is protected under 
patent and trademark versus what is protected under copyright. 
Every person in this country is a copyright author. They may 
not have a registration, but everyone has written something, 
drawn a picture on a napkin. Every child is a copyright author. 
And not everybody has used a trademark. Even under common law 
rights, not everyone has created a brand name, and certainly 
not everyone has invented anything that is patentable.
    The rights are subsist from creation on copyright, and in 
the PTO they are creating those rights, and so that impacts 
user fees. It makes a lot more sense that user fees are covered 
in the PTO whereas on copyright it is different. You need to 
give people, individuals, the incentive to register their 
copyrights. And I think it would be very difficult for the 
copyright function to get enough attention if it was housed in 
the PTO and for the funding to be worked out because the 
copyright system probably would be very difficult to self-fund.
    Mr. Jeffries. I thank the panel. I thank the Chair, and I 
yield back.
    Mr. Marino. Thank you. Seeing no other congressional 
Members here to ask questions, I want to thank you for being 
here. So this concludes today's hearing. Thanks to all the 
witnesses. Thanks to the people out in the audience.
    And without objection, all Members will have 5 legislative 
days to submit additional written questions for the witness or 
additional materials for the record.
    This hearing is adjourned.
    [Whereupon, at 3:37 p.m., the Committee was adjourned.]
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