[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
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Serial No. 114-4
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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
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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
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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:]
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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:]
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__________
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.
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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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