[Senate Hearing 115-613]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 115-613

                    REGISTER OF COPYRIGHTS SELECTION
                         AND ACCOUNTABILITY ACT

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                                HEARING

                               before the

                 COMMITTEE ON RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 26, 2018

                               __________

    Printed for the use of the Committee on Rules and Administration






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                 COMMITTEE ON RULES AND ADMINISTRATION

                             SECOND SESSION

                     ROY BLUNT, Missouri, Chairman

MITCH McCONNELL, Kentucky            AMY KLOBUCHAR, Minnesota
LAMAR ALEXANDER, Tennessee           DIANNE FEINSTEIN, California
PAT ROBERTS, Kansas                  CHARLES E. SCHUMER, New York
RICHARD SHELBY, Alabama              RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      TOM UDALL, New Mexico
SHELLEY MOORE CAPITO, West Virginia  MARK R. WARNER, Virginia
ROGER WICKER, Mississippi            PATRICK J. LEAHY, Vermont
DEB FISCHER, Nebraska                ANGUS S. KING, JR., Maine
CINDY HYDE-SMITH, Mississippi        CATHERINE CORTEZ MASTO, Nevada

                   Fitzhugh Elder IV, Staff Director
              Elizabeth Peluso, Democratic Staff Director 
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
                         C  O  N  T  E  N  T  S

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                         Opening Statement of:

Hon. Roy Blunt, Chairman, a U.S. Senator from the State of 
  Missouri.......................................................     1
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota...     2
Keith Kupferschmid, CEO, Copyright Alliance......................     4
Jonathan Band, Adjunct Professor of Law, Georgetown University...     5

                        Prepared Statements of:

Keith Kupferschmid, CEO, Copyright Alliance......................    18
Jonathan Band, Adjunct Professor of Law, Georgetown University...    23

                  Materials Submitted for the Record:

Statement of Mark K. Dickson, Chair, ABA Section of Intellectual 
  Property Law...................................................    28
Statement of Sarah Howes, Director and Counsel, Government 
  Affairs and Public Policy Screen Actors Guild-American 
  Federation of Television and Radio Artists.....................    30

                  Questions Submitted for the Record:

Hon. Cortez Masto, a U.S. Senator from the State of Nevada to 
  Keith Kupferschmid, CEO, Copyright Alliance....................    33
Hon. Cortez Masto, a U.S. Senator from the State of Nevada to 
  Jonathan Band, Adjunct Professor of Law........................    37

 
        REGISTER OF COPYRIGHTS SELECTION AND ACCOUNTABILITY ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 26, 2018

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:38 p.m., in 
Room SR-301, Russell Senate Office Building, Hon. Roy Blunt, 
Chairman of the committee, presiding.
    Present: Senators Blunt, Fischer, Wicker, Klobuchar, and 
King.

  OPENING STATEMENT OF HONORABLE ROY BLUNT, CHAIRMAN, A U.S. 
               SENATOR FROM THE STATE OF MISSOURI

    Chairman Blunt. The Committee on Rules and Administration 
will come to order.
    Good afternoon. Glad to have all of you here this 
afternoon. Senator Klobuchar and I are pleased to begin to get 
some more information on this topic, and the topic today is on 
the Register of Copyrights Selection and Accountability Act.
    H.R. 1695 passed the House in April 2017 by a vote of 378 
to 48. Its Senate companion, Senate bill 1010, sponsored by 
Senators Grassley, Hatch, Feinstein, and Leahy, have--would 
change the way the Register of Copyrights is selected and 
appointed.
    Currently, the Register of Copyrights is appointed by the 
Librarian of Congress. The proposed legislation would give 
Congress a greater role in selecting the Register and making 
the position a Presidential appointment, subject to 
confirmation by the Senate.
    During the nomination hearing of Dr. Hayden in this room in 
2016, many of--on this committee asked questions and raised 
issues about the Copyright Office, and I think rightly so. 
Every day, people across the world enjoy the creations of our 
authors, our photographers, bloggers, artists, and others. 
These creations have significant impact on our economy, to our 
trade balance, and to our culture. The Copyright Office plays a 
crucial role in serving both users and creators.
    I think all of us would have to agree that the Copyright 
Office would benefit from some modernization, and some of that 
is already happening. Since being sworn in in 2016, Dr. Hayden, 
her CIO, Bud Barton, and the Acting Register of Copyrights, 
Karen Temple Claggett, have taken steps to improve the 
Copyright Office, especially its information technology 
systems. This is a long-term project that will take many years 
to accomplish, but Dr. Hayden and her team are continuing to 
head in the right direction.
    The legislative branch agencies this committee oversees--
the Library of Congress, the Architect of the Capitol, the 
Government Publishing Office--serve the Congress and the 
Nation. They are led by agency heads who exercise significant 
authority, pursuant to the laws of the United States. These 
agency heads are nominated by the President and confirmed by 
the Senate.
    The legislation we are considering today would treat the 
Register of Copyrights in a similar manner, while maintaining 
the Copyright Office within the Library of Congress, which I 
believe is exactly where it should be physically located and 
where it would remain located.
    When it comes to legislative branch agencies, Congress 
should play a significant role beyond the Senate's traditional 
advice and consent role even in the selection process of those 
who head agencies and those who will serve in other significant 
positions. The Register of Copyrights is one of these 
positions.
    Ensuring that legislative branch officials have been 
selected by a transparent, bicameral, bipartisan process like 
what would be proposed in the Register of Copyrights Selection 
and Accountability Act, it is an important addition to the 
system based on the view of the sponsors of this legislation.
    I am glad to be here. I am glad to be joined by the Ranking 
Member of the committee, Senator Klobuchar. Senator Klobuchar, 
I would turn to you for any opening statements you might have.

 OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A UNITED STATES 
              SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. Well, thank you very much. Thank you, 
Senator Blunt, Mr. Chairman, for holding this hearing.
    I want to thank you for doing this because this is such an 
important topic on the Register of Copyrights Selection and 
Accountability Act. I join you in welcoming our two witnesses, 
and I look forward to hearing their testimony.
    Today's hearing is about the Register of Copyrights at the 
U.S. Copyright Office. This is a position that most people have 
never heard of before. It is possible people are focused on 
another hearing and other work going on this week, but it is 
very important that we continue on because this important job 
affects our lives every single day.
    Whether you are listening to music, reading a novel, or 
watching your favorite show, you are consuming work that is 
protected by copyright. If you are an inventor, author, 
scientist, musician, filmmaker, or any one of the millions of 
Americans who create original work, the Copyright Office is the 
place you go to safeguard your work.
    This is important in my state. We are the home of Prince, 
who we miss. We are the home of Bob Dylan. We are fiercely 
protective of copyrights, I would say, and of musicians' rights 
to their work. My own dad wrote for many, many years--he is now 
90--and wrote a bunch of books. I am well aware of these issues 
and was at a private law firm for 14 years, and I have handled 
some of these cases peripherally myself.
    Ensuring that creators can protect their original works is 
one of the hallmarks of our free market system, and it fosters 
competition, creativity, and entrepreneurship. Copyrighted work 
is fundamental to our economy. Last year, copyrighted 
industries contributed more than $1 trillion to our economy. 
That translates to about 7 percent of the total U.S. GDP and 
5.5 million jobs.
    In other words, copyrighted work doesn't just entertain and 
inspire us, it drives economic activity and translates into 
jobs for millions of Americans. We need to keep this area of 
our economy strong because, now more than ever, innovation will 
be the key to moving our economy forward in the United States. 
We need to be a country that invents, that makes stuff, that 
exports to the world, and promotes ingenuity.
    Continuing to foster an environment of innovation requires 
us to be adaptable and forward-thinking. In the 21st century, 
we need a modern Copyright Office that is secure, efficient, 
and accessible to all.
    To achieve the goal of a modern Copyright Office, the next 
Register of Copyrights must continue the critical work being 
done today to upgrade and update the infrastructure in the 
Copyright Office. Meeting the IT needs of the copyright 
community won't happen overnight. It will take a commitment 
from Congress, the Copyright Office, and the Library of 
Congress.
    The appropriations legislation for 2019, which was signed 
into law last Friday, will allow the progress made on IT 
modernization to continue in the coming year. The bill includes 
funding for important priorities like continuing investment in 
the next-generation registration system, rebuilding the 
capacity of registration examiners by adding 15 new positions, 
digitizing copyright records dating back to 1870--that sounds 
like a lot of records--in a searchable format, advancing the 
design of the Copyright Office's first-ever automated recording 
system, and continuing support of the Copyright Modernization 
Office.
    The legislation that we are considering today will 
complement the work already underway toward modernization. The 
bill would change the process for selecting a Register of 
Copyrights by making it a Presidentially nominated, Senate-
confirmed position for a term of 10 years. The Register of 
Copyrights would have the same stature as the Under Secretary 
of Commerce for Intellectual Property and Director of the U.S. 
Patent and Trademark Office. Senate confirmation of the nominee 
would enhance the relationship between the Register and 
Congress, give Congress a direct role in the process to select 
our chief copyright policy adviser, and strengthen 
accountability.
    The portfolio of responsibilities of the Copyright Office 
is just as diverse as the creative community that it serves. 
Copyright policy promises to get more complex in the digital 
age, and as innovation continues, we must ensure that we have a 
transparent selection process in place to select the most 
qualified candidate to lead the Copyright Office on behalf of 
the American people.
    Mr. Chairman, I look forward to working with you to advance 
the legislation to the full Senate.
    Thank you very much.
    Chairman Blunt. Thank you, Senator Klobuchar.
    We are pleased to have our two witnesses today. Keith 
Kupferschmid is the chief executive officer of the Copyright 
Alliance. Before that job, he served as the general counsel and 
senior vice president for intellectual property for the 
Software and Information Industry Association.
    Jonathan Band not only is an adjunct professor at 
Georgetown University, but an expert on these issues. In 2017, 
he received the American Library Association's L. Ray Patterson 
Copyright Award, which recognizes an individual who has 
supported the constitutional purpose of the copyright law, fair 
use, and public domain.
    We are pleased you are both here, and Mr. Kupferschmid, if 
you would like to go first, and then Mr. Band, and then we will 
have some questions.

    OPENING STATEMENT OF KEITH KUPFERSCHMID, CEO, COPYRIGHT 
                            ALLIANCE

    Mr. Kupferschmid. Well, thank you.
    Chairman Blunt, Ranking Member Klobuchar, and members of 
the committee, thank you for the opportunity to testify before 
you today to discuss the importance of the Register of 
Copyrights Selection and Accountability Act, H.R. 1695 and S. 
1010.
    I am Keith Kupferschmid, the CEO of the Copyright Alliance, 
a nonprofit, nonpartisan organization dedicated to advocating 
policies that promote and preserve the value of copyright. I 
testify here today in support of H.R. 1695 and S. 1010.
    There are several reasons why making the Register of 
Copyrights a Presidential appointee confirmed by the Senate 
makes good sense. Copyright is critical to the United States 
economy. The core copyright industries contribute over $1.2 
trillion to the U.S. GDP and employ more than 5.5 million U.S. 
workers. As the Government agency responsible for administering 
the copyright system, as well as providing expert advice to 
Congress on copyright policy issues, it should, therefore, come 
as no surprise that few Government offices are more important 
to the U.S. economy, to jobs, and to creativity than the U.S. 
Copyright Office.
    The Register, who heads the Copyright Office and serves as 
Congress' statutorily designated copyright expert, is a large 
component of that. Making the Register a Presidential appointee 
confirmed by the Senate would reflect the growing importance of 
copyright to our economy and our culture. It would show our 
international trading partners how much we value copyright and 
the importance of protecting the fruits of America's creators.
    Second, making the Register a Presidential appointee would 
ensure that she is treated like other officials with oversight 
over similar organizations. For example, the Patent and 
Trademark Office is led by a Presidential appointee. Similarly, 
chairs of the NEA and NEH and the Director of the Institute of 
Museum and Library Services are all Presidential appointees. In 
short, there is simply no reason for Copyright to be treated 
with less significance, especially when one considers its 
importance to the U.S. economy and culture.
    Third, making the Register a Presidential appointee ensures 
a more transparent, a more balanced, and a more neutral 
selection process compared to the existing process. The 
existing process does not require any direct input from the 
administration or from Congress. Today, the Register is chosen 
by the Librarian without any input.
    This bill would change that by allowing the President to 
nominate the Register from a slate of candidates and the Senate 
to give its advice and consent. Through this process, if there 
are concerns about a nominee for the registration position, the 
bill would allow those concerns to be voiced to Congress prior 
to confirmation. That opportunity does not exist today.
    Fourth, Congress has historically enjoyed a direct line of 
communication with the Copyright Office for expert impartial 
advice on copyright law and policy. But recent changes to the 
organizational structure of the Library of Congress have 
disrupted that direct line. The bills ensure that Congress will 
continue to receive this expert impartial advice.
    Fifth, enacting these bills will provide the Copyright 
Office with a greater say in how it operates and enable it to 
improve its operations. Of course, Copyright Office 
modernization is an issue that requires much more than 
increasing the accountability of the Register selection 
process, but changing the appointment process and providing the 
Register with the ability to discharge her duties effectively 
is an important component for modernization of the Copyright 
Office. It will help ensure that the Register has the voice and 
the resources needed to implement policy, to manage its 
operations, and to organize its information technology in a way 
that brings the Copyright Office into the 21st century.
    Equally important to what the bills do is what they don't 
do. H.R. 1695 and S. 1010 largely do not alter the existing 
statutory relationship between the Copyright Office and the 
Library or the Register's statutory responsibilities.
    While the urgency to address the appointment of the 
Register is new, the recognition that this change is needed is 
not. We have long advocated and supported the Register being 
Presidentially appointed with the advice and consent in the 
Senate well before
Dr. Hayden became the Librarian, well before Donald Trump 
became President. With the position now vacant, the time is now 
to make that change.
    The modest approach outlined in H.R. 1695 and S. 1010 
enjoys widespread bipartisan, bicameral, and stakeholder 
support. We respectfully ask that the committee vote in favor 
of H.R. 1695 and S. 1010. We look forward to continuing to work 
with this committee as the bill moves forward, and I am happy 
to answer any questions.
    [The prepared statement of Mr. Kupferschmid was submitted 
for the record.]
    Chairman Blunt. Thank you.
    Mr. Band?

 OPENING STATEMENT OF JONATHAN BAND, ADJUNCT PROFESSOR OF LAW, 
                     GEORGETOWN UNIVERSITY

    Mr. Band. Chairman Blunt, Ranking Member Klobuchar, members 
of the committee, I am an adjunct professor at Georgetown 
University Law Center. I also serve as counsel to the Library 
Copyright Alliance, which consists of three major library 
associations. I note that the Library of Congress is a member 
of one of LCA's associations, but it did not participate in the 
preparation of this testimony.
    I appreciate this opportunity to express our opposition to 
the Register of Copyrights Selection and Accountability Act, S. 
1010. As explained in detail in a report attached to my 
testimony, Congress has repeatedly considered the best location 
for the Copyright Office and has consistently reaffirmed that 
the Library of Congress is its most effective and efficient 
home.
    While S. 1010 would not technically remove the Copyright 
Office from the Library, it would effectively achieve this 
result by ceding to the President the power to select the head 
of the office. The rationale for S. 1010 is elusive. It is hard 
to comprehend why Congress would voluntarily cede to the 
executive branch the authority of its own Librarian to select a 
key congressional adviser.
    Recognizing the illogic of this legislation, the House 
amended the companion bill to require the President to appoint 
the Register from three candidates recommended by a panel 
consisting of the congressional leadership and the Librarian. 
This structure obviously increases congressional oversight, but 
limiting the President's authority in this manner raises 
serious separation of powers questions.
    Moreover, it is difficult to understand how the public or 
Congress itself would benefit from politicization of the 
Register's position by making it subject to Presidential 
appointment and Senate confirmation. Such politicization of the 
position necessarily would result in a Register more 
politically--more actively engaged in policy development than 
in competent management and modernization.
    Additionally, a politicized selection process likely would 
result in a Register who does not balance the competing 
interests of all stakeholders in the copyright system. Further, 
politicizing the process of appointing the next Register would 
severely delay his or her installation. Indeed, the 
introduction of this legislation, as a practical matter, has 
already prevented the appointment of a Register for over a year 
and a half.
    S. 1010's 10-year term for the Register would also lead to 
less accountability to Congress and the public. This 
contradicts the stated intent of the bill made plain in its 
title.
    Finally, one of the claimed rationales for this legislation 
is that more autonomy from the Library would enhance the 
Copyright Office's ability to modernize its technology. In 
fact, the technology-related progress made jointly by the 
Library of Congress and the office over the past 18 months 
proves that this legislation is not needed, and this is, as 
Chairman Blunt has recognized, under
Dr. Hayden, the Library has made significant advances in 
addressing the issues that were identified in the 2015 GAO 
report.
    There is no question that there is broad consensus that the 
Copyright Office must improve its IT capabilities, but the 
point is that process of improvement is already well underway. 
This past May, Acting Register Karen Temple testified in the 
Senate Appropriations Committee that the Copyright Office and 
the Library's chief information officer jointly developed the 
new Copyright Office IT modernization plan that focuses on 
leveraging resources within the Library to take full advantage 
of possible economies of scale.
    In her testimony, the Acting Register explained that in 
accordance with the plan, the Copyright Office established the 
Copyright Modernization Office, which complements the Library's 
technical support by providing necessary business direction. 
Also consistent with that plan, the Acting Register and the 
Library's CEO jointly chair a Copyright Office Modernization 
Governance Board.
    Numerous projects are already underway under the 
supervision of the CMO and the governance board, including 
preliminary work on a new automated recordation system, a next-
generation registration system, a virtual card catalogue, and 
an integrated data management model. All these improvements are 
occurring without the legislation. Accordingly, the legislation 
simply isn't necessary.
    For all these reasons, we oppose the Register of Copyrights 
Selection and Accountability Act and urge the committee to do 
the same. I am happy to answer any questions the committee may 
have.
    [The prepared statement of Mr. Band was submitted for the 
record.]
    Chairman Blunt. Well, thank you, Mr. Band and Mr. Kupfer-
schmid.
    Mr. Band, as you pointed out, I think one of your 
observations was why would the--why would the Congress want the 
President to be more involved in appointing someone who works 
at its Library, the Library of Congress? Of course, the 
President appoints the Librarian of Congress, who then becomes 
the only person who chooses at this point the copy--the person 
who runs the office of copyrights.
    By the way, as I mentioned before, this is a topic that 
came up when Dr. Hayden was confirmed. She has appointed the 
current person in an acting capacity as Congress looks at an 
issue we told Dr. Hayden we would be looking at in the future, 
and we are doing that now. But your views here are well thought 
out, I know, and important to us.
    How is it better that one person appoints someone who works 
at the Library of Congress in an area that relates, but 
certainly the same skills that the Librarian of Congress has 
would not necessarily be the right skill set for the Director 
of Copyrights. What is your view of why, in that case, the one-
person selection is better than congressional input and 
confirmation by this committee?
    Mr. Band. Thank you very much for the question, Mr. 
Chairman.
    I guess part of it is a recognition or an understanding of 
what the proper role of the Register is, and you know, we see 
that the--although the Register certainly does give advice, and 
that is part of the statutory role, to give advice to Congress, 
in large measure, it is a--as indicated by the title, it is the 
Register of Copyrights. The focus of the job really is on the 
nuts and bolts of administering the copyright system, the 
registration, recordation, and now, you know, there are other 
functions relating to that.
    A lot of these are very technical functions, and so in many 
respects, having someone with that technical expertise of not 
just IT technical, but copyright technical is important. For 
example, the last three Registers, including the Acting 
Register, have all been people who have been, in essence, 
elevated from within. They have been internal promotions.
    The Acting Register, Karen Temple, I mean, she was at the 
Copyright Office prior to her elevation. Prior to that, Maria 
Pallante, even though I think at the exact time that she became 
Register she was working elsewhere within the Library, but she 
had come out of the Copyright Office. Marybeth Peters, before 
that, also was working in the Copyright Office. I think that 
that--having that sense of internal promotion is terrific and I 
think for this kind of technical position is appropriate.
    Whereas, if it becomes a more political position, it is, 
you know, you are going to get someone--you are much more 
likely to get someone from the outside who doesn't have the 
experience working in the Copyright Office. They will come in. 
The first 2 years are going to be spent trying to figure out 
how the place operates, and I just don't think that that is 
what best serves the nature of this position.
    Also to the extent that this notion of sort of this 
equivalence to other agencies, the Patent--the Director of 
Patents and Trademarks is the Under Secretary not of Patents 
and Trademarks but is the Under Secretary of Intellectual 
Property and is the chief spokesperson for the executive branch 
with respect to all forms of intellectual property, including 
copyright. They have--you know, currently, they have terrific 
people in the PTO with great expertise in copyright.
    There is no--copyright is not getting short shrift by 
leaving things the way they are.
    Chairman Blunt. Thank you.
    Mr. Kupferschmid, I think I will get you in my second 5 
minutes since the answers here may be long.
    Senator Klobuchar?
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Chairman Blunt. Helpfully long, too, by the way. I didn't 
mean that to be a pejorative description of that answer.
    Senator Klobuchar. Mr. Kupferschmid, in the 21st century, 
we need a modern Copyright Office. In your testimony, you note 
that the office has been in dire need of a more modern IT 
infrastructure. What is your assessment of the modernization 
effort right now?
    Mr. Kupferschmid. It certainly seems like the office is on 
the cusp of a significant modernization of the office. I think 
that ultimately is why we need to pass this bill. We need to 
get a Register in place, Presidentially appointed Register in 
place, who can show the leadership, who understands the 
specialized needs of the Copyright Office when it comes to IT.
    But it is also very important to understand that when we 
talk about modernizing the Copyright Office, we are not just 
talking about IT modernization. That is one aspect. But the 
other aspect of modernizing the office is modernizing copyright 
registration policy, and those two need to go hand in hand.
    To the best of my knowledge, nothing has happened in that 
regard, and the Library doesn't have the experience to do that. 
You need somebody heading the office, not in an acting 
capacity, but you need somebody heading the office who can--who 
can take that lead and have the vision to know where the law 
needs to be tweaked and the regulations need to be tweaked.
    Senator Klobuchar. Okay. Thanks.
    Mr. Band, as you know, the Copyright Office exists within 
the Library of Congress. How are the IT needs of the Copyright 
Office different than the IT needs of the Library of Congress?
    Mr. Band. Well, obviously, they do have different 
functions. But the key under the current system is that, first 
of all, you have the right personnel supervising the process, 
both at the--at the Library level with the new CEO, as well as 
with the Copyright Modernization Office. Even though the 
functions are a little different, you know, the Library 
oversees many different functions, it is--on the one hand, it 
is a library, but it also has CRS. It has the Copyright Office 
and so forth. And so the expertise that they have allows them 
to manage systems, different kinds of IT systems effectively.
    Senator Klobuchar. One of the threats we are seeing is 
cybersecurity threats, and do you believe the modernization 
plans--either of you, both of you--at the Copyright Office 
appropriately consider these threats? Just briefly.
    Mr. Kupferschmid. Yes. That is a significant concern for 
the creative and copyright communities. This is an area where 
the Library has a very different mission than the Copyright 
Office. The Library, any library, really is about access and 
providing access to different works.
    The Copyright Office is going to be much more concerned 
about security. Because if they cannot guarantee security for 
copyrighted works and somebody hacks into that system, people 
are going to stop registering their works, and that hurts 
everyone. That hurts the Copyright Office because they don't 
get collections. It hurts the public and archivists and 
historians who won't be able to rely on a comprehensive data 
base, copyright ownership data base. Of course, it hurts the 
creative community tremendously.
    Senator Klobuchar. Why don't--do you mind if I just move on 
and then to a question key here, I think, for me? That is the 
public interest and how we meet the public interest.
    Mr. Band, I know that you disagree with making the Register 
of Copyrights a Presidentially appointed position. What other 
ways, if we don't do that, can we work to address the needs of 
the Copyright Office and ensure that the Register of Copyrights 
balances the interests and needs of all stakeholders?
    Mr. Band. Well, it is--I think one of the things that could 
be done is the legislation could be amended so that it provides 
criteria for the Register--for the Librarian to use when 
selecting the Register. Right now, there are no criteria. That 
would be a constructive amendment.
    I think, at the end of the day, it is with--like with 
anything else, it always matters who you select, not so much 
the structure of the selection.
    Senator Klobuchar. Right.
    Mr. Band. As--and so you do, you want to make sure you 
don't have structures that create impediments, and I think this 
structure that is proposed in the legislation of having this 
commission that needs to make a recommendation, and then that 
is binding on the President and so forth, I think that 
structure is going to get in the way rather than improve the 
process of getting the best person to that job.
    Senator Klobuchar. Just one last question, Mr. Chairman.
Mr. Kupferschmid, what would you do, along the lines of what 
Mr. Band was referring to, to ensure a fair selection process, 
if we were to pass this bill, that results in a Register as not 
beholden to any particular interest, but instead prioritizes 
the public interest?
    Mr. Kupferschmid. I think the bill accomplishes that 
actually quite well. It not only gives the--gives the Senate 
the ability to confirm, go through the confirmation process, 
and therefore, the public has a voice in whether the right 
candidate is chosen or not and confirmed. But more--also 
importantly is that the President just doesn't get to select 
someone. The President must choose off of a slate of 
individuals that is created by leadership from both the 
Democratic and the Republican Party and the Librarian, who gets 
to participate.
    I think the bill reaches that compromise in a very good 
way.
    Senator Klobuchar. Okay, last question. Just because we 
have had an acting person, and she is doing a good job, 
excellent work, but she has been in this acting role for nearly 
2 years. Some rightly argue that when an agency is led by an 
acting designee instead of a permanent leader, it can hinder 
the agency's work.
    How does having an Acting Register instead of a permanent 
Register affect the operations of the Copyright Office?
    Mr. Kupferschmid. I think that is right, what you said, in 
terms of I think Karen Temple has done a fabulous job as the 
Acting Register, but there are certain limitations on any 
person who is in an acting position. We are at, like I said, 
the cusp of modernization. Not only IT modernization, but 
modernizing the laws and having to do with--and regulations 
having to do with registration, copyright registration policy.
    It is important that we have somebody who is in a permanent 
position in that capacity rather than just an acting.
    Mr. Band. I would agree that it would be better to have 
someone in a permanent position, and that is why this 
legislation is always going to make it slower to get someone 
permanent in that job.
    Senator Klobuchar. Thank you very much, both of you.
    Chairman Blunt. Senator King?
    Senator King. Thank you, Mr. Chairman.
    First, I have to say I published a book this summer, and 
when I opened the cover, I didn't expect to be so thrilled by 
seeing the little ``c'' and my name next to it. That was--that 
was an unexpected treat.
    Mr. Kupferschmid, after this change, and what is not 
apparent in the language of the legislation, what will be the 
relationship, the structure, the organizational chart, if you 
will, between this new Presidentially appointed position and 
the Librarian of Congress?
    Mr. Kupferschmid. Really the only thing that changes is the 
process for selecting the Register. Everything else stays the 
same. Right now----
    Senator King. But does that mean that you have got two 
Presidentially appointed people, one who works for the other? I 
mean, I am----
    Mr. Kupferschmid. Correct. Correct. That is not unique in 
the Government. Look, for instance, at the Patent and Trademark 
Office, you have the Secretary of Commerce, who is a 
Presidential appointee confirmed by the Senate or the--and you 
have got the Director, rather, who is----
    Senator King. You are not really separating the functions 
of the office from the Library of Congress. You are simply 
changing the appointment of this one official.
    Mr. Kupferschmid. Because that----
    Senator King. It doesn't change the organizational order?
    Mr. Kupferschmid. That is correct. It will remain in the 
Library, and the Library will continue to supervise and manage, 
as it says in the statute.
    Senator King. Let me followup on your--I think you are 
creative to try to have this list of the three that have to--
the President has to submit--has to choose from the list. Is 
that constitutional? Is there any precedent for that? Do you 
have any opinion?
    It strikes me that is--might be a violation of separation 
of powers? The President either gets to appoint, or he or she 
doesn't.
    Mr. Kupferschmid. Yes. First of all, I am not a 
constitutional expert. I will say that. I am sure we can find 
some additional information here, but there are currently 
statutes that provide similar selection panels. For instance, 
the selection of the Comptroller General in GAO, and of course, 
ultimately, the President is free to interpret the bill in a 
way that is consistent with the appointments clause and can say 
so in the signing statement, and that has been done in the 
past.
    Senator King. But in the GAO case, there is the President 
has to choose from a finite list?
    Mr. Kupferschmid. From a slate of--yes, a slate of 
possibilities.
    Senator King. Do you know if that has ever been tested?
    Mr. Kupferschmid. I do not know the answer to that.
    Senator King. If you could supply the committee for the 
record some background on this issue, I think it is of some 
concern that we need to take seriously.
    Mr. Kupferschmid. I am happy to do that.
    Senator King. Thank you.
    Mr. Band. If I may, Senator King? The wording of the 
statute involved with the Comptroller General is different. 
While with the Comptroller General, there is a commission that 
makes a recommendation, the President is not obligated to 
choose from that slate.
    Senator King. From the slate.
    Mr. Band. Now, of course, if the President doesn't choose 
from the slate of recommended people, you know, the Senate 
might not confirm the person.
    Senator King. But it is a different structure than what is 
suggested here?
    Mr. Band. It is worded differently, yes. Here, it says, S. 
1010 says, you know, that the Register shall be appointed by 
the President from the individuals recommended under the 
paragraph.
    Senator King. I appreciate that.
    Mr. Band. So that is--that is----
    Senator King. Well, if you would like to supply something 
for the record on the constitutional issue, that would be 
helpful as well because I know you have a different view.
    Mr. Band, the Librarian is already appointed by the 
President, why not have another--I mean, don't give me your 
whole testimony again. But succinctly, what is the big deal 
here? You have already got one Presidential appointment, and 
what we are trying to do here is to elevate and underline the 
significance of the importance of this job. Why does it matter 
if you have a second position that is Presidentially appointed?
    Mr. Band. Well, first, as I mentioned, because of the 
structure, it would take a long time. I think it would take a 
long time----
    Senator King. You are suggesting that we don't act with 
total efficiently and alacrity around here?
    Mr. Band. You said that. You said that, not me. Also, and I 
think that this is important, you know, to realize that this is 
part of a much bigger picture. Of course, we are looking at 
this one bill, and which is relatively narrow and technical at 
this point.
    But as Mr. Kupferschmid has indicated, I mean, this is--you 
know, this is something that the content folks have been 
seeking for a while, but it is part of a bigger objective, I 
think----
    Senator King. Why isn't--that was going to be final 
question. Why isn't the fact that the content folks, who are 
the people most concerned with this, are supporting this 
change, it seems to me that that bears a lot of consideration. 
They are the ones who are going to have to live with this 
change. They are the ones who are advocating it. They are the 
most intimately involved with it.
    Why should we--why should we second-guess the constituents 
of this office if they think this would be a beneficial change?
    Mr. Band. Well, the first point is, is that we are all 
constituents. Meaning everyone is part of this copyright 
system. Meaning it is not only the creators, but also the 
users. But also in the 21st century, all users are also 
creators. Meaning, so there is this line, the sort of the 
distinctions are gone.
    Therefore, it is important--you know, the importance of 
having balance in the office is perhaps more critical than 
ever. But also, as I was saying, there has been a degree over 
the past 20, 30 years, a certain mission creep at the Copyright 
Office, and there are some who want the Copyright Office to be 
an independent agency, and there are always more functions 
being inserted into the Copyright Office.
    In fact, Mr. Kupferschmid tomorrow is testifying in support 
of a bill that would create a small claims court in the 
Copyright Office, and the Copyright Office has over----
    Senator King. Well, that might--might that not simply 
reflect the growth of the importance of this sector of the 
economy? I mean, it seems to me the fact that it is--you would 
call it mission creep, I might call it growth to reflect the 
current--the 21st century creative economy.
    Mr. Band. Well----
    Senator King. I have run out of time, but if you have 
thoughts on that, please supply them for the record.
    Mr. Band. I would be happy to.
    Senator King. Thank you, Mr. Chairman.
    Chairman Blunt. Senator King, I think you and I can take 
extra time if we want to since it is down to the two of us. But 
let me ask a couple of questions while----
    Senator King. We can do anything we want to.
    [Laughter.]
    Chairman Blunt. We may vote something out here. We may just 
decide we are the committee.
    Mr. Band, on the topic, you know, it was very unclear for a 
long time how long the term of the Librarian would be, to the 
point that it almost drifted into some area where it might be 
permanent. Before the current Librarian was named, before any 
name was mentioned, Senator Schumer and I introduced 
legislation, we created a 10-year term.
    This also produces--provides a term for the Director of the 
Copyright. Do you see any advantage to the person having that 
office having both the confirmed responsibility and the 10-year 
window to know that, barring some inappropriate action on their 
part, they have that job for 10 years. They are not--the 
Librarian can't decide they don't like the way the space is 
being used, or do you see any advantage to a copyright person 
running that office that knows they have a 10-year window and 
they are answerable to this committee and the Congress beyond 
their answer to any--their landlord, the Librarian?
    Mr. Band. To be sure, there are advantages to having a set 
term, provided that it is the right person. That is why, you 
know, conceivably, if there was the legislation that again 
simply identified the qualities, the qualifications for the 
office as well as a term, that might be acceptable for our 
point of view.
    But I think it is sort of the combination of the 10-year 
term and this process, which, again, I think it is going to 
result in a politicized process, and you could end up with 
someone who really doesn't have the right--the right level of 
expertise and technical expertise that we have seen in recent 
Registers. That is why, again, getting the wrong person in for 
10 years is a problem.
    Chairman Blunt. I suppose it would be an equal problem if 
we get the wrong person in as the Librarian for 10 years.
    Senator King. Or the Secretary of Defense.
    Chairman Blunt. Or the Secretary of Defense. Though that 
term is not as specific. I would say that the process here is 
almost a replica with a slightly different membership of the 
process that was put in place in the not-too-distant past to 
select the Architect of the Capitol. The same process, the same 
three names to be submitted. The President makes that, and we 
will be exercising that process very quickly.
    The Architect of the Capitol has resigned, effective 
November of this year. A very similar committee with a very 
similar process will hopefully produce a Presidential nominee 
that is back before this committee not too far into next year 
or maybe even late this year. But that is where the model for 
this, the three names, the congressional input, but with 
somebody else to make that final decision about the names.
    Mr. Kupferschmid, Mr. Band has pointed out that the 
Director of Patents and Trademark Policy is a Presidentially 
appointed individual. How would the creators and users of 
copyright material benefit from having that, the copyright 
Register, the Director of Copyrights to have the same standing 
in this process as the Patent Office does?
    Mr. Kupferschmid. I think it is important----
    Chairman Blunt. Patent and Trademark Office does.
    Mr. Kupferschmid. I think it is important, and it would 
certainly benefit creators and users by showing and 
demonstrating the importance of intellectual property. More 
specifically, the copyright to the economy, how important it is 
to jobs, to the economy, to our culture, and to show that to 
our international trading partners.
    Right now, the Register of Copyrights is not--is just 
selected by the Librarian, and that sends a certain message 
that about the importance of copyright. It is a message that we 
don't want to be sending. Hopefully, the way the creators and 
users can benefit is this will lead to perhaps improved IP 
protections, more respect for intellectual property, whether it 
is global or certainly domestic here.
    Perhaps, most importantly, it gives these creators and 
users a voice in selecting the Register. Very much like the PTO 
Director, there would be a transparent process, as opposed to 
the Librarian just potentially picking someone behind closed 
doors without any consultation. Under the process envisioned by 
this bill, it would be very open, very transparent. It would 
make the Register accountable.
    Right now, the President can simply knock on the door of 
the Librarian and say, ``This is the person I want to be the 
Register.'' Bypass Congress and the Senate entirely. If the 
Librarian decides not to do it, well, he can fire the Librarian 
because he has that power and hire a new Librarian that will do 
it.
    What we are looking for is a transparent process here, and 
we think this bill does that, and it does it in a very balanced 
and neutral way.
    Chairman Blunt. I think you may have misstated there. I 
don't think the President can fire the Librarian, but the 
Librarian could fire the Copyright Director.
    Mr. Kupferschmid. Yes.
    Chairman Blunt. The Librarian has a 10-year term and 
would--this committee could act and make recommendations and 
other things.
    We just passed the Music Modernization Act, the Orrin Hatch 
Music Modernization Act that is at the White House now awaiting 
the President's signature.
    Mr. Kupferschmid, what advantages would a permanent person 
in this job with the new standing have in implementing that 
act? Then we will go back to my friend, Mr. King.
    Mr. Kupferschmid. Before I answer your question, I would 
like to thank this committee, the members of the committee, and 
the full Senate for their support of the Music Modernization 
Act, I guess, the Orrin Hatch and Bob Goodlatte Music 
Modernization Act, as it is called now. We look forward to it 
being signed by the President.
    The MMA gives the Register new rulemaking authority that is 
necessary for both creators and digital services to engage in 
effective licensing. The Register appointment by the President 
will address any outstanding appointment clause issues, like 
were mentioned earlier, since the soon-to-be new law hopefully 
vests authority in the Register itself.
    Right now, the Register sort of sits in this cloudy zone, 
and this bill would make the role more parallel with other 
agency heads who have similar roles in Government. But at the 
same token, it leaves the position, leaves the entire office 
within the Library of Congress. We think it is a very good 
compromise because that it takes a very targeted, very modest 
approach, and we think it would certainly be a benefit to the 
Music Modernization Act, which this entire Senate really 
supported unanimously.
    Chairman Blunt. Senator King?
    Senator King. I still want to--I still would hope for the 
record that you could give us some thoughts about the--it seems 
to me we are doing sort of a half way. I mean, we are upgrading 
the status of this office, but it is still under the Librarian 
of Congress. Just some thoughts about whether that creates 
administrative awkwardness.
    But my other question is, we have got two--we are now 
talking about two 10-year terms. Is it the concept of this bill 
that that--those 10 years would be coterminous with the 
Librarian of Congress, or would there be an overlap?
    Any----
    Mr. Kupferschmid. Yes, I don't think they would be 
coterminous. I think it all is just a matter of when the 
Librarian position needs to be filled and when the Register 
position needs to be filled. In terms of, like I said, the 
inconsistencies, there are other--many other areas of 
Government where you have one Presidential appointee reporting 
to another Presidential appointee, and those work very well, 
but we are happy to provide you additional information about 
that.
    Senator King. Appreciate that.
    Do I take it from your presence here that the--your 
organization represents the community of authors, musicians, 
and those who are interested in this topic? Is that correct?
    Mr. Kupferschmid. Oh, absolutely. I mean, we represent 
about 13,000 different organizations and about 1.8 million 
individual creators across the country that rely on copyright 
for their careers, for their livelihoods, and they are--every 
single one of them, they are supportive of this bill.
    Senator King. Thank you.
    Thank you, Mr. Chairman.
    Chairman Blunt. Thank you, Senator King.
    Any concluding thoughts from either of you as we wrap up 
here? Mr. Band?
    Mr. Band. No. Just I would just amplify the point that I 
was making before, that the--one should view this legislation 
in its broader context, and we started to talk about that, and 
you, Senator King, as you alluded to, there is this conceivable 
awkwardness. Then I think maybe the next step is to say, well, 
we now need to make it an independent agency, and as it grows, 
I mean, we are going to have this bigger and bigger agency, and 
then it will be in conflict with the Patent and Trademark 
Office.
    We want to--I think the goal is to avoid sort of a 
``Washington solution.'' A Washington solution to a problem is 
just to sort of rearrange the deck chairs instead of saying 
what is the real problem? Let us find a solution. Let us not 
just do a reorganization for the sake of doing a 
reorganization.
    I think at some level, this legislation, this is a solution 
in search of a problem.
    Chairman Blunt. Mr. Kupferschmid?
    Mr. Kupferschmid. Yes, I would have to very much disagree 
with that. I mean, at the heart of it, we are supporting a more 
transparent process here, one that would increase the 
accountability of the Register. It just doesn't exist today.
    I mean, it is, frankly, hard to oppose something like that, 
or when you add up the fact that the Library of Congress has a 
different mission, is a stakeholder in a lot of these issues, 
could have conflicts of interest issues, when you add up the 
fact that there are other similarly situated agency heads that 
are Presidential appointees, when you add up the fact that 
right now is the perfect time to do this, there is a window of 
opportunity because there is a vacancy in the position, not 
hurting any feelings or going after anyone, and you look at the 
fact that the Copyright Office is on the cusp of modernizing 
and they need--you know, they need leadership to help that, 
this is the perfect bill at the perfect time.
    It doesn't do any of the parade of horribles that Jonathan 
just mentioned. It simply doesn't do that. We have a very 
narrowly targeted, modest approach to make the Register a 
Presidential appointee confirmed by the Senate.
    We hope you will support the bill.
    Chairman Blunt. Well, thank you both. We have been looking 
for the perfect bill at the perfect time. I have never voted on 
a----
    [Laughter.]
    Chairman Blunt. I have never voted for a perfect bill 
before. I have introduced a couple of perfect bills, but I----
    [Laughter.]
    Chairman Blunt. I have never voted on one of them, and that 
may be the reason to do this.
    Very helpful for both of you to be here. We appreciate it.
    There may be some additional questions for the record from 
others who couldn't attend or from those of us who did. The 
record will remain open for 1 week from today.
    [The information referred to was submitted for the record.]
    Chairman Blunt. The committee is adjourned.
    [Whereupon, at 3:27 p.m., the hearing was adjourned.]

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