Congress seeks to make Register of Copyrights a Presidential Appointment

UPDATE: This afternoon the House passed H.R. 1695 by a vote of 378-48.

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On March 23, 2017, Congress Bob Goodlatte (R-VA), the Chair of the House Judiciary Committee, introduced H.R. 1695, known as the Register of Copyrights Selection and Accountability Act of 2017. The bill has 33 co-sponsors, with 29 of those co-sponsors sitting on the House Judiciary Committee. Thus, it is no great surprise that only days after it was introduced, on March 29, 2017, the House Judiciary Committee passed H.R. 1695 by a vote of 27-1.

H.R. 1695 would amend 17 U.S.C. 701. Currently, the Register of Copyrights is appointed by the Librarian of Congress, and acts under the Librarian’s direction and supervision. That would change if and when H.R. 1695 becomes the law of the land. The substantive change would add the following sentence:

The Register of Copyrights shall be a citizen of the United States with a professional background and experience in copyright law and shall be appointed by the President from the individuals recommended under paragraph (6), by and with the advice and consent of the Senate.

Paragraph (6) requires the names of at least three individuals be forwarded to the President for appointment, with the panel being composed of the Speaker of the House, the President pro tempore of the Senate, the majority and minority leaders of both the House and the Senate, and the Librarian of Congress.

To the extent that H.R. 1695 will change it may subtly be amended as it proceeds through the House and into the Senate to remove the Librarian of Congress from the panel. This is due to the fact that there are some who would prefer the Librarian of Congress to have nothing to do with picking the Register of Copyrights. Moreover, there are discussions on Capitol Hill over granting the Copyright Office autonomy; removing the Copyright Office from the Library of Congress.

Congressman Tom Marino, a member of the House Judiciary Committee and co-sponsor of H.R. 1695, introduced H.R. 890, known as the Copyright Office for the Digital Economy Act, on February 2, 2017. H.R. 890, which has only two co-sponsors, would establish the U.S. Copyright Office as a separate independent agency in the legislative branch, to be headed by a director appointed by the President with the advise and consent of the Senate.

In a joint video statement (see below) Goodlatte and Congressman John Conyers (D-MI), who serves on the House Judiciary Committee as Ranking Member, both promised to modernize U.S. copyright laws during the 115^th Congress. Conyers explained that the Committee intends to “periodically release policy proposals on select, individual issue areas with the larger copyright system that are in need of reform where there is a potential for consensus.” Goodlatte then explained that among those reforms will be “granting the Copyright Office autonomy with respect to the Library of Congress.”

Interest in reforming U.S. copyright laws is not new, but interest in removing the Copyright Office from the Library of Congress are no doubt in direct response to the heavy handed power play made by current Librarian of Congress – Carla Hayden – when she unceremoniously fired Maria Pallante in October 2016. Pallante was a well-liked figure on Capitol Hill, trusted by Members on both sides of the aisle for her expertise and willingness to answer their questions. At the time of Pallante’s firing both Goodlatte and Conyers, again in a joint statement, said they were saddened to learn of Pallante’s departure, calling it a “tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.” Goodlatte and Conyers also said this presented the “perfect opportunity to examine the selection process for the new Register.” It would seem that those were more than polite political remarks, and instead were a call to action.

If there is a real intention to separate the Copyright Office from the Library of Congress some may wonder why would the House Judiciary Committee would move on only a piece of the overall puzzle relative to the selection of the Register of Copyrights. In a joint statement made upon passage of H.R. 1695 in the House Judiciary Committee, Goodlatte and Conyers explained: “While we are fully committed to continuing the work of our copyright review and our efforts to modernize the Copyright Office, there is an immediate need when it comes to the selection process for the next Register of Copyrights.”

Reading between the lines, Congress would like to get their preferred Register of Copyrights installed first and then circle back on legislation to separate the Copyright Office from the Library of Congress, which will likely take more time to pull together.