It's been an exciting summer for the Library of Congress. Last month, the Librarian Dr. James Billington announced he would soon be stepping down, vacating a seat he's held for some 28 years. That announcement came hot on the heels of a new legislative proposal—the nigh-ungooglable CODE Act, which stands for “Copyright Office for the Digital Economy”—to spin the Copyright Office out of the Library and into its own independent agency.
This is no coincidence. The Librarian of Congress has come under fire in recent years for, among other things, failing to ensure that the Copyright Office has the resources and organization it needs to carry out its mission in the modern world. The problem was memorably documented in a Government Accountability Office report earlier this year. But an independent Copyright Office is not the right solution.
In essence, this legislation takes a practical issue—lack of resources—and turns it into a political one. In the process, it promises to recreate the Office as an agency devoted to serving the interests of copyright holders, rather than the interests of the public as a whole.
Libraries—and especially the Library of Congress—have an institutional obligation to the public, to the cause of intellectual freedom, and to the principle of access. As the Library puts it, its mission is “to further the progress of knowledge and creativity for the benefit of the American people.” Given the purpose of copyright itself—to promote the progress of science and the useful arts—that should be the Copyright Office’s mission as well.
Librarians agree. Writing for Library Journal, Duke University's Kevin L. Smith lays out the possible thought process behind making the Copyright Office an independent agency:
The two sponsors, Rep. Chu from California and Rep. Marino of Pennsylvania, both talk about “autonomy,” and Rep. Chu says that the CO should be given “independence and sound legal ground to perform its core mission.” What suggests that the office currently is not able to perform its core mission, or that its autonomy is impeded? This is coded language, in my opinion, for the claims made by entertainment industry lobbyists that the Copyright Office should not reside within a library because they believe that library interests are antithetical to their business needs. In short, they want the Copyright Office freed of the need to balance the public interest with the goals of the legacy content industry; they want more scope for “regulatory capture,” wherein an agency that was created to serve the public interest instead advances the agenda of the very industry it was designed to regulate. In this case, an “independent” Copyright Office would be less encumbered by antiquated notions of “promoting the progress of science and the useful arts” and more subservient to the desires of the publishing and entertainment industry for a stronger monopoly.
The American Library Association was also quick with its opposition to the CODE Act proposal, but it cites a different issue: the “solution” simply won't fix the problem.
A successful overhaul of the Copyright Office’s information technology infrastructure cannot be achieved by securing the Copyright Office’s independence from the Library of Congress. We have a much more important problem to solve that cannot be fixed by changing the address of the Copyright Office.
The ALA is correct. The way to solve the problems of the Copyright Office and the Librarian of Congress is not to separate the two. Rather, it's to dedicate resources better and push for more thoughtful leadership. On both counts, a smart choice for Librarian of Congress will help.
There are also historical reasons to leave it in place, dating back to the 1870 law that centralized key copyright functions in the Library. Most notably, the deposit requirement—that authors and artists submit copies of works they are registering for copyright—has provided enormous public value by building up the collection. Of course, the Copyright Office performs other functions. But operations like maintaining a catalog of registrations, providing technical assistance to legislators and executive branch agencies, and providing information services to the public are all better understood as being, on some level, library services.
So both ideologically and pragmatically speaking, any hasty moves to yank the Copyright Office out of the Library should be non-starters. The Copyright Office has an important role to play in protecting the public interest. It’s most likely to play that role if it answers to a Librarian.