The Copyright Office, and those who lead it, should serve the public as a whole, not just major media and entertainment companies. That’s what we told the leadership of the House Judiciary Committee this week. If Congress restructures the Copyright Office, it has to put in safeguards against the agency becoming nothing more than a cheerleader for large corporate copyright holders.
In December, after more than three years of hearings and discussions on copyright law, House Judiciary Committee Chair Bob Goodlatte, and ranking Democrat John Conyers released their first suggestions for possible changes to copyright law in a short whitepaper [PDF]. While light on details, the paper proposed “restructuring” the Copyright Office. EFF responded, urging the lawmakers to make sure that any reforms to the Copyright Office help to curb that office’s bias in favor of large copyright industries.
To an extent unimagined when much of our copyright law was written, copyright now impacts the daily life of practically everybody. And with copyright’s increasingly broad impact comes heightened stakes for the public. Copyright now shapes not only how we get and share information with the wider world, but also whether the devices we use on a daily basis are trustworthy. That’s why it’s critical that we have a voice in how copyright rules affect our lives, and that those in a position to advise lawmakers aren’t in the pocket of big media and entertainment companies.
The Copyright Office, like copyright generally, is supposed to serve the public. Unfortunately, the Copyright Office already ignores that mandate too often, following an approach that puts industry interests first. Indeed, former Register of Copyrights Maria Pallante told an interviewer in 2012 that “[c]opyright is for the author first and the nation second.” And EFF’s own investigations have revealed attempts by the Office to lobby other government agencies in favor of movie and television industry interests, against long overdue reforms that would have benefited consumers, technology users, and the public as a whole.
Many major media and entertainment companies, and others who have long treated copyright as their private domain, want the Copyright Office removed from the Library of Congress, making it an independent agency. They’ve said that they don’t want the Librarian of Congress, whose mission is promoting access to knowledge, overseeing the Copyright Office. We think making the Copyright Office independent will remove important checks and balances on that agency, which will likely put it even more under the control of the traditional gatekeepers of media and culture. That’s what Congress needs to avoid.
The Next Register of Copyrights Should Be Someone Who Listens to the Public – Not Just the Entertainment Companies
The new Librarian of Congress, Dr. Carla Hayden, also asked the public to weigh in on how the Copyright Office should be run. The Librarian oversees the Copyright Office and appoints its director, known as the Register of Copyrights. In December, Hayden released an online survey, seeking public input on what qualifications and goals the next Register should have. We’re pleased to see the Librarian taking this step to solicit public participation. The Librarian’s survey provided a valuable opportunity for people, including independent creators and everyday technology users, to have their say. But the Librarian has to keep working to ensure the next Register is one who really serves the public as a whole.
In our comments, we urged the Librarian to pick a Register with a track record for good management and an unbiased approach to copyright that’s up-to-date on how people use creative works. A good Register will be familiar with the how remixers, fan artists, tinkerers, and security researchers rely on copyright’s limits. And the next Register should be someone that seeks out and listens to everyone affected by these laws – copyright holders, technology companies, libraries, teachers, students, and everyday technology users. And they should make sure that any proposals to change U.S. copyright law or export it to other countries take into account the impact on users of copyrighted works, and the interests of the public as a whole.
Along with making it easier for the public to access the Office’s data about registered copyrighted works, the next Register should also focus on getting rid of the unnecessary barriers that Section 1201 places on research, repair, modification and resale of electronic devices.
Proposals for a Copyright “Small Claims” Process Risks Feeding the Copyright Trolls
The whitepaper from Representatives Goodlatte and Conyers also briefly suggested creating a copyright “small claims” tribunal, run by the Copyright Office, that would make filing a copyright lawsuit easier than it already is. Considering there’s already an industry built around abusive litigation strategies, we’re concerned that any attempt to set up a specialized copyright court would also make it easier for copyright trolls to shakedown small businesses, consumers, and Internet subscribers. Because of this, we urged Chairman Goodlatte and Ranking Member Conyers not to move forward with proposals to create a small claims process. While complex copyright lawsuits are sometimes expensive to bring, the vast majority are not, because most cases settle quickly. It would be a mistake for Congress to look only at the cost of rare complex cases while ignoring the impact of straightforward ones, where the protections for innocent and legally unsophisticated defendants have gotten stronger. Moving copyright cases to a brand new system would mean throwing out many of those protections.
We’re pleased to see both the Librarian of Congress and the House Judiciary Committee reaching out beyond the traditional players in copyright policymaking, to seek public input on decisions that impact everyone. But that’s just the first step – we need to make sure they’re giving the public’s feedback adequate consideration and that their final decisions represent the interests of everyone. We’ll be watching what they do, and speaking up to make sure that the interests of the public – including Internet and technology users, consumers, and independent creators – are protected.