Changes to U.S. Copyright Office Could Impact Public Historians

On April 26, the U.S. House of Representatives voted to transform the Register of Copyrights from a position responsible to the Librarian of Congress to a political appointment chosen by the President and confirmed by the Senate. If passed by the Senate, this legislation could impact public historians and others who rely on the Library of Congress to represent the interests of educators, scholars, librarians, and archivists when administering copyright law.

The James Madison Memorial Building of the Library of Congress houses the U.S. Copyright Office. 2011 U.S. Government photo by the Architect of the Capitol.

The “Register of Copyrights Selection and Accountability Act of 2017,” or H.R. 1695, passed the House with bipartisan support on a vote of 378 to 48. Proponents claim that the legislation will help modernize the Copyright Office, which has been overseen by the Library of Congress since 1870. The text of the bill, however, does nothing to update the Copyright Office’s systems or procedures — it simply gives the President rather than the Librarian of Congress power to appoint the Register of Copyrights. Critics of this change, including the American Library Association (ALA), the Society for American Archivists (SAA), and the Electronic Frontier Foundation (EFF), argue that it would further politicize the copyright office and elevate the influence of entertainment industry lobbyists over other copyright system stakeholders.

The U.S. Constitution authorized Congress to grant copyrights “To promote the Progress of Science and useful Arts.” Courts have interpreted this clause to mean that copyright law must balance the rights of authors and creators with the public’s fair use of copyrighted works to advance art and science through research, education, and other fields. Locating the Copyright Office within the Library of Congress, a research institution, helps keep the administration of copyright law accountable to its constitutional mission.

Historians, archivists, librarians, and others rely on the Register of Copyrights to maintain the official historical record of copyrighted materials, as well as tools like the Fair Use Index that compile legal decisions on the use of copyrighted works for education and research. The Register of Copyrights is also responsible for recommending exemptions to the Digital Millennium Copyright Act’s prohibition against circumventing copyright protection systems. Under current law, the Register must consider the “use of works for nonprofit archival, preservation, and educational purposes” among other factors in granting exemptions — a consideration  that may determine whether historians in future years can access electronic sources published with software based copy-protection or D.R.M.

Librarian of Congress Carla Hayden. 2016 U.S. Government Photo, cropped at Wikipedia.

The April 26 vote to remove the Register of Copyrights from Library of Congress oversight came less than a year after Carla Hayden took office as Librarian of Congress. Hayden is the first professional librarian in this office since Lawrence Quincy Mumford retired in 1974. She is also the first woman and first African-American to head the Library of Congress. As a former librarian for the Chicago Public Library and the Museum of Science and Industry, as well as a past president of the American Library Association, Hayden has been a strong advocate for public access and library modernization.

Hayden drew criticism from the media and publishing industries in October 2016 after she re-assigned industry ally Maria Pallante away from the position she had held as Register of Copyrights since 2011. Pallante subsequently resigned and became CEO of the Association of American Publishers, an organization which had already begun lobbying to give the Copyright Office independence from the “archival-oriented mission of the Library of Congress.” The passage of H.R. 1695 would allow President Trump rather than Hayden to appoint Pallante’s permanent successor as Register of Copyrights.

As the Society for American Archivists has argued, “librarians are uniquely qualified to handle” the work involved in modernizing America’s copyright registry to be more efficient and accessible for the twenty-first century public. Despite bipartisan enthusiasm among legislators, making the Register of Copyrights a political appointment rather than a professional position responsible to the Library of Congress is not likely to facilitate modernization or public accountability. Public historians should join archivists and librarians in encouraging greater public discussion of this proposed change before it is voted on by the Senate.

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