Reflecting on the close connection between responsible implementation of the law and respect of the people, Alexander Hamilton wrote in Federalist No. 27 that “it may be laid down as a general rule that their confidence in and obedience to a government will commonly be apportioned to the goodness or badness of its administration.” Similarly, it may be laid down as a general rule that confidence in and obedience to the protections of copyrights will commonly be proportioned to the goodness or badness of copyright administration.
Efficient and proper implementation of copyright law is essential to securing the rights of creative artists to the fruits of their labors in the Digital Age economy. According to the International Intellectual Property Alliance’s report, “Copyright Industries in the U.S. Economy,” the “core copyright industries” generated $1.2 trillion in U.S. economic activity in 2015. That year, core copyright industries also employed 5.5 million workers – or 3.85% of the U.S. workforce.
Congress created the U.S. Copyright Office in 1897 and entrusted it to efficiently and effectively administer federal copyright law. At present, however, the Copyright Office is not structurally or technologically positioned to administer copyright law in a manner that helps maximize the potential value of copyrighted works. Since 1897, the Librarian of Congress has possessed ultimate authority over the Register of Copyrights as well as the Copyright Office’s functions and budget resources. The Copyright Office is deprioritized by this quaint structural arrangement.
As we (Randolph May and Seth Cooper) explain in our October 30, 2017 Perspectives from FSF Scholars paper, “Modernizing the Copyright Office for the Digital Age Economy,” the Office needs to be reformed in order to improve the performance of its administrative functions. Reform of the Copyright Office is also needed to ensure that its operations more clearly align with separation of powers principles.
A restructured Copyright Office that is autonomous from the Library of Congress and that has authority over its own budget would be better positioned to make long overdue technological upgrades. For example, the Copyright Office needs to build a comprehensive searchable database of copyright registration and transfer records. Prospective purchasers of copyrighted works would benefit from more reliable and less costly searches. And the resulting facilitation of voluntary exchanges would enhance economic values for current copyright owners. Technology-enabled reductions in registration burdens would also benefit creators of copyrightable works.
Additionally, restructuring is needed to alleviate an existing constitutional incongruity: the Copyright Office performs significant executive administrative functions, yet Congress deems the Office a legislative sub-agency within the within the Library of Congress. Long-standing Congressional identification of the Copyright Office as part of the Legislative Branch is at odds with the reasoning of U.S. Supreme Court and lower court decisions involving the Constitution’s Appointments Clause, contained in Article II, Section 2, Clause 2. The Clause is intended to ensure that administrative agencies performing executive functions be accountable to the President through the process of appointment. Decisions in Eltra Corporation v. Ringer (4th Cir. 1978) and Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board (D.C. Cir. 2012) have concluded that the Librarian is an “Officer” and the “Head of a Department” in the Executive Branch and that the Register is an “inferior Officer” in the Executive Branch.
Our paper explores different options for restructuring the Copyright Office. It also identifies pending legislation in Congress that would bring needed reform. All viable modernization options should necessarily require that the Register of Copyrights be subject to Presidential nomination and Senate confirmation – and thereby be elevated to the status of a principal “Officer” under the Appointments Clause. An elevated stature befits an official charged with administering economically vital laws passed by Congress pursuant to Article I, Section 8, Clause 8 – often called the “Copyright Clause.” Please read our paper, and consider our case for why a restructured and modernized Copyright Office would improve the administration of our copyright system and thereby promote “the Progress of Science and useful Arts.”
Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland. Seth L. Cooper is a Senior Fellow of the Free State Foundation. May and Cooper are the co-authors of The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, published in 2015