Copyright Society: politics!

The 21st-Century Copyright Office   
(I know, but really, this panel is almost all about forum shopping and maneuvering to make sure that the people who have always made copyright policy continue to do so.  It’s important.)
Moderator: Jacqueline Charlesworth, U.S. Copyright Office
Review of history of Office; long history of small budget, big job.
Panelists: Allan Adler, Association of American Publishers
Rulemaking authority of CO: most of the change in copyright has been legislative and judicial, because rulemaking has always been somewhat circumscribed/in question.  Congress has Art. I sec. 8 cl. 8 authority, and judges are judges, but the nature of their processes challenges copyright reform. Congress politicizes everything, which in more genteel times was viewed by many as esoteric and arcane; as a species of property law, supported by both political parties. Democrats thought of it as engine of free expression and Republicans thought of it as property. But Congress can’t satisfy the many stakeholder communities that have an interest today. (RT: Side note: the neoliberal capture of the American political imagination is nowhere better reflected than in the widespread idea that policymaking addresses “stakeholders” rather than “citizens,” especially in issues of technology and free expression in which every citizen has a stake.)  Courts can only deal with change one case at a time, which takes a while.  And there’s a lot of conflict in and across circuits.  Both are extremely awkward in how to adapt technological innovation to copyright law, which is the main issue in how we reach the next great © Act.
Sometimes Congress has specifically given direct authority to the CO.  DMCA 1201(a) is the primary example.  Because of the dissatisfaction with that process among stakeholders, it’s not necessarily an example to hold up of why the CO should be given additional substantive rulemaking authority.  But because some have argued that the statute is so heavy, difficult to parse, perhaps additional substantive rulemaking is what’s necessary to address concerns.  (Will rules be easier to parse?)  If regulatory copyright is the current state of the Act (as Joe Liu has so persuasively argued), looking more like rulemaking than legislation because it addresses industries distinct from each other rather than applying broad rules, then maybe we should rethink.  If the Act is regulation and not general statutory guidance, giving the CO more substantive authority is the better solution. Regulation is more flexible than legislation, more nuanced, more specific.  Can adapt and be more readily and adroitly changed.  CO has the expertise and the legislative and judicial branches have relied on it for years.  (RT: And here the constitutional problem rears its head.  I was under the impression that the Copyright Office, located in the Library of Congress, was part of the legislative branch.)
What issues?  Fair use, whose substance/meaning is in the eye of the federal judge.  (If you can’t win in the courts, change the forum!)  Opinion letters, as SEC does, which would help people resolve some of the problems on a daily basis but would be broadly applicable to large populations.  Substantive rulemaking would be more broad—currently CO only addresses its own ministerial functions like deposit, or what Congress orders it to do.  Could the CO expand in this way?  Administering compulsory licenses; use 1201 rulemaking to craft new exemptions based on a more full record of technological changes.  (More full record?  Did the AAP participate last time?  Because it seemed extensive to a fault to me. (Note: I found 2003 and 2009 by a quick search; I imagine they’re part of the Joint Commenters on a regular basis, but I’m not sure what they think was missing from the record.))
CO can provide participatory balance as well as transparency, key for public understanding and trust. This is important now that some of the public thinks copyright is like civil rights, despite the SCt’s repeated insistence that copyright is not bounded by the First Amendment.  CO must realize that in order to examine the law and execute further changes to accommodate tech innovation, rulemaking authority should be addressed broadly sooner rather than later.
Susan Chertkof, The Recording Industry Association of America (RIAA)
Many tech challenges.  User fees can’t really be raised high enough to upgrade to full electronic registration and recordation (including electronic deposit of sound recordings, images, etc.).  How can we go beyond keyword searching—possibility of audio fingerprinting, image search?  Seems to be a disconnect between fee collection and registration/certificate department.  We’ve sent in money through the deposit account, but the people with the documents say we haven’t paid. 
Incentives for registration/recordation—reinstituting formalities? We wouldn’t favor that. It’s fine to create true incentives, like discounts.
June Besek, Kernochan Center for Law, Media and the Arts
We all want faster, better registration; image recognition.  The CO needs more money and a better IT infrastructure to do this.  They can’t just buy off the shelf, literally or figuratively.  The budget is 2/3 fees and 1/3 appropriations now.  Need a really large investment!  The CO would like to keep fees for individuals low, and there are statutory obstacles to raising fees, but even if it could be done, then appropriations would just go down.
So how could we get increased appropriations?  The CO’s dealings with Congress go through the Library of Congress.  The CO is a line item.  Library picks its priorities, understandably doesn’t give the CO everything it asks for. Ideally, the CO should be extricated from the LoC appropriations process to make its own case for what it needs.  Need ability to do year to year projects—fees aren’t a good basis for long term planning.
Fees.  Makes sense to uncouple CO from LoC.  The CO is a business office and needs a dynamic fast paced system, and the LoC currently supplies a lot of the IT.  They have different priorities; CO is in line with other constituents.  The CO needs a system better designed for what it does.  Security is a big issue.  Commercially relevant records don’t always track library needs.
Gov’t shutdown last year: websites that were up at CO were static; you couldn’t register or file.  There’s no reason why you shouldn’t have been able to see the CO’s records, but it took days to get the website back up just in static form because IT people at LoC didn’t think it should be done.  Why are they telling CO management what CO should be doing, as a business office for the copyright industries? 
This is our gov’t. We’re the only ones who can make changes: the customers.  (Which puts an interesting spin on “this is our gov’t.”)  We have to persuade Congress that the system is inadequate.  The patent bar has been extremely good at getting changes to the funding of the patent system; their fees sometimes exceed spending and Congress raids the money, but the principles are the same.  We can do something similar.
David Carson: as recent CO alum, note of caution/concern.  1201 rulemaking isn’t the Register’s in final form—all regulations are subject to Librarian’s approval. Historically it hasn’t been much of a problem, but not always, and in recent years it can be difficult (cf. 1201 overruling on access to print disabilities).  Actuarial tables suggest Librarian will change soon, and if you look at the political environment among library associations, the likelihood that the next Librarian will be hostile to copyright is high.  (Hostile to overextension isn’t the same as hostile to copyright, but that’s this crowd.)  Which leads to Adler’s points. They might welcome substantive rulemaking authority with the right leadership.
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