[House Report 115-91]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-91
======================================================================
REGISTER OF COPYRIGHTS SELECTION AND ACCOUNTABILITY ACT OF 2017
_______
April 20, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1695]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1695) to amend title 17, United States Code, to
provide additional responsibilities for the Register of
Copyrights, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Performance Goals and Objectives................................. 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Dissenting Views................................................. 10
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SEC. 1. SHORT TITLE.
This Act may be cited as the ``Register of Copyrights Selection and
Accountability Act of 2017''.
SECTION 2. REGISTER OF COPYRIGHTS.
(a) Amendments.--Section 701 of title 17, United States Code, is
amended--
(1) in subsection (a)--
(A) by striking ``(a) All administrative'' and
inserting the following:
``(a) Register and Director.--
``(1) In general.--All administrative'';
(B) by striking ``director'' and inserting
``Director'';
(C) by inserting after the first sentence the
following: ``The Register of Copyrights shall be a
citizen of the United States with a professional
background and experience in copyright law and shall be
appointed by the President from the individuals
recommended under paragraph (6), by and with the advice
and consent of the Senate.''; and
(D) in the last sentence, by striking ``shall be
appointed'' and all that follows through ``and shall
act'' and inserting ``shall act'';
(2) in subsection (b), by redesignating paragraphs (1)
through (5) as subparagraphs (A) through (E), respectively, and
adjusting the margins accordingly;
(3) by redesignating subsection (b) as paragraph (2), and
adjusting the margins accordingly;
(4) in paragraph (2), as so redesignated, by inserting
``Duties.--'' before ``In addition'';
(5) by inserting after paragraph (2) the following:
``(3) Oath.--The Register of Copyrights shall, before taking
office, take an oath to discharge faithfully the duties of the
Copyright Office described in paragraph (2).
``(4) Removal.--
``(A) In general.--The Register of Copyrights may be
removed from office by the President.
``(B) Notification.--The President shall provide
notification to both Houses of Congress of a removal
under subparagraph (A).
``(5) Term of office.--
``(A) In general.--Subject to subparagraph (B), the
Register of Copyrights--
``(i) shall be appointed for a term of 10
years; and
``(ii) may serve until a successor is
appointed, confirmed, and taken the oath of
office.
``(B) Limitation.--The Register of Copyrights may not
continue to serve after the date on which Congress
adjourns sine die after the date on which the 10-year
period described in subparagraph (A)(i) ends.
``(C) Reappointment.--An individual appointed to the
position of Register of Copyrights, by and with the
advice and consent of the Senate, may be reappointed to
that position in accordance with the requirements of
this section.
``(6) Panel for register of copyrights recommendations.--
There is established a panel to recommend a list of at least 3
individuals to the President for appointment as the Register of
Copyrights. The panel shall be composed of the following:
``(A) The Speaker of the House of Representatives.
``(B) The President pro tempore of the Senate.
``(C) The majority and minority leaders of the House
of Representatives and the Senate.
``(D) The Librarian of Congress.'';
(6) by redesignating subsections (c) through (f) as
subsections (b) through (e), respectively;
(7) in subsection (b), as so redesignated, by inserting
``Seal.--'' before ``The Register'';
(8) in subsection (c), as so redesignated, by inserting
``Annual Report.--'' before ``The Register'';
(9) in subsection (d), as so redesignated, by inserting
``Applicability of Title 5.--'' before ``Except as provided'';
and
(10) in subsection (e), as so redesignated, by inserting
``Compensation.--'' before ``The Register''.
(b) Applicability.--The amendments made by subsection (a) shall apply
with respect to any vacancy for the Register of Copyrights after
January 1, 2017. If a Register of Copyrights is appointed during the
period beginning on January 1, 2017 and ending on the day before the
date of the enactment of this Act, that Register shall meet the
requirements of the amendments made by this Act or shall be replaced in
accordance with such amendments.
Purpose and Summary
The Register of Copyrights Selection and Accountability Act
makes the Register of Copyrights position at the U.S. Copyright
Office subject to a Presidential nomination and Senate-
confirmation process while simultaneously creating a 10-year
term on the position. The legislation ensures that all future
Registers are chosen through this public process and also
resolves constitutional concerns regarding the authority of
regulations promulgated by the U.S. Copyright Office.
Background and Need for the Legislation
Over the past several years, this Committee has conducted a
comprehensive review of our nation's copyright system and laws.
During this review, the Committee heard from a wide range of
perspectives regarding our copyright laws, ranging from
industry-specific concerns to much broader ones, including the
need to reform the Copyright Office itself. Since November
2014, the status and selection process for the Register of
Copyrights position has been among these concerns.
As a legislative branch official, Members of Congress, as
well as many stakeholders, believe the Register of Copyrights
should be more accountable to Congress. In addition, concerns
have been expressed, and lawsuits commenced, challenging the
authority of the Register of Copyrights to issue rules because
the position is not presidentially-appointed.
The current vacancy for the position of Register of
Copyrights provides a unique opportunity for Congress to
address these and other concerns and to statutorily lay out an
appropriate selection process for the next Register.
H.R. 1695 would apply a selection process for the Register
of Copyrights that is similar to the process for selecting
other legislative branch officials, including the Comptroller
of the Government Accountability Office. Specifically, the
legislation will clarify the process by which a new Register of
Copyrights is chosen and the duration the Register serves.
Currently, the position is chosen using the same process used
to hire more junior employees within the Library of Congress
and the Register can serve for an unlimited duration. Under the
proposed legislation, the President will select a nominee from
a list of names identified by a Congressional leadership panel
that includes the Librarian of Congress. The individual then
chosen, once confirmed by the Senate, would serve a ten-year
term. This nomination process and term of office would provide
greater stability for the Register position and the U.S.
Copyright Office as a whole. It will also ensure that the U.S.
Copyright Office is more accountable to Congress. During the
markup, negative comments were made about the prior Register of
Copyrights that do not reflect the longstanding professional
and honorable relationship this Committee enjoyed with the
former Register.
Hearings
The Committee on the Judiciary held no hearings on H.R.
1695, but did hold a related hearing on the future of the U.S.
Copyright Office on February 26, 2015, and received testimony
from the former Register of Copyrights, Maria Pallante, on
April 29, 2015, about the structure of the U.S. Copyright
Office.
Committee Consideration
On March 29, 2017, the Committee met in open session and
ordered the bill H.R. 1695 favorably reported, with an
amendment, by a roll call vote of 27-1, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises the
following roll call vote occurred during the Committee's
consideration of H.R. 1695.
1. Motion to report the bill favorably. Approved 27-1.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA).................................. X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI).............................
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 27 1
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1695, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 30, 2017.
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1695, the Register
of Copyrights Selection and Accountability Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Stephen
Rabent.
Sincerely,
Keith Hall.
Enclosure.
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 1695--Register of Copyrights Selection and Accountability Act of
2017
As ordered reported by the House Committee on the Judiciary on March
29, 2017.
Under current law, the Director of the Copyright Office is
appointed by the Librarian of Congress. H.R. 1695 would make
that position subject to appointment by the President with the
advice and consent of the Senate. The Director would serve a 10
year term, subject to removal by the President. Under the bill,
the President would make the appointment from a list of
individuals recommended by a panel composed of members of
Congress and the Librarian of Congress. Based on information
from the Library of Congress, CBO estimates that implementing
the bill would have no significant effect on the federal
budget.
Enacting H.R. 1695 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 1695 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
H.R. 1695 contains no intergovernmental or private sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Stephen Rabent.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1695 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1695 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1695 converts the Register of Copyrights position to a
Presidentially nominated and Senate-confirmed position, subject
to a ten-year term limit.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1695 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Register of Copyrights Selection and
Accountability Act of 2017.''
Sec 2. Register of Copyrights
Section 2(a) amends 17 U.S.C. Sec. 701(a) by creating
minimum standards for those who hold the Register of Copyrights
position by requiring the officeholder to be a U.S. citizen who
has professional background and experience in copyright law.
The Committee views these two qualifications as the most
critical for the position, although there are other criteria
that may be desirable in potential candidates depending upon
the challenges and needs facing the U.S. Copyright Office at
the time of the vacancy. Once future Registers of Copyright are
confirmed, they would now be subject to an oath of office per
section 701(a)(3) before taking office. Section 701(a) is
further expanded by adding in the existing functions and duties
in the current section 701(b).
Section 2(a) creates a new selection process for choosing
future Registers in section 701(a)(6), which follows existing
precedent for Legislative Branch agencies, such as the
Government Accountability Office (GAO). The process requires
the President to choose the nominee from candidates identified
by a selection panel comprised of the Speaker of the House of
Representatives, the President pro tempore of the Senate, the
majority and minority leaders of the House of Representatives
and the Senate, and the Librarian of Congress (in whose agency
the U.S. Copyright Office is located). The panel must recommend
at least three candidates who meet the new qualifications for
Registers of Copyright.
The proposed section 701(a)(4) allows the President to
remove the Register from office subject to a notification
requirement to the House of Representatives and Senate. Unless
the Register is removed by the President, the Register will
serve a ten-year term per section 701(a)(5), but may serve
until a successor is sworn in so long as that date is not later
than when Congress next adjourns sine die after the ten-year
term expires, in which case the Register must step down on the
date on which Congress adjourns sine die. The Register may be
reappointed to another ten-year term, but must do so subject to
the same requirements as a potential new candidate.
Section 2(b) sets out an effective date for any Register of
Copyrights chosen for a vacancy that exists after January 1,
2017. The position has been filled on an acting basis prior to
this date so the requirements created by this legislation apply
to any new Register. If a Register is chosen by the Librarian
of Congress using the current hiring process in place prior to
the enactment of this legislation, such Register could only
remain in office if he or she meets the new qualifications for
the position, were recommended by the congressional panel to
the President, chosen from the slate of three or more
candidates by the President as the nominee, confirmed by the
Senate, and then sworn in to office. If he or she did not meet
these criteria, he or she could only serve until someone who
does meet these criteria is sworn into office.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 17, UNITED STATES CODE
* * * * * * *
CHAPTER 7--COPYRIGHT OFFICE
* * * * * * *
Sec. 701. The Copyright Office: General responsibilities and
organization
[(a) All administrative] (a) Register and Director._
(1) In general._All administrative functions and
duties under this title, except as otherwise specified,
are the responsibility of the Register of Copyrights as
[director] Director of the Copyright Office of the
Library of Congress. The Register of Copyrights shall
be a citizen of the United States with a professional
background and experience in copyright law and shall be
appointed by the President from the individuals
recommended under paragraph (6), by and with the advice
and consent of the Senate. The Register of Copyrights,
together with the subordinate officers and employees of
the Copyright Office, [shall be appointed by the
Librarian of Congress, and shall act] shall act under
the Librarian's general direction and supervision.
[(b)] (2) Duties._In addition to the functions and
duties set out elsewhere in this chapter, the Register
of Copyrights shall perform the following functions:
[(1)] (A) Advise Congress on national and
international issues relating to copyright,
other matters arising under this title, and
related matters.
[(2)] (B) Provide information and assistance
to Federal departments and agencies and the
Judiciary on national and international issues
relating to copyright, other matters arising
under this title, and related matters.
[(3)] (C) Participate in meetings of
international intergovernmental organizations
and meetings with foreign government officials
relating to copyright, other matters arising
under this title, and related matters,
including as a member of United States
delegations as authorized by the appropriate
Executive branch authority.
[(4)] (D) Conduct studies and programs
regarding copyright, other matters arising
under this title, and related matters, the
administration of the Copyright Office, or any
function vested in the Copyright Office by law,
including educational programs conducted
cooperatively with foreign intellectual
property offices and international
intergovernmental organizations.
[(5)] (E) Perform such other functions as
Congress may direct, or as may be appropriate
in furtherance of the functions and duties
specifically set forth in this title.
(3) Oath.--The Register of Copyrights shall, before
taking office, take an oath to discharge faithfully the
duties of the Copyright Office described in paragraph
(2).
(4) Removal.--
(A) In general.--The Register of Copyrights
may be removed from office by the President.
(B) Notification.--The President shall
provide notification to both Houses of Congress
of a removal under subparagraph (A).
(5) Term of office.--
(A) In general.--Subject to subparagraph (B),
the Register of Copyrights--
(i) shall be appointed for a term of
10 years; and
(ii) may serve until a successor is
appointed, confirmed, and taken the
oath of office.
(B) Limitation.--The Register of Copyrights
may not continue to serve after the date on
which Congress adjourns sine die after the date
on which the 10-year period described in
subparagraph (A)(i) ends.
(C) Reappointment.--An individual appointed
to the position of Register of Copyrights, by
and with the advice and consent of the Senate,
may be reappointed to that position in
accordance with the requirements of this
section.
(6) Panel for register of copyrights
recommendations.--There is established a panel to
recommend a list of at least 3 individuals to the
President for appointment as the Register of
Copyrights. The panel shall be composed of the
following:
(A) The Speaker of the House of
Representatives.
(B) The President pro tempore of the Senate.
(C) The majority and minority leaders of the
House of Representatives and the Senate.
(D) The Librarian of Congress.
[(c)] (b) Seal._The Register of Copyrights shall adopt a seal
to be used on and after January 1, 1978, to authenticate all
certified documents issued by the Copyright Office.
[(d)] (c) Annual Report._The Register of Copyrights shall
make an annual report to the Librarian of Congress of the work
and accomplishments of the Copyright Office during the previous
fiscal year. The annual report of the Register of Copyrights
shall be published separately and as a part of the annual
report of the Librarian of Congress.
[(e)] (d) Applicability of Title 5._Except as provided by
section 706(b) and the regulations issued thereunder, all
actions taken by the Register of Copyrights under this title
are subject to the provisions of the Administrative Procedure
Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title
5, United States Code, Chapter 5, Subchapter II and Chapter 7).
[(f)] (e) Compensation._The Register of Copyrights shall be
compensated at the rate of pay in effect for level III of the
Executive Schedule under section 5314 of title 5. The Librarian
of Congress shall establish not more than four positions for
Associate Registers of Copyrights, in accordance with the
recommendations of the Register of Copyrights. The Librarian
shall make appointments to such positions after consultation
with the Register of Copyrights. Each Associate Register of
Copyrights shall be paid at a rate not to exceed the maximum
annual rate of basic pay payable for GS-18 of the General
Schedule under section 5332 of title 5.
* * * * * * *
Dissenting Views
If Congress enacts this bill we will make a grievous error.
It's important to understand the factual and historical context
in which this bill is nestled.
Article 1 of the Constitution gives the power to enact laws
establishing copyrights in the United States, but it was not
until 1870 that copyright functions were centralized in the
Library of Congress, claims having previously been recorded by
U.S. District Court clerks. In 1897, a separate department in
the Library was created and then Librarian of Congress, Mr.
Ainsworth Spofford appointed Mr. Thorvald Solberg as the
Register of Copyrights to run the office. Ever since, the
Librarian of Congress, who is appointed by the President and
confirmed by the Senate, has appointed the Register of
Copyrights to oversee this division in the Library. Until this
bill.
Dr. James Billington, the last Librarian of Congress, was
appointed by President Ronald Reagan and served as Librarian of
Congress for 42 years. His public service is honored by us all
and he accomplished many important things at the Library.
However, modernization of the Copyright Office was not among
his achievements. After Dr. Billington's retirement in 2015,
President Obama appointed and the Senate Confirmed Dr. Carla
Hayden. When Dr. Hayden was appointed, Congress enacted
legislation which, for the first time, instituted a ``term
limit'' of ten years on the service of the Librarian. Dr. Carla
Hayden has made modernization of the Library, including the
Copyright Office, a priority.
The last Register of Copyrights testified before the
Judiciary Committee as well as the House Administration
Committee that the Copyright Office should be an independent
office and the Register appointed by the President, essentially
an independent agency. The last Register also engaged in public
advocacy of this point.\1\ However, while advocating for this
change and other policy matters, the simple administration of
the office was deficient in the area of modernization.
---------------------------------------------------------------------------
\1\THE NEXT GENERATION COPYRIGHT OFFICE: WHAT IT MEANS AND WHY IT
MATTERS (a longer version of the Eleventh Annual Christopher A. Meyer
Memorial Lecture delivered by Maria Pallante on November 20, 2013 at
George Washington University Law School). https://www.copyright.gov/
about/office-register/meyer-lecture.pdf.
---------------------------------------------------------------------------
The February 2017 Library of Congress Inspector General
report\2\ I entered into the record found that the Copyright
Office wasted six years and nearly $12 million dollars
implementing its Electronic Licensing System.\3\ This was a
simple accounting system for distributing royalties collected
by the Office and managing royalty investment accounts.
---------------------------------------------------------------------------
\2\Library of Congress, Office of the Inspector General's FY 16
Review of Systems Development Life Cycle.
\3\Id. at ii.
---------------------------------------------------------------------------
Most tellingly, they found that ``Copyright executives at
the time did not disclose in the Library's performance
management system and annual Congressional Budget
Justifications the magnitude of issues and cost''\4\ In other
words, this information was hidden from Congress and Library,
and false information provided instead.
---------------------------------------------------------------------------
\4\Id. at iii.
---------------------------------------------------------------------------
In 2010 the Copyright Office started the project of
digitizing pre-1978 registration records. Seven years later it
has managed to digitize just the card catalog and even that is
lacking metadata to make it searchable. None of the actual
records are available in digital form.\5\
---------------------------------------------------------------------------
\5\https://www.copyright.gov/digitization/status.html.
---------------------------------------------------------------------------
It took the Office nearly 20 years to create a system so
that online service providers could electronically submit their
notice and takedown agents, prior to last December, online
service providers had to submit their registrations via paper,
which then had to be manually entered in by Office
employees.\6\
---------------------------------------------------------------------------
\6\The Copyright Office's ``interim'' agent designation regulations
went into effect on November 3, 1998. The paper-based system was not
replaced until December 1st 2016. https://www.copyright.gov/dmca-
directory/.
---------------------------------------------------------------------------
Finally, while preparing the FY18 appropriations request,
the Library noticed that a $25 million dollar line-item in the
Copyright Office's request didn't add-up. When questioned about
this, the prior Register stated that this number was no big
deal, it was just a placeholder. They would just make
adjustments after the money was appropriated. In other words,
the Copyright Office gave the Librarian fake budget numbers
with the knowledge that she would testify in front of the
Appropriations Committee, under oath, to the need of these
funds.
Dr. Hayden reassigned the Register and, disagreeing with
the reassignment, the Register resigned. It appears that some
on the Judiciary Committee have concerns about whether the
Librarian was justified in her reassignment of the previous
Register. This Committee has not had a hearing on this topic,
and I doubt ever will. So I felt that it was important to put
into the record just a sample of the problems the Librarian
confronted when she made her decision. These are not just my
opinions, but are documented by the report of the Inspector
General which was entered into the record.
I would also like to correct my colleague who stated for
the record their concerns that the Librarian did not notify the
Committee before reassigning the previous Register. Both the
House Administration Committee and the House Judiciary
Committee received phone calls from the Librarian stating her
intent to reassign the previous Register, before it was carried
out.
This bill removes the Register appointment authority from Dr. Carla
Hayden and transfers it to President Donald Trump.
No coherent rationale has been advanced on how this will
improve the administration of the Copyright office. The
Chairman of the Committee asserted that this would give greater
transparency to the Committee in the operation of the Copyright
office. He later clarified that it was the advice and consent
of the Senate to Presidential appointments that he was
referring to.
This is a preposterous statement. Once a Presidential
appointee is confirmed, there is no greater attention to the
desires of the Congress or transparency than for any other non-
Presidential appointee. The frequent conflicts between
Republicans in Congress and the appointees of President Obama,
ranging from the Environmental Protection Agency to the
Internal Revenue Service are testimony of the truth of that.
The Chairman also cites numerous hearings on the issue of
copyright as justification for this bill, but having attended
every one of those hearings as a Member of the Intellectual
Property Subcommittee, I can attest that there was no hearing
on this bill nor on its impact on the modernization efforts now
being undertaken by Dr. Hayden.
An impressive list of supporters of the bill was submitted
to the record. I am aware from the many copyright hearings that
serious frustrations exist among many copyright holders. Those
issues deserve resolution. However, this bill will make matters
worse not better.
If this bill becomes law the Library of Congress and the
Copyright Office will no longer be able to function as a single
organization. This will be a disservice to not only the
American public but also to those they are purporting to help,
content creators. The public and content creators do not
benefit from making the Register appointed by the President,
and they do not benefit from making the Copyright Office a
separate Executive Branch agency, which is the real goal of
this legislation, as backed-up by the statements of many of my
Committee colleagues.
What would benefit both the public and content creators is
a Copyright Office that uses modern technology to provide
electronic registration and deposits of copyrighted works,
tools for determining who to pay when you use their work, and
greater transparency in both ownership and public domain status
of works.
However, this bill will drastically set back both the
modernizing of infrastructure and the implementation of new
Copyright services. The Library believes that under its current
modernization plan that it can save almost two years on the
Copyright Office's plan, and significant amounts of money. A
private consulting group is currently reviewing this plan, but
the Library believes it will be able to start implementation by
September of this year.
Until my statements at this markup, it is my understanding,
that the vast majority of my colleagues on the Committee had no
knowledge of the Library's aggressive progress. Nor were they
briefed on how delaying the appointment of a new Register could
impact this plan.
Given the speed at which Congress acts, and the backlog of
495 Presidential appointees who haven't even been nominated
yet, I doubt that if this bill becomes law, a new Register will
be appointed in time to benefit from the efficiency gains made
by the Library's hard work and careful planning.
The public and content creators aren't the only ones who
will suffer from this shortsighted bill. The Copyright Office
staff themselves will be thrown into a ``Sophie's choice''
every time there is a conflict between the Librarian and the
Register. Without the ability to remove the Register, the
relationship between the Librarian and the Register is
fundamentally altered. It will create uncertainty and ambiguity
in the chain of command, and unnecessary hurdles to the
modernization effort.
The only possible result of this change is more conflict
between the Library and the Copyright Office, not less. It is
unfair to put the hardworking employees of the Copyright Office
into this lose-lose situation because of the incompetence of
previous leadership. Especially when the new Librarian was
taking responsibility to remedy the deficiencies created by her
predecessor's inaction.
I cannot support legislation that delays Copyright Office
modernization, harms the public, harms content creators,
increases tension between the Library and Copyright Office, and
harms Copyright Office employees.
This bill is a vote of no confidence in a Librarian who is
aggressively pulling the Library and Copyright Office into the
21st century and, by all evidence, justifiably reassigned an
ineffective and negligent Register. While I have examined the
problems with this bill on the basis of public policy, I cannot
help but notice that since 1897, while a series of male
Librarians of Congress appointed the Register, it was not until
the first female Librarian was appointed that a bill was
introduced to remove the power of the Librarian to appoint the
Register (as well as new law to limit the term in office of the
Librarian). The problems, now being addressed by our new
Librarian, festered without remedy--and without legislation
marked up by the Judiciary Committee--until that unbroken chain
of male Librarians was succeeded by one of the most qualified
Librarians ever to serve the Library of Congress, Dr. Carla
Hayden.
Ms. Lofgren.
[all]