Making copyright policy in Washington

Last month, The Hill published an op-ed piece Copyrights different than patents, trademarks by a Los Angeles entertainment attorney, Dina LaPolt.  LaPolt’s basic argument is that the U.S. Copyright Office “employees are . . . the country’s foremost experts on copyright law” and that the U.S. Patent and Trademark Office (USPTO) should not be involved in formulating copyright policy because “USPTO has no particular expertise in copyright law.”

It’s hard to know where to start with such an ill-informed essay, but at a minimum we should consider the Constitutional issues that LaPolt ignores, correct the record on the facts about expertise, and try to see what led Ms. LaPolt astray.

The Copyright Office and separation of powers

The Copyright Office sits in the Library of Congress – not just as a matter of physical office space, but also as a matter of budget and personnel; in short, the Copyright Office functions as part of the legislative branch.   And there is a powerful historical reason for having the Copyright Office in the Library of Congress:  the deposit requirement for copyright registration of books had a natural synergy with the Library of Congress’ mission to build a universal collection.

But any political science major who remembers their Con Law will recognize that this produces some thorny separation-of-powers issues because the Copyright Office is carrying out a range of administrative duties normally done by executive branch agencies (copyright registrations, section 1201 rule-making, setting compulsory license rates, etc.).  

If the Copyright Office’s functions were ever challenged on constitutional grounds, the Department of Justice would almost certainly argue that the Office is part of the executive branch, but everyone who has studied the issue knows that courts have been all over the map on this question.  A 1978 Fourth Circuit decision squarely found the Register to be an executive branch officer, but a 1985 opinion from the D.C. Circuit Court of Appeals concluded that ““the Library of Congress [ ] is a congressional agency” and a 1996 district court decision concluded that the Copyright Office is not “a component of the executive branch.” Several scholars and practitioners suggest the same thing.

Reflecting this gray zone reality, Title 35 was amended in 1999 to state expressly that the USPTO “shall advise the President, through the Secretary of Commerce, on national and certain international intellectual property policy issues” and “advise Federal departments and agencies on matters of intellectual property policy in the United States and intellectual property protection in other countries.” 

Copyright expertise in Washington

Indeed, since at least the Reagan Administration the USPTO has maintained its own (considerable) team of copyright policy experts.

The current head of the USPTO policy shop is Shira Perlmutter, a copyright expert whose law review articles and testimony on copyright have been cited three times by the Supreme Court.  After serving as Associate Register over at the Copyright Office for five years, Perlmutter worked in the music and audiovisual industries for a decade.   Her USPTO deputy for copyright matters is David Carson, who served 13 years as the General Counsel of the Copyright Office and two more as the Copyright Office’s Associate Register [not to mention a decade+ in practice doing copyright law].   Michael Shapiro, another senior lawyer on the USPTO copyright team, is a co-author or contributing author on two books on copyright law.

Just those three bio notes give you some sense of how clueless the LaPolt essay is when it comes to where DC’s “experts on copyright law” are.   The truth is that USPTO currently has a bench of copyright expertise as deep – or deeper – than the team at the Copyright Office.  

Beyond USPTO, there are a lot of people peppered through the executive branch who have substantial, impressive copyright knowledge – that includes people at State, the U.S Trade Representative, the Institute of Museum and Library Services (IMLS), the Office of Science and Technology Policy (OSTP), the Intellectual Property Enforcement Coordinator, and the Justice Department.   

LaPolt’s memories of her copyright registrations may be part of the reason she confuses expertise in administering a registration system with general policy expertise.    Most developed economies do not have copyright registration systems, so there isn’t even the chance to make this mistake.  In Australia, copyright policy is focused in the Attorney General’s Office; in France, the copyright policy shop sits in the Ministry of Culture; in the UK, in an integrated intellectual property office (UKIPO).  No one in these countries would consider that their copyright experts aren’t competent because they don’t run registration systems.

How to help the Copyright Office

In today’s environment, the Copyright Office doesn’t need more influence over policy matters; it needs more money to bring our country’s registration systems into the 21^st century.   The truth is that the Copyright Office is being starved for funding, partly because it sits in the Library of Congress.

House Judiciary Chairman Bob Goodlatte (R-Va.) should provide the leadership and funding to make our country’s copyright registration system fully modern – online, searchable, efficient, and transparent.  No piece of copyright reform could do more to improve the system for both copyright owners and copyright users.   Something needs to be done to help the Copyright Office move forward, but strange, ill-informed commentaries about control of copyright policy do not help the discussion. 

Hughes is the William H. Hannon Professor of Law at Loyola Law School in Los Angeles and has taught copyright law for over a decade. From 2009-2013, he served as senior adviser to the under secretary of Commerce for Intellectual Property and director of the USPTO and, in that capacity, chaired many Obama administration inter-agency meetings on copyright.