Prof. Justin Hughes, Loyola Law School, Los Angeles
January 29, 2015
Last month, The Hill, a Capitol Hill news source, published an op-ed piece by a Los Angeles entertainment attorney, Dina LaPolt. The basic arguments of LaPolt’s “Copyrights different than patents, trademarks” (TheHill.com, Dec. 10, 2014) are that the U.S. Copyright Office “employees are … the country’s foremost experts on copyright law”; 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”; and that the “Copyright Office’s ongoing review of copyright laws is being compromised by involvement from the USPTO.”
It’s hard to know where to start with such an ill-informed essay, but LaPolt’s commentary is worth addressing because it reflects some common misunderstandings – and simple lack of knowledge – among people outside the Beltway when it comes to copyright policy. Indeed, much the same mistake occurred in the December 2014 argument in Garcia v. Google before the Ninth Circuit en banc. In that oral argument, when Judge Alex Kozinski pressed Google counsel Neal Katyal by quoting from an Obama Administration fact sheet about the 2012 Beijing Treaty on Audiovisual Performances,1 Katyal sought to undermine Kozinski’s point by contrasting “the expert body here, which is the Copyright Office, as opposed to the PTO, which is what you are reading from, Judge Kozinski, which I don’t think has any special expertise in copyright.”2
To understand the mistakes about expertise that LaPolt and Katyal make, we need to explore some thorny constitutional issues; once we have a good understanding of those, we can correct the record on the facts and try to see what led 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, i.e., the register of copyrights reports directly to the librarian of Congress. This means that as a matter of day-to-day operations – and that caveat is important – the Copyright Office functions as part of the legislative branch.
There is a powerful, totally legitimate 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’s mission to build a universal collection.3 Indeed, at least one House report has said as much.4 In other words, it made sense that the Copyright Office was put where it is.
But any lawyer or political science major who remembers their constitutional law will recognize that this produces some thorny separation-of-powers issues. The Copyright Office is carrying out a range of administrative duties normally done by executive branch agencies (copyright registrations, Section 1201 rulemaking, setting compulsory license rates, etc.) The register is appointed by the librarian of Congress – and in the most recent appointment there was no input from the White House, a situation completely different from how executive branch officers are appointed.
If the Copyright Office’s functions were ever challenged on separation-of-powers grounds, the Department of Justice would almost certainly argue that the office is part of the executive branch – indeed, that was the position taken in a statement the White House issued when President Clinton signed the Digital Millennium Copyright Act (DMCA) in 1998 (and the Copyright Office acquired the Section 1201 rulemaking process). But the Clinton Administration only felt compelled to take that position after Congress’s conference report for the DMCA had characterized the Copyright Office as part of the legislative branch.
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,5 but a 1985 opinion from the D.C. Circuit Court of Appeals concluded that “the Library of Congress [ ] is a congressional agency”6 and a 1996 district court decision concluded that a criminal statute that applied to false statements made to departments or agencies within the executive branch did not apply to false statements made to the Copyright Office because the Copyright Office is not “a component of the executive branch.”7 Several scholars and practitioners suggest the same thing.8 In 2009, the D.C. Circuit Court of Appeals declined to address this “important question … of far-reaching significance,” realizing that a conclusion that the Copyright Office was not executive branch would “call into question the status of every registered American copyright.”9 Maybe the best way to summarize the practical situation is a 2010 district court opinion that concluded that the librarian of Congress could be considered an executive branch officer for purposes of the Constitution’s Appointment Clause, but nonetheless recognized that the Library of Congress “is a free standing entity that operates independently from the Executive Branch in conducting its daily operations.”10
That pretty much describes the Copyright Office. When the USPTO director wants to take any significant action, that decision has to be coordinated with the Commerce Department and the rest of the Administration, often through elaborate OMB approval processes. In contrast, when the Copyright Office wants to take any significant action, the register of copyrights is not required to check with anyone in the Administration – and usually doesn’t. When USPTO wants to get involved in a case not involving USPTO activities, it has to do so in coordination with the Department of Justice and other agencies. When the register of copyrights wants to send a letter to a court about a pending case (as has happened), she doesn’t get anyone’s approval.
Reflecting this 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.”11 It doesn’t say “patents and trademarks”; it says “intellectual property policy.”
So when LaPolt proposes giving copyright policy uniquely to the Copyright Office, she is really saying that the president should turn over Administration policy duties in the realm of copyright to “a free standing entity that operates independently from the Executive Branch in conducting its daily operations.” That doesn’t make sense if you are looking at things from the White House’s perspective – and that’s true whether a Republican or a Democrat is sitting in the Oval Office.
Copyright expertise in Washington
Because that doesn’t make sense, since at least the Reagan Administration the U.S. Patent and Trademark Office has maintained its own copyright policy experts. For many years, Michael Keplinger was the head of copyright policy at USPTO. Keplinger had himself been a finalist for the job of register and when he left USPTO, Keplinger became the head of copyright policy at the World Intellectual Property Organization (WIPO) in Geneva.
The current register of copyrights, Maria Pallante, is a thoughtful, dedicated public servant who has a rich background in copyright; the same can be said for the associate register of copyrights who handles policy, and the Copyright Office’s general counsel. But the truth is that USPTO currently has a bench of copyright expertise as least as deep as the team at the Copyright Office.
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 by the Supreme Court three times. After serving as associate register 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 years more as the Copyright Office’s associate register (not to mention more than a decade in private practice doing copyright law). Michael Shapiro, another senior lawyer on the USPTO copyright team, is the co-author of A Museum Guide to Copyright and Trademark (1999) and a contributing author to Copyright and Consequences: Central European and U.S. Perspectives (2003).
Just those three bio notes give you some sense of how off the LaPolt essay is when it comes to where to find “experts on copyright law” in Washington and how wrong Katyal was in saying “I don’t think [USPTO] has any special expertise in copyright.”
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, the National Telecommunications and Information Administration (NTIA), and the Justice Department. Indeed, the current associate register at the Copyright Office, Karyn Temple Claggert, got some of her expertise working on the IP task force of the Justice Department.
And that document Kozinski quotes in the Garcia v. Google oral argument – the one that Katyal attributes to USPTO? It appears to have been a “fact sheet” cleared by an inter-agency process of the entire Administration – led by USPTO, for sure, but a process that (a) included lots of the agencies mentioned above, and (b) even included the Copyright Office. (Despite the Copyright Office’s gray zone status, the informal coordination on policy issues is quite good.)
LaPolt admits to fond memories of her copyright registrations as a musician, but saying that the Copyright Office should do all copyright policy because it carries out the ministerial function of handling registrations confuses expertise in administering a registration system with general policy expertise. Most developed economies have either no copyright registration systems or extremely minimal systems that few people use – 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 and Finland, the copyright policy shop sits in the Ministry of Culture; in the UK, the lead on copyright policy sits with an integrated intellectual property office – same for Jamaica, Peru, and Singapore. No one in these countries would consider that their copyright experts aren’t competent because they don’t run extensive registration systems.
What the Copyright Office needs
In today’s environment, the Copyright Office doesn’t need more influence over policy – the Copyright Office is regularly included in informal Administration meetings, while retaining its own independent voice and a unique relationship to legislators that executive branch agencies can only envy. What the Copyright Office needs is more money to bring its registration systems into the 21st century.
The truth is that the Copyright Office is being starved for funding, partly because it sits in the Library of Congress. Copyright registration fees do not cover the costs of the current system, meaning that the office relies on congressional handouts as managed by the Library of Congress’s leadership. In contrast, the USPTO is a fee-funded agency: Patent and trademark fees not only fully support the patent and trademark registration system, but also finance USPTO’s vast policy apparatus and international operations (including IP attaches in many U.S. embassies around the world).
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. Much needs to be done to help the Copyright Office move forward, but the discussion isn’t helped by strange, ill-informed commentaries about control of copyright policy and where the experts are.
[This is a substantially expanded version of an essay that ran in The Hill’s “Congress” blog on Jan. 23, 2015.]