Library advocates put copyright lobbyists on the defensive

By Dr. Alan Inouye, Senior Director, Public Policy & Government Relations, American Library Association

In the last three weeks, American Library Association (ALA) members have a record number of emails to their senators in opposition to the Register of Copyrights Selection and Accountability Act (S. 1010). The bill, which ALA has unequivocally opposed, has been set for committee votes that have been postponed or canceled multiple times.

Backers of the bill are on the defensive. Copyright Alliance CEO Keith Kupferschmid is accusing ALA of running a “disinformation campaign against S. 1010.” In a December 17 blog post, Kupferschmid feigns dismay that the ALA does not support a bill that (he claims) “would help modernize the U.S. Copyright Office,” countering ALA’s position on the legislation point by point.

ALA maintains our position that S. 1010 is not about greater accountability and transparency; rather, it is about the entertainment industry’s blatant attempt to get maximum leverage over the selection of the Register – and more control over the Office. And moving the Office would tilt the current balance of U.S. copyright policy from the public interest to special interests.

Below is ALA’s response to Kupferschmid’s erroneous claims about ALA’s position as articulated in my recent post in American Libraries’ The Scoop:

Kupferschmid: “Nothing in the bill would alter the Librarian of Congress’ authority over the Register of Copyrights.”

ALA: Currently, the Librarian of Congress has the authority to appoint the Register of Copyrights. Under the proposed bill, beginning on January 1, 2019, the President would appoint the Register – and also have new authority to fire the Register. Shifting away the hiring and firing authority for a position unquestionably reduces the Librarian of Congress’ authority.

Kupferschmid: “There is nothing in the bill that would alter the location of the Copyright Office now or in the future.

ALA: Attempts to move the Office out of the Library of Congress were made in the current Congress but did not gain traction for various reasons. Failing to relocate the Office, the entertainment industry is using S. 1010 to chip away at authority within the Library of Congress as a start towards the ultimate goal of moving the Office.

Kupferschmid: “Congress is not giving up its power to appoint the Register because, today, Congress has no power to appoint the Register.

ALA: Today, an officer of the Legislative Branch who reports directly to Congress – the Librarian of Congress – appoints the Register. Under the bill, the head of the Executive Branch – the President – would appoint the Register.

Kupferschmid: “Today, the Register is selected behind closed doors.

ALA: Currently, the Librarian of Congress appoints the Register on the same basis as she does for other senior positions in the Library of Congress: their qualifications for the job. Positions that are nominated by the President and confirmed by the Senate are inherently political appointee positions. The bill would politicize the process for an administratively-oriented position.

Kupferschmid: “Nothing in this bill would alter or slow that [Copyright Office modernization] process in any way.

ALA: This entire debate has already delayed appointment of a Register by two years. Additionally, the process envisioned – a panel recommendation, president selection, Senate confirmation – could take years, depending on a host of considerations from the election cycle to the congressional calendar to politics.

Kupferschmid: “This bill isn’t about taking power from the current Librarian or giving power to the current President.

ALA: From 1897 to the present, the Librarian of Congress has appointed the Register.

Kupferschmid: “This bill has nothing to do with any one individual, and certainly is not intended to be a statement on Dr. Hayden’s performance as the Librarian of Congress.

ALA: We sincerely hope that S. 1010 is not an attack on Dr. Hayden, the first African-American and first woman ever to hold the post. However, the introduction of the House bill came on the heels of a nasty confirmation battle in 2016, where special interests questioned Dr. Hayden’s qualifications. S. 1010 would strip her of the authority to appoint the Register, a responsibility held by her predecessors since 1897.

Kuperferschmid’s diatribe is accurate on one point: ALA’s mission is to ensure access to information for all. Librarians – including the Librarian of Congress – are champions for balanced copyright policy that includes both the general public and content creators, which are often one and the same. Maintaining that balance requires a watchful eye, and ALA is calling this bill as we see it: a sleight-of-hand attempt to tip the scales against the public’s interest.