Op-ed: With Register of Copyrights bill, big media seeks its own in-house lobbyist

With Register of Copyrights bill, big media seeks its own in-house lobbyist
By Kerry Maeve Sheehan
The Hill
April 24, 2017

“Why are advocates for major media and entertainment companies pushing Congress to rush through a bill that would make the U.S.’s top copyright official— the Register of Copyrights— a position appointed by the president and confirmed by the Senate? Unfortunately, it is likely because the new appointment process will increase the ability of the incumbent copyright lobby to influence the Copyright Office, to the detriment consumers, creators and innovators.

“H.R. 1695’s supporters insist that it would increase accountability by giving Congress more of a voice in the selection process. But in practice, making the appointment one more contentious political contest would create a Register who’s only really accountable to the lobbyists and special interests that help her get selected and confirmed. Indeed, proponents of the bill have touted it as a measure that will better enable the Copyright Office to serve the interests of the ‘creative industries.’

“In the United States, as the Supreme Court has made clear, ‘[t]he primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.’ It’s designed to benefit the public as a whole, not just copyright holders or specific industries. That means copyright rules have to strike a careful balance between copyright holders’ control over their works and the public’s interest in accessing, building on and making fair use of those works. Without that balance, copyright law gets in the way of the very progress, innovation, and creativity that it’s meant to support. And in an era where copyright touches so many parts of our lives—from the videos and messages we share online, to our cars and tractors, and the devices that track our blood sugar or entertain our children—we’re all important stakeholders in the copyright system.

“The Copyright Office plays a role in that system.  But historically, that role hasn’t involved making copyright laws or controlling how they’re interpreted. Those tasks belong to Congress and the courts, respectively.  But over the past two decades, the Copyright Office has played an increasingly influential role in copyright policy through rule-making hearings, intervening in other agencies’ proceedings, and influencing how some courts interpret the law. And it’s done this in a way that’s often favored the interests of just one set of stakeholders—large media and entertainment companies—over the rest of us.  If the Copyright Office is going to have a voice in policy debates, we need to make sure it accounts for the interests of all stakeholders in the copyright system, including small creators, researchers, consumers, and technology users.

“Unfortunately, it seems some past Registers have seen their primary role as serving big media and entertainment companies. As former Register Maria Pallante once stated, ‘[c]opyright is for the author first and the nation second.’ The Office has often supported industry-friendly policies that undermined the public’s interest—from promoting the disastrous (and ultimately defeated) Stop Online Piracy Act (SOPA), to helping derail the Federal Communications Commission’s attempt to break up the cable TV set-top box monopoly.

“That’s not too surprising—as others have pointed out, there’s something of a revolving door between the Copyright Office and the major media and entertainment companies.

“But what industry advocates get wrong is that the Copyright Office isn’t supposed to be the entertainment industry’s lobbyist within the government. Like copyright itself, it’s supposed to serve the public as a whole, and ensure that the interests of copyright owners are balanced with those of the public.

“Some of those pushing the bill claim that the Library of Congress is getting in the way—that its mission conflicts with that of the Copyright Office. But looking out for the interests of all stakeholders in the copyright system—creators and users alike—isn’t anti-copyright. It’s the whole point of our copyright system. And if we can’t trust the Copyright Office to do that on it’s own, then at least in the Library of Congress, there’s the chance that someone in the chain of command will.

“Increasing accountability of the Copyright Office is a good idea. We need to make sure it considers the interests of all stakeholders, and that it’s adequately managing its resources. But making the Register a presidential appointee wouldn’t do that. It would only increase industry influence over the copyright system—hurting the rest of us in the process.

Kerry Maeve Sheehan is a consulting policy strategist at Electronic Frontier Foundation, where she works with EFF’s activism team focusing on copyright and patent issues.