Where does Copyright Governance fit within Government?

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The recent controversy over the effective dismissal/forced resignation of Maria Pallante, the former Register of Copyrights of the US Copyright Office (USCO) by the Librarian of Congress, Dr. Carla Hayden, and the debate as to whether it was logical for the custodian of copyright (and the advisor to Congress on copyright issues) to be located within the Library of Congress, raises the issue of how and where copyright registration is managed in other countries. The US model has long historical antecedents of course, but as far as I know is not replicated elsewhere. That does not mean the US model does not work, or that the Copyright Office should be placed elsewhere within government, but it may be informative to look at what other countries have done.

First, why is the Copyright Office within the Library of Congress and why does the Register report to the Librarian? As many in the copyright community know, copyright is embedded in the US Constitution, (Article 1, Section 8), and the first US copyright law was passed by the US Congress as early as 1790. Originally copyrights were registered in district courts and it was not until 1870 that copyright functions were centralized in the Library of Congress. Article 1, Section 8 is also the wellspring for the US Patent Office, which over the years has bounced around from the Department of State, to the Department of the Interior to, in 1925, the Department of Commerce where it resides to this day. Copyright has always been managed separately from forms of other intellectual property (IP) in the US.

While there was and still may be logic for a close relationship between the USCO and the Library of Congress, given the Library’s mandate to be the repository for copyrighted works, certainly there are areas of disagreement between copyright industries and library communities, particularly libraries of academic institutions where growing educational exceptions for fair dealing and fair use have caused tension with educational publishers, among others. The digital world has heightened these tensions. Should the “guardian” of copyright have greater independence, along the lines of the status of the US Patent and Trademark Office (USPTO) as an independent agency within the Department of Commerce? It is a question worth considering? What do others do?

In some countries the copyright function is co-located or is part of the agency that deals with patents and trademarks and other IP issues such as industrial designs and trade secrets. This is true in Canada where the Canadian Intellectual Property Office, a separate operating agency of Industry Canada, (recently renamed Innovation, Science and Economic Development Canada, roughly analogous to the Department of Commerce in the US) oversees all IP issues. This model is also followed in New Zealand through IPO New Zealand, part of the Ministry of Business, Innovation and Employment.

In many other countries, however, copyright is seen as having primarily a cultural function rather than being a business development tool, and is located with the Ministry of Culture or some other cultural agency. This is true, for example, in France where the copyright function is part of Office of Literacy and Artistic Property within the Ministry of Culture and Francophone Affairs, and this model is followed in many other countries that are part of the francophone world, as well as in Australia, where it the Content and Copyright Branch is part of the Department of Communications and the Arts.

In some other countries, China being an example with its National Copyright Administration of China, the copyright function is managed by a separate stand-alone office.

A quick survey of how and where each country manages its copyright function is maintained by the World Intellectual Property Organization (WIPO) through its Directory of Intellectual Property Offices.

Britain is an interesting case, where copyright is handled as part of the integrated UK Intellectual Property Office, an entity that is also responsible for trademarks, patents and designs. But for centuries it wasn’t like this. Until 1999, copyright registration in the UK resided at the Stationer’s Hall, (aka the “Worshipful Company of Stationers and Newspaper Makers”), a guild dating back to 1403 that received its royal charter in 1557. It originally held a monopoly over the publishing industry and its Charter, which codified its monopoly on book production, ensured that once a member had asserted ownership of a text (or “copy”) no other member was entitled to publish it. That concept of “copyright” was changed when the first true copyright legislation, the Statute of Anne in 1709 granted copyright to authors rather than printers. Copyright in Britain has a long history and a long association with the Stationers, but in early 2000 the registration service provided by Stationer’s Hall was closed down and the UK Copyright Service established. In effect, copyright was disestablished from the organization that had shepherded it, put under common management with other forms of intellectual property registration, and given a modern and updated mandate.

The association of the Library of Congress and the US Copyright Office does not go back nearly as far as the association of Stationer’s Hall with copyright in Britain, but there are some similarities. In both cases copyright registration and custody is/was not the main function of the larger organization to which it is/ was entrusted. Many would argue in a modern digital world, copyright oversight should be managed in a manner that is consistent with other areas of intellectual property, given that the objectives of various forms of IP protection are similar, i.e. to promote creativity and innovation by providing a limited monopoly for a specified period of time to the creator/inventor of the IP (trademark’s objectives being somewhat different).

Patents, trademarks and copyrights have different characteristics and history and there is no “one size fits all” formula for protecting the various forms of intellectual property, but they are all remarkably similar in intent, and face similar challenges of infringement. Copyright, because of its nature and history, needs to be governed by specialists in the field, but that can be accomplished under the overall management of a common IP office, as the models in the UK and Canada have shown. Whether that model would work for the US is an open question, but after almost 150 years under the aegis of the Library of Congress, maybe it is time to re-examine where the US Copyright Office will find its home in future?

© Hugh Stephens, 2017. All Rights Reserved.

One thought on “Where does Copyright Governance fit within Government?”

  1. A number of patent attorneys I’ve encountered have belittled copyright, making it the bastard child of the IP family. I recall one patent attorney telling me that copyright matters (vs. patent) are NOT difficult issues (REALLY: the courts have often struggled with copyright’s Fair Use, and sometimes they get it wrong).

    The Library of Congress is no fan of copyright, notwithstanding when the Copyright Office supplies it with free works to grow its collection of media.

    There seems to be strong consensus inside the US Copyright Office that to be able to serve Congress & authors, it needs to be housed independently, outside the Library of Congress AND away from the USPTO. I see the folks at the Copyright Office as the best experts to determine how to operate their mandates?

    Remaining at the LOC or becoming part of the Commerce Department would belittle the Copyright Office.

    Like

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