The system in place to catalogue and protect creative works is both woefully out of date and dramatically underfunded and short-staffed.
Panelists and speakers at a conference on copyright law at the University of Baltimore School of Law all agreed the U.S. Copyright Office needs to be brought into the 21st century and granted autonomy to be able to continue effectively serving its purpose.
“So many major players agreed that the Copyright Office needs more resources and more control over the resources at its disposal that I expect to see something change there now,” said William Hubbard, director of the Center for Intellectual Property and Technology at the law school. “I hadn’t expected the Copyright Office to be on the cusp of a major change… I think a lot of players are making the same arguments for a more robust and more nimble Copyright Office, and that agility comes from more autonomy.”
One of the office’s problems is that, compared to the separate but often associated Patent and Trademark Office, it is costly to operate and does not generate revenue to sustain itself. Lodged within the Library of Congress, the Copyright Office does not have independent information technology resources to speed recordation of works.
“This is not a staffing issue, it’s an IT issue,” said Sandra Aistars, professor at George Mason University School of Law.
Many panelists advocated for removing the office from the Library and appointing an independent Register of Copyrights which would be on equal footing with the Librarian of Congress.
“The inherent difference in mission between the Library of Congress and Copyright Office is a problem,” said Keith Kupferschmid, CEO of Copyright Alliance, a nonprofit group that represents artists and creators.
Hubbard said it was interesting to see so many voices in the copyright community advocating for an independent Copyright Office.
“One of the things that’s great about a conference like outs is [it raises] awareness of these issues,” he said.
Robert Brauneis, professor at George Washington University School of Law, suggested allowing creators to choose a ceiling for statutory damages when registering their work and pay accordingly.
“Solutions like that could, I think, change the Copyright Office into a self-sustaining organization.”
The office needs to think very differently about how it operates and consider fundamental changes to the system to increase revenue and decrease barriers to registration, according to Kupferschmid. Suggested changes included creating a range of registration options based on the type of creator, like an annual fee for someone who will be making regular submissions compared to a low-cost option without an examination of the work which documents it but then does not bring a presumption of validity.
“My goal was to try to figure out what are some of the major issues in the copyright landscape today and how should we address them,” Hubbard said. “With that goal in mind, I thought the conference was a great success.”
Along with an antiquated system of registering works, courts are also dealing with applying out-of-date laws to rapidly-changing technology.
U.S. District Judge Marvin Garbis suggested statutes should be revised early and often in light of technological changes, providing examples of cases where laws and contracts were difficult to construe after major advancements.
“We in the courts do have to deal with copyright contracts that were written in the past,” he said, citing a 1969 contract granting the right to produce articles of tangible personal property for J.R.R. Tolkien’s works.
The contract likely contemplated movies and memorabilia, but the question of whether it extends to products like video games is currently being litigated and is “tremendously debatable,” Garbis said.
Congress has conducted 20 hearings since 2013 and heard multiple perspectives about how to update copyright law and the office, according to Joseph Keeley, chief counsel to a U.S. House Judiciary subcommittee dealing with intellectual property. Many provisions of the law are outdated and refer to extinct technology or are just not easily applicable to the modern copyright holder.
Photojournalists are increasingly working as independent contractors and their photos are some of the most commonly infringed pieces, said Alicia Calzada, outside council for the National Press Photographers Association. Even though they register their work, remedies are so limited many don’t bother pursuing them.
“Right now, we are just not seeing the benefit of copyright law given the costs of enforcing infringement,” she said.
Clazada said she is advocating for a small claims option for small creators to more easily litigate uses of their work without permission.
A small claims court would only be possible if the Copyright Office was granted more resources and control over those resources, Hubbard said.
“There are voices within the copyright community asking for the Copyright Office to do more,” he said. “The biggest feeling for me walking out of that conference was excitement about where we are in copyright law. We very much stand on a threshold of great change.”