Copyhype

The United States is somewhat of an outlier among nations in that the US Copyright Office is located within the Library of Congress. In many countries, the agency charged with copyright governance is located within a cultural agency, while others place it within a unified intellectual property agency.

This uncommon arrangement has been brought into focus recently with the passing of H.R. 1695, the Register of Copyrights Selection and Accountability Act, in the House on April 26 by a vote of 378-48 (an identical bill, S. 1010, was introduced in the Senate May 2). The bill would make the head of the Copyright Office, currently appointed solely by the Librarian of Congress, appointed by the President with the Advice and Consent of the Senate. House Judiciary Committee Chairman Goodlatte described it as the first step toward overall modernization of the Copyright Office and is being considered separately given the current lack of a permanent Register. ¹A little over four years ago, then Register of Copyrights Maria Pallante testified to Congress about the need for a wholesale review of the Copyright Act. As part of that review, she said “evolving the Copyright Office should be a major goal of the next great copyright act. In short, it is difficult to see how a 21st century copyright law could function well without a 21st century agency.” Pallante expanded on her thoughts during the annual Meyer Lecture later that year, giving a talk on the Next Generation Copyright Office: What it and What it Means. The public record developed considerably since then, with Congress turning its attention to it several times. The House Judiciary Committee devoted an entire hearing to the Copyright Office’s functions and resources in February 2015 and most of the hearing on the Register’s Perspective on Copyright Review in April that same year, but it was also discussed by the House IP Subcommittee in September 2014, the House Administration Committee in December 2015, and budget hearings in the House and Senate Legislative Branch Appropriations Subcommittees in early 2015. Representatives Marino (R-PA) and Chu (D-CA) introduced a discussion draft of the Copyright Office for the Digital Economy Act (CODE Act) in June 2015. The bill provided for Copyright Office autonomy over its IT, staff, and budget, and included elevating the Register to a Presidential appointee confirmed by the Senate. The bill was formally introduced in the 114th Congress in December 2015 and reintroduced in the 115th Congress this past February. House Judiciary Committee Chairman Goodlatte and Ranking Member Conyers released a policy proposal on Copyright Office modernization in December 2016 for public comment. The proposal outlined an approach similar to the one taken in the CODE Act, including making the Register a Presidential Appointee. The Senate Judiciary Committee indicated that it was also working on draft legislation to address Copyright Office modernization.

In support of the bill, many have referred to the Copyright Office’s location within the Library of Congress as an accident of history. But I wanted to look more closely at the process that led to the present situation and see what, if any, conclusions we could draw as to Congress’s motivation regarding this historical accident.

Legislative History

As recounted elsewhere, the Office’s creation within the Library of Congress is the result of efforts by former Librarian Ainsworth Spofford beginning in the 1870s to centralize copyright deposits within the Library—the idea was to use these deposit copies, required under the current copyright act to perfect title to copyright, to build the Library’s collections for free. He got his wishes, but the plan worked a little too well. Within two years, Spofford was raising concerns about the “large amount of clerical labor” involved in maintaining the copyright department and how quickly the deposits were taking up the available space for the Library.²Annual Report of the Librarian of Congress, year ended December 1, 1872, pp. 6-7.

A big part of the problem was lack of space—the Library at that time was housed in the US Capitol building, which was starting to burst at its seams. Congress approved construction of a new building to house the Library in 1886, which would take eleven years to complete. As the construction of the building, which is today named the Thomas Jefferson Building, neared completion, it appears that Congress became sufficiently interested in reassessing the issue of Library management.

In anticipation of the new building, Congress instructed Spofford to report on the complete reorganization of the Library. Spofford provided a special report in response on December 3, 1895 to the Committee on the Library. In it, Spofford called for “The appointment of a suitably qualified register of copyrights, who should be a bonded officer, to have charge of the entire business of copyrights and of the clerical force employed therein.”

Beginning shortly afterward, a number of bills focusing on the “business of copyrights” were introduced. Vermont Senator Justin Morrill introduced S. 425 on December 5, 1895,³28 Cong. Rec. 41 (Dec. 5, 1895). and Alabama Representative John Bankhead introduced H.R. 1243 five days later.⁴28 Cong. Rec. 134 (Dec. 10, 1895). Both bills would create a Register of Copyrights to be appointed by the Joint Committee on the Library, a Congressional committee made of both Representatives and Senators that supervised the operation of the Library.

Rep. William Treloar, a one-term Missouri representative and songwriter, introduced his own bill February 13, 1896 with marked similarities to H.R. 1695. His bill, H.R. 5976, would have, among other things, created the position of “commissioner of copyrights, to be appointed by the President and confirmed by the Senate, who shall, under the supervision of the Joint Committee on the Library, perform all the duties relating to copyrights which have heretofore by law been imposed upon the Library of Congress.”

Morrill’s bill was reported by the Committee on the Library on February 20, 1896.⁵28 Cong. Rec. 1959. The House of Representatives Committee on Patents held a hearing March 19 that included discussion of Treloar’s bill, but the bill would not move any further forward.

Morrill’s bill would, however. S. 425 was reported by the Committee on the Library on February 20, 1896.⁶28 Cong. Rec. 1959. On May 8 that year, the bill was brought up on the floor of the Senate. It was passed over because, as Senator Cockrell said,”It will lead to discussion.”⁷28 Cong. Rec. 4695.

It would indeed.

Robust discussion began when the bill was attached to a conference report on an omnibus appropriations bill (H.R. 9643) regarding the constitutionality of the Register’s appointment by a Congressional committee.⁸See 29 Cong. Rec. 316 (Dec. 19, 1896) (remarks of Mr. Quigg). The discussion continued when, on May 21, 1896, the Senate took up the conference report.⁹See 28 Cong. Rec. 5496-5507 (May 21, 1896). The bill and its Constitutional issues were discussed again in the House at the end of December right before the Christmas recess, but without resolving the issue.¹⁰29 Cong. Rec. 314-319 (Dec. 19, 1896).

Something changed over the recess. On January 20, 1897, an amendment was offered in the Senate by the Appropriations Committee that would make the Librarian a Presidential appointee with the authority to appoint the Register of Copyrights. The Senate agreed to the amendment.¹¹29 Cong. Rec. 975 (Jan. 20, 1897).

A conference report was agreed to by the Senate on February 15,¹²See 29 Cong. Rec. 1832-33. and the House two days later.¹³See 29 Cong. Rec. 1945-47 (Feb. 17, 1897). After another two days, the appropriations bill was enacted into law.¹⁴Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.

A look at the discussions surrounding this legislative process reveals a number of conclusions.

The distinct missions of the Library and Copyright Office

First, the general sense of those most directly involved in creating the Copyright Office was that its function was distinct from the Library of Congress and its placement within was merely a matter of happenstance. This view was expressed (perhaps surprisingly) by the man responsible for bringing “the copyright business” within the Library in the first place—Spofford.

In his special report to Congress discussed above, Spofford noted that “The Librarian is charged by law with two wholly distinct functions—one as Librarian of Congress, the other as register of copyrights.” After describing in detail these functions, Spofford reported:

Six months ago he suggested to the accounting officers of the Treasury Department his purpose to urge upon the attention of Congress the importance of separating the functions of register of copyrights from those of the Librarian of Congress, with a view to promptitude and efficiency of service. The same recommendation is made in the annual report of the Auditor, and is enforced by many considerations of much weight. The appointment of a suitably qualified register of copyrights, who should be a bonded officer, to have charge of the entire business of copyrights and of the clerical force employed therein, would relieve the Librarian of an immense bureau of detail, and enable him to devote his energies to the tasks immediately belonging to Library interests.

Spofford wanted nothing to do with the copyright business. Congressional records reveal that in 1896, “Mr. Spofford told the joint committee that he had repeatedly asked to be relieved from the control of this copyright business. It interfered with his duties as a librarian. He urged the joint committee in drawing up its bill to see to it that the Librarian was relieved from all copyright duties.”¹⁵29 Cong. Rec. 385 (Dec. 21, 1896) (remarks of Mr. Cummings).

Spofford also appeared to support a Presidentially appointed Register of Copyrights, such as the one proposed by Treloar in his bill. The House of Representatives Committee on Patents held a hearing on the bill March 19. Appearing before the Committee was Alexander Browne, on behalf of the Music Publishers’ Association of the United States. Browne noted that the proposed commissioner of copyrights was supported by Spofford. ¹⁶Treloar himself noted in a letter after introduction of the bill that the “creation and maintenance of a Copyright Department…has the approval of…the Librarian of Congress.” Letter from Representative William M. Treloar, to J.N. Johnson, Esq., Sec’y, Am. Copyright League (Feb. 20, 1896), as quoted in Zvi Rosen, “The Twilight of the Opera Pirates: A Prehistory of the Right of Public Performance for Musical Compositions,” 24 Cardozo Arts & Entertainment Law Journal, 1157, 1180 (2007). He remarked,

Mr. Treloar’s bill begins with a proposed enactment, represented in the title and the first seven sections, of a separate department, under the charge of a Commissioner of Copyrights. I was very glad to hear Mr. Spofford favor that. We know the difficulties that Mr. Spofford has labored under for many years; and all I need say on that subject is that my clients, all of them, heartily indorse that measure and the form in which it is presented.

The bill advanced no further, largely because of opposition to other substantive provisions in the bill unrelated to the Copyright Office.¹⁷See Rosen, above. One contemporary account noted these controversies but said of the Copyright Office proposal just that it would “be dealt with more effectively in a separate bill.” Scientific American, “A New Copyright Bill“, pg 179 (March 21, 1896).

Senate Committee on Patents Chairman Platt made the same point during Congressional proceedings, saying,

This man [the register of copyrights], too, is pretty far removed from the Library. It is only by a very thin, elastic, and well-stretched cord that he is connected with the Library at all. The duties of this person regarding copyrights are taken entirely away from the Librarian, and so far as he is register of copyrights, he has no connection with the Library. ¹⁸28 Cong. Rec. 5496-97.

Constitutional Questions

Far and away the biggest debate over the formation of the Copyright Office had to do with Constitutional questions arising over who could appoint the register of copyrights (though these discussions ran parallel with similar discussions over appointment of the Librarian of Congress).

The disagreement hinged primarily on the characterization of the register. Supporters of appointment by the Joint Committee argued that the Library was a Congressional body, and Congress absolutely had the authority to select and appoint its own employees and officers. Opponents of that process argued that a register of copyrights would be a legal or executive official, meaning appointment was dictated by the Constitution’s Appointments Clause. ¹⁹U.S. Constitution, Article 2, Section 2 states the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

New York representative Lemuel Quigg, active in many of these discussions on the House floor, was perhaps not exaggerating when he remarked, “During the last four months I have had the question addressed to me, I think, a little over ten thousand times as to who had the power to make appointments in the Library.” ²⁰30 Cong. Rec. 1945.

Interestingly, the American Library Association reported on the Constitutional debate in its publication, The Library Journal, and said

[Appointment of the register by the Joint Committee on the Library] was finally declared unconstitutional. But as neither house could bring themselves to abdicate the control of copyright, which had come under their control solely through its being jumbled into the duties of the librarian of Congress, and as no motion prevailed to put the appointment where it properly belongs, in the hands of the President, the register of copyrights was finally dropped altogether.

Senator Platt said on the Senate floor, “It is of the highest importance that the person who has charge of copyright matters shall be an officer of the Government.”²¹28 Cong. Rec. 5496. This is the view that prevailed.

Delaware Senator George Gray gave a compelling argument in favor of this approach on the Senate floor:

This officer which this provision of law seeks to create and appoint is an officer who has nothing to do, so far as this function is concerned, with the administration of the duties of either House or of both Houses jointly. He does not perform any functions necessary to the organization of the House, to its convenience, or to its proper duties. We have created an office here in order to fulfill an intent of the Constitution, to provide for the protection of authors and inventors.

***

The issuance of a copyright has no more to do with the establishment of a library or the convenience of either House of Congress than the issuance of a patent—not a particle. The mere fact that the copyright law requires two copies of each copyrighted publication to be deposited with the Librarian can not confer the appointing power. ²²28 Cong. Rec. 5502-5503.

Conclusion

One hundred and twenty years later, the Copyright Office still resides as a department within the Library of Congress, and the Register of Copyrights is still appointed by the Librarian. And while a lot has changed since then—technology has advanced rapidly, copyright law has grown more complex, and the core copyright industries today contribute over $1.2 trillion to U.S. GDP—as Congress reconsiders the organization and structure of the Copyright Office, some of the same questions that arose in 1897 are being asked today.