September 9, 2015

The Flux Capacitor and the Copyright Office

Thirty years ago, audiences enjoyed the performances of Christopher Lloyd and Michael J. Fox in the sci-fi/comedy “Back to the Future,” the story of a scientist’s assistant who was accidentally transported back in time to 1955.  This past week, the U.S. Copyright Office had its own “Back to the Future” odyssey when its online registration system—managed by the staff of its parent agency, the Library of Congress—failed to come back online after scheduled maintenance.  Worse yet, it remained down for a full week.  Users of the Office suddenly found themselves back in 1955.  Those who needed to submit applications had to send paper copies through the mail, and the existing records could only be searched in person in the Madison Building on Capitol Hill.  Where is Dr. Emmett Brown when you need him?!

While any outage is an inconvenience, the Copyright Office’s registration system is particularly crucial.  Businesses that rely on copyright to protect themselves from free riders and unfair competition (not to mention outright thieves) need the Copyright Office to function efficiently.  Copyright owners’ ability to enforce their legal rights and eligibility for the full range of legal remedies against copyright infringement are dependent upon timely registration.  Businesses that want to distribute or make other uses of copyrighted works use the registration database as a source of information on who owns the rights to those works.  And those being threatened with an infringement suit consult the registration database and review deposit copies to assess the strength of the claims against them.

This outage is telling.  The General Accounting Office has been sounding the alarm about the inadequacies of the Library’s IT system, in particular.  It recently issued a scathing report, concluding, “[t]he Library does not have an IT strategic plan…is not effectively managing its investments…its implementation of key security and privacy management controls was uneven…it has not fully developed agreements with the other service units specifying expected levels of performance…The Library does not have the leadership needed to address these IT management weaknesses.”

But the issue is broader than a present lack of leadership.  The Library builds it’s systems—whether IT, human resources, or budget planning—for its own mission; this infrastructure is not necessarily designed to serve the particular needs of businesses that comprise the United States’ $1.1 trillion copyright system.  There is strong support from a bipartisan group of lawmakers and a broad set of stakeholders to move Copyright Office out from under the Library and allow it to modernize.  Representatives Tom Marino and Judy Chu have taken a leadership role and co-authored a discussion draft of legislation designed to achieve that goal.

American businesses and consumers deserve a Copyright Office that is suited to the modern era and the future.  Last weeks’ outage is yet more evidence that the Copyright Office needs authority over its own systems to make that happen.  And we hope Congress gives this the attention it deserves.  The DeLorean is optional.

Frank W. Cullen Jr. is executive director of U.S. intellectual property (IP) policy for the U.S. Chamber of Commerce Global Intellectual Property Center (GIPC).

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