Could the Copyright Office become an independent agency with rulemaking power? Congress is examining all phases of copyright law, as well as the functioning of the Copyright Office. In connection with that review, the Register of Copyrights Maria Pallante (the head of the Copyright Office) sent a letter to John Conyers, the Ranking Member of the House Judiciary Committee, explaining her views on this topic. The letter was sent at the request of the ranking member, made at a recent hearing reviewing the functioning of the Office. In the letter, the Register suggests that the agency be made into an independent agency, like the FCC, to overcome constitutional issues about its powers and to allow it to act as an expert agency to more quickly respond to issues that arise under the copyright laws.

So what are the issues that this proposal raises? The constitutional issue that is mentioned in the letter is similar to the issue that faced the Copyright Royalty Board a few years ago, where a Court of Appeals decision concluded that the Copyright Royalty Judges were not constitutionally appointed under the Appointments Clause of the US Constitution. We wrote about the arguments in that case here. While the specific issue addressed in the CRB case, about the Judges being subject to the supervision of the head of a government agency, do not seem to arise in the appointment and supervision of the Register, another aspect of the Appointments Clause has raised from time to time, asking whether the Librarian of Congress, who oversees both the CRB and the Copyright Office, is truly the head of a department of the executive branch of government. In a government organization chart, the Library technically reports to Congress, not the President, and thus the arguments are that the Library is not a true executive agency (though the President does appoint the Librarian of Congress). While these issues generally have been resolved in favor of the Copyright Office, the fact that they have come up, and never been resolved by the Supreme Court, suggests the constitutional issues which the letter addresses. While this may be very theoretical there are more practical issues that would arise from an independent Copyright Office as well.The biggest change that would occur should the Copyright Office become an independent agency would be the potential for the Office to engage in rulemakings to decide issues in Copyright law. When we wrote about the Copyright Office’s recent music study (here), we noted that the office’s recommendations were only that – recommendations to Congress. Congress is the one that needs to make changes in Copyright law.

The argument for an independent Copyright Office is that Congress would not need to get involved in details of Copyright law changes, but instead could enact a broader statute and let the Copyright Office fill in the details, just as the FCC decides how to enforce the Communications Act. In today’s world, where technology changes so quickly, the argument is that copyright law should be able to adapt quickly to address these technological changes.

The objections to an independent Copyright Office would be exactly the same – Congress would not need to get involved in details of Copyright law changes, but instead could enact a broader statute and let the Copyright Office fill in the details. There is some thought that the advantage of quick decision making can also be a disadvantage. Now, when Congress has to intervene to make changes to the Copyright Act, it is a long process, but a very deliberate one. Often, given the complexity of the issues involved, Congress often does not resolve the issues without forcing the parties to any dispute to work out some sort of arrangement that Congress can codify – where neither side gets what they want, but both can end up with something that they can live with, at least for a while. While this process may take longer (comprehensive copyright reform can take many years), it does not result in precipitous changes that prejudice one side or another – something that some fear can happen more quickly through a rulemaking process.

Watching the FCC wade through some of the contentious issues with which it is dealing – net neutrality, spectrum management and even broadcast ownership regulation – has had some in Congress looking for more oversight over FCC activities. Is Congress is ready to give up that same kind of oversight over Copyright policy? That question may determine whether Congress is ready to act of the proposals of the Copyright Office for greater independence. But no matter what, it will no doubt be a long process that could have a significant impact on copyright policy in the US for the future.