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.
Continue Reading Copyright Office Calls for Greater Independence – What Would that Mean?