Today, if you wish to get a copyright for a musical composition or a book, don’t expect things to move at warp speed. A snail’s pace is more like it.
You submit a form. Once eight to 14 months have elapsed, your claim finally may be processed.
Why is this? Strangely enough, much of the U.S. Copyright Office is run on an antiquated, paper-driven bookkeeping system, and it does not deal at all with the enforcement of copyright.
In 2010, employment related to intellectual property amounted to 27.1 million jobs, or 18.8 percent of employment in our economy.
American copyright-related industries accounted for $1.1 trillion of gross domestic product and employed 5.5 million workers in 2013, according to a report last year.
Yet the Copyright Office is outdated and so lacking in personnel, funds, and technology that it is inadequate for a system intended to protect intellectual property. Current denial of service problems are only one visible manifestation of administrative woes.
The Constitution specifically recognizes protection for intellectual property by means of copyright and patent grants as a key role of the federal government. Other major forms of intellectual property, trademarks and trade secrets, also are now protected by federal laws. The relevant clause of the Constitution (Article 1, Section 8, Clause 8) reads:
The Congress shall have Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries …
The Copyright Office fills the necessary role of registering copyright claims and recording copyrighted materials, so that every person may enjoy the fruits of his or her intellectual labors. By granting a person a temporary protection for the tangible expression of ideas, copyright balances the right to enter a market with the right to possess property, and encourages innovation.
The enormous obstacle facing the current copyright system is that it is treated as a second-class “basement operation” within the bowels of the Library of Congress.
Keith Kupferschmid, general counsel and senior vice president of intellectual property at the Software & Information Industry Association, testified about the Copyright Office early last year before the House Judiciary Committee:
While the office should be held accountable for its shortcomings to some extent, in truth many of these deficiencies have been caused by many years of budgetary neglect and structural deficits that would make it difficult for any agency to merely keep pace, to say nothing about modernization.
It is surprising that the Copyright Office is part of the Library of Congress. Copyrights are handled apart from patent grants, which are housed (along with trademarks) in a separate executive agency, the Patent and Trademark Office. The Library of Congress also exists to share information, while the Copyright Office exists to protect intellectual property.
The Copyright Office must keep up with digital technology, an important medium for intellectual property. In spite of this, it has been forced to share with the Library of Congress a location, personnel, and what is—for the Copyright Office’s purposes—an extremely antiquated information technology system.
This arrangement can be traced to an earlier age that did not anticipate the growth of digital technology or its relationship with intellectual property.
Maria Pallante, the Copyright Office’s director and register of copyrights, has said the office’s organizational structure “is under strain because the copyright system has evolved and because digital advancements have changed the expectations of the public.”
The growth of the intellectual property market and demand for digital copyrights has rendered the current structure of the copyright system dysfunctional. Several suggestions have been made for dealing with this situation.
Some have advocated fixing the copyright system but allowing it to remain under the jurisdiction of the librarian of Congress. Others, however, believe that there needs to be a more fundamental structural change and that, as a separate executive agency, the Copyright Office would be better positioned to fulfill its role to provide and protect copyrights.
Nancy J. Mertzel, representing the American Intellectual Property Law Association, has testified:
As the [Copyright Office’s] technical upgrades report explains, ‘[t]he office’s technology infrastructure impacts all of the office’s key services and is the single greatest factor in its ability to administer copyright registration, recordation services, and statutory licenses effectively.’ Yet, the Copyright Office does not control its technology. Rather, it is controlled by the Library of Congress, and housed on the library’s servers. In fact, even equipment purchased by the Copyright Office with its appropriated funds is controlled by the library. Additionally, the office is dependent upon the library’s IT staff. However, the library IT staff has other responsibilities, and is not well-versed in the needs of the copyright community.
The American Intellectual Property Law Association, Mertzel said, urged the Judiciary Committee “to explore ways to give the Copyright Office greater autonomy over its IT infrastructure and services.’’
The Judiciary Committee held hearings exploring options for modernizing the Copyright Office.
Moving it out of the Library of Congress to become a separate agency for intellectual propert, if done correctly by Congress, might be desirable. Other ideas to reorganize also merit consideration.
One possibility is to create a “superagency” for intellectual property uniting federal copyright, patent, and trademark protection functions to better promote and protect these key rights in a harmonious fashion.
The stakes are high. In the global information economy, in which intellectual property is increasingly important to competitiveness, ensuring that federal institutions protect the interests of American creative artists and inventors in the strongest possible fashion is paramount.
It is time for Congress and the administration to get to work and modernize the Copyright Office and, more generally, take a close look at the need to better defend all intellectual property rights, especially patents.