Somewhat lost amidst the chaos of social upheaval and a pandemic which has affected every aspect of our lives, an important decision about the cultural health of our Nation is also looming. While it may lack the profile and significance of broader events in society, it nevertheless has the potential to shape the enjoyment of our lives, and deserves our attention. I am referring to the upcoming decision by the Librarian of Congress to appoint a new Register of Copyrights. With Carla Hayden, the Librarian of Congress, saying that she would be appointing a new Register by the end of summer, and the application period having been closed for almost two months, the appointment of a new Register seems to be imminent. With this important decision in the works, I thought it would be useful to highlight some important considerations that I hope will be foremost in Dr. Hayden’s mind as she approaches her final decision-making.
In late 2016, Dr. Hayden invited the public to offer comments on the expertise needed by the Register of Copyrights as she began her search to replace the former Register.
At that time, I was working with the International Center for Law and Economics (ICLE) which occupies an interesting place in the think tank ecosystem given that its work is informed by what is taking place in both the tech and creative worlds. As such, ICLE was uniquely placed to offer comments that were informed by forces that are frequently seen as opposing and even incompatible.
As the Librarian continues her present search for the next Register, I thought it would be timely to repost our thoughts — still very relevant in the current environment. Indeed, given the developments over the past four years, our observations of the need to appoint a champion of the rights of the creative community are even more critical than they were then. In 2020, there is a much broader recognition of the harmful impact of lack of adequate responsibility on the part of platforms — both in general and with regard to copyright protection in particular, and the Copyright Office itself has published a report which indicts the status quo for failing to meet the objectives expressed by Congress when it adopted the DMCA in 1998. Countries around the world — and the EU in particular, have re-examined and updated their copyright systems to address the deficiencies which have manifested themselves over the past twenty years. It is essentially unavoidable to fail to recognize the inherent unfairness and unsustainability of maintaining a status quo which reflects a growing divide between the riches gained by online businesses built on the distribution of copyright materials, and the increasing precarity of cultural workers and businesses that are creating the content that drives the innovation economy.
It is a matter of the first importance that the next Register be prepared, on day one, to move aggressively to address this imbalance, and to ensure that creativity and innovation grow hand in hand, reflecting their interdependence. There are far too many parties that posit that recognizing and rewarding the creative talent driving the digital economy would create friction that would slow the growth of innovation. The next Register must have experience and vision in firmly rejecting this facile assertion of conflict. When we fail to sustain creators, we imperil the digital economy as a whole — or worse yet, doom it to insignificance. As ICLE noted in our 2017 comments:
“As the Librarian surely knows, defending the right of creators to determine the uses of their works in the present technological universe isn’t always popular. Many argue that copyright is outdated, that it conflicts with freedom of expression and the ability to innovate, and that it should therefore be replaced by broad exceptions and/or compulsory licenses. In an era that trumpets the value of “permissionless innovation,” the right of an individual to say no to the proposed use of his or her works strikes some as antediluvian. But, properly understood, permissionless innovation can’t mean that property and contracts are irrelevant; such a view undermines the “fuel of interest” that is essential to maintaining “the fire of genius,” in Abraham Lincoln’s memorable language. It will be up to the next Register to properly contextualize copyright so that its importance as an exclusive property interest is understood, to ensure that permissionless innovation refers to a regulatory environment and not to the erosion of commercial agreements rooted in fundamental property interests, and to vigorously challenge the notion that protection of original expression through the copyright law is a form of restriction on freedom of expression.
In short, the next Register must be prepared to take positions that may be unpopular with certain parties in order to advance modern and effective copyright protection. He or she must work with Congress to adapt copyright to the digital age in order to provide creators with an effective means of expanding their ability to determine the uses of their works. Digital technologies provide unprecedented opportunities for creators to make their works available, and can contribute greatly to the country’s economic and cultural health. But the potential of the internet and other technologies to expand markets for creators has been stifled by the piracy and sub-market licensing resulting from negotiating asymmetries, in turn caused by the mismatch between technology and the law protecting creators’ rights. The next Register should have a vision for addressing this imbalance, and for fulfilling the promise of the digital age.”
That brings me to a related point. There are many who argue that the Register herself, and the Copyright Office more generally, should operate as neutral referees in the development of copyright policies that reflect the views of opposing parties. But this completely misunderstands the nature and role of the Register and the Copyright Office. Neutrality would be an abdication of the responsibility of the Office which would directly conflict with the interests of American society. It would reward those with the most power — that is, the loudest voices, and would operate as a powerful mechanism for maintaining a broken status quo. To my mind, the single most important thing for the Librarian to consider is to ensure that the Register has a documented history of fighting to sustain the viability of cultural production — in all of its beauty and diversity. An understanding of the role of copyright in providing incentives for investment of time and resources in both the creation and distribution of original works. A detailed grasp of how the current normative infrastructure has failed to respond to the challenges and opportunities of the digital age. And perhaps most of all — a firm and sober understanding of her role as an agent of change, fighting for creators and to sustain the cultural production to which all Americans benefit.
As ICLE wrote in 2017: “Some organizations have suggested that the role of the Copyright Office is to be a neutral party serving as a referee between competing interests. The new Register must soundly reject that view, and reject the very notion that the interests of creators and the public interest are in tension. Rather, the Register must fully comprehend and act on the necessity of leadership in advancing a sound understanding of copyright policies for the digital age. Leadership requires patience, vision and fortitude. And of course there are times to listen — but there are also times to act. In handling our cultural legacy and our future, we can ill afford neutrality from the top copyright official in the government.”
The Librarian must ensure that the new Register is aware of the importance and complexity of the task ahead. The Register of Copyrights is a job like no other. As the Supreme Court has observed, copyright is the engine of free expression. As such, the Register can be said to be the guardian of the engine that defines who we are as a people. What we value. The extent to which we empower individual vision, and reward greatness that enriches and informs the public. This is not a job for the meek of heart. It is most certainly not a job for a referee. The country needs a champion. Cultural workers need an impassioned and determined advocate. And the world needs leadership that recognizes the real value of copyright.
I will close with this final excerpt from our 2017 submission, reflecting on the role of copyright within the international framework of human rights, and observing how it fuels our dreams and enriches our souls:
“Copyright has more than just economic value. The empowerment of creators through copyright reflects the core principles of individuality, self-reliance, freedom of expression, cultural diversity and experimentation upon which this republic was founded. The right to determine the uses of one’s creative work is a fundamental right recognized by Article 27 of the Universal Declaration of Human Rights and other instruments. Moreover, society gains when it creates sufficient incentives to authors to create original works and to voluntarily share them with the public. The Register should seek to ensure that all creators are able to choose the manner in which their creations are used. An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator by determining how and when to license the use of one’s creative works — is fundamental to a society’s ability to foster cultural production. The moral and economic aspects of this equation are inseparable.
It is also important for the Register to fully grasp that systems of copyright replaced private patronage as the mechanism for enabling creators to be self-sustaining. When creativity is fueled by market forces, the cultural power and potential of individuals is unleashed and society benefits. While copyright may be inadequate on its own to create optimal market conditions, it remains by far the most effective tool for fostering creativity and democratizing culture.”
This article originally appeared on Neil’s Medium page – republished with permission.