By Kevin Smith

This quote is from a 1996 letter written by then-Register of Copyright Marybeth Peters to  Senator Orrin Hatch of the Senate Judiciary Committee about why the Copyright Office belongs in the Library of Congress:

Put simply, copyright differs from industrial property in fundamental respects. Most other countries, like the United States, have recognized this difference, handling copyright issues in their ministries of culture or education, and patent and trademark issues in their ministries of commerce or trade. While copyright, like industrial property, has important commercial value, it also has a unique influence on culture, education, and the dissemination of knowledge. It is this influence that logically connects copyright to the Library of Congress in contributing to the development of our nation’s culture.

In my opinion, Register Peters was exactly right in what she wrote, so it is interesting that 20 years later she seems to take the opposite side in this long-standing debate, writing in a letter to a new group of senators and representatives, which was made public by the advocacy group Artist Rights Watch, that:

The placement of the Copyright Office in the Library owed more to an accident of 19th century history than to a carefully considered plan for effective management.  Since that time, the role of the Register and the importance of copyright has grown, and the competing missions and differing priorities of the Library and the Copyright Office have increasingly emerged as a source of tension.

Register Peters is entitled to change her mind, of course, especially as the social and political landscape changes.  But the earlier letter suggests that the change has not been a matter of centuries; it only took two decades.  So what has changed in that time that could lead to such a radical turnabout?

I think the obvious answer is that the explosive growth of the Internet over the past 20 years that has caused changed.  More specifically, it is the impact that the Internet has had on competition in the content/communication industries.

Twenty years ago, the Copyright Office’s perception of itself as a champion of the content industries, specifically big publishers, music companies and movies producers, made a good deal of sense.  Now, as the digital environment has lowered the barrier for entry in to the realm of content creation and distribution, what once seemed natural now looks anti-competitive.  The CO, and its former leaders, are in a position of taking sides in favor of the legacy industries — that they thought of themselves as serving for so long — and in opposition to new (and often more popular) forms of consumer entertainment.

That this is still the case is evidenced by the rapid move of former Register Marie Pallante from the CO to a position as CEO of the Association of American Publishers.  The revolving door between the CO and those legacy industries, which hardly raised an eyebrow in past decades, now is disturbing in what it says about the lack of impartiality in the administration of our nation’s copyright system.

No industry genuinely welcomes competition, of course, so there is a constant jockeying for position in hopes of getting the thumb of government influence to weigh the scales against those who would offer “my” customers a choice.

If the Copyright Office has long been a mouthpiece for the legacy content industries, it is this new fear of competition from new technologies that has propelled its change of direction.  It is no longer about shared national culture, it is about who gets a bigger piece of the pie.

These industries could, of course, listen to their customers and work to produce new products that compete better and meet the needs and desires of consumers.  But it is easier, unfortunately, for these companies to fight against the innovators and to ask the government to shield them from competition, while muttering dark and absurd suspicions about a Google-financed cabal.

Marybeth Peters was correct when she wrote to Senator Hatch about why the Copyright Office belonged in the Library of Congress.  It is unfortunate that fear of legitimate competition from the industries that the CO regulates has lead to this change of heart and, in my opinion, specious argument.  The idea of a shared commitment to promoting and preserving our national culture is still the foundation for the powerful argument supporting a continuing link between the Copyright Office and out national library.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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