Punditry: The Case Against the Copyright Office
Antiquated. Outmoded. Expensive. Harmful.
These are all words that ome to mind when I think about the United States Copyright Office (USCO). It is very difficult to imagine a more unnecessary institution and it is a concept that the rest of the civilized world has already done away with.
Simply put, when it comes to copyright law, the United States is many years behind the times and the USCO stands alone as the greatest symbol of just how far we have to go just to catch up with the rest of the world. There is simply not good reason for keeping the USCO and, in many ways, it is the greatest thing holding us back from true copyright reform.
The Protection Racket
Though the USCO has many functions, several of which are actually very good, it’s bread and butter is copyright registrations.
Unfortunately, copyright registrations are a complete waste of time, or at least they should be. Article five of the Berne Convention, to which the U.S. is a signator, says that the excercise of copyright “shall not be subject to any formality”. This was formally codified into American law in the Copyright Act of 1976 which changed copyright law to extend protection to any “original works of authorship fixed in any tangible medium of expression.”
This means that registering one’s copyright with the USCO offers no new rights or privledges. The only benefit that can be derived from such a registration is the right to sue for copyright infirngement in a federal court. While this might seem minor, suing in federal court for infringement enables the plaintiff to also receive punitive damages. State courts can only award either the amount of money made by the infringer or the amount lost by the plaintiff, whichever is greatest.
This deals heavily with plagiarism cases online as such infringements are, generally, for no profit and involve little or no money lost. Without punitive damages, suing for infringement becomes cost-prohibitive. This makes it so that the people who have the greatest need for a copyright registration, which costs $45 for a basic registration, are the people who want to share their work for free.
While an author is guaranteed the same rights regardless of whether or not he or she registers, there is no doubt that they lose much of their ability to enforce those rights if they do not. This puts a burden on content creators, especially poor ones and ones that want to distribute their works for free, but offers no new rights to the public. After all, the public has no knowledge about whether or not a work has been registered and, even if it has, the copyright holder has the same rights and can register at any time.
The only potential use for a copyright registration is to provide proof of ownership in the event of a dispute. However, since multiple registrations of the same material are allowed and, at this time, the USCO does not accept electronic submissions, it’s verification is virtually meaningless. The copyright office is simply too slow and it’s nonrepudation services have been easily surpassed by services such as Numly, which provide instant and much less expensive ownership verification.
When it is all said and done, the copyright registration process does nothing but reduce the ability of many copyright holders to enforce their copyrights, cost others a modest amount of money and provide no benefit to the public.
A copyright registration fee is “protection money” paid not to a mob boss, but to the government. However, much like the mob bosses of old though, the protection from is from the person receiving the funds. After all, if the government didn’t threaten bar us from federal courts, thus making copyright enforcement almost impossible, we’d have no reason to pay it at all.
A Bad Business
One way the USCO distinguishes itself from mob bosses is that crime lords were usually profitable. The USCO, however, has not run a profit since 1948 (PDF).
In the 2005 fiscal year, the USCO received nearly 24 million dollars in fees. However, that was only enough to offset approximately 57% of the USCO’s budget for that year. Taxpayers ended up paying nearly 20 million dollars to cover costs of running the USCO that were not covered by copyright registration fees.
Granted, much of this is due to the fact that the USCO serves functions not covered by registration fees, functions we will discuss later, but even if we stripped away all non-registration functions the USCO performs, the office wouldn’t even break even. Despite recently raising the filing fee for a basic registration from $30 to $45, the USCO expects only to recoup 95% of the costs for registration services. This leaves, potentially up to two million dollars of unrecouped costs for the registration services alone.
While this raises serious questions, such as why can’t the USCO do for $45 what others do at a fraction of the cost, it is clear that the USCO is bleeding cash. Though they hope that their impending online registration system will take some of the burden off, enabling them to lower costs and improve margins, the system is nearly a year away and is already a decade overdue. After all, the ability to submit files and complete secure transactions has been around for at least ten years and copyright issues online first came into the spotlight eight years ago with Napster.
Even if the system performs as promised, it may be too little too late and, regardless, it can’t make up for the mllions of dollars wasted, both by taxpayers and registrants, in the years that have already passed.
The best thing for the government to do is to cut the cord, eliminate the USCO and join the rest of the world with a registration-free copyright system.
What the USCO Does Right
This isn’t to say that the USCO doesn’t have a few functions that are necessary. It does many things that would need to be continued.
First and foremost, the USCO aids in policy decisions regarding copyright. This includes both domestic matters and international ones. The USCO advises Congress and other bodies regarding matters of copyright and is directly responsible for much of the copyright legislation that has been passed. Clearly, we need someone to continue to advise our government on these matters and help with international issues.
Second, the USCO provides valuable information and education services to the public itself. Though it is often very slow with replies, anyone with a copyright question can contact the USCO and get help. This includes both content creators and users who have questions about the legality of an issue. The USCO also distributes various pubnlications, including brochures, factsheets and circulars to keep copyright holders and users informed of the law and changes to it. These information services are a must, especially for any in the legal profession.
Finally, the USCO provides a means to discover the copyright holder of a particular work is. This is particularly valuable with the upcoming orphan works legislation and in dealing with older works. Even though much of this functionality has been replaced in more modern times by the Web and search engines, its archive of data is potentially invaluable when dealing with older works.
However, there is no reason that these functions can not be done by the Library of Congress (LOC) itself. Since the USCO is already a department of the LOC, though with a separate budget, and already shares a great deal of resources and information with it, there is no reason that the USCO can’t be dismantled and the important elements of it work directly under the LOC itself.
In the long run, it would probably be more effecient to have one department serving the combined functions of the LOC and the USCO, simply because so many of their duties already overlap (such as the manual deposit, a requirement of the LOC that copyright registration with the USCO can fulfill.
Conclusions
In the end, there is very little reason for our country to even have a copyright office. While many good, knowledgeable people work there, it is an office that is constantly overworked, notoriously understaffed, currently bleeding cash and has a primary function that is outmoded and harmful.
Simply put, requring copyright registrations harms copyright holders, does nothing to protect users and creates an additional beauracracy that has consistently lost money. It makes no sense to keep the requirement on the books.
While it’s doubtful that the U.S. will ever completely catch up to the rest of the world in terms of copyright law, a good first step would be to follow our peers and eliminate the copyright office and the pointless registrations that come with it. We have much more important things we can spend our money on than keeping up an outdated practice that injures everyone involved.
It’s time to move forward, but first, we have to cut the dead weight.
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