By Dennis Crouch
Most operating businesses that rely on intellectual property (IP) rights do not focus on a single form of rights but instead take a layered approach that includes patent law along with trademark, copyright, contractual limitations, and design rights, for instance. Each form of IP has weak points and overlapping coverage provides a greater level of certainty that any underlying market value can be protected. Of course, overlapping rights create difficulties for users that rely upon the public domain and fair use. The bulk of governmental money spent on administering intellectual property rights goes through the US Patent & Trademark Office (PTO) — an executive agency housed within the Department of Commerce. Although the PTO only administrates patent and trademark issues, the Director of the USPTO also serves as the Undersecretary of Commerce in charge of Intellectual Property and has the role of advising the President and other federal agencies on all aspects of intellectual property – including copyright law. Of late, this role is shared somewhat with the White House Office of the U.S. Intellectual Property Enforcement Coordinator.
Whither the Copyright Office: There is a clear structural reason why the President and executive agencies cannot rely on the US Copyright Office for advice about copyright law. The Copyright Office is housed within the Library of Congress, which itself is managed by Congress rather than the President. Thus the US Copyright Office does not officially represent the Administration or shape Administration policy. This is an odd setup — especially with the rising and overlapping market role for intellectual property rights. From a theoretical standpoint, it is unclear whether the fractured administrative structure leads to rights that are either too strong or too weak. What we can tell is that the structure leads to a lack of coordination in administration of the various IP systems within the US.
In his 1995 Congressional testimony on the topic, Bill Patry identified the fractured structure as "an historical anomaly."
It is not the result of a judgment that the legislative branch is where the Copyright Office belongs. It occurred solely because there was a very clever, ambitious Librarian of Congress who figured out that rather than relying upon appropriated funds, which is not a great way for agencies to fund themselves, he would get free books. He got free books by convincing Congress to require publishers and authors to give the Library free books. That is how the Copyright Office got into the Library of Congress.
The answer: In 1995, the Senate proposed a solution – a United States Intellectual Property Organization (USIPO). (S. 1961). Although the Bill did not emerge from committee at the time, the newly proposed organization would fall in line with many of our trading partners, including the UK IPO, the Canadian IPO, and the World Intellectual Property Organization (WIPO).
Back in 1995, then Register of Copyrights Marybeth Peters commented that such a move may unduly politicize the Copyright Office. Peters was also concerned that the historic and humanist value of the copyright registry would be soiled if joined with the commerce-focused patent and trademark administrators.
Bill Patry testified before the Senate in support of the concept of the USIPO and argued that the Copyright Office functions are executive not legislative:
Well, the Office doesn't perform any legislative functions. Why should it remain in the legislative branch? The answer that you are given is essentially that is the way it has always been and we like it that way. But if you have go the two other forms of intellectual property … why should the third one be over here and on the other side of the Potomac? It is really a quaint sort of nostalgia for the past. It is an obstacle for the future.
Members of Congress also expressed reticence about giving up direct control of the office. At the time, the Intellectual Property Owners Association and AIPLA suggested "further study."
In the years since 1995, we have seen a great convergence in the marketplace role of the various intellectual property schemes. It seems to me that the time is ripe to consider the issue once again.