Register of Copyrights: Amending the Process of Selection

My proposal is to join the United States Copyright Office with the already existing United States Patent and Trademark Office to form a cross-doctrine United States Intellectual Property Office (USIPO).  Congress has other plans.

H.R.1695 – Register of Copyrights Selection and Accountability Act of 2017 – is moving forward in the house – being voted out of the Judiciary Committee earlier this week (27-1 vote).  The proposal would create a quasi-independent position of Register of Copyrights appointed by the US President for a 10-year term (with Senate confirmation) removable for cause.   An amendment approved by the Committee would limit Presidential appointment power. In particular, a six-member delegation of Congressional leadership plus the Librarian of Congress would recommend three qualified candidates for the President’s consideration.

The background for the changes stems from the recognition that the Register of Copyrights is currently seen essentially as an at-will employee of the Librarian of Congress – who is not really focused on IP Policy or Efficiency.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

17 thoughts on “Register of Copyrights: Amending the Process of Selection

  1. I object to Dennis’s plan because I don’t want to have to learn a new acronym.

  2. I have a better idea.

    1. Go to a Patent Registration System. Valuable patents end up getting litigated anyway and having a patent challenged in both an Article III Court and the Patent Office is just plain wrong.

    2. Shut down the Patent Office.

    3. Patent Registration will be handled by the Copyright Office and cost $50.

    People can start private companies to give you an opinion of how likely your patent is to stand up in Court before you register it. If you don’t think you need that service don’t buy it.

    1. Bravo – then also consider that the entire multi-Billion (yes, that’s a “B”) annual Patent Office budget is paid through the “tax” purely and only on innovators through the “Fee” system, and the notion of registration may be seen as unleashing those Billions back directly into those innovators’ pockets.

      1. Our budget might be billions, but it’s a drop in the bucket compared to all those patent prosecutors’ billable hours that would be instantly winked out of existence.

        And, of course, that’s a mere drop in the bucket compared to the screeching halt that the economy would come to, once every product in existence became the target of one lawsuit or another.

    2. If you adopt this approach, then you have to design a system where defendants can get quick and cheap (say $50) determinations that the registered invention is invalid. Otherwise, you will be giving unscrupulous actors license to basically print their own money.

        1. Because you can literally spend an hour typing garbage out (or copying and pasting), register it for $50 bucks, and then start sending intimidation letters to every mom and pop shop you can think of. It would be like copyright trolling or ADA trolling (See Prenda), but on steroids.

              1. Once again, how is this different than any other cause of action available under the law?

                Methinks you have drunk too much of the “Oh No Tr011s” koolaid…

                1. If you don’t think trolls are a problem in registration systems, then you aren’t paying attention. Especially since the asinine idea of a patent registration system would lower the barrier of entry for trolls. Again, see Prenda on how trolls can rampage for years and were false claim actions are useless.

                  Maybe then we could settle on extremely strict pleading requirements. You’d have to plead that your registration was valid. Maybe perform something akin to when you do expedited examination. After all, without examination, there is no presumption of validity. The infringement contentions would also have to be painstakingly detailed. Of course, there would be no discovery until a trial on the validity of the registration was thoroughly conducted.

                2. It is not that I have drunk the “Tr011” koolaid, its that you have not been paying attention.

  3. This will inevitably lead to regulatory capture, where functions of the Register of Copyrights (such as DMCA exceptions) will ultimately serve corporate interests and not the interests of the public as a whole. Our only hope is that the various corporate interests will clash enough to bring some semblance of balance (e.g. the -AA mafia (the MPAA, the RIAA, etc.) v. Google, etc.)

    1. Squirrel, you’re decades late.

      The Register of Copyright and Copyright Office have long been captured by the transferee/distributor segment of the entertainment industry. Just compare the runaround the actual author gets when submitting a group registration to what a publisher/clearance house gets… or look at behavior in Morris… or attend any session organized by the Copyright Office on the “orphan works” problem…

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