Dina LaPolt: Copyrights different than patents, trademarks

Dina LaPolt: Copyrights different than patents, trademarks
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While the average music creator might not have an intricate understanding of governmental bodies in Washington, there’s one that nearly all of them could name: the U.S. Copyright Office. Even the most amateur songwriters and recording artists can easily figure out how to register their copyrights, a simple way of ensuring their important intellectual property assets are protected. 

Before I was an attorney, I was a musician. I remember the thrill of receiving a copyright registration certificate, complete with the signature of then-Register of Copyrights Marybeth Peters. Many years later I met Peters, after I had become a music lawyer. It was a special moment for me. For a creator, receiving your first certificate of registration brings with it a strong connection to the Copyright Office. Today, the signature is by Register Maria A. Pallante, an excellent advocate for creators’ rights and one of the country’s foremost experts on copyright law.

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The Copyright Office plays an essential role in our country’s copyright system. Not only does it administer and maintain copyright registrations for countless works, but its employees are also the country’s foremost experts on copyright law with invaluable insight into its workings. As legislative review of copyright laws continues in Washington, we cannot take this expertise for granted.

However, the president and secretary of Commerce receive advice on copyright-related policy issues from another governmental body, the U.S. Patent and Trademark Office (USPTO). Inexplicably, USPTO holds duties that would be better performed by the Copyright Office. Patents and trademarks are very different from copyrights. They cannot be easily registered by creators. Unlike copyrights, patent and trademark registrations require extensive attorney assistance and significant legal fees. 

Further, the Copyright Office’s ongoing review of copyright laws is being compromised by involvement from the USPTO. The Commerce Committee Internet Policy Task Force, which includes USPTO employees, released a green paper titled Copyright Policy, Creativity, and Innovation in the Digital Economy in July 2013, extensively discussing various copyright-related issues that the task force thinks deserve consideration as copyright reform efforts continue. The task force followed up the green paper with two calls for public comments and a series of roundtable discussions across the country on the topics raised. 

All of this has been carried out despite the fact that the USPTO has no particular expertise in copyright law. This is confusing and harmful to the creative community.   In fact, the task force has prejudiced creators by raising and extensively discussing topics such as a compulsory license for remixes, mashups and sampling that should never have been raised in the first place.

Further, the Copyright Office, not the USPTO, should be advising the president on copyright issues. Why is the USPTO involved in anything related to copyright? It is severely disconnected from the creative community and therefore has no credibility. There is no “C” in PTO.

The Copyright Office has expertise in copyright law and daily sees how that law plays out for creators of all types. As a new Congress continues to review copyright law, it is the Copyright Office that should be allowed to inform much of the discussion. However, as part of the Library of Congress, the register of copyrights and her team are severely hindered in operating effectively and contributing a needed voice to legislative reform discussions by an oppressive oversight structure and confusing, overlapping roles with other agencies. The register of copyrights must seek the library’s approval over the regulations she establishes pursuant to the Copyright Act. Also, the Copyright Office must use the library’s limited technical infrastructure and has to compete with other library departments for resources.  That’s not ideal for the 21st century. It is essential that we give the Copyright Office the resources it needs to operate effectively by removing it from the Library of Congress and giving it its own infrastructure and budget. 

Not to mention, news is out that a new biography of Mark Twain, co-authored by the Library of Congress, extensively plagiarized at least five different sources. Because it contains the Copyright Office, the library is the very place where authors register their copyrights. Creators place trust in the library to protect their works, yet the library is being questioned about its use of works without permission or attribution.  It would appear that the library is not in tune with the Copyright Office’s mission.

At the end of the day, the Copyright Office is held back from reaching its full potential and contributing effectively to copyright policy discussions by its inclusion in the Library of Congress and unclear distinctions between itself and other, less-qualified governmental bodies that take on copyright roles.

Under the guidance of House Judiciary Committee Chairman Bob GoodlatteBob GoodlatteLawmakers grapple with warrantless wiretapping program House votes to crack down on undocumented immigrants with gang ties House Judiciary Dems want panel to review gun silencer bill MORE (R-Va.), who tirelessly advocates for creators’ rights in Congress, Congressional Creative Rights Caucus Co-Chairs Judy Chu (D-Calif.) and Doug Collins (R-Ga.), as well as incoming Judiciary subcommittee on intellectual property Chairman Darrell Issa (R-Calif.), have power to help our country’s creative community. A great step toward providing such help would be independence and resources for the Copyright Office.  

We have the experts in place. Let’s allow them to do their jobs.

 

LaPolt is an entertainment attorney based in Los Angeles at LaPolt Law, P.C.  In addition to practicing law, she is an advocate for creators’ rights in the areas of copyright, trademark and privacy and is regularly involved in legislative issues in Washington that affect the creative community. @dinalapolt @lapoltlaw