U.S. GOVERNMENT PUBLISHING OFFICE

35–237 WASHINGTON : 2019

S. HRG. 115–613 

REGISTER OF COPYRIGHTS SELECTION 

AND ACCOUNTABILITY ACT 

HEARING 

BEFORE THE

COMMITTEE ON RULES AND 

ADMINISTRATION 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 26, 2018 

Printed for the use of the Committee on Rules and Administration 

( 

Available on http://www.govinfo.gov 


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COMMITTEE ON RULES AND ADMINISTRATION 

SECOND SESSION 

ROY BLUNT, Missouri, Chairman 

MITCH MCCONNELL, Kentucky 

LAMAR ALEXANDER, Tennessee 

PAT ROBERTS, Kansas 

RICHARD SHELBY, Alabama 

TED CRUZ, Texas 

SHELLEY MOORE CAPITO, West Virginia 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

CINDY HYDE-SMITH, Mississippi 

AMY KLOBUCHAR, Minnesota 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

TOM UDALL, New Mexico 

MARK R. WARNER, Virginia 

PATRICK J. LEAHY, Vermont 

ANGUS S. KING, JR., Maine 

CATHERINE CORTEZ MASTO, Nevada 

FITZHUGH ELDER IV, Staff Director 

ELIZABETH PELUSO, Democratic Staff Director 


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C O N T E N T S 

Pages 

OPENING STATEMENT OF: 

Hon. Roy Blunt, Chairman, a U.S. Senator from the State of Missouri ............. 1 

Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota .................... 2 

Keith Kupferschmid, CEO, Copyright Alliance ..................................................... 4 

Jonathan Band, Adjunct Professor of Law, Georgetown University ................... 5 

PREPARED STATEMENTS OF: 

Keith Kupferschmid, CEO, Copyright Alliance ..................................................... 18 

Jonathan Band, Adjunct Professor of Law, Georgetown University ................... 23 

MATERIALS SUBMITTED FOR THE RECORD: 

Statement of Mark K. Dickson, Chair, ABA Section of Intellectual Property 

Law ........................................................................................................................ 28 

Statement of Sarah Howes, Director and Counsel, Government Affairs and 

Public Policy Screen Actors Guild–American Federation of Television and 

Radio Artists ......................................................................................................... 30 

QUESTIONS SUBMITTED FOR THE RECORD: 

Hon. Cortez Masto, a U.S. Senator from the State of Nevada to Keith 

Kupferschmid, CEO, Copyright Alliance ............................................................ 33 

Hon. Cortez Masto, a U.S. Senator from the State of Nevada to Jonathan 

Band, Adjunct Professor of Law ......................................................................... 37 


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REGISTER OF COPYRIGHTS SELECTION AND 

ACCOUNTABILITY ACT 

WEDNESDAY, SEPTEMBER 26, 2018 

UNITED STATES SENATE, 

COMMITTEE ON RULES AND ADMINISTRATION, 

Washington, DC. 

The committee met, pursuant to notice, at 2:38 p.m., in Room 

SR–301, Russell Senate Office Building, Hon. Roy Blunt, Chairman 

of the committee, presiding. 

Present: Senators Blunt, Fischer, Wicker, Klobuchar, and King. 

OPENING STATEMENT OF HONORABLE ROY BLUNT, 

CHAIRMAN, A U.S. SENATOR FROM THE STATE OF MISSOURI 

Chairman BLUNT. The Committee on Rules and Administration 

will come to order. 

Good afternoon. Glad to have all of you here this afternoon. Senator Klobuchar and I are pleased to begin to get some more information on this topic, and the topic today is on the Register of Copyrights Selection and Accountability Act. 

H.R. 1695 passed the House in April 2017 by a vote of 378 to 48. 

Its Senate companion, Senate bill 1010, sponsored by Senators 

Grassley, Hatch, Feinstein, and Leahy, have—would change the 

way the Register of Copyrights is selected and appointed. 

Currently, the Register of Copyrights is appointed by the Librarian of Congress. The proposed legislation would give Congress a 

greater role in selecting the Register and making the position a 

Presidential appointment, subject to confirmation by the Senate. 

During the nomination hearing of Dr. Hayden in this room in 

2016, many of—on this committee asked questions and raised 

issues about the Copyright Office, and I think rightly so. Every 

day, people across the world enjoy the creations of our authors, our 

photographers, bloggers, artists, and others. These creations have 

significant impact on our economy, to our trade balance, and to our 

culture. The Copyright Office plays a crucial role in serving both 

users and creators. 

I think all of us would have to agree that the Copyright Office 

would benefit from some modernization, and some of that is already happening. Since being sworn in in 2016, Dr. Hayden, her 

CIO, Bud Barton, and the Acting Register of Copyrights, Karen 

Temple Claggett, have taken steps to improve the Copyright Office, 

especially its information technology systems. This is a long-term 

project that will take many years to accomplish, but Dr. Hayden 

and her team are continuing to head in the right direction. 


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The legislative branch agencies this committee oversees—the Library of Congress, the Architect of the Capitol, the Government 

Publishing Office—serve the Congress and the Nation. They are led 

by agency heads who exercise significant authority, pursuant to the 

laws of the United States. These agency heads are nominated by 

the President and confirmed by the Senate. 

The legislation we are considering today would treat the Register 

of Copyrights in a similar manner, while maintaining the Copyright Office within the Library of Congress, which I believe is exactly where it should be physically located and where it would remain located. 

When it comes to legislative branch agencies, Congress should 

play a significant role beyond the Senate’s traditional advice and 

consent role even in the selection process of those who head agencies and those who will serve in other significant positions. The 

Register of Copyrights is one of these positions. 

Ensuring that legislative branch officials have been selected by 

a transparent, bicameral, bipartisan process like what would be 

proposed in the Register of Copyrights Selection and Accountability 

Act, it is an important addition to the system based on the view 

of the sponsors of this legislation. 

I am glad to be here. I am glad to be joined by the Ranking 

Member of the committee, Senator Klobuchar. Senator Klobuchar, 

I would turn to you for any opening statements you might have. 

OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A 

UNITED STATES SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Well, thank you very much. Thank you, 

Senator Blunt, Mr. Chairman, for holding this hearing. 

I want to thank you for doing this because this is such an important topic on the Register of Copyrights Selection and Accountability Act. I join you in welcoming our two witnesses, and I look 

forward to hearing their testimony. 

Today’s hearing is about the Register of Copyrights at the U.S. 

Copyright Office. This is a position that most people have never 

heard of before. It is possible people are focused on another hearing 

and other work going on this week, but it is very important that 

we continue on because this important job affects our lives every 

single day. 

Whether you are listening to music, reading a novel, or watching 

your favorite show, you are consuming work that is protected by 

copyright. If you are an inventor, author, scientist, musician, 

filmmaker, or any one of the millions of Americans who create 

original work, the Copyright Office is the place you go to safeguard 

your work. 

This is important in my state. We are the home of Prince, who 

we miss. We are the home of Bob Dylan. We are fiercely protective 

of copyrights, I would say, and of musicians’ rights to their work. 

My own dad wrote for many, many years—he is now 90—and wrote 

a bunch of books. I am well aware of these issues and was at a private law firm for 14 years, and I have handled some of these cases 

peripherally myself. 

Ensuring that creators can protect their original works is one of 

the hallmarks of our free market system, and it fosters competiVerDate Mar 15 2010 10:43 May 22, 2019 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\35237.TXT 35237

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tion, creativity, and entrepreneurship. Copyrighted work is fundamental to our economy. Last year, copyrighted industries contributed more than $1 trillion to our economy. That translates to about 

7 percent of the total U.S. GDP and 5.5 million jobs. 

In other words, copyrighted work doesn’t just entertain and inspire us, it drives economic activity and translates into jobs for millions of Americans. We need to keep this area of our economy 

strong because, now more than ever, innovation will be the key to 

moving our economy forward in the United States. We need to be 

a country that invents, that makes stuff, that exports to the world, 

and promotes ingenuity. 

Continuing to foster an environment of innovation requires us to 

be adaptable and forward-thinking. In the 21st century, we need a 

modern Copyright Office that is secure, efficient, and accessible to 

all. 

To achieve the goal of a modern Copyright Office, the next Register of Copyrights must continue the critical work being done 

today to upgrade and update the infrastructure in the Copyright 

Office. Meeting the IT needs of the copyright community won’t happen overnight. It will take a commitment from Congress, the Copyright Office, and the Library of Congress. 

The appropriations legislation for 2019, which was signed into 

law last Friday, will allow the progress made on IT modernization 

to continue in the coming year. The bill includes funding for important priorities like continuing investment in the next-generation 

registration system, rebuilding the capacity of registration examiners by adding 15 new positions, digitizing copyright records dating back to 1870—that sounds like a lot of records—in a searchable 

format, advancing the design of the Copyright Office’s first-ever 

automated recording system, and continuing support of the Copyright Modernization Office. 

The legislation that we are considering today will complement 

the work already underway toward modernization. The bill would 

change the process for selecting a Register of Copyrights by making 

it a Presidentially nominated, Senate-confirmed position for a term 

of 10 years. The Register of Copyrights would have the same stature as the Under Secretary of Commerce for Intellectual Property 

and Director of the U.S. Patent and Trademark Office. Senate confirmation of the nominee would enhance the relationship between 

the Register and Congress, give Congress a direct role in the process to select our chief copyright policy adviser, and strengthen accountability. 

The portfolio of responsibilities of the Copyright Office is just as 

diverse as the creative community that it serves. Copyright policy 

promises to get more complex in the digital age, and as innovation 

continues, we must ensure that we have a transparent selection 

process in place to select the most qualified candidate to lead the 

Copyright Office on behalf of the American people. 

Mr. Chairman, I look forward to working with you to advance the 

legislation to the full Senate. 

Thank you very much. 

Chairman BLUNT. Thank you, Senator Klobuchar. 

We are pleased to have our two witnesses today. Keith 

Kupferschmid is the chief executive officer of the Copyright AlliVerDate Mar 15 2010 10:43 May 22, 2019 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\35237.TXT 35237

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ance. Before that job, he served as the general counsel and senior 

vice president for intellectual property for the Software and Information Industry Association. 

Jonathan Band not only is an adjunct professor at Georgetown 

University, but an expert on these issues. In 2017, he received the 

American Library Association’s L. Ray Patterson Copyright Award, 

which recognizes an individual who has supported the constitutional purpose of the copyright law, fair use, and public domain. 

We are pleased you are both here, and Mr. Kupferschmid, if you 

would like to go first, and then Mr. Band, and then we will have 

some questions. 

OPENING STATEMENT OF KEITH KUPFERSCHMID, CEO, 

COPYRIGHT ALLIANCE 

Mr. KUPFERSCHMID. Well, thank you. 

Chairman Blunt, Ranking Member Klobuchar, and members of 

the committee, thank you for the opportunity to testify before you 

today to discuss the importance of the Register of Copyrights Selection and Accountability Act, H.R. 1695 and S. 1010. 

I am Keith Kupferschmid, the CEO of the Copyright Alliance, a 

nonprofit, nonpartisan organization dedicated to advocating policies 

that promote and preserve the value of copyright. I testify here 

today in support of H.R. 1695 and S. 1010. 

There are several reasons why making the Register of Copyrights 

a Presidential appointee confirmed by the Senate makes good 

sense. Copyright is critical to the United States economy. The core 

copyright industries contribute over $1.2 trillion to the U.S. GDP 

and employ more than 5.5 million U.S. workers. As the Government agency responsible for administering the copyright system, as 

well as providing expert advice to Congress on copyright policy 

issues, it should, therefore, come as no surprise that few Government offices are more important to the U.S. economy, to jobs, and 

to creativity than the U.S. Copyright Office. 

The Register, who heads the Copyright Office and serves as Congress’ statutorily designated copyright expert, is a large component 

of that. Making the Register a Presidential appointee confirmed by 

the Senate would reflect the growing importance of copyright to our 

economy and our culture. It would show our international trading 

partners how much we value copyright and the importance of protecting the fruits of America’s creators. 

Second, making the Register a Presidential appointee would ensure that she is treated like other officials with oversight over similar organizations. For example, the Patent and Trademark Office 

is led by a Presidential appointee. Similarly, chairs of the NEA and 

NEH and the Director of the Institute of Museum and Library 

Services are all Presidential appointees. In short, there is simply 

no reason for Copyright to be treated with less significance, especially when one considers its importance to the U.S. economy and 

culture. 

Third, making the Register a Presidential appointee ensures a 

more transparent, a more balanced, and a more neutral selection 

process compared to the existing process. The existing process does 

not require any direct input from the administration or from ConVerDate Mar 15 2010 10:43 May 22, 2019 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\35237.TXT 35237

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gress. Today, the Register is chosen by the Librarian without any 

input. 

This bill would change that by allowing the President to nominate the Register from a slate of candidates and the Senate to give 

its advice and consent. Through this process, if there are concerns 

about a nominee for the registration position, the bill would allow 

those concerns to be voiced to Congress prior to confirmation. That 

opportunity does not exist today. 

Fourth, Congress has historically enjoyed a direct line of communication with the Copyright Office for expert impartial advice on 

copyright law and policy. But recent changes to the organizational 

structure of the Library of Congress have disrupted that direct line. 

The bills ensure that Congress will continue to receive this expert 

impartial advice. 

Fifth, enacting these bills will provide the Copyright Office with 

a greater say in how it operates and enable it to improve its operations. Of course, Copyright Office modernization is an issue that 

requires much more than increasing the accountability of the Register selection process, but changing the appointment process and 

providing the Register with the ability to discharge her duties effectively is an important component for modernization of the Copyright Office. It will help ensure that the Register has the voice and 

the resources needed to implement policy, to manage its operations, 

and to organize its information technology in a way that brings the 

Copyright Office into the 21st century. 

Equally important to what the bills do is what they don’t do. 

H.R. 1695 and S. 1010 largely do not alter the existing statutory 

relationship between the Copyright Office and the Library or the 

Register’s statutory responsibilities. 

While the urgency to address the appointment of the Register is 

new, the recognition that this change is needed is not. We have 

long advocated and supported the Register being Presidentially appointed with the advice and consent in the Senate well before 

Dr. Hayden became the Librarian, well before Donald Trump became President. With the position now vacant, the time is now to 

make that change. 

The modest approach outlined in H.R. 1695 and S. 1010 enjoys 

widespread bipartisan, bicameral, and stakeholder support. We respectfully ask that the committee vote in favor of H.R. 1695 and 

S. 1010. We look forward to continuing to work with this committee 

as the bill moves forward, and I am happy to answer any questions. 

[The prepared statement of Mr. Kupferschmid was submitted for 

the record.] 

Chairman BLUNT. Thank you. 

Mr. Band? 

OPENING STATEMENT OF JONATHAN BAND, ADJUNCT 

PROFESSOR OF LAW, GEORGETOWN UNIVERSITY 

Mr. BAND. Chairman Blunt, Ranking Member Klobuchar, members of the committee, I am an adjunct professor at Georgetown 

University Law Center. I also serve as counsel to the Library Copyright Alliance, which consists of three major library associations. I 

note that the Library of Congress is a member of one of LCA’s asVerDate Mar 15 2010 10:43 May 22, 2019 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\35237.TXT 35237

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sociations, but it did not participate in the preparation of this testimony. 

I appreciate this opportunity to express our opposition to the 

Register of Copyrights Selection and Accountability Act, S. 1010. 

As explained in detail in a report attached to my testimony, Congress has repeatedly considered the best location for the Copyright 

Office and has consistently reaffirmed that the Library of Congress 

is its most effective and efficient home. 

While S. 1010 would not technically remove the Copyright Office 

from the Library, it would effectively achieve this result by ceding 

to the President the power to select the head of the office. The rationale for S. 1010 is elusive. It is hard to comprehend why Congress would voluntarily cede to the executive branch the authority 

of its own Librarian to select a key congressional adviser. 

Recognizing the illogic of this legislation, the House amended the 

companion bill to require the President to appoint the Register 

from three candidates recommended by a panel consisting of the 

congressional leadership and the Librarian. This structure obviously increases congressional oversight, but limiting the President’s 

authority in this manner raises serious separation of powers questions. 

Moreover, it is difficult to understand how the public or Congress 

itself would benefit from politicization of the Register’s position by 

making it subject to Presidential appointment and Senate confirmation. Such politicization of the position necessarily would result in a Register more politically—more actively engaged in policy 

development than in competent management and modernization. 

Additionally, a politicized selection process likely would result in 

a Register who does not balance the competing interests of all 

stakeholders in the copyright system. Further, politicizing the process of appointing the next Register would severely delay his or her 

installation. Indeed, the introduction of this legislation, as a practical matter, has already prevented the appointment of a Register 

for over a year and a half. 

S. 1010’s 10-year term for the Register would also lead to less accountability to Congress and the public. This contradicts the stated 

intent of the bill made plain in its title. 

Finally, one of the claimed rationales for this legislation is that 

more autonomy from the Library would enhance the Copyright Office’s ability to modernize its technology. In fact, the technology-related progress made jointly by the Library of Congress and the office over the past 18 months proves that this legislation is not 

needed, and this is, as Chairman Blunt has recognized, under 

Dr. Hayden, the Library has made significant advances in addressing the issues that were identified in the 2015 GAO report. 

There is no question that there is broad consensus that the Copyright Office must improve its IT capabilities, but the point is that 

process of improvement is already well underway. This past May, 

Acting Register Karen Temple testified in the Senate Appropriations Committee that the Copyright Office and the Library’s chief 

information officer jointly developed the new Copyright Office IT 

modernization plan that focuses on leveraging resources within the 

Library to take full advantage of possible economies of scale. 


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In her testimony, the Acting Register explained that in accordance with the plan, the Copyright Office established the Copyright 

Modernization Office, which complements the Library’s technical 

support by providing necessary business direction. Also consistent 

with that plan, the Acting Register and the Library’s CEO jointly 

chair a Copyright Office Modernization Governance Board. 

Numerous projects are already underway under the supervision 

of the CMO and the governance board, including preliminary work 

on a new automated recordation system, a next-generation registration system, a virtual card catalogue, and an integrated data 

management model. All these improvements are occurring without 

the legislation. Accordingly, the legislation simply isn’t necessary. 

For all these reasons, we oppose the Register of Copyrights Selection and Accountability Act and urge the committee to do the same. 

I am happy to answer any questions the committee may have. 

[The prepared statement of Mr. Band was submitted for the 

record.] 

Chairman BLUNT. Well, thank you, Mr. Band and Mr. Kupferschmid. 

Mr. Band, as you pointed out, I think one of your observations 

was why would the—why would the Congress want the President 

to be more involved in appointing someone who works at its Library, the Library of Congress? Of course, the President appoints 

the Librarian of Congress, who then becomes the only person who 

chooses at this point the copy—the person who runs the office of 

copyrights. 

By the way, as I mentioned before, this is a topic that came up 

when Dr. Hayden was confirmed. She has appointed the current 

person in an acting capacity as Congress looks at an issue we told 

Dr. Hayden we would be looking at in the future, and we are doing 

that now. But your views here are well thought out, I know, and 

important to us. 

How is it better that one person appoints someone who works at 

the Library of Congress in an area that relates, but certainly the 

same skills that the Librarian of Congress has would not necessarily be the right skill set for the Director of Copyrights. What 

is your view of why, in that case, the one-person selection is better 

than congressional input and confirmation by this committee? 

Mr. BAND. Thank you very much for the question, Mr. Chairman. 

I guess part of it is a recognition or an understanding of what 

the proper role of the Register is, and you know, we see that the— 

although the Register certainly does give advice, and that is part 

of the statutory role, to give advice to Congress, in large measure, 

it is a—as indicated by the title, it is the Register of Copyrights. 

The focus of the job really is on the nuts and bolts of administering 

the copyright system, the registration, recordation, and now, you 

know, there are other functions relating to that. 

A lot of these are very technical functions, and so in many respects, having someone with that technical expertise of not just IT 

technical, but copyright technical is important. For example, the 

last three Registers, including the Acting Register, have all been 

people who have been, in essence, elevated from within. They have 

been internal promotions. 


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The Acting Register, Karen Temple, I mean, she was at the 

Copyright Office prior to her elevation. Prior to that, Maria 

Pallante, even though I think at the exact time that she became 

Register she was working elsewhere within the Library, but she 

had come out of the Copyright Office. Marybeth Peters, before that, 

also was working in the Copyright Office. I think that that—having 

that sense of internal promotion is terrific and I think for this kind 

of technical position is appropriate. 

Whereas, if it becomes a more political position, it is, you know, 

you are going to get someone—you are much more likely to get 

someone from the outside who doesn’t have the experience working 

in the Copyright Office. They will come in. The first 2 years are 

going to be spent trying to figure out how the place operates, and 

I just don’t think that that is what best serves the nature of this 

position. 

Also to the extent that this notion of sort of this equivalence to 

other agencies, the Patent—the Director of Patents and Trademarks is the Under Secretary not of Patents and Trademarks but 

is the Under Secretary of Intellectual Property and is the chief 

spokesperson for the executive branch with respect to all forms of 

intellectual property, including copyright. They have—you know, 

currently, they have terrific people in the PTO with great expertise 

in copyright. 

There is no—copyright is not getting short shrift by leaving 

things the way they are. 

Chairman BLUNT. Thank you. 

Mr. Kupferschmid, I think I will get you in my second 5 minutes 

since the answers here may be long. 

Senator Klobuchar? 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Chairman BLUNT. Helpfully long, too, by the way. I didn’t mean 

that to be a pejorative description of that answer. 

Senator KLOBUCHAR. Mr. Kupferschmid, in the 21st century, we 

need a modern Copyright Office. In your testimony, you note that 

the office has been in dire need of a more modern IT infrastructure. 

What is your assessment of the modernization effort right now? 

Mr. KUPFERSCHMID. It certainly seems like the office is on the 

cusp of a significant modernization of the office. I think that ultimately is why we need to pass this bill. We need to get a Register 

in place, Presidentially appointed Register in place, who can show 

the leadership, who understands the specialized needs of the Copyright Office when it comes to IT. 

But it is also very important to understand that when we talk 

about modernizing the Copyright Office, we are not just talking 

about IT modernization. That is one aspect. But the other aspect 

of modernizing the office is modernizing copyright registration policy, and those two need to go hand in hand. 

To the best of my knowledge, nothing has happened in that regard, and the Library doesn’t have the experience to do that. You 

need somebody heading the office, not in an acting capacity, but 

you need somebody heading the office who can—who can take that 

lead and have the vision to know where the law needs to be 

tweaked and the regulations need to be tweaked. 

Senator KLOBUCHAR. Okay. Thanks. 


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Mr. Band, as you know, the Copyright Office exists within the Library of Congress. How are the IT needs of the Copyright Office 

different than the IT needs of the Library of Congress? 

Mr. BAND. Well, obviously, they do have different functions. But 

the key under the current system is that, first of all, you have the 

right personnel supervising the process, both at the—at the Library 

level with the new CEO, as well as with the Copyright Modernization Office. Even though the functions are a little different, you 

know, the Library oversees many different functions, it is—on the 

one hand, it is a library, but it also has CRS. It has the Copyright 

Office and so forth. And so the expertise that they have allows 

them to manage systems, different kinds of IT systems effectively. 

Senator KLOBUCHAR. One of the threats we are seeing is 

cybersecurity threats, and do you believe the modernization 

plans—either of you, both of you—at the Copyright Office appropriately consider these threats? Just briefly. 

Mr. KUPFERSCHMID. Yes. That is a significant concern for the creative and copyright communities. This is an area where the Library 

has a very different mission than the Copyright Office. The Library, any library, really is about access and providing access to 

different works. 

The Copyright Office is going to be much more concerned about 

security. Because if they cannot guarantee security for copyrighted 

works and somebody hacks into that system, people are going to 

stop registering their works, and that hurts everyone. That hurts 

the Copyright Office because they don’t get collections. It hurts the 

public and archivists and historians who won’t be able to rely on 

a comprehensive data base, copyright ownership data base. Of 

course, it hurts the creative community tremendously. 

Senator KLOBUCHAR. Why don’t—do you mind if I just move on 

and then to a question key here, I think, for me? That is the public 

interest and how we meet the public interest. 

Mr. Band, I know that you disagree with making the Register of 

Copyrights a Presidentially appointed position. What other ways, if 

we don’t do that, can we work to address the needs of the Copyright Office and ensure that the Register of Copyrights balances 

the interests and needs of all stakeholders? 

Mr. BAND. Well, it is—I think one of the things that could be 

done is the legislation could be amended so that it provides criteria 

for the Register—for the Librarian to use when selecting the Register. Right now, there are no criteria. That would be a constructive 

amendment. 

I think, at the end of the day, it is with—like with anything else, 

it always matters who you select, not so much the structure of the 

selection. 

Senator KLOBUCHAR. Right. 

Mr. BAND. As—and so you do, you want to make sure you don’t 

have structures that create impediments, and I think this structure 

that is proposed in the legislation of having this commission that 

needs to make a recommendation, and then that is binding on the 

President and so forth, I think that structure is going to get in the 

way rather than improve the process of getting the best person to 

that job. 


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Senator KLOBUCHAR. Just one last question, Mr. Chairman. 

Mr. Kupferschmid, what would you do, along the lines of what Mr. 

Band was referring to, to ensure a fair selection process, if we were 

to pass this bill, that results in a Register as not beholden to any 

particular interest, but instead prioritizes the public interest? 

Mr. KUPFERSCHMID. I think the bill accomplishes that actually 

quite well. It not only gives the—gives the Senate the ability to 

confirm, go through the confirmation process, and therefore, the 

public has a voice in whether the right candidate is chosen or not 

and confirmed. But more—also importantly is that the President 

just doesn’t get to select someone. The President must choose off 

of a slate of individuals that is created by leadership from both the 

Democratic and the Republican Party and the Librarian, who gets 

to participate. 

I think the bill reaches that compromise in a very good way. 

Senator KLOBUCHAR. Okay, last question. Just because we have 

had an acting person, and she is doing a good job, excellent work, 

but she has been in this acting role for nearly 2 years. Some rightly 

argue that when an agency is led by an acting designee instead of 

a permanent leader, it can hinder the agency’s work. 

How does having an Acting Register instead of a permanent Register affect the operations of the Copyright Office? 

Mr. KUPFERSCHMID. I think that is right, what you said, in terms 

of I think Karen Temple has done a fabulous job as the Acting Register, but there are certain limitations on any person who is in an 

acting position. We are at, like I said, the cusp of modernization. 

Not only IT modernization, but modernizing the laws and having 

to do with—and regulations having to do with registration, copyright registration policy. 

It is important that we have somebody who is in a permanent 

position in that capacity rather than just an acting. 

Mr. BAND. I would agree that it would be better to have someone 

in a permanent position, and that is why this legislation is always 

going to make it slower to get someone permanent in that job. 

Senator KLOBUCHAR. Thank you very much, both of you. 

Chairman BLUNT. Senator King? 

Senator KING. Thank you, Mr. Chairman. 

First, I have to say I published a book this summer, and when 

I opened the cover, I didn’t expect to be so thrilled by seeing the 

little ‘‘c’’ and my name next to it. That was—that was an unexpected treat. 

Mr. Kupferschmid, after this change, and what is not apparent 

in the language of the legislation, what will be the relationship, the 

structure, the organizational chart, if you will, between this new 

Presidentially appointed position and the Librarian of Congress? 

Mr. KUPFERSCHMID. Really the only thing that changes is the 

process for selecting the Register. Everything else stays the same. 

Right now—— 

Senator KING. But does that mean that you have got two Presidentially appointed people, one who works for the other? I mean, 

I am—— 

Mr. KUPFERSCHMID. Correct. Correct. That is not unique in the 

Government. Look, for instance, at the Patent and Trademark Office, you have the Secretary of Commerce, who is a Presidential apVerDate Mar 15 2010 10:43 May 22, 2019 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\35237.TXT 35237

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pointee confirmed by the Senate or the—and you have got the Director, rather, who is—— 

Senator KING. You are not really separating the functions of the 

office from the Library of Congress. You are simply changing the 

appointment of this one official. 

Mr. KUPFERSCHMID. Because that—— 

Senator KING. It doesn’t change the organizational order? 

Mr. KUPFERSCHMID. That is correct. It will remain in the Library, and the Library will continue to supervise and manage, as 

it says in the statute. 

Senator KING. Let me followup on your—I think you are creative 

to try to have this list of the three that have to—the President has 

to submit—has to choose from the list. Is that constitutional? Is 

there any precedent for that? Do you have any opinion? 

It strikes me that is—might be a violation of separation of powers? The President either gets to appoint, or he or she doesn’t. 

Mr. KUPFERSCHMID. Yes. First of all, I am not a constitutional 

expert. I will say that. I am sure we can find some additional information here, but there are currently statutes that provide similar 

selection panels. For instance, the selection of the Comptroller General in GAO, and of course, ultimately, the President is free to interpret the bill in a way that is consistent with the appointments 

clause and can say so in the signing statement, and that has been 

done in the past. 

Senator KING. But in the GAO case, there is the President has 

to choose from a finite list? 

Mr. KUPFERSCHMID. From a slate of—yes, a slate of possibilities. 

Senator KING. Do you know if that has ever been tested? 

Mr. KUPFERSCHMID. I do not know the answer to that. 

Senator KING. If you could supply the committee for the record 

some background on this issue, I think it is of some concern that 

we need to take seriously. 

Mr. KUPFERSCHMID. I am happy to do that. 

Senator KING. Thank you. 

Mr. BAND. If I may, Senator King? The wording of the statute 

involved with the Comptroller General is different. While with the 

Comptroller General, there is a commission that makes a recommendation, the President is not obligated to choose from that 

slate. 

Senator KING. From the slate. 

Mr. BAND. Now, of course, if the President doesn’t choose from 

the slate of recommended people, you know, the Senate might not 

confirm the person. 

Senator KING. But it is a different structure than what is suggested here? 

Mr. BAND. It is worded differently, yes. Here, it says, S. 1010 

says, you know, that the Register shall be appointed by the President from the individuals recommended under the paragraph. 

Senator KING. I appreciate that. 

Mr. BAND. So that is—that is—— 

Senator KING. Well, if you would like to supply something for the 

record on the constitutional issue, that would be helpful as well because I know you have a different view. 


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Mr. Band, the Librarian is already appointed by the President, 

why not have another—I mean, don’t give me your whole testimony 

again. But succinctly, what is the big deal here? You have already 

got one Presidential appointment, and what we are trying to do 

here is to elevate and underline the significance of the importance 

of this job. Why does it matter if you have a second position that 

is Presidentially appointed? 

Mr. BAND. Well, first, as I mentioned, because of the structure, 

it would take a long time. I think it would take a long time—— 

Senator KING. You are suggesting that we don’t act with total efficiently and alacrity around here? 

Mr. BAND. You said that. You said that, not me. Also, and I 

think that this is important, you know, to realize that this is part 

of a much bigger picture. Of course, we are looking at this one bill, 

and which is relatively narrow and technical at this point. 

But as Mr. Kupferschmid has indicated, I mean, this is—you 

know, this is something that the content folks have been seeking 

for a while, but it is part of a bigger objective, I think—— 

Senator KING. Why isn’t—that was going to be final question. 

Why isn’t the fact that the content folks, who are the people most 

concerned with this, are supporting this change, it seems to me 

that that bears a lot of consideration. They are the ones who are 

going to have to live with this change. They are the ones who are 

advocating it. They are the most intimately involved with it. 

Why should we—why should we second-guess the constituents of 

this office if they think this would be a beneficial change? 

Mr. BAND. Well, the first point is, is that we are all constituents. 

Meaning everyone is part of this copyright system. Meaning it is 

not only the creators, but also the users. But also in the 21st century, all users are also creators. Meaning, so there is this line, the 

sort of the distinctions are gone. 

Therefore, it is important—you know, the importance of having 

balance in the office is perhaps more critical than ever. But also, 

as I was saying, there has been a degree over the past 20, 30 years, 

a certain mission creep at the Copyright Office, and there are some 

who want the Copyright Office to be an independent agency, and 

there are always more functions being inserted into the Copyright 

Office. 

In fact, Mr. Kupferschmid tomorrow is testifying in support of a 

bill that would create a small claims court in the Copyright Office, 

and the Copyright Office has over—— 

Senator KING. Well, that might—might that not simply reflect 

the growth of the importance of this sector of the economy? I mean, 

it seems to me the fact that it is—you would call it mission creep, 

I might call it growth to reflect the current—the 21st century creative economy. 

Mr. BAND. Well—— 

Senator KING. I have run out of time, but if you have thoughts 

on that, please supply them for the record. 

Mr. BAND. I would be happy to. 

Senator KING. Thank you, Mr. Chairman. 

Chairman BLUNT. Senator King, I think you and I can take extra 

time if we want to since it is down to the two of us. But let me 

ask a couple of questions while—— 


RULES-408278 with DISTILLER
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Senator KING. We can do anything we want to. 

[Laughter.] 

Chairman BLUNT. We may vote something out here. We may just 

decide we are the committee. 

Mr. Band, on the topic, you know, it was very unclear for a long 

time how long the term of the Librarian would be, to the point that 

it almost drifted into some area where it might be permanent. Before the current Librarian was named, before any name was mentioned, Senator Schumer and I introduced legislation, we created a 

10-year term. 

This also produces—provides a term for the Director of the Copyright. Do you see any advantage to the person having that office 

having both the confirmed responsibility and the 10-year window 

to know that, barring some inappropriate action on their part, they 

have that job for 10 years. They are not—the Librarian can’t decide 

they don’t like the way the space is being used, or do you see any 

advantage to a copyright person running that office that knows 

they have a 10-year window and they are answerable to this committee and the Congress beyond their answer to any—their landlord, the Librarian? 

Mr. BAND. To be sure, there are advantages to having a set term, 

provided that it is the right person. That is why, you know, conceivably, if there was the legislation that again simply identified 

the qualities, the qualifications for the office as well as a term, that 

might be acceptable for our point of view. 

But I think it is sort of the combination of the 10-year term and 

this process, which, again, I think it is going to result in a politicized process, and you could end up with someone who really 

doesn’t have the right—the right level of expertise and technical 

expertise that we have seen in recent Registers. That is why, 

again, getting the wrong person in for 10 years is a problem. 

Chairman BLUNT. I suppose it would be an equal problem if we 

get the wrong person in as the Librarian for 10 years. 

Senator KING. Or the Secretary of Defense. 

Chairman BLUNT. Or the Secretary of Defense. Though that term 

is not as specific. I would say that the process here is almost a replica with a slightly different membership of the process that was 

put in place in the not-too-distant past to select the Architect of the 

Capitol. The same process, the same three names to be submitted. 

The President makes that, and we will be exercising that process 

very quickly. 

The Architect of the Capitol has resigned, effective November of 

this year. A very similar committee with a very similar process will 

hopefully produce a Presidential nominee that is back before this 

committee not too far into next year or maybe even late this year. 

But that is where the model for this, the three names, the congressional input, but with somebody else to make that final decision 

about the names. 

Mr. Kupferschmid, Mr. Band has pointed out that the Director 

of Patents and Trademark Policy is a Presidentially appointed individual. How would the creators and users of copyright material 

benefit from having that, the copyright Register, the Director of 

Copyrights to have the same standing in this process as the Patent 

Office does? 


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Mr. KUPFERSCHMID. I think it is important—— 

Chairman BLUNT. Patent and Trademark Office does. 

Mr. KUPFERSCHMID. I think it is important, and it would certainly benefit creators and users by showing and demonstrating the 

importance of intellectual property. More specifically, the copyright 

to the economy, how important it is to jobs, to the economy, to our 

culture, and to show that to our international trading partners. 

Right now, the Register of Copyrights is not—is just selected by 

the Librarian, and that sends a certain message that about the importance of copyright. It is a message that we don’t want to be 

sending. Hopefully, the way the creators and users can benefit is 

this will lead to perhaps improved IP protections, more respect for 

intellectual property, whether it is global or certainly domestic 

here. 

Perhaps, most importantly, it gives these creators and users a 

voice in selecting the Register. Very much like the PTO Director, 

there would be a transparent process, as opposed to the Librarian 

just potentially picking someone behind closed doors without any 

consultation. Under the process envisioned by this bill, it would be 

very open, very transparent. It would make the Register accountable. 

Right now, the President can simply knock on the door of the Librarian and say, ‘‘This is the person I want to be the Register.’’ Bypass Congress and the Senate entirely. If the Librarian decides not 

to do it, well, he can fire the Librarian because he has that power 

and hire a new Librarian that will do it. 

What we are looking for is a transparent process here, and we 

think this bill does that, and it does it in a very balanced and neutral way. 

Chairman BLUNT. I think you may have misstated there. I don’t 

think the President can fire the Librarian, but the Librarian could 

fire the Copyright Director. 

Mr. KUPFERSCHMID. Yes. 

Chairman BLUNT. The Librarian has a 10-year term and would— 

this committee could act and make recommendations and other 

things. 

We just passed the Music Modernization Act, the Orrin Hatch 

Music Modernization Act that is at the White House now awaiting 

the President’s signature. 

Mr. Kupferschmid, what advantages would a permanent person 

in this job with the new standing have in implementing that act? 

Then we will go back to my friend, Mr. King. 

Mr. KUPFERSCHMID. Before I answer your question, I would like 

to thank this committee, the members of the committee, and the 

full Senate for their support of the Music Modernization Act, I 

guess, the Orrin Hatch and Bob Goodlatte Music Modernization 

Act, as it is called now. We look forward to it being signed by the 

President. 

The MMA gives the Register new rulemaking authority that is 

necessary for both creators and digital services to engage in effective licensing. The Register appointment by the President will address any outstanding appointment clause issues, like were mentioned earlier, since the soon-to-be new law hopefully vests authority in the Register itself. 


RULES-408278 with DISTILLER
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Right now, the Register sort of sits in this cloudy zone, and this 

bill would make the role more parallel with other agency heads 

who have similar roles in Government. But at the same token, it 

leaves the position, leaves the entire office within the Library of 

Congress. We think it is a very good compromise because that it 

takes a very targeted, very modest approach, and we think it would 

certainly be a benefit to the Music Modernization Act, which this 

entire Senate really supported unanimously. 

Chairman BLUNT. Senator King? 

Senator KING. I still want to—I still would hope for the record 

that you could give us some thoughts about the—it seems to me 

we are doing sort of a half way. I mean, we are upgrading the status of this office, but it is still under the Librarian of Congress. 

Just some thoughts about whether that creates administrative 

awkwardness. 

But my other question is, we have got two—we are now talking 

about two 10-year terms. Is it the concept of this bill that that— 

those 10 years would be coterminous with the Librarian of Congress, or would there be an overlap? 

Any—— 

Mr. KUPFERSCHMID. Yes, I don’t think they would be coterminous. I think it all is just a matter of when the Librarian position 

needs to be filled and when the Register position needs to be filled. 

In terms of, like I said, the inconsistencies, there are other—many 

other areas of Government where you have one Presidential appointee reporting to another Presidential appointee, and those work 

very well, but we are happy to provide you additional information 

about that. 

Senator KING. Appreciate that. 

Do I take it from your presence here that the—your organization 

represents the community of authors, musicians, and those who are 

interested in this topic? Is that correct? 

Mr. KUPFERSCHMID. Oh, absolutely. I mean, we represent about 

13,000 different organizations and about 1.8 million individual creators across the country that rely on copyright for their careers, for 

their livelihoods, and they are—every single one of them, they are 

supportive of this bill. 

Senator KING. Thank you. 

Thank you, Mr. Chairman. 

Chairman BLUNT. Thank you, Senator King. 

Any concluding thoughts from either of you as we wrap up here? 

Mr. Band? 

Mr. BAND. No. Just I would just amplify the point that I was 

making before, that the—one should view this legislation in its 

broader context, and we started to talk about that, and you, Senator King, as you alluded to, there is this conceivable awkwardness. Then I think maybe the next step is to say, well, we now need 

to make it an independent agency, and as it grows, I mean, we are 

going to have this bigger and bigger agency, and then it will be in 

conflict with the Patent and Trademark Office. 

We want to—I think the goal is to avoid sort of a ‘‘Washington 

solution.’’ A Washington solution to a problem is just to sort of rearrange the deck chairs instead of saying what is the real problem? 


RULES-408278 with DISTILLER
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Let us find a solution. Let us not just do a reorganization for the 

sake of doing a reorganization. 

I think at some level, this legislation, this is a solution in search 

of a problem. 

Chairman BLUNT. Mr. Kupferschmid? 

Mr. KUPFERSCHMID. Yes, I would have to very much disagree 

with that. I mean, at the heart of it, we are supporting a more 

transparent process here, one that would increase the accountability of the Register. It just doesn’t exist today. 

I mean, it is, frankly, hard to oppose something like that, or 

when you add up the fact that the Library of Congress has a different mission, is a stakeholder in a lot of these issues, could have 

conflicts of interest issues, when you add up the fact that there are 

other similarly situated agency heads that are Presidential appointees, when you add up the fact that right now is the perfect 

time to do this, there is a window of opportunity because there is 

a vacancy in the position, not hurting any feelings or going after 

anyone, and you look at the fact that the Copyright Office is on the 

cusp of modernizing and they need—you know, they need leadership to help that, this is the perfect bill at the perfect time. 

It doesn’t do any of the parade of horribles that Jonathan just 

mentioned. It simply doesn’t do that. We have a very narrowly targeted, modest approach to make the Register a Presidential appointee confirmed by the Senate. 

We hope you will support the bill. 

Chairman BLUNT. Well, thank you both. We have been looking 

for the perfect bill at the perfect time. I have never voted on a—— 

[Laughter.] 

Chairman BLUNT. I have never voted for a perfect bill before. I 

have introduced a couple of perfect bills, but I—— 

[Laughter.] 

Chairman BLUNT. I have never voted on one of them, and that 

may be the reason to do this. 

Very helpful for both of you to be here. We appreciate it. 

There may be some additional questions for the record from others who couldn’t attend or from those of us who did. The record will 

remain open for 1 week from today. 

[The information referred to was submitted for the record.] 

Chairman BLUNT. The committee is adjourned. 

[Whereupon, at 3:27 p.m., the hearing was adjourned.] 


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