IP Scholars Explain Why We Shouldn’t Use SurveyMonkey to Select Our Next Register of Copyrights

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Crossposted from the CPIP blog

In a letter submitted to House Judiciary Committee today, nine IP scholars (organized by CPIP’s Sandra Aistars) express their support for the Committee’s proposal to modernize the Copyright Office. The letter identifies three major challenges facing the Copyright Office, including “(1) insufficient funds, staff, and infrastructure to efficiently perform its core functions; (2) operational impediments stemming from its integration with the Library of Congress; and (3) potential risk of constitutional challenges to its decision-making authority should the Office take on increased regulatory or adjudicatory responsibility.”

The IP scholars laud the Committee’s recommendation that the Office be led by a principal officer of the government, nominated and confirmed like other senior government officials. The scholars also express their concern with the Library’s highly-unusual method of using a SurveyMonkey questionnaire to identify the knowledge, skills, and abilities required to run the Copyright Office.

On December 16th, the newly-appointed Librarian solicited the public to “provide input to the Library of Congress on expertise needed by the Register of Copyrights.” The survey consists of the following three questions:

  1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

  2. What should be the top three priorities for the Register of Copyrights?

  3. Are there other factors that should be considered?

The survey then provides an area to upload additional comments and assures that the feedback “will be reviewed and will inform development of knowledge, skills and abilities requirements for the position.”

While there may be benefits to soliciting public input on the knowledge, skills, and abilities a Register of Copyrights should embody, as the IP scholars’ letter points out, relying on a limited SurveyMonkey experiment discounts the guidance codified in Section 701(b) of the Copyright Act. Section 701(b) already lists the functions and duties of the Register of Copyrights, including:

(b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions:

(1) Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.
(2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters.
(3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority.
(4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations.
(5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.

Rather than crowd sourcing the job description, the Librarian should review the Copyright Act and consider candidates that would be best qualified to fulfill the explicit and established standards of 701(b).

By handing this over to anyone willing to fill out a SurveyMonkey form, the Library of Congress is politicizing a process that shouldn’t be politicized. The letter warns that “[w]hile it is often laudable to seek public input on important issues of policy, an online survey seeking input on job competencies from any internet user is an inefficient and inappropriate approach for developing selection criteria for this important role, particularly where such minimal background is provided to survey-takers and where there appears to be no mechanism to encourage constructive comments.”

As recently as April of last year, Fight for the Future incited an effort to spam the Copyright Office while it solicited comments regarding the DMCA notice and takedown process. Engaging in a campaign of misinformation, the advocacy group flooded the Office with automated “comments” that crippled the regulations.gov website during the last 48 hours of an important collection period. The Register’s selection process should not be handed over to Internet bullies and trolls.

The next Register of Copyrights will have an immediate and lasting effect on the administration of copyright laws, and the Library of Congress should respect long-standing norms as well as Congress’s instructions as embodied in the Copyright Act. The IP scholars’ letter reiterates that the statutory obligations of Section 701(b) require certain competencies of a Register of Copyrights and ensures that “the successful candidate can meet the management and leadership expectations attendant to a senior executive officer position in the federal government.” This is an important process that deserves more serious consideration than a SurveyMonkey poll.

 
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