Like most people that write about public policy, I am generally drawn to issues where there is conflict which forces us to assess competing priorities in the development of norms that advance what we perceive to be sound public policy. We tend to ignore less controversial developments that take place quietly in the administration of…let’s call it, life. But every once in awhile it’s important for us to look behind the curtain, and examine the quiet workings of the administration of justice — bearing in mind that policy conflicts generally arise only where daily operations fail, requiring some form of conflict resolution. But the more effectively we allow the underlying structures to operate, the less conflict will arise.
This observation was triggered by a recent request for comments posted by the Copyright Office regarding aspects of Copyright Office Modernization related to their Enterprise Copyright System.
This isn’t the kind of issue that attracts much attention because…well, it’s kind of boring. But it is of vital importance, so I thought I would take this opportunity to examine it a bit. It’s probably not particularly advisable for writers to announce up front that they are about to delve into uninteresting subject matter, but I hope you’ll bear with me. I don’t promise any jokes, but I do commit to trying to provide some insights about a process that is vital to anyone that cares about the operation of the copyright system — whether you’re a creator or a user (and frankly at this stage, almost all of us are both). To jump to the punchline, the more friction we can reduce in the functional licensing of copyright works — while of course observing the parameters of the author’s consent, the more we decrease the tension on the system and the perception that there’s some inherent conflict between copyright and innovation that requires policy intervention. The more that copyright “works,” the less the parties see it as broken. So let’s unbreak copyright.
I start with a simple observation — everyone gains when we provide greater transparency about ownership and licensing. The Copyright Office is understandably focused on recordation and registration which serve a variety of purposes, only one of which is the creation of a publicly available database of ownership. And while I support the Copyright Office’s desire to expand registration, we must also be realistic that in the current environment, only a minority of copyright works will ever be registered, no matter how easy the process may be. As a consequence, one of the core value propositions that the Copyright Office can bring to the facilitation of licensing is to provide as much information as possible about ownership of materials, even where they are not recorded or registered. While registration* is a prerequisite for bringing a legal action to enforce one’s copyright, there is a lot of economic activity (presumably the major part of commerce) that takes place without regard to enforcement measures, or the possibility therefore. I thus propose that as the Copyright Office builds out its Enterprise System, it pays particular attention to the creation of structures for providing functional information unrelated to formal processes of recordation or registration, including through the establishment of user-friendly interfaces for searching all relevant sources of information. Building a central database of ownership is, I believe, not a realistic goal. But we can certainly provide better tools for sharing of information and metadata by linking relevant independent sources of information. Indeed, as the Copyright Office continues its examination of these issues, I would strongly recommend consideration of how better use of existing third party databases of metadata can inform, or perhaps be fully integrated into, Copyright Office processes.
There are of course a wide variety of existing databases for metadata across a variety of sectors. These databases serve critical functions in current licensing, but there are advantages to creating a central clearinghouse within the Copyright Office, perhaps integrated with registration. Most, if not all, of the existing databases are organized in an industry-specific manner. However, in the multimedia environment increasingly reliant on AI and cross-industry licensing, the siloing of metadata may not be ideal. By focusing on metadata, the Copyright Office can both provide a critical public service, and expand the incentives of copyright owners to interact with and provide information to the Office, even outside of the recordation/registration processes.
As information maintained by the Copyright Office, either within the recordation or registration system or outside of it, becomes more useful, it will also create better incentives for populating the underlying databases with appropriate information. Again, the object should be to make licensing as easy as possible, and to create incentives for the use of systems that provide both transparency and value. If we can achieve that, we will reduce the strain on the copyright system. I am very happy to see the Copyright Office continue to dedicate resources and attention to this vital part of the ecosystem. So while I will undoubtedly gravitate once again to pressing public policy questions and reform of outdated normative standards, I salute the Copyright Office for its unsexy work in modernization, and I wish them great luck. This work is of enormous practical value.
*Correction: In the original version, I incorrectly said recordation was a prerequisite for bringing an action for infringement. My thanks to David Carson for noting this error.
This article originally appeared on Neil’s Medium page – republished with permission.