by Nancy K. Herther
(This is part 2 of a 2 part series. Click to view part 1)
Peter Brantley, Director of Online Strategy for the University of California Davis Library, writing in Publishers Weekly in December, noted that “with its unique historical collections, the Library of Congress (LOC) should be among the most important digital libraries in the world. But it is not.”
Brantley offered a stern judgment on the entire library profession for their handling of the nation’s library and digital future: “To be honest, it did not even occur to me that the library community’s voice was so absent in terms of the Library of Congress’s role until last month, when I sat with ALA senior policy directors in Washington, D.C., to discuss who might be the next Librarian of Congress (LnOC). It occurred to me that if librarians then had undertaken a coordinated effort to make the LOC a pivotal focus of the digital transition, we might have salvaged two decades of wasted opportunities. In that sense, Billington’s failure is the library community’s failure as well. I don’t know why a lack of leadership culture has persisted in the library community. In quieter decades, the absence of charismatic, visionary library leaders might not have mattered. But in the internet age, this lack of leadership is a self-inflicted wound.”
Brantley implored “senior public librarians to enter the public eye and forcefully engage a national debate around our networked information culture. As the network—a creature of our own devising—begins to condition what we think is even possible, surely the moment to demand more of ourselves has arrived.”
“In hindsight, what is also disappointing is that library leaders in the United States failed to publicly push the LOC into the digital realm,” Brantley continued. “Billington’s leadership was openly labeled a farce in the aisles at ALA meetings, and he was privately lampooned as a fragile leader wandering the halls of the library. But no one in the greater library community loudly campaigned for more accountability or better leadership. It is as if the LOC were a defect that the library community chose to route around. Why? In the midst of the greatest shift of information access the world had ever seen, why were the nation’s public library directors willing to essentially write off the LOC?”
Brantley continued, “ultimately, I think it is because the U.S. library profession has failed to foster an effective national leadership culture. Even today, I would be hard pressed to identify a national public library leader who could speak and rally librarians on behalf of the broader community—with the possible exception of Brewster Kahle of the Internet Archive, who is not, in fact, a professional librarian.”
This will be the first time in almost three decades that a president will need to nominate a new LnOC, due to the long-time tenure of James Billington—and the new leader will only be the 14th in the history of the institution. There has been no term limits or definition for the LnOC – until now. Last Fall, Congress passed the bipartisan “Librarian of Congress Succession Modernization Act of 2015,” cosponsored by Senate Rules Administration chair Roy Blunt (R-MO) and ranking member Charles E. Schumer (D-NY). The law imposes no specific term limits but requires that “the President shall appoint the LnOC, by and with the advice and consent of the Senate,” with the requirement of reappointment/review every ten years if the president in office at the time desires to reappoint, yet to do so requires the “the advice and consent of the Senate.”
A recent analysis in the New Republic noted that “President Obama will soon appoint a new LnOC, a position that requires Congressional approval and could impact the everyday lives of most Americans. This position has the power to provide exemptions to a copyright regime that currently limits what consumers can do with their media, software, digital devices, and even vehicles. The next LnOC could ease copyright restrictions, provide improved access to federally-funded research, and embrace cooperative efforts toward making our nation’s history available online. On the other hand, the new Librarian could limit what Americans can do with the content and technologies they have lawfully purchased by choosing not to make exemptions to copyright law. It all hinges on the values and background of the person the President chooses to appoint.”
On February 24, 2016 President Barack Obama announced his intent to nominate Carla D. Hayden,
currently CEO of Baltimore’s Enoch Pratt Free Library, as the next Librarian of Congress. In the press release, Obama noted that “Dr. Hayden has devoted her career to modernizing libraries so that everyone can participate in today’s digital culture. She has the proven experience, dedication, and deep knowledge of our nation’s libraries to serve our country well and that’s why I look forward to working with her in the months ahead. If confirmed, Dr. Hayden would be the first woman and the first African American to hold the position—both of which are long overdue.”
Initial reactions to Obama’s effort to fill the LnOC position, given the announced Republican refusal to even hold hearings in the case of the Supreme Court vacancy, have been ranging from ‘no chance’ to thinking that maybe the Republicans will be so busy trying to understand the Trump landslide that they won’t consider this worth opposing. Time will tell.
What Future Role For Copyright?
Harvard’s Peter Suber understands the reticence that librarians have had on copyright. “One reason why librarians have been reluctant to lobby for copyright reform is that reforms would have to be adopted by Congress, and Congress is unlikely to adopt good reforms. I share this pessimism. Most recent proposals to amend the statute would revise it in the wrong direction, and the copyright industry is much better funded than the groups representing education, research, culture, libraries, readers, and consumers.”
Suber doesn’t see a natural value to international treaties either for solving sticky issues. “Copyright treaties focus on ‘harmonizing’ the different national copyright systems of the world, and there are reasons to do that. But treaties tend to harmonize down, and make the better systems conform to the worse, rather than harmonize up. If you wonder why this is so, just look at the process we use to negotiate these treaties, which is dramatically on display with the TPP (Trans-Pacific Partnership). It’s as if our treaty negotiators thought they were charged with maximizing the interests of US corporations rather than maximizing the public interest or the constitutional interest in promoting the progress of science and useful arts.”
Clem Guthro
Clem Guthro, Director of the Colby College Libraries, sees another alternative: “I think the Copyright Office, within the LOC, worked well until about 2000. The issues of copyright and intellectual property have become so ubiquitous and global that keeping the office within the LOC will limit its effectiveness going forward. The LOC does not sit high enough within the administrative structure of the federal government to lead at a policy level that is needed for the future. I could see creating a cabinet level agency (similar to EPA or SBA) called the Copyright and Intellectual Property Administration. This could incorporate the US Patent Office as well. Copyright and intellectual property cross all of the cabinet level positions and having this at a cabinet level would provide policy and strategic level thinking that could inform the president and other cabinet level positions (Labor, Commerce, Education, Homeland Security, etc.). We live in a knowledge economy and elevating the Copyright Office and broadening it to include intellectual property and patents, etc. places these important issues at the forefront of policy and implementation.”
New Versus Old
“Make no mistake,” Andrew Albanese wrote in Publishers Weekly, “this time around the appointment is a pretty big deal. The next LnOC will be the first national librarian appointed in the digital information age. And whoever assumes the role could have a major impact on the future of libraries in America, and on the nation’s information and intellectual property policies for a very, very long time.”
“Without question,” Albanese continues, “much has changed in the library, publishing, and information worlds since Ronald Reagan appointed the now 86-year-old James Billington in 1987. And the immediate reaction to Billington’s pending retirement underscores just how much the world has changed, and why the pressure is on Obama. Far from getting the ‘gold watch’ treatment, Billington’s announcement has amplified the voices of critics who have long complained that the LOC requires not only a new leader, but fundamental changes.”
Suber believes we have a strong pool of potential candidates. “There are many candidates out there who would be well-qualified for the position. Many names have been mentioned in the press.” However, the larger question remains: “Will President Obama’s nominee be confirmed? That’s hard to say. On the one hand, he got Elena Kagan confirmed for the Supreme Court. If partisan obstruction would have blocked someone, you’d think it would be for a nominee for a high-stakes position on the Supreme Court. On the other hand, some of Obama’s nominations for lower-court positions languish in committee, sometimes for years, until the nominees withdraw in order to get on with their lives. There are partisan disagreements on most topics, but not many overt partisan disagreements about libraries. It’s hard to tell where the nomination for an LnOC would fall on the spectrum of obstructionism.”
There have been two American Library Association conferences since Billington announced his retirement. Although there was much discussion, there has been little public discourse or debate that has resulted. A letter from then outgoing ALA President Courtney Young to President Obama noted that the LOC “is facing a historic opportunity to lead our knowledge society into a productive 21st century,” noting that the appointment is critical not only for the LOC but also “for our society, and our nation’s libraries.” Young reported that it was preferable that a librarian be hired to lead the library, ALA urged the president to appoint a librarian with experience, “vision, entrepreneurial spirit, and a commitment to collaboration [who can be a strong] spokesperson and a partner in the global library community, understanding the integral role libraries of all types play in formal education, community-based learning, and the promotion of individual opportunity and community progress.”
James O’Donnell, University Librarian at Arizona State University, sees no point in separating the Copyright and LnOC roles. “The constitutional purpose of copyright is to promote science and the useful arts and to do so by giving creators exclusive control of their products for limited times. We have seen that this right requires a judicious balance of the interests of creators, the public, and intermediaries such as publishers. The LOC has the gravitas and credibility needed to manage this balance. Moving the office at this point would tilt the balance arbitrarily and weaken the ability of copyright to perform its function. A new LnOC will have the opportunity to convene representatives of interested parties and focus attention on managing the balance that now feels threatened by inevitably haphazard intervention by lawmakers and jurists.”
What Future For Copyright?
Michael W. Carroll
Michael W. Carroll, Professor of Law and Director of the Program on Information Justice and Intellectual Property at American University Washington College of Law, sees key issues in the lack of attention being brought to both LOC and the Copyright Office. “The Copyright Office has important responsibilities. I think it needs the funding to acquire the technological support that it deserves. I also think the LOC, as a whole, needs the funding to upgrade its technological capacity. Since that is the issue that brought this issue to prominence, I don’t think it is a good enough argument to move the Office out of the Library. I can see arguments in favor of changing the Office’s position within the Library, but I am not yet persuaded that a full scale move is necessary. In addition, I am concerned about recently introduced legislation that would make the Office an independent agency headed by a Register who could serve only a single 10-year term. Unless that person is at the end of her career, it would be only natural for her to have an eye toward her next job during that period, which could undermine the Register’s ability to act independently.”
In his Duke University Libraries blog, Kevin Smith argued that “our predecessors knew what they were doing when they centralized copyright services inside the LOC (http://copyright.gov/circs/circ1a.html). Libraries epitomize the social benefits that copyright is supposed to support, and the ‘optics’ of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good. In fact, if the Copyright Office was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.”
ATG contacted Joel C. Willemssen, the GAO lead author on their recent 2015 study of the LOC about whether the Copyright Office is best positioned within the LOC versus in some other position within the federal government. Is this something that has been studied or put forward to GAO for analysis? In essence would such a study have to be ordered by Congress or another agency or is GAO able to initiate these studies independently? He responded that “the vast majority of our work is done at the request of congressional committees or subcommittees, or is mandated by public laws or committee reports. We have not received any requests or mandates to review this issue.”
Jessica Litman
University of Michigan Law Professor Jessica Litman has an interesting perspective on the politics surrounding the future of the Copyright Office. “I think that everyone agrees that the Copyright Office needs to take on additional regulatory and adjudicatory responsibilities and needs to vastly improve the accuracy, completeness, and accessibility of copyright records. I think everyone also agrees that the current kluge by which copyright office actions are deemed an act of the LnOC is inefficient and ultimately ineffective. It seems important to restructure the Copyright Office to enable it to function independently. To the extent that different stakeholders are arguing about whether the Copyright Office should be reconstituted as an independent agency within the legislative branch, an independent agency within the executive branch, or a division of the Patent and Trademark Office in the Commerce Department, that argument seems to be drawn more by politics than copyright policy—some individual stakeholders appear to believe that relocating the copyright office to one or another of these locations will increase those individuals’ influence, as it probably would.”
“Copyright lawyers in the Patent and Trademark Office,” she notes, “have been seeking to persuade Congress to remove the Copyright Office from the Library and give it to the Patent and Trademark Office, or at least to the Commerce Department, for 20 years. Some of the reasoning behind those proposals derives from the personal ambitions of the people making those arguments, but that’s always true in politics. I personally think that putting the Office in the PTO or in Commerce would compromise its effectiveness and its influence with Congress, and would undermine its ability to act as an honest broker, but I don’t get a vote.”
Moving Copyright at This Point in Time?
Register of Copyrights, Maria Pallante, in testimony before House Judiciary Committee in April 2015, argued for potentially moving the Copyright Office to some other office. In part, her testimony asserted that in order to “properly administer the copyright laws in the digital era, facilitate the marketplace, and serve the Nation, the United States Copyright Office must be appropriately positioned for success,” quoting one legislator who believes that “it is time to enact a restructured, empowered, and more autonomous Copyright Office that’s genuinely capable of allowing America to compete and to protect our citizen’s property in a global marketplace.”
And others see value in this. UC Berkeley Law Professor Peter S. Menell tells ATG that “it is useful to ask why a government agency—responsible for regulatory functions—comes to be situated in the legislative branch.” The story has more to do with pragmatism than careful planning, he believes that “the best long run policy is to move these functions to a more appropriate regulatory/policy institution.”
Kenneth D. Crews, attorney practicing with Gipson Hoffman & Pancione in Los Angeles, sees value in moving the Copyright Office. “Historically, the Copyright Office has been part of LOC because of the relationship of copyright and legal deposit. Legal deposit law exists in most countries, and generally it requires a copy of each published work in the country to be deposited with the national library. In the U.S., that deposit was part of the process of copyright registration; although registration is not required today, deposit of copies is still the law. Those copies continue to form an important part of the collections of LOC. In recent years, of course, copyright has become more interesting and complicated. It has become much more of a political creature. Our domestic law is also driven greatly by international developments, and the president has primary authority in international affairs. For these reasons and more, the executive branch is much more involved in copyright developments today. There is no perfect answer, but on the whole, I think a move of the Copyright Office to the executive branch is a good thing, if not a necessary change.”
Where would be the best fit? Crews has no firm solution to offer. “I would be cautious about placing it in the Department of Commerce, whether in or out of the U.S. Patent and Trademark Office. Copyright serves policy objectives that distinguish it from other IP law, and I would be concerned that it would be overshadowed by the established attention to patents. In many other countries, copyright is administered as part of a ministry of culture or education. The closest analogs in the U.S. might be the Department of Education or even Interior. The Department of State would be an interesting choice. That placement would pair copyright with international affairs. Maybe most likely is that the Copyright Office could thrive as an independent agency, reporting to the White House, akin to office on science policy.” Clearly there is no single theory on this today.
Whither the “Librarian” of Congress?
“I don’t think term limits are necessary,” explains Carroll. “The Librarian has to have the capacity to engage in long-term planning, and term limits can undermine that. In addition, through litigation involving the Constitutional position of the Librarian, the United States Court of Appeals for the D.C. Circuit has held that the Librarian is a ‘Head of Department’ who serves at the pleasure of the President. Although there may be political reasons for the President to consult closely with Congress on this appointment, as a formal matter, a Librarian who has worn out her welcome can be removed at any time.”
“I think in this day and age it is not sufficient for the person to be a well-respected scholar or a public intellectual,” Carroll continues. “I think the person has to have a deep understanding of the information environment and enough management experience to make sure that the people and resources in this important and complex institution are well aligned with the challenges of coping with rapid technological and cultural developments. I don’t think that’s a task that can be effectively delegated. In terms of resolution, I don’t have a great sense about whether this appointment can happen before the election. I certainly hope it does, but appointments in an election year with divided government are a challenge.”
“Term limits are fine,” Guthro notes, “provided it doesn’t take years to appoint a new Librarian at the end of term. With the changing nature of libraries and information I think having a limited term means that there are new voices/new expertise on a regular basis. I do think that the president should appoint a qualified librarian, one that has high visibility, with political skills that can navigate Washington politics while also representing the LOC and the broader needs of libraries. The new Librarian also needs to modernize the LOC in terms of technological infrastructure and staffing in terms of new modes of scholarship, while still paying attention to the enduring print/physical record. The LnOC is, or at least should function, as the de facto National Librarian for the US. The last few LnOCs have stepped away from this role and have not been providing significant leadership in the library community.”
Crews believes “the move to a ten-year limit is a good idea. Dr. Billington is worthy of high praise for his many accomplishments and contributions, but as a general rule, leaders should not hold such positions for such long terms. Presidents, FBI directors, football coaches. They should know when change is a good thing. Term limits can help.”
“While someone like Walter Isaacson [who was reportedly asked to take the position by Obama last Fall] provides some scholarly credibility,” Guthro notes, “he does not understand the broad information ecosystem and the broad role that the LOC plays. There are a number of well qualified librarians that could step into this role. Some suggestions would be Carla Hayden (Enoch Pratt Free Library), Susan Hildreth (Former Director of IMLS), John Szabo (City Librarian, Los Angeles Public Library), Pat Losinksi (Executive Director – Columbus Public Library), Sarah Thomas (Vice President, Harvard Library).” Clearly Guthro picked a winner by suggesting Carla Hayden as a candidate.
The Search For the Future in Uncertain Times
Jim O’Donnell
Jim O’Donnell foresees a difficult search process—even in the best of times. “The position of LnOC is an important one, but this search will naturally be difficult. The Library’s role in preserving and making accessible the works it collects needs vision and direction that have been lacking: A leader with vision and deep knowledge of the traditions of librarianships and the possibilities of technology is needed. The operational organization and management of the Library have deservedly come under fire: A skilled manager is needed. Third, the position requires confirmation by the Senate: A candidate enthusiastically backed by the White House and the Senate Republicans is needed. Find those three qualities in one individual, of whatever personal background, and other issues (e.g., term limits, organizational chart) will be of much less interest.”
Librarians aren’t used to being in the center of key issues in national debates. However, this is one time that we have no choice but to push forward. “The risk of failure is great,” O’Donnell cautions, “but one failure is assured already: An organization urgently needing clear vision and direction (and arguably needing them for some years now) is in the middle of what will be at least a year of uncertainty, with the institution in a holding pattern. A contested election year does not hold out much hope that the period can be as short as a year. For patriots who care about their nation’s institutions, those facts alone are deeply discouraging. The risk of long-term marginalization of the Library and the loss of its potential for doing things no other institution can do and for being a model to others is high.”
This is one time when it behooves everyone in the profession—as well as everyone concerned about the future of this institution and global information systems—to get involved, get informed. The potential for disaster is clearly as possible as change for the common good. ATG hopes that we will be able to follow-up with an interview with Dr. Hayden in an upcoming issue—so stay tuned as the story continues!
Nancy K. Herther is Librarian for American Studies, Anthropology & Sociology at the University of Minnesota, Twin Cities Campus. herther@umn.edu