Ep. 51: Inside the U.S. Copyright Office, with Miriam Lord

Miriam Lord, welcome to the show.

How are you doing?

I’m great, Garrett.

Thank you so much for having me.

I’m so excited to be here.

And I just think this is a great audience for the Copyright Office to reach.

You are the Associate Register of Copyrights and Director of Public Information and Education for the Office.

And I’d like to start there just talking about the agency itself.

I think most people listening to this probably have at least a basic understanding of copyright.

What I think might be less clear to them though is how the office itself is actually involved.

What do they do and what is their role in the government?

Absolutely.

So the Copyright Office is at its heart.

It’s the part of the government that manages the copyright law.

So develops studies about new directions the law should go, administers the way the law is written currently, and then processes claims for copyright and recordations of ownership of copyright.

Another role that the office has is from within the Library of Congress where we’ve sat for a couple hundred years.

We administer the educational systems that help the public understand copyright and its relationship to the Constitution, its relationship to commerce, its relationship to what it means to be a creator in the United States.

What does that advisory part you mentioned about writing laws entail?

Sure.

Well, so Congress writes the laws, obviously, and as a part of the Library of Congress, we actually advise Congress.

Rather than being in the executive branch of government, like some of our sister agencies, for example, the Patent and Trademark Office, the Copyright Office sits in the legislative branch.

What this means is it’s part of our statutory duties underneath the copyright law to advise Congress and provide technical assistance about areas that we have subject matter expertise on.

So the Copyright Act or Title 17 of the US.

Code is our specialty and we have a policy role in advising Congress about, after connecting studies about what the law could and should be, as well as applying the law in our regulatory role as we interpret the law and apply it to the way that we run the system.

So if I’m a Senator and I’m writing a bill or if I’m mad about one of the copyright lawsuits, Ed Sheeran or something, I call you and you have to answer all my questions?

Well, it depends, of course, it’s whatever good lawyer would say.

But in general, as the office reports to Congress, they can call on us, any member of Congress, but the oversight of the Copyright Office sits in usually the Judiciary Subcommittees, who will oversee all of intellectual property and the courts.

But any member of Congress can ask us any question about copyright, and they’re our boss, so we got to answer.

So that’s a good way, it’s a good thing for your listeners to know, which is their civic duty extends to what happens with the laws and how they’re written, and that applies to copyright as well.

So if you’re part of the Justice Department, does that mean that you’re involved in litigation as well, or is that still just an advisory role?

Let me clarify.

So the Judiciary Subcommittee of Congress is who oversees the courts and they oversee the intellectual property system.

So the offices, the Copyright Office, the Patent and Trademark Office.

So no, the extent to which we’re involved in litigation, that’s actually a great question.

When there’s litigation that has to do with the intellectual property system or any technical part of the law, that agency is consulted with by the Department of Justice.

The Department of Justice is the government’s lawyer.

So if there’s an area of interest, an area like a litigation that is related to an area of law that a particular agency administers, they’ll often get asked to file an amicus brief.

So our Office of General Counsel would work together with the Department of Justice and any part of the government that’s interested in this particular topic to file a brief of support of a particular direction.

So a great example of that is the government’s brief in the Andy Warhol matter from last year.

Sometimes we’re also in a lawsuit because we’re being sued because someone’s challenging a particular decision of the office.

And that’s also where the Department of Justice would represent us, but we’d be heavily involved in the briefing and the legal background.

So how does the Copyright Office come to a determination in these situations?

Like what their position is going to be?

I’m sure, especially with new areas of law or unexplored areas of law, there’s some healthy back and forth, right?

How does that decision making process work?

That’s a good question.

So I’ll just distinguish between the policy role and the litigation support role.

In the policy area where the government is taking a position or is conducting a study and then presenting some policy options for lawmaking, we have transparency requirements under the law and under the way in which we want to operate, which is that everybody has access to that process.

Everyone has a seat at the table of policymaking.

So when we put something out that we want to study, so for example, artificial intelligence, we put out something called a Notice of Inquiry, or we file something else in the Federal Register.

Anyone, anyone at all, class of middle school students, big trade group, can file an opinion and file a comment and tell us what they really think, what their hopes and fears and dreams are about a particular topic.

We read all of them.

That process often rolls into public roundtables or some other recorded public interaction where we can get more information about people’s positions from all the areas of the copyright system.

Then we study that.

We compile it, we analyze it, we do a legal analysis, a policy analysis, and usually write up some kind of report or work product that we publish and give to Congress as well.

But we know about a particular direction that the law currently could or should go.

On the litigation front, we’re really looking at the law.

We’re looking at what does the law say?

What does the law say?

That’s in the statute.

It could be in a particular new part of the statute.

It could be in our regulations, how we interpret that.

Then it could be in our practices or how we apply it on a case-by-case basis.

In general, we’d be conducting an analysis of the law, and how our practices that are updated through that public transparent process have ended up with that result.

So there are laws, and this is really in the weeds, but there are laws that allow people to appeal decisions that we’ve made.

So decisions we make are more like things like, what gets a registration for copyright?

So if somebody wants a registration for a claim they’re making for copyright, and we decide that there isn’t enough, it doesn’t rise to the level of a number of different thresholds, and we say no, they can do a couple steps within the agency to ask for a second opinion essentially.

And once they finish those, now they have a final decision that they can take to court.

And they can take that decision to court and then have a court weigh in on it, and if they have a registration, it helps them, as you’ve discussed before, enforce their rights, license their rights, et cetera.

But if you don’t have that and you’re looking for it and you want to challenge the decisions we’ve made, you can do that in court.

There’s a case right now that’s in court about artificial intelligence about that that you should keep an eye out for.

I’m going to save my questions about AI for the end because if I don’t do that, it will totally derail the whole episode, but we’ll get there.

It’ll just take over your life.

It takes over everyone’s life.

We’re here for it.

But aside from AI, what are the biggest music-related copyright issues that the office is currently involved in?

Sure.

From where I sit in the office, I see the work that my colleagues are doing in policy and in law and in registration.

One of the issues that I see from where I sit that I never want to get left out is the issue that I think your podcast really gets to, which is, do people really understand this stuff?

Do they really understand as a musician or as someone involved in any part of the music industry what their part is in copyright?

Where are they in this system?

That is really one of our biggest issues right now, and it’s really an opportunity, which is every day there’s going to be somebody who decides to get into this, and they don’t always have somebody who can mentor them and can pass that knowledge on.

They may not be picking it up in school.

It might not be offered through any kind of music business program, formal or informal.

Our challenge is from where we sit in Washington DC, how do we get out there and tell people this, or how do we leverage strategic partnerships to get the news out there where it needs to go?

But what we can do is just two things that we can touch on later when we talk about office resources, which is, we’re always here.

So if there’s someone in the music area that needs help with an application, we can walk you through that.

If there’s someone who wants something to read about the difference between a sound recording and a musical composition, for example, we have materials about that.

These materials are authoritative and they’re free.

So we really want people to know that they can go to the source and get it.

And teachers should know that we’re a resource, not only our materials, you can use them for free, of course, but also we’d be delighted to send a subject matter expert over Zoom or, depending on the event in person, to drop into your class and explain what we do and explain the law to your students.

So we have a speaker’s form on our website.

Anybody can fill out and we’ll take a look at it.

To pivot to what legal issues we’re dealing with right now, which I think ties in really well with the educational priorities that we have is, several years ago, Congress passed a new law called the Music Modernization Act.

For the music industry, this is a really big deal because it really changed the music licensing landscape.

Just to put it bluntly, it really changed how songwriters get paid.

We want them to get paid.

As technology changes, we want to make sure that there are systems that allow that to happen, that cut down on friction that make it difficult for you to process transactions.

A, all the materials about the Music Modernization Act, we’ve been charged with providing education about it.

They’re up on our website, of course.

This is specific to when musical works are used on streaming, interactive digital streaming services.

This isn’t about any other use of musical work.

I know that you’ve had lots of conversations about the bundle of sticks and how complex it is, and how many pieces there are.

That’s right.

You’ll just have to divide in your mind and say, okay, this is one more complexity.

When the music ends up on a digital streaming service that is interactive, you can choose what you’re listening to.

This is how you get paid for that.

In order to get paid for that, you have to register your work.

Not with us, although you should also register with us, but you have to tell the organization, the Mechanical Licensing Collective, that that’s yours.

Because when you do, they’re able to match it with the streams that are happening and that’s how you get paid.

If you don’t tell them, they can’t pay you.

That’s something that both we and the Mechanical Licensing Collective are charged with doing, which is people need to know about this.

If they’re putting their music out there and they’re the songwriter and they are hearing it being streamed, they can get paid for that and this is the way to do it.

So that’s probably the biggest change.

That’s separate from the PROs, right?

Like BMI and AsCat?

Yes.

The PROs are managing performance royalties for songwriters and publishers.

But they also pay mechanical royalties for the reproduction of the works.

But this is a streaming specific car val that was not previously provided for in the law.

So the way that this works is over time, just like I mentioned earlier, there was a gap.

People noticed this gap.

There was a lot of engagement from stakeholders from all over the map about what the pain points were, what a solution could look like, and over time, this law was passed back in 2018 and implemented over the next several years, and we just have a plethora of materials about it online.

So if you would indulge us by letting us drop some of those in the show notes, we’d appreciate that.

Of course.

Yeah, we’ll definitely link to that.

So if I have released sound recordings on Spotify, Apple, whatever, I go to the MLC and I fill out a form and say this is mine and then they pay me.

Yes.

Yeah, more or less.

Essentially.

They would be, they would, they’re the best people to tell you exactly what to expect.

But yes, that’s what we would expect to happen.

One thing to point to just to avoid confusion, of course, is if you’re the recording artist, but you didn’t write the song, this is not for you.

You’ll get paid through the usual RASCAP BMI performing rights, that side of things.

But if you are the songwriter and your song is played, and it could be, then this is for you.

Well, that’s a good segue to another new program that, I don’t know if program is the right term, but the Copyright Claims Board was established in 2020.

It might have been the only good thing to come out of the year 2020.

And that’s actually what initially brought me to your office and this interview was because I learned about that and I had frankly heard nothing about it.

And I think it fills a real need in at least the music industry because there are lots of issues of copyright where the dollar amount doesn’t rise to a point where it makes sense to file litigation, at least in the traditional sense.

So can you talk us through just what the Copyright Claims Board is and what it’s meant to do?

Sure.

Well, I hear you there because the office has been thinking about this for a long time.

The community has been thinking about this for a long time.

And it’s certainly quite an endeavor to go to federal court on a copyright infringement case, especially when the return on investment might be on the lower side for a particular artist.

Additionally, getting an attorney to even take the case can be challenging or pay for the attorney can be challenging.

And then also, if you didn’t register your work, you just can’t even go in the door.

So forget it.

So this option is called the Copyright Claims Board or the CCB.

And it’s designed to be a faster, less expensive, more streamlined process to sort out certain kinds of copyright-related matters.

So it’s voluntary.

So that means both of you have to agree.

It’s all virtual.

Nobody has to travel anywhere.

It’s based in Washington, DC., but it’s done over Zoom.

And not only all the expenses regarding the lawsuit, which you’d normally have to be pulling together, like a lot of discovery, expert witnesses, in addition to the legal fees and all of the travel or anything else you have.

That’s really minimized.

It’s designed to be pro se approachable, so for people to be able to represent themselves if they want to.

And the fees are low in comparison to federal court filing fees, so $40 and $60 after the opt-out period ends, and somebody agrees to be on the other side.

So the idea is if you have something that you’ve decided is really important to you, and you want to invest in yourself by protecting that, and you want to make sure that your work that you created is out there in the world in the way that you want it to be, which is your right.

This is how you enforce those rights in a way that is a little bit more approachable.

So as of now, we launched this back in summer of 2022.

So it’s been just over two years.

At the mid-year this year, we had about 800 claims that were filed.

That seems to be going up at a pretty steady rate.

These cover two kinds of claims.

One at the standard track, which is under the damages claimed, has to be under $30,000, which depending on how you compare it to federal court, might seem like not enough or it might seem like too much.

But keeping in mind the fact that it can often be very challenging for people to move through the federal court system promptly, this is an option that is good for both people bringing claims and people responding to claims because they know at the end of the day, they’re going to end up under that number, and they’ll know what to expect.

So it brings in some certainty to the system with people who may have not been able to bring claims for infringement or other related things before.

Now they have this other option, sort of like a release valve for that kind of conflict.

So far we’ve seen those go up, we’ve seen about 60 percent of people be self-represented, which brings its challenges but is great to see that people are using this system.

We have lots of educational material, of course, and so I guess my advice would be coming from my former work as a public interest lawyer doing legal aid for the arts is, read the materials, the materials are free.

Read them, then make an informed decision about whether this is a good fit for you.

Then when you come to our office, we can help you through the process.

But of course, we’re not your lawyer.

So if you need one, bar associations are at the state and the city, and usually the county levels in every state, and that is where you should start because that is where you’ll know you’ll end up with a licensed attorney in the first place.

So in addition to law firm, law school clinics and pro bono organizations, you can just go to the bar association and they’ll usually refer you either for free or for a nominal fee to talk to somebody as a trial, like a consultation.

And if it goes well, you can engage with that person, and if it doesn’t, you can ask for someone else.

Fantastic.

All right.

So if I’m understanding this right, I’ve written a piece of music.

Doesn’t have to be music, right?

This covers all kinds of copyright.

But I’m a musician, so I write a piece of music, it gets infringed in some way.

I’m upset about it, but I don’t have the money to hire a lawyer and go to federal court.

So I decide to file a claim with the Copyright Claims Board, and the other party agrees to resolve the issue this way.

And so we follow instructions from the office and have a Zoom meeting basically, and then there’s a three-judge panel that decides the case.

Am I understanding that right?

Yeah.

I think the only part that I’d really stress for people is that, even though this is a special kind of tribunal, it’s a little bit like a municipal court, it’s like a small claims court.

There’s still due process, so you still have to serve process, you have to put people on the right notice, that they have been invited to participate in these proceedings.

You can use either state or federal rules for that, and a lot of information is available online, but I think that’s the thing that people often miss the most, is that that’s your responsibility if you’re going to bring people into a tribunal to litigate something.

Yeah, it’s a legal proceeding.

Is this, knowing very little about law outside of the music industry, is this a unique sort of thing that y’all have come up with, or is this something that exists in other areas that we’re bringing into copyright?

Great question.

Well, in the United States, in the intellectual property system, it’s the first.

There isn’t a similar court for trademarks, or wolf trademarks at the federal level, or for patents or trade secrets.

This is the only one for intellectual property, so it’s being looked at with a lot of interest, because people may have disputes about those things too, and their only option is to go to federal court for now.

But I would compare it from a public interest law perspective to a small claims court where you’d bring somebody over a contract dispute, where you go into your city or county municipal court and work through a dispute that’s under several thousand dollars or whatever that limit is, and there’s limited remedies that you have.

But the idea is that it’s accessible, you can represent yourself, supposed to be quick and easy, and the barrier to entry is lower.

I’ll say that other countries including the United Kingdom do have options like this, and they’re often a part of a package of enterprise court options, enterprise tribunal options.

So small businesses have a number of different options to just straighten out legal issues that are scaled appropriately, so that they can be dealt with faster and easier.

How did all this come about?

Was there a specific event that prompted it, or was this just something that came out of the advocacy of the office?

Well, certainly advocacy of all areas of the copyright community as well.

This is a pain point that, as you mentioned, people feel.

They raised those concerns with us, they raised them with their elected officials, and over time, this is something that sometimes we’re asked to study.

Sometimes we were asked to provide technical assistance.

Then finally, after a lot of talking about it, this got pushed through.

It got pushed through in an omnibus at the end of December in 2020.

We had a limited amount of time to set this up and get it moving, and we did, and now it’s rolling, and it seems to be going really well.

Is this a trial run, essentially?

I mean, three judges doesn’t seem like enough to handle all copyright small claims disputes in the country, right?

Is there a plan to expand it if it goes really well and have copyright claims boards all over the country, or is that just, I don’t know, how should I look at this and just in relation to the court system?

Great question.

I’ll take the second part first, which is just that there are other administrative bodies that handle specifically scoped things throughout the government.

This particular one is by a specific statute, the Case Act.

A lot of the parts, the building blocks of this new copyright claims board are specifically in the statute.

We’ve been told by Congress specifically, this is how you should run this.

Then fill in some of the details, the regulations that of course we publicly notice and get comments on.

But by and large, this is how it’s built to be for now.

We are going to be asked to do a report about how it’s going in the next couple of years, and that would be a good time maybe for us to come back and tell you a little bit about what we found, and where it’s going from there.

But for now, the number of claims that we’re having filed, and the staffing levels and the resources seem to be fine.

Let’s shift gears and talk about the copyright registration itself.

So starting off real basic, just what does copyright registration do and what does it not do?

I love how you’ve positioned that question.

What does it do?

What it does is it allows you to present a piece of paper that says, this is mine.

It’s like the title to your car.

It’s like the title to your house, the deed to your house.

It’s evidence that if you do need to litigate about it, or you’re looking to commercialize it, that gives confidence in that other party that this is yours.

The law provides that if you are enforcing your copyright, that if you have a registration, the burden of proof that you don’t own it is now on the other party.

Like you show up and you’re ahead of the game for anywhere from 45 to 100 dollars or something.

So what it doesn’t do is create a right.

You already have the right.

So when you fix an original work in a tangible medium, this right adheres to you, this bundle of sticks.

That’s different than the way the patents work.

In 2011 or so, the law changed in patent law from the first event to first to file.

And so now you don’t have any patent at all until you file with the Patent Office and then it backdates if you get it to the grant will backdate.

That’s a grant of a patent that didn’t exist before.

In the copyright space, you already own it.

This is proof that you own it and it’s proof that will be taken seriously.

Other benefits in addition to using it in litigation, not only in federal court, but also at the CCB, like I mentioned, are you have a public record.

So this isn’t new, of course, but the copyright system is designed to accelerate creativity and innovation, and that public record serves as a way for people to find you, get in touch with you, license your work, approach you with other kinds of opportunities, and not only you, but also your heirs, because it’s going to last you your life plus 70 years.

So it’s part of your state really, and it helps you get that in order.

So it may not be something you want to do for everything you create.

You have to make a business decision about what you think will go the farthest, or what you love the most.

But it is a part of being a professional artist is just to think about, how do you want your arts business to work, and what assets do you have?

This would be one of those assets.

Well, that’s the hard part about it, because it’s similar to what we were saying with the Copyright Claims Board.

If I’ve written a thousand pieces of music, it doesn’t necessarily make business sense for me to pay that $45 registration fee for all of those pieces of music.

It almost seems a little backwards, because I don’t need to register to have the copyright.

I don’t need to register to get paid, because you do that through the PROs and now the MLC, because we all know about that now.

For a lot of composers, I think it’s just hard to justify that cost.

What would you say to that?

Sure.

Well, it depends on what value you’re setting on your work, I guess.

If this is something that is original, if you poured a lot of yourself into it, you’re going to want to defend it.

If it’s something that is derivative work, your copyright is going to be relatively thin or you don’t have a copyright on it, like it’s an arrangement or it’s a derivative work of someone else’s work, and you have a license to create that way, you can’t register it, but also in your mind, you should sort those into piles and say this is the core of who I am as an artist, this is really important to me.

Return on investment is mostly tied to the future viability of that piece of art as something that identifies you as an artist, as an artist of any discipline.

Part of what I’ve seen outside of the Copyright Office in my career has been when artists do seem, when they’re on the other side and they’re thinking about their legacy, they see it as a series of major achievements, not as a series of volume.

And those major achievements, they might stand out when they’re created at the beginning, they might become clear to you later in the end.

But one way to make sure that everyone else knows about those achievements and that your heirs can defend those achievements and keep them from being used in ways that you would never want is to register them.

So are you saying that works have to be registered with the office in order to pass down copyrights to your heirs after you die?

No, they’ll pass down already.

But can you imagine trying to administer an artistic estate of contents you’re not aware of?

You know what I mean?

It would be very difficult.

I would be trying to keep track of a fleet of cars where you don’t have any papers for them and they’re all over the country.

Is there a common practice for how to do that?

So this is an area where, because state law is something that happens at the state level, there’s different laws for wills and the trusts and estates in every state.

It’s an area that you definitely want to talk to someone about.

Someone at a bar association can point you to the trust and estates part.

Often, the organizations like a Volunteer Lawyers for the Arts is often a partnership of both the intellectual property and the trust and estates lawyers, because this is just such a common issue with people passing on their legacy.

There’s a lot of rules.

But in general, it’s not a piece of copyright advice, it’s just a piece of life advice, which is know your worth, know your creations, and think about what your legacy would be, and talk to your family about that, talk to the people that are going to inherit this from you, so that they really understand what you want them to do.

Hopefully, if you have registered it, that’s very easy for you to extract and be able to pass on.

Easy for them to be able to license something or to stop someone from doing something that you wouldn’t have approved in your lifetime later on.

We’ve just hit on everybody’s three favorite topics of conversation, death, copyright law, and how much money you should get paid.

I mean, we’re just really crushing it over here.

And taxes.

Extension.

You know what I mean?

Death and taxes.

Exactly.

Great.

So, what is the thing that should be registered?

Is it the sheet music of the song?

Is it the recording?

And I mean, a lot of these works sort of exist in different formats.

Is there one that takes precedence over the other?

So depending on your role, you could be registering the sheet music and the musical recording.

So we have two rights embedded in a recorded song.

If you think of the song, I’ll Always Love You, it’s written by Dolly Parton, recorded by Dolly Parton.

She owns the composition.

She also owns the sound recording.

So she has registrations that cover both of those things.

So that means when her composition is used, the musical work, if it’s recorded by someone else, she gets paid.

If it’s recorded by herself, she gets paid.

When Whitney Houston covered that work, that is not a musical work, that is a sound recording.

So Whitney Houston doesn’t own the written understructure of the song.

She only owns what she recorded, the sounds that she recorded.

So if you have both, if you’re a singer-songwriter and you’re the performing artist as well as the songwriter, you have two rights.

You have two separate bundles of sticks basically.

If you’re a performing artist and you’re performing someone else’s songs, you have the recorded sound rights.

Because those are separate, there are separate applications for them.

However, if you own both, there’s a way to streamline that.

I’ll just share as a fun fact that apparently, we say this in our Copyright Office exhibit, Dolly Parton was approached by Elvis to buy the composition, like the publishing rights in her catalog and in her, I Will Always Love You and other songs.

She declined and she says that that helped her build Dollywood because of the-

That’s crazy.

The power of having control of your own publishing.

Is all of this searchable?

Because I think one of the things that makes copyright hard is just or what makes licensing hard, I should say, is just figuring out who owns what.

Right.

Well, one of the things that has certainly improved that has been our move to a new pilot of our modernized copyright public records system.

So CPRS, we’re in a pilot of it right now, but we anticipate it being the official copyright public record and taking over an older legacy system online sometime next year.

But it’s up for a pilot now, so you can search, you can filter by various fields.

You can, if you’re looking for the sound recording of a work rather than the composition or vice versa, so that is something that you can filter for.

And actually, we just had a webinar about this about a couple of weeks ago, that recording should be up shortly and we can link you to that too.

But it’s a good kind of explainer of like, how do you dig into this?

How do you find what you’re looking for?

And in what situations can the office help you and conduct those searches for you for a fee?

And in which situations are you best?

You know, just having a Saturday afternoon and digging through the copyright public records.

You can also, of course, come to DC and do this in our reading room, but you can do it from the comfort of your house as well.

That’s just on the office website?

Yes, on copyright.gov.

One of the things that’s made a little harder over time is when the copyright law changed in the middle of the 20th century, to become more similar to international laws, for a lot of other reasons, there were a lot of changes last century in the copyright law.

And one of those changes meant that we went from a requirement, a formality requirement to register, so that everything that was protected by copyright was reflected in the copyright public record to an optional system.

So now, it’s harder for you.

It’s easier for you, because if you don’t want to register, you don’t have to.

But it’s harder for people who are looking to do research, because if you choose not to register your work, they won’t be able to find you.

And so when you’re looking at the copyright public record, you have to keep in mind that it reflects a full public record of copyright registrations and recordations that people chose to make.

And there’s a limit to that, because if they chose not to register them, you can still infringe on it.

You just won’t know and you won’t know how to find them.

So that is definitely a challenge, but it’s one of the reasons why registration is important.

And it’s one of the reasons that there are a lot of different resources for building out your copyright clearance process, sort of like your copyright title search.

But I would always start with us because this is the official public record.

It’s free.

It’s available to you.

And you can call us if you need help.

You just brought up a really interesting point that I hadn’t thought about before.

What is your interaction with other countries’ copyright systems?

Like, I mean, as everything has gone more international, certainly in the music business, right?

Most things that are published or made available or distributed, however you want to call it, most of that is online, which means it’s worldwide.

What are those conversations between agencies like?

Sure.

Well, there’s things that we do, of course, as the Copyright Office, as the government.

And then there are things that, like a music publisher would do or someone who’s administering your rights, which is like, they’re territorial.

You have to think about your domestic rights or your rights in other countries.

All of those commercial terms you’ll see in various contracts and talking about splits and all of that, it’s the parlance of the industry, but it all rolls up to the Copyright Act and it all rolls up to the laws in the way that they’re written and the US.

Copyright law applies to the United States.

Other copyright laws in other countries apply to their territory.

Not only are you thinking about your rights as a bundle of sticks domestically but also all of those sticks internationally under all of those different laws.

It can be very complex and one of the things that we do at the government level together led by the executive branch who has the priority for foreign relations is to engage in an ongoing discussion with other copyright offices and other patent and trademark offices, and other industrial property offices, ministries of culture, groups like that, depending on how a government is structured.

As an example, under the World Intellectual Property Organization, which is in Geneva, we’re a member state of the United States.

A couple, about a year or two ago, we had a program called Roundtable for Copyright Education, where we gathered together the parts of sort of our counterparts.

So my counterpart, Norah’s counterpart, and what those people would be doing in other countries to educate people about copyright, about intellectual property generally.

Are they talking about it at schools?

Are they talking about it in small business incubators?

Are they talking about it in the state planning context?

No, what is happening over there?

As a policy making and a legal perspective, obviously these jurisdictions are all different.

But we always want these laws to be compatible even if they’re not the same because of the international nature of the market now.

The barrier to entry or global trade, which is what you’re doing if you’re selling your music in a different country on their platform, is just so low now.

It’s just so different than it was in the middle of last century.

That just means that people can get into scrapes a little bit more easily.

They have more opportunity and then there’s a little bit more risk.

One of the last things I’ll mention is that in addition to talking directly with our counterparts all the time and participating in various treaties like the Berne Convention, which is the copyright treaty internationally that we had to change our law in order to join the latter part of the 20th century.

We do quite a bit of work thinking about that education, but also thinking about how the copyright system relates to other parts of commercial and to intellectual property work.

As a musician who has a presence that could reach beyond the jurisdiction of the United States, you may have all kinds of questions about what that means as a small business or an entrepreneur and you don’t know what the laws of X country are and how they impact you.

The United States government actually has in its embassies and missions around the world, economic and commercial section, and there’ll be a regional IP attache actually who can reach back to us and reach back to our counterparts in the executive branch who essentially works for the state or commerce department, who can answer questions even from small businesses, like from anybody, you can reach out to them and say, I’m looking to get into this market or I have a question about the law in this country, and they can not only usually provide you some information, but they can also provide various referrals for people to help you, and information about the right government authorities in that country as well.

Other countries have those people here too.

There’s a lot of interest in making sure that this works as smoothly as possible, not just for businesses of any size.

I should have asked this earlier, but how many people are in the Copyright Office?

What you’re describing sounds like a really extensive network.

Yes.

Well, in that particular network is not within the Copyright Office, but works closely with the Copyright Office.

It’s the executive branch function.

About 450 people are in the Copyright Office.

So 450 people covering, of course, the Register of Copyrights Office.

She’s the head of the Copyright Office.

We have my area, Public Information and Education.

I have Registration, where all the Registration Specialists and Examiners are.

I’ve got General Counsel’s Office, just a bunch of lawyers, of course, and the Policy and International Affairs, and then some folks supporting records, Copyright Records and Systems, and all of our Administrative Operations kind of support processing materials as they come in, and things like finance, and things like that.

We’re part of the Library of Congress, and so we’re a separate department under the law.

But if it’s about running the copyright system, it’s for us.

It’s more of a back office support function, rolls up to the Library.

Well, let’s wrap things up by talking about AI, because it’s the new shiny thing.

The Copyright Office released a statement last year that draws a pretty firm line in the sand saying that works require human authorship in order to be copyrightable.

What, if any, guidelines specific to music does the office have to make that determination?

That’s a good question.

It’s one, of course, I’ll answer by saying it depends, and that what it depends on is what you’re submitting for registration.

So the registration process for people who are doing the registration is according to guidance that we’ve put out.

So all of our guidance comes from the Constitution, the copyright law, Title 17, any of our regulations, and then our compendium.

So our compendium of copyright office practices is the large practice manual that covers everything in registration, soup to nuts, and any discipline of art.

That compendium often contains specifics about the scope of registration, what you’re trying to register depending on what kind of registration it is, what is it music, is it film, is it books, what, and what those particular applications, what the statute and our regulations require you to give us.

In the AI context, what we found is that regardless of discipline, including music, this is a question that people had.

They really wanted to be clear on what they’re allowed to register and what they’re not allowed to.

In March of 2023, like you mentioned, we put out some additional guidance with the intention to update that compendium after conducting a study, after putting out a report, just thinking about where to draw those lines.

These are really important questions of what part of something has been created by a person and what part has been created by a machine or by something else.

It’s not really new to the copyright system to have to think about what part of your work is derivative, what part of your work is original, what part was done by someone else, is it joint work?

Separating out the work that you did is a common part of registration.

This is just applied specifically to this new technology.

That registration guidance, we put out in the Federal Register on our website, and it just tells people that under the copyright law now, copyright is for human-created work.

So if you use the tool to create music, like a generative AI tool, you need to tell us that.

We’ll then go into correspondence with you to scope sort of the specifics of that.

And the registration you end up with, remember, does not grant you any new rights.

It confirms the rights you have.

And the strength of your rights depends on the facts that you provide.

So if you end up later having to go to court over this, it will benefit you to have a clear registration that defends what you did, your contribution.

So far, that’s going fine.

People are giving us, they don’t have to give us anything too specific.

They just have to say, like, I’ve used this tool and this is what I did.

And then there’s some conversation about how exactly it was used, and then that’s very case-by-case determination.

But what we’re looking for is, if as a creator, the part that you created is enough to stand on its own as copyrightable, then you can copyright that part of it.

You can’t copyright the part that’s created by a machine.

So the simple questions are, it’s entirely created by a machine, that’s not copyrightable.

We’re pretty confident in that, although that is going up to the appeals court in September.

We’re pretty confident as well in the guidance about human authorship being required.

That was confirmed by the district court last summer.

The harder questions are about if it’s a mix.

So I think that gets to the heart of what your question is, which is, how do you know?

The answer is, it’s a case-by-case determination.

We did have a really helpful webinar.

I love to talk about our resources.

Last summer after we issued the guidance where my counterpart, Rob Casnick, who is over the registration system and his deputy, Eric Burton, really walked through several different hypothetical situations and said, well, what if it’s this and what if it’s that and then what would you do?

So I think that that’s posted and is still current.

We do intend to issue a part of their copyright and artificial intelligence reports that specifically addresses copyright ability.

So I’ll take a step back in just a minute and tell you more about that broader initiative.

But the plan is study it, put out the guidance about what we know, done.

People are applying it, done.

Have some education, also done.

Observe it as they come in on a case-by-case basis because that’s what the registration system is.

It’s like a natural laboratory.

Unlike in other countries, we examine these registrations as they come in and make decisions.

So it helps to shape the boundaries of what copyright law is in other countries.

You don’t register it at all or you register it and it’s kind of a, they don’t go through like a critical examination.

So when a decision is made, it has the ability to be challenged and then eventually maybe to go to court, where the court can weigh in or there might be a need for a statutory change or something.

So in terms of all of this, these are the hard questions.

There’s lots of other hard questions too that aren’t related to registration.

They’re related to things like copyright infringement of training data or deep fakes or licensing and fair use, all of that stuff.

So as a part of a really broad artificial intelligence initiative that we launched at the same time as we issued this guidance last March, we have been studying all of these questions.

So about a year ago, we asked for the public to weigh in, any public, on all of these questions, about 30 or so questions in these areas, after doing some intense listening sessions in the music arena, and in the audiovisual arena, and in the literary arena, including software, and in the visual art arena.

What we decided was, these are the questions that are the heart of the matter.

Let’s roll those into a big study, a big public inquiry, where we say these are the questions.

Here’s your chance to get on the record.

Tell us what you really think.

We got 10,000 comments.

We read all of those comments with human eyes, and then have been putting them into boxes.

You didn’t have AI summarize it for you?

No, we did not.

The register likes to say that there is human eyes involved for trust purposes.

However, we do acknowledge that maybe having some sorting capability might have been helpful.

But for now, it’s humanized.

We sorted them into pieces.

Anything related to digital replicas and deepfakes, first part of that report came out a week or two ago.

Other parts are going to handle things like you mentioned, copyrightability.

They’ll handle fair use, licensing, transparency, any kind of, if it’s not fair use, liability, where that falls.

Is it who made the AMI, the model?

Is it who scraped the data?

Is it who used the commercial tool?

Who distributed the commercial tool?

Where does that fall?

These are all going to be issues that we’re looking into.

Obviously, it’s a part of a much bigger discussion within the government about AI generally.

That’s going to get a lot of eyes over, not just the last year or so, but probably forward.

Well, and for what it’s worth, I happen to agree with the position that human authorship ought to be required to have a work be copyrightable.

At the same time, though, I wonder if we’re ending up headed towards this sort of weird limbo where you have works out there that are not copyrightable but they’re still commercializable.

Is that a word?

Right?

Like I could use AI to generate sound recordings that I would not be able to copyright, but I could still monetize as the owner of those recordings.

So I’m wondering, how does the commercialization or the commercial potential of works factor into all of this?

Well, that’s a good question.

Actually, I’m really glad you asked that because it takes us all the way back to the beginning, which is, what is copyright?

What are we doing here?

You can commercialize something that might be in the public domain, and let’s just pretend for now that there is no liability attached to that, even though it’s made from an AI that’s used training data, that’s works that belong to someone else.

Let’s just-

Yeah, the training data thing, I can’t even wrap my head around.

I’m not going to try.

Maybe next episode.

Yeah, we’ll do that later.

Pretend that you have the right to do this.

You do.

What’s stopping someone else from selling it?

You don’t have a copyright in it.

It’s not yours.

You don’t own it.

Someone else owns it.

I mean, no one owns it.

Anybody can sell it.

That means you’re not going to have the exclusive rights from the copyright.

There’s no other ownership of it.

If you are going to, if you see someone else selling something that you created, but you don’t have a copyright on because it’s in the public domain, there’s nothing you can do to stop them.

You’re just going to have to be the loudest and best at selling it, which will take additional resources and take away from the heart of what you love to do, which is the creative work.

Yeah.

Well, and we’re talking just a couple of weeks after the office released the first of those reports that you mentioned, the report on copyright and artificial intelligence.

The first report focused on digital replicas, which isn’t necessarily related to what we’re talking about here with music, although musicians get a lot of mention in it because of the fake Drake and the other videos that are popping up impersonating people.

Obviously, that’s an issue for performing artists.

But with these reports, how are you deciding when new law is needed?

Because that’s one of the recommendations was that the report said, what we have currently doesn’t cover the things that this technology is generating.

Well, that’s what we do.

That’s what policy lawyers and the government do, is they think about things like, is this working?

Should it work differently?

And what’s the scope of it?

So as technology changes, this is what copyright has been successful in doing over centuries, not only in the United States, but where it came from.

Printing process developed and all of a sudden, we need the copyright law.

That’s the heart of where this came from, is based on real property and use of physical land.

What happens when what you own isn’t something that, your rights are not tangible in that same way.

So we do think about this.

What often happens is there’ll be a pain point.

People experience a change in the system, a change in the market, a change in the technology, and say, we’re having trouble seeing how this fits in the current structure of a law.

And the best-case scenario for everyone involved, the most efficient way forward is usually for people to just apply the law that we already have, like use all the systems we have and apply the law.

But if that’s insufficient and people are running up against barriers or the statute itself, like the words in the law are just not broad enough to leave enough room for whatever is happening, that’s what policy lawyers do.

So that process, what’s really important about that process, especially to us and to the Register, is to be really transparent about that process.

This is not a situation where a particular special interest gets special treatment.

If we’re going to study something, we put it out there broadly and we say in the Federal Register, just like we did with this report, either Congress has asked us to look into something, that’s their prerogative, we conduct a study, we go through that whole process, we analyze the law, we take all the comments, and then we reiterate how those comments came, and then we’ll see if we want to take a position that’s one direction or another direction.

Part of that process also includes something called ex parte meetings.

That’s something that I think people should know if they’re not in the beltway, as we say in DC, which is after that process happens and the comment period closes.

If people still have things to say, they can say them, but in order for us to consider them as a part of our decisions, they can meet with us, but after they meet with us, they have to write a letter about what we talked about, and then we have to put it on our website so that you know what influence is on the office and what decisions that we’ve made.

So if you really want to dig into the weeds, if you have like policy making, future Copyright Office, Lawyer, audience listeners, first of all, please do come work with us.

We are great and we have positions all of the time coming up and it’s exciting.

But also, what matters is we’re the government.

We have to be everyone’s government, and so we want to hear from everyone as a part of that process.

But what we’re looking at in terms of source documents is like the Constitution, the statutes, other statutes that could be impacted by a change in the statute, all our regulations, all of our compendium, our practices.

You really have to think about any unintended consequences and draw lines as closely as you can about the way this law would work if analogously you were going to, if it was going to work in a different area.

Sometimes things happen in patent law or in trademark law or in copyright law that someone will say, well, what if we did that over here?

You really have to open your mind and really think about, you know, what’s the real problem?

What are we trying to do to solve it?

And is there any risk that we’re taking here?

But ultimately, it’s up to Congress, right?

They have to be the ones that decide to introduce the bill, decide to pass the bill, and then give it to us to do.

Do you think that the current setup for the office, copyright, Congress, do you think that it’s going to be able to move fast enough to keep up with all of these developments in technology as they happen?

Yeah, it’s a great question.

I can just say it has.

Over time, there’s been a lot of rumors of copyright stuff have been much exaggerated.

There was a whole period of time when the Internet stopped being a series of tubes and started being something that you use in your everyday life.

We were able to respond, actually, the current register was developing some of that within the office in a different role at the time.

I’d like to talk about how in her much longer tenure, much more illustrious tenure than mine, has seen all kinds of different challenges.

It has risen to those challenges.

This has included the Digital Monument Copyright Act, which allowed people to host third-party content among many other things, while encouraging the progress of the technology, while at the same time, protecting people’s constitutional rights.

Periodically, it is important to have these conversations, but we always do.

I think that what people feel about the speed is not a bug, it is a feature, and that’s because if you move too fast, you can really have unintended consequences.

You really have to be very thoughtful, and you have to hear from everyone.

If you don’t, you’re going to regret it.

That’s part of the way that the process works, which is if you have a real concern, you raise it to raise it to us, raise it to your elected officials, and it’s something that we can look into.

Well, that seems like a fantastic place to wrap things up.

You’ve mentioned a couple of times how members of the public can give opinion to the office and make their voices heard on issues.

What’s the best way that you recommend they follow the work that the office is doing and just stay up to speed on these things as they develop?

Great question.

We have a newsletter you can sign up for called Newsnet.

This is like our press release or periodic emails.

You can sign up for specific news or just all the news events we’re having as well as policy updates, things like that.

That’s just at copyright.gov.

You can just go to news and sign up there.

You can also follow us on social media.

We have an ex account, we have a LinkedIn account, and we’re working on an Instagram account.

We have, obviously, you can call the office at any point if there’s something that you want to know about.

We have a public information office that I oversee in addition to our education and outreach and comms folks.

That office is the office that can walk you through your registration, but they can also find you an answer for is there been an update on this particular report or direct you where you need to go.

The office is full of extremely friendly people who really care about this stuff.

A lot of us have, so I’ll just say, alternate professions in the arts.

Our registers of Train Stinger, I was a dancer.

Other staff are ceramicists or musicians.

We’re always really excited to help out anyone who’s a user or a creator of copyright, which is everyone.

Well, I want to thank you for coming on the show, but also for the work that you and the office are doing to keep up with all of this and to keep everybody informed about copyright.

We’ll put a bunch of resources in the show notes for listeners.

Pretty much whatever you want to send me, I’ll put in the show notes.

That way people can have some quick links to read up on everything.

We’ll be excited to watch how all of this unfolds and have you back on the future to get caught up.

Absolutely will, Garrett.

Thank you so much.

It’s been a real pleasure and we do hope to see you back when more developments occur.

Thanks again.