It solves and spurs modernization.

The options of an independent agency or a stand-alone agency within the legislative branch offer the greatest opportunity for the Copyright Office to design and implement a modernization program that is precisely tailored to its needs. However, these approaches raise other concerns, namely that the Office be subject to sufficient limits to its regulatory authority and appropriate oversight to ensure that the Office does not abuse its authority.

At present, the Copyright Office’s regulatory authority is relatively narrow. The Register is authorized “to establish regulations…for the administration of the functions and duties made the responsibility of the Register under this title.”111 The functions and duties of the Register involve the registration of copyright, recordation of transfers of copyright, the procedures for submitting statements and royalties under statutory licenses, and the procedures for filings for various other purposes enacted by Congress.112 The Copyright Office has no enforcement role (beyond the indirect function of advising the enforcement agencies on technical and legal issues), nor does it have a basis to expand the current scope of its functions and duties through regulatory act. Only Congress can do that. This limited scope of authority distinguishes the Copyright Office from certain existing agencies that have generated significant controversy (and litigation) by forays into expansive rulemaking and enforcement activities. Nor is there any reason to think that Congress would have to enact new legislation to expand the scope of the Office’s regulatory authority as part of any restructuring option.

It is worth noting that, uncharacteristically for a modern bureaucracy, the Copyright Office has repeatedly and consistently recommended steps that would have the effect of reducing its regulatory authority. Specifically, the Copyright Office has recommended for years, across different Registers, the elimination of certain statutory licenses in favor of free market negotiations.113 Were Congress to adopt this approach, it would reduce significantly the scope of the Office’s authority and eliminate the statutory licenses that generate a large amount of the regulatory activity of the Office as well as an overwhelming majority of the royalty payments collected and distributed by the Copyright Office.

Nonetheless, there is always the potential for a more bureaucratically aggressive Register sometime in the future, so strong oversight mechanisms would be important. Some form of stakeholder monitoring and oversight panel – which would include representatives from the full range of copyright perspectives, and to which the Register would provide reports on Office activities and receive back comment and criticism – would be advisable. While this body might lack legal authority to constrain the Office, it would be an early warning system and an avenue for whistleblowers should the need arise. In addition, a more formal Inspector General arrangement could be established so that an outside authority can investigate claims of mismanagement or impropriety. Finally, but by no means least, it is envisioned that Congress would continue its long history of close engagement and oversight of the Copyright Office.