February 2021 C&RL News91

W a s h i n g t o n  H o t l i n eCarrie Russell

Copyright expectations for the 
117th Congress
Advocates for balanced copyright policy might 
assume, now that both houses of Congress 
have a slim Democratic majority, that any 
copyright-related legislative activity would be 
more favorable to the public. That assumption 
would be wrong. 

Members of both parties are interested in 
securing broader rights for rights holders and 
expanding piracy protections. (I once attended 
a reception at the Motion Picture Association 
offices in Washington, D.C., and during the 
program the invited U.S representative actually 
said that Congress was here “to serve the rights 
holders.”) ALA is here to remind Congress of 
library and user rights.

The Senate Judiciary Committee is where 
most decisions about copyright policy are 
made. As of this writing, no chair of the Senate 
Judiciary Committee Intellectual Property sub-
committee has been selected. The current chair 
is Senator Thom Tillis (R-NC). Now that the 
Democrats have a narrow margin in the Senate, 
there is a chance that a change in leadership 
means a change in priorities. This would be 
welcome news for the public if it means Senator 
Tillis’s Digital Copyright Act of 2012 discussion 
draft, released in December 2020, is quashed.  

Tillis’s most recent efforts at digital copyright 
reform are detrimental to public access. For 
example, regarding third party liability provi-
sion in Section 512, Tillis’s proposal supports a 
system where online service providers are asked 
to do more to control piracy on their platforms 
by moving from “notice and take down” to a 
“notice and stay down.” Libraries’ ability to 
provide Internet access to the public would 
be threatened for fear of litigation. Increased 

filtering would limit free speech, fair use, and 
block lawful content. 

The legislation also gives the U.S. Copyright 
Office more regulatory power by removing it 
from the Library of Congress and making it an 
agency in the Department of Commerce. As 
threatened on multiple occasions previously, 
this legislation makes the Register of Copyrights 
a presidential appointment, politicizing the 
process and removing hiring authority from the 
Librarian of Congress. It seeks to micromanage 
the operations of the U.S. Copyright Office by 
making registration requirements less stringent 
and making digital deposit the default for reg-
istration. Deposit of best edition copies would 
be optional, although the Library could request 
one to add to the collection. Library priorities 
that were communicated to Tillis, including 
facilitating distance education and preempting, 
contractual restrictions are not reflected in the 
discussion draft.  

The proposed legislation does include 
measures that ALA supports. Some changes 
to the 1201 anti-circumvention provisions are 
welcome, such as making permanent exceptions 
for noninfringing activities that enable blind or 
visually impaired persons to use assistive tech-
nologies. Ideally, there should be no violation of 
Section 1201 without a nexus to infringement. 
The discussion draft of the bill also included 
clear direction on policy related to orphan works 
(those whose author cannot be found).

ALA will continue to monitor developments 
on Capitol Hill. To stay up to date on the lat-
est policy news related to copyright, watch the 
ACRL Insider blog for information on our 
monthly webinar series, CopyTalk, held the first 
Thursday of each month (2:00-3:00 ET). The 
February 4, 2021, CopyTalk features Jonathan 
Band, longtime ALA counsel and foremost ex-
pert on intellectual property. A recording will be 
made available after the live event. 

Carrie Russell is direc tor of ALA’s Public Polic y 
and Advocacy Office, email: crussell@alawash.org

mailto:crussell%40alawash.org?subject=