Bill Aimed at Fixing Problems Raised by Perlmutter Suit Could Be on Fast-Track

The “Legislative Branch Agencies Clarification Act” (H.R. 6028), which was introduced in November and would require the Librarian of Congress to be appointed by a bipartisan commission of congress, as well as remove the Librarian’s authority over the Copyright Office, is reportedly on a path to be fast-tracked.

Re:Create, an organization with the stated mission of fighting for “a balanced copyright system that is pro-innovation, pro-creator, and pro-consumer,” along with a coalition of seven other copyright and consumer advocacy groups, sent a letter to House Speaker Mike Johnson and the House Administration Committee on December 11 urging Committee Members to slow their consideration of the bill, citing reports that “the House is considering swift passage…possibly on the suspension calendar or through other expedient means.”

“In the process of reorganizing the Library of Congress, H.R. 6028 changes the functioning of the U.S. Copyright Office and removes important connections between the copyright system and the Library of Congress,” added the letter. “It would be a grave mistake to take such dramatic action outside of regular order.”

The Legislative Branch Agencies Clarification Act was introduced by Representative H. Morgan Griffith (R-VA) at the same time a lawsuit brought by Register of Copyrights Shira Perlmutter is pending in district court and an appeal to that suit by the Trump Administration is on hold at the Supreme Court.

A split panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in September that Perlmutter can resume office while her lawsuit plays out, following President Donald Trump’s decision to remove her from her post.

Perlmutter filed a complaint against Trump on May 22, calling his attempt to remove her “unlawful and ineffective.” Trump first fired Librarian of Congress Carla Hayden on May 9, two days before he fired Perlmutter, and named Deputy Attorney General at the U.S. Department of Justice, Todd Blanche, as acting Librarian of Congress. Perlmutter’s complaint charged that the President “has no authority to name a temporary replacement Librarian of Congress, much less name a high-ranking DOJ official whose presence offends the constitutional separation of powers.”

Rep. Griffith’s bill would address issues raised in that case by revising the procedures for appointing and removing the Librarian of Congress, the Director of the Government Publishing Office (GPO), and the Register of Copyrights.

“Specifically, the bill requires the Librarian and the Director of GPO to be appointed by a bipartisan congressional commission, based on procedures outlined by the bill and without regard to political affiliation,” explains a summary. These two positions are presently appointed by the President with the advice and consent of the Senate.

The proposed legislation would also require the Librarian and the Director of GPO to each appoint a deputy within 120 days after the Librarian is appointed or a vacancy arises.

Most notably, the bill would remove the Library’s supervisory authority of the U.S. Copyright Office, though it could still provide “support services” to the Office. It would require the Register of Copyrights to be appointed by the President with the advice and consent of the Senate, rather than appointed by the Librarian, as is the current practice. The term of office for the Register would be 10 years with the possibility for reappointment.

“[T]he extraordinarily complex system created by the Copyright Act and related statutes cannot safely be revised this quickly without risking serious unintended consequences,” said the copyright organizations’ letter. “The Library’s ability to grow and sustain its collections, the Copyright Office’s ability to maintain the registration system and provide unbiased policy guidance on copyright and related issues, and other functions of the two entities could be threatened by separating them without due consideration.”

The letter chiefly urged the Committee not to fast track the bill and instead to hold hearings and build a record to ensure “careful deliberation about its impact on copyright policy.”

A statement from the Library Copyright Alliance, which also signed the letter, said that, while “a bipartisan congressional process to appoint the librarian would create independence from the president, and does not by itself raise serious concerns,” the proposal to terminate the Library’s authority over the Copyright Office—”historically, a legislative agency with some executive functions—raises questions that deserve consideration.”

These concerns include potential interference with the deposit of copies of works; a lack of oversight for the Register of Copyrights, particularly with respect to Digital Millennium Copyright Act (DMCA) 1201 Rulemaking; and a lack of opportunity or the public to weigh in if the bill is fast-tracked.