The policy arguments in favor of repeal of section 411(a) are compelling. Most of these were thoroughly aired during the Berne adherence debate, and need not be reviewed in detail today. There is ample evidence that section 411(a) subjects copyright claimants to a procedural requirement that may be complex and costly to accomplish, and that discourages them from pursuing infringement actions to defend their entitlement to the benefits of copyright law. This effect undermines the central premise of our copyright system, by imposing unnecessary obstacles to the realization of the incentives provided to authors in order to "promote the progress of science ...". U. S. Constitution, Art. I, sec. 8, cl. 8. The record also demonstrates that section 411(a) plays only a minimal role in promoting registrations or benefitting the Library of Congress through accompanying deposits.

Recent trends have also distorted the "gatekeeping" role played by the Copyright Office under section 411(a). Particularly with respect to machine-readable works, such as databases in electronic form, the registration process has sometimes taken on a life of its own. Increasingly, the Office has carried on an elaborate correspondence process with claimants over collateral issues such as the way a work is described, whether particular sets of records constitute a separate data file, and whether specifications or disclaimers ought to be endorsed on the face of the registration certificate. Although, under the Copyright Act, the ultimate decision on copyrightability remains with the courts, the would-be claimant must jockey for position in the registration phase, so that his copyright claim, if later tested in court, will be presented to the decisionmaker in the best light. These changes in the registration function drive up expense and create inconvenience for all parties concerned, with little discernible benefit for the courts or the copyright system generally. Repeal of section 411(a) could reverse this disturbing trend.

In addition to section 411(a), H.R. 897 would repeal section 412, which denies statutory damages and attorney's fees to successful plaintiffs who did not make timely registration of their claims with the Copyright Office. Although technically compatible with Berne standards, this section still exacts a substantial penalty for non-compliance with the registration formality. Many copyright proprietors may forego enforcement of their rights in unregistered works because the remaining remedies — actual damages and injunctions — are, by themselves, insufficient to justify the expense and difficulty of mounting an infringement action. In these situations, once again, the social bargain underlying copyright law is undermined, since the incentives for creative activity remain unrealized.

Thus, there are strong arguments for repeal of section 412 as well as section 411(a). While the subcommittee should investigate the impact of such a repeal upon the voluntary registration process, predictions of a sharp drop in registration activity should be viewed with some skepticism. Important litigation-related incentives for registration — notably, the prima facie effect of the registration certificate, see section 410(c) — would remain unchanged. In any event, anticipation of litigation is clearly only one of several reasons why copyright proprietors choose to register their claims with the Copyright Office. Other business and personal reasons probably drive the bulk of registration activity.

The subcommittee should also evaluate objectively the likely impact of repeal of section 411(a) and 412 upon the acquisition activities of the Library of Congress. The Library today relies upon deposits accompanying copyright registration for a significant proportion of its acquisitions, but only in some categories. In others, including most electronic works, registration deposit contributes relatively little to the Library's collections. To avoid technical complexities and administrative difficulties, the Copyright Office has chosen not to require deposit of complete machine-readable works, except in the case of works embodied in compact disk (CD-ROM) formats.

In any event, there are strong policy arguments for severing the link between

effective copyright protection and the acquisitions objectives of the Library. An author's ability to deter and punish a thief of intellectual property should not turn upon the author's alacrity in furnishing the Library of Congress with a free copy of the

work.

Aside from the stream of deposits accompanying copyright registration, which enactment of H.R. 897 would not eliminate, the Library has many other means at its disposal for preserving the breadth and depth of its collections, including but not limited to the mandatory deposit system established by section 407 of the Copyright Act. While from the information industry's perspective there have been some points of controversy with the Library's use of the mandatory deposit provisions, particularly with regard to high-priced, limited edition publications, and some works in electronic formats, the Copyright Office has also shown a commendable interest in reaching mutually acceptable resolutions of these problems. For instance, over the past year, IIA has led a group of industry representatives in discussions with Library and Copyright Office officials to agree on the ground rules for Library use of publications in compact disk format acquired through either registration or mandatory deposit. These discussions have been constructive and enlightening for all parties and will soon, we hope, culminate in a set of standard CD-ROM deposit agreements that should receive broad support.

In any case, it would be misleading to pose the issue for the Library of Congress as a stark choice between registration deposit and other, costlier means of Library acquisitions. Dispassionate analyses should shed more light on the extent to which the repeal of section 411(a) and 412 will diminish the flow of new materials into the collections of the Library of Congress, and may also suggest other, more appropriate incentives for deposit that will help the Library maintain and improve its invaluable collections.

In summary, IIA commends the sponsors of H.R. 897 for revisiting the question of the role of copyright registration in the overall system for defining and enforcing intellectual property rights in works of authorship. We continue to offer our full support for repeal of section 411(a), and believe that the record will demonstrate that repeal of section 412 is also in the public interest.

STATUS OF THE COPYRIGHT OFFICE

Section 103 of H.R. 897 would significantly change the institutional position of the Register of Copyrights and of the Copyright Office which he heads. IIA has no position on this provision at this time. We believe that it is timely to re-examine the current structure in order to maximize its benefits and correct its drawbacks.

Currently, the Register of Copyrights is appointed by the Librarian of Congress. Neither the Executive Branch nor the Congress has any formal role in choosing the incumbent of this important position. The Copyright Office itself is firmly ensconced within the Library of Congress, which has full administrative and policy control over the Office's activities. All the Register's staff is appointed by the Librarian, and the Register and staff "act under the Librarian's general direction and supervision." 17 U.S.C. 701.

H.R. 897 would authorize the President to appoint the Register of Copyrights, with the advice and consent of the Senate. The Register would assume full control over the Office's duties under the Copyright Act, would appoint the Office's staff, and would provide general direction and supervision. However, the Office would apparently remain part of the Library of Congress.

As the subcommittee considers whether to change the status and position of the Copyright Office, it should carefully examine (among many other factors) the relationship between the Copyright Office and the Library of Congress. The Office's current subordination to the Library is both a strength and a shortcoming.

On one hand, subordinating the Office to the Library makes sense to the extent that the Office's functions support the Library's mission. The copyright registration and mandatory deposit systems provide a prime example. Since the sole purpose of mandatory deposit, and a major goal of registration deposit, is to enhance the collections of the Library, the current institutional structure is quite rational. Of course, to the degree that the registration process is severed from the acquisition role, as IIA believes it should be, the arguments for this structure become less compelling.

On the other hand, the location of the Copyright Office within the Library of Congress inevitably places the Register of Copyrights in the uncomfortable position of carrying out potentially inconsistent or even conflicting missions. Simply put, what is best for the Library of Congress in its acquisitions policies, its provision of library services, and its role in the larger library community, is not always the same as what is best for the copyright law. For a variety of legitimate reasons, the Library is under strong institutional pressure to "push the envelope" of the copyright law on a variety of issues, ranging from fair use (section 107), to the prohibition on copyright in federal government works (section 105). When these pressures are felt in the Copyright Office, as a subordinate body of the Library of Congress, conflict is almost

unavoidable. Indeed, the credibility of the Office on broader copyright issues could be called into question.