When it comes to presidential appointments, Merrick Garland’s nomination to the vacant seat on the Supreme Court is getting all of the attention. But there’s another appointment that’s flying way below the radar: Carla Hayden’s nomination to be librarian of Congress.
The Library of Congress rarely attracts the same political pomp that other federal bureaucracies receive, but as we await congressional hearings on the president’s seemingly innocuous nomination, it’s important to note that there’s a lot at stake. The library is in the midst of a massive crisis of mission, and undoubtedly, its next leader faces a daunting challenge to preserve — and possibly revitalize — a symbol of our country’s democracy and culture.
The library is the closest thing we have to an official national library. For many years, the institution was known as the “library of last resort.” If you couldn’t find material at your library, you could be sure to find it there, partly because the library mandates that two copies of everything published in the United States be sent to the Copyright Office. As a result, it’s the largest library in the world and holds a collection holding more than 160 million items — a long way since Thomas Jefferson’s personal library and $5,000 from Congress started it off.
It’s also the government’s oldest cultural institution and a commitment to our republican ideals. The Founding Fathers were very resolute in their belief that open access to printed materials and human knowledge would be vital to their democratic experiment. The founders made clear that making resources available to the public so citizens could examine its history and explore ideas was essential to democracy. As Benjamin Franklin once wrote, “The art of printing . . . diffuses so general a light . . . that all the window shutters despotism and priestcraft can oppose to keep it out, prove insufficient.”
This is why autocratic governments, such as Cuba, have been harshly criticized for reportedly arresting its librarians. It’s also the philosophy underpinning a few of the library’s online programs, such as the American Memory project and the National Jukebox, developed to document the nation’s history and culture.
Still, just like any other information-based institution, the Library of Congress has been jolted by the digital revolution, and, for the most part, it was completely unprepared. A Government Accountability Office report last year harshly criticized the library’s management for not having developed an information technology strategic plan that would revitalize its aging infrastructure and improve the operations of the Copyright Office — despite having $119 million dedicated to meet those needs. When its previous leader, James H. Billington, announced his retirement last year, he was castigated by co-workers, one of whom called him a “megalomaniac,” while others criticized him for letting the library sink into irrelevancy — failing to “capitalize on the Internet revolution” and improperly caring for the library’s collections.
Meanwhile, the Copyright Office — which plays a major role in the digital economy by administering copyright law and protecting intellectual property — has been designing a plan to leave the nest and become an independent agency.
Register of Copyrights Maria Pallante has openly advocated for the move, citing “operational tensions.” She argues that the library performs a legislative role as the research branch of Congress (through the Congressional Research Service), which she sees as at odds with the executive mission of the Copyright Office. Others have suggested that the Copyright Office be relocated to the Commerce Department as a sister agency to the U.S. Patent and Trademark Office. For some commentators, such proposals translate to the Copyright Office focusing more on the interests of the “Big Content” industry — including publishers, the recording industry and movie producers — than delivering copyright law itself.
The key takeaway is that the next librarian of Congress will have a lot of tough issues to fix. If the library wants to maintain its mission of serving the public and promoting access to knowledge, the institution needs a leader who can shake things up and plot out a path forward.
Hayden does seem to be poised to take on the challenge. She’s known for her work to revitalize the Baltimore’s Enoch Pratt Free Library, upgrading its aging tech infrastructure and making it the largest provider of free-access computers in Maryland. In a video produced by the White House, she emphasized that the Baltimore library was a place where all people could come as a refuge from turbulent times in the city. She also outlined a similar mission for the Library of Congress: “In terms of how people view the future of libraries and what a national library can be, it’s inclusive. It can be part of everyone’s story.”
That’s an encouraging — albeit vague — soundbite. Just having a big library isn’t enough — people need to be able to use it. With a modernized, digital collection, the Library of Congress could take the next step in reaffirming our core principles. Just imagine the type of resource the library could be if the public had access to a database listing all works ever published — by subject, author and copyright status.
All of this, of course, would be a pretty tall order. Digitizing the vast collection of material in the library’s possession will take an enormous amount of resources: time, money and a group of experts who must comb through materials to discover who owns the right to the work to get permission to share it on the Internet. The complicated labyrinth comprising U.S. copyright law has always been a struggle for libraries, and there certainly would be pushback from content producers.
But that doesn’t mean moving in that direction is impossible. Similar to the American Memory project, a number of nonprofit groups are already working on projects to compile online collections for the public to browse. The HathiTrust, for example, has developed a digital collection of almost 14 million volumes. The trust also recently won a court battle with the Authors Guild, in which a federal court ruled that its online trove was protected as fair use under copyright law. All of this suggests there is a common mission that can be forged between public and private interests.
The initiatives set by the next librarian of Congress will ultimately play an important role in shaping the debate about copyright law. How can the Library of Congress promote open access to its collection of published works while also protecting the legal rights of those who own them? Is less access better or worse for innovation? What will be the mission for the Copyright Office, and who does it serve?
These are tough, complicated and extraordinarily wonky questions. But they are particularly important as Congress’s most recent copyright extension — passed in 1998 and extending the life of a work’s copyright to 70 years past an author’s death — will begin to expire in 2019. That means older works, such as George Gershwin’s “Rhapsody in Blue” and Margaret Mitchell’s “Gone With The Wind,” will enter the public domain, giving anyone the chance to reproduce them without compensating the copyright holders (usually the families of the authors). The looming deadline is scariest for corporations: Mickey Mouse is slated to lose his intellectual property protections in 2023.
Without a doubt, Hayden will be setting the tone for debates about copyright in the next few years to come. She has already collected a number of endorsements from groups that praise her work in Baltimore and support for privacy. Others celebrate that she would be the first woman and black person to lead the institution in history.
But a number of crucial questions remain and will have to be answered during her nomination process. It’s time for vision at the Library of Congress.