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Today, Public Knowledge released a report examining the role of regulatory capture—both its sources and its consequences—at the U.S. Copyright Office. You can download the report, “Captured: Systemic Bias at the U.S. Copyright Office,” here.
Regulatory capture occurs when a government agency is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry. In the report, we evaluate the revolving door between the content industry and the Copyright Office and the implications regulatory capture has had on the Copyright Office's decisions and policy advice.
As we demonstrate in the paper, the Copyright Office’s entrenched bias arises from both material and cultural capture, as well as from political incentives for the Office’s leadership. In both the interpretation of existing copyright law and the recommendation of potential changes, the Copyright Office typically sides with the interests of the rightsholders—in particular, large entertainment industries and other corporate rightsholders—over the interests of other stakeholders, from consumers and technology providers to libraries and academics.
The consequences of this capture are clear. The Copyright Office:
- Contorts existing copyright law with the effect of furthering the interests of rightsholders;
- Advocates for expanded copyright with fewer limitations, exceptions, and consumer protections;
- Inserts itself into more and farther-flung policy debates, issuing opinions on topics far beyond its expertise;
- Makes decisions that prioritize its own policy objectives over input from stakeholders; and
- Has its views ignored or outright rejected by courts, Congress, and other agencies.
The Copyright Office is one of the starkest examples of a captured government agency. As long as the Copyright Office remains heavily captured, its failures and missteps are likely to continue.