“Though formally the Librarian has power, that power has been delegated to the office,” Samuelson says. “Now, that’s something that could be shifted if a new Librarian came in and also if the Copyright Office stays where it is.”
(By “stays where it is,” Samuelson is referring to an argument from some legislators and advocates that the Copyright Office should be moved to the Department of Commerce, which already manages the Patent and Trademark Office. Experts said that is less likely now that Billington has retired.)
“In theory, the Librarian could do whatever he or she wants,” in terms of granting exemptions, says Jonathan Band, a lawyer in Washington, D.C., who specializes in technology and intellectual property law. “They could be more aggressive and grant more exemptions and broader exemptions.”
But it would be hard for a new Librarian to immediately shape copyright policy, as the hearings about the new round of exemptions were just held in May. Any new exemptions would probably have to wait until the next round in 2018.
In the shorter term, though, a new Librarian could make changes a smaller scale.
“A lot of people are very happy that Billington finally stepped down, so we can get some better technology infrastructure for both the Copyright Office and the Library,” said Samuelson. The previous Librarian of Congress did not hire a permanent chief information officer—despite being exhorted to do so by the Government Accountability Office—and has instead churned through five IT chiefs in the last three years alone.
A new Librarian could also shape copyright policy, Band said, just by communicating to libraries that they should take advantage of recent changes to fair use. The 2012 HathiTrust decision, for instance, found that searching ebooks and making them accessible to the disabled is covered by fair use.
The Copyright Office “is very troubled by the evolution of fair use,” Band told me. “A different Librarian who is more involved with these issues should say, ‘No, libraries can take more advantage of fair use than the Copyright Office feels.’”
West said that, as a fellow librarian, she just wished the Librarian would make a bigger deal of the exemptions—even if he or she failed to meaningfully expand them. “Libraries are about sharing, and this is the Librarian of Congress—the biggest librarian in the land—saying more should be shared.”
* This story originally stated that the Librarian of Congress can exempt certain classes of works from copyright infringement law. In fact, the Librarian can exempt the prohibition against accessing those works when they're encrypted or otherwise locked, but the Librarian does not change the copyright status of the works themselves. We regret the error. Additionally, the story has been updated to clarify the role of the Librarian of Congress.