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PROFILES IN IP LAW
An Interview with Regan Smith
General Counsel of the U.S. Copyright Ofce
By Cassidy J. Grunninger
Cassidy J. Grunninger is an associate at Dunner Law in
Washington, D.C., specializing in copyright and trademark law.
She can be reached at firstname.lastname@example.org.
I had the opportunity to (virtually) sit down with Regan Smith,
the General Counsel of the U.S. Copyright Ofce. Having joined
the Copyright Ofce in 2014, Regan was appointed to her current
position in 2018. She generously offered her time to discuss some
of the exciting things that have been going on at the Copyright
Ofce and in copyright law in general.
I want to begin by congratulating you on your recent recog-
nition by the IP World Review as an inuential woman in IP.
Thank you! What a nice honor.
What is the Ofce of General Council’s function as opposed
to other divisions in the Copyright Ofce, like international
policy and registration?
The Copyright Ofce overall has responsibility for administer-
ing the copyright laws under title 17. That includes administering
the services that the government offers, such as the national reg-
istration and recordation systems. We also advise Congress
condentially on copyright legislative matters, and provide sup-
port to other agencies, such as the Department of Justice, including
when the government might get involved in litigation.
The General Counsel is one of four Associate Registers of
Copyrights that report to the Register of Copyrights. Our ofce
manages all litigation matters, both when the Copyright Ofce
or the United States more generally might be a party to litiga-
tion and when the government may consider getting involved
in litigation between private parties by ling an amicus brief
before the U.S. Supreme Court, or in a lower court. The Ofce
of General Counsel also has a primary responsibility to assist
the Register in exercising the regulatory duties of the Copy-
right Ofce; this activity has increased in recent years partially
because of some initiatives we are undertaking as an ofce and,
in particular, because of the regulatory duties assigned to the
ofce under the Music Modernization Act (MMA).
My ofce also advises other divisions in the Copyright
Ofce in an “in-house counsel” type of role in connection
with legal issues related to agency practices. We answer ques-
tions such as, “Should you accept this form? Does it need to
be sent back so the applicant can provide more information
that complies with the applicable regulation?” or “Does this
meet the registration requirements?”
Finally, we also work closely with the Policy and
International Affairs group on certain matters, because some
legislative or policy considerations are closely tied to areas
of our subject matter expertise. Some examples would be
statutory licensing and music policy issues or legislative con-
siderations stemming from litigation developments.
I noticed that the § 512 study was published, which is excit-
ing because I actually worked on that when I was at the
Copyright Ofce as an intern.
Yes, it’s been neat to see the interest in that report. That was
certainly one where we played more of a supporting role to the
Policy and International Affairs group, and we’re pleased to see
it come out. We are looking forward to seeing what the next
steps are as Congress looks at potential avenues for updates to
the Digital Millennium Copyright Act (DMCA). In 2017, my
group issued a companion policy study of § 1201, the other
main piece of the DMCA, so it’s gratifying to have worked on
a project and see it get out to the real world, as well as receive
conrmation that somebody actually reads it!
It’s interesting to see the practical application that’s coming
out of the study, and it’s not just theoretical policy. This is actu-
ally a good segue into the MMA that was recently passed and
is starting to be enacted. Are there any aspects of the MMA
that aren’t playing out as the Copyright Ofce thought they
would or should, and are there any tweaks that you would like
to see? Overall, how is the legislation playing out practically?
The Music Modernization Act is very dear to the Copyright
Ofce’s heart because we conducted two policy studies that are
referenced and were considered by Congress in adopting the
MMA. One piece is title II, which concerns the protection and
access for pre-1972 sound recordings. Right after the MMA’s
enactment, the Copyright Ofce saw a urry of activity because
we had to onboard a lot of different ling mechanisms and estab-
lish different rules governing these new practices. There was also
a compromise at the last minute between the legislation that ini-
tially passed the House and a draft bill introduced by Senator
Wyden that more fully brought the treatment of pre-1972 sound
recordings into the federal copyright scheme. We needed to edu-
cate the public on what is actually in the bill because it was still
changing until shortly before it came up for a vote. After that
initial six-month burst, it was fully implemented and has been
operating smoothly—over 225,000 classic sound recordings
have been recorded with the Copyright Ofce so far, and there is
more certainty in the general marketplace regarding conditions
for licensing and using these tracks.