Regan Smith

• Author: Cassidy J. Grunninger
• Pages: 4-7

Published in Landslide® magazine, Volume 13, Number 2, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.

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PROFILES IN IP LAW

An Interview with Regan Smith

General Counsel of the U.S. Copyright Ofce

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 cgrunninger@dunnerlaw.com.

I had the opportunity to (virtually) sit down with Regan Smith,

the General Counsel of the U.S. Copyright Ofce. Having joined

the Copyright Ofce 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

Ofce 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 inuential woman in IP.

Thank you! What a nice honor.

What is the Ofce of General Council’s function as opposed

to other divisions in the Copyright Ofce, like international

policy and registration?

The Copyright Ofce 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

condentially 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 ofce

manages all litigation matters, both when the Copyright Ofce

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 Ofce

of General Counsel also has a primary responsibility to assist

the Register in exercising the regulatory duties of the Copy-

right Ofce; this activity has increased in recent years partially

because of some initiatives we are undertaking as an ofce and,

in particular, because of the regulatory duties assigned to the

ofce under the Music Modernization Act (MMA).

My ofce also advises other divisions in the Copyright

Ofce 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 Ofce 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

conrmation 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 Ofce 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

Ofce’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 Ofce 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 Ofce so far, and there is

more certainty in the general marketplace regarding conditions

for licensing and using these tracks.