A Copyright Review Bibliography

By , May 23, 2013.

Last Thursday, the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet held a hearing called “A Case Study for Consensus Building: The Copyright Principles Project.” The hearing is the first in an expected series of hearings that will take place in the upcoming months aimed at a comprehensive review of U.S. copyright law.

Rep. Goodlatte, the House Judiciary Committee Chairman, chose the topic of the first hearing not to endorse the substance of recommendations of the Copyright Principles Project, but to set the tone for a process that is hoped to be characterized by civil discourse between those who hold diverse views rather than rhetoric and “sharp elbows.” In his opening statement, Chairman Goodlatte elaborated on his motivation for the hearings:

We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy. It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.

There are numerous questions that will be raised by interested parties during this review. I have several myself including:

How do we measure the success of copyright and what metrics are used?

How do we ensure that everyone’s voice is heard?

How is copyright working for individual artists?

How is copyright working for our nation’s economy?

These are only a few of the issues we will be looking into. This review of copyright law will not be a quick process simply because the issues are so numerous. However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.

It’s an ambitious agenda even if it doesn’t make it to a point where legislation is contemplated. But fortunately, Congress does not have to reinvent the wheel when it comes to copyright review.

There already exists a large body of literature that pokes and prods at copyright law, asking many of the same questions that Rep. Goodlatte posed. Some of it sheds light on how current copyright law came to be shaped as it is, some of it identifies what issues recur most often or have proven most challenging. Together, this literature can prove valuable to Congress as it embarks on its own copyright review.

I want to highlight some of the literature I’m talking about. One can step way back and look at the very broad strokes of copyright law. Here you might focus on its philosophical underpinnings or justifications. You can also zoom in and examine individual doctrines and issues very closely. There are many books, articles, and papers that take both these perspectives. But one can also take a mid-level view of the copyright law as a cohesive whole and how it functions as a statute. This is, it would appear, the approach taken so far by the Subcommittee. And so this is the type of existing works I want to look at.

First, obviously, is the Copyright Principles Project itself, released in 2010. The Project describes a set of broad principles that copyright law should adhere to and than analyzes current law to see how aligned it is with those principles. It then offers a series of recommendations to revise copyright law. Thursday’s hearings did not focus so much on the substance of the Project but on its process itself, and the remarks from Subcommittee members suggested that here it fell short. Concerns over the lack of creators’ input during the project were raised several times during the hearing. Along with that, witness and Project participant Jon Baumgarten pointed out that while there was civil discourse during the process, very little actual consensus was reached in the end.

During the hearing, several references were made to the European Copyright Code, a publication of the Wittem Project. Sponsored in part by the Dutch Government, the European Copyright Code was drafted by a group of copyright scholars with the aim of providing a “model law” of sorts to facilitate future harmonization or unification in European copyright law. The Code was repeatedly referred to for its accomplishment of fitting a copyright law in less than 20 pages. While it did so by leaving out major components of a copyright law — most notably, it does not address infringement or remedies — it is still much shorter than the current U.S. Copyright Act. And although, like the Copyright Principles Project, the European Copyright Code was drafted by academics, its aim was descriptive rather than normative, so it may serve as a useful starting point when looking at how other countries approach copyright law.

Domestic Resources

For U.S. law specifically, one natural starting point is the U.S. Copyright Office, which, as the primary policy advisor for Congress, regularly engages in studying the U.S. Copyright Act. It was, after all, Register of Copyrights Maria Pallante who inspired Goodlatte to conduct the review with her earlier testimony on the Next Great Copyright Act. The Copyright Office has a number of reports that it has completed since the 1976 Copyright Act. Indeed, Pallante references a few in her Next Great Copyright Act article under the heading “Preparatory Work”. These include, to name a few, reports on digital first sale, orphan works, and statutory license for cable and satellite retransmission, as well as pending reports on resale royalties for visual artists, and solutions for enforcing small copyright claims.

The 1976 Copyright Act itself has produced volumes of legislative history (Subcommittee co-chair Rep. Marino could be seen paging through one such volume during Thursday’s hearings). But in terms of systematic and comprehensive discussion of copyright law and doctrines, nothing really compares to the series of copyright law revision studies prepared by the U.S. Copyright Office during this process. Although each tackles a specific area, the 34 studies together cover a range of issues that, for the most part, remain relevant today. Each not only provides a thorough historical background, but delves into many of the challenges and sticking points, surveying the diversity of opinions, highlighting the critical questions, and analyzing the different approaches. Drafts of each reports were submitted to an advisory panel of experts appointed by the Librarian of Congress; the comments and responses of panel members are also included in the reports, providing even more insights.

Although there hasn’t been a general revision since the 1976 Copyright Act was enacted, the 1997 Digital Millennium Copyright Act brought fairly substantial changes to the law, including many of the more contentious provisions today. The DMCA could be traced back to work done by the Working Group on Intellectual Property Rights in the National Information Infrastructure (NII). The NII grew out of the High Performance Computing Act of 1991 and laid a lot of the groundwork for the modern internet. In 1995, the Working Group released a report on Intellectual Property and the National Information Infrastructure. The report examined thoroughly current copyright law and doctrine, with an eye toward how that law would operate online, concluding with a set of recommendations for modernizing the law where necessary. The usefulness here is seeing the thought process behind the DMCA — where, for example, is it outdated because predictions it was based on failed to pan out and where has it fallen short despite accurate foresight because it hasn’t been implemented or interpreted properly.

Foreign and International Resources

A number of countries outside the U.S. have (or currently are) engaged in similar copyright reviews. Many of these reviews have resulted in comprehensive reports that could provide guidance and illumination on many copyright issues.

In the UK, for example, an independent review of copyright law was commissioned by Prime Minister David Cameron. The review, by Cardiff University professor Ian Hargreaves, was released in May 2011, and contains extensive findings, as well as ten recommendations for modernizing that country’s copyright law.

Australia has similarly engaged in a review of its copyright law. The Australian Law Review Commission, an independent statutory body that was established to conduct reviews of Australian law and offer recommendations, is currently in the midst of a review of copyright law. Last August, it released an issues paper on Copyright and the Digital Economy, identifying a number of questions it wished to examine and soliciting comments on the questions. Its final report is scheduled to be released November 2013.

In the international realm, nothing compares to the Berne Convention for the Protection of Literary and Artistic Works both in breadth (it is currently joined by 165 parties) and in vintage (it was first implemented in 1886). WIPO, which administers the treaty, has previously published a guide to the Berne Convention. Although the guide may be outdated in places (it was written over three decades ago), it remains essential reading for anyone engaged in copyright review. The guide explains each of the treaty’s provisions, along with its “nature, aims, and scope.” If one is looking for international norms in copyright law, this is a good place to start.

This is far from an exhaustive list of literature relating to copyright review, but it does provide an adequate foundation before one begins jumping into specific issues.

Copyright Review Principles and Consensus

By , May 16, 2013.

Zechariah Chafee, a godfather of 20th century legal philosophy, wrote an influential article on copyright law in the early twentieth century. 1Reflections on the Law of Copyright, 45 Columbia Law Review 503 (1945). At that time, technology was exploding: for the first time in history, it was not only possible to record sound and images, but to transmit them across vast distances instantaneously.

The law of copyright struggled to keep up with this technological advancement. In the 1950s, Congress began a comprehensive revision process. As it stretched into its second decade, former U.S. Register of Copyrights Barbara Ringer shared her thoughts on the process in her 1974 essay, The Demonology of Copyright (PDF). Ringer called back to Chafee’s article, adding her own lessons won from experience about what copyright law should look like:

In his 1945 article, Chafee suggested six ideals to which a copyright statute should aspire: 1) complete coverage ; 2) unified protection, enabling the author to control all the channels through which the work reaches the public; 3) international protection, with no discrimination against foreign authors ; 4) protection that does not go substantially beyond the purposes it seeks to serve; 5) protection that is not so broad as to stifle independent creation by others ; and 6) legal rules that are convenient to handle.

…

There is a seventh goal, which Chafee could not have been as aware of in 1945 as he would be today, and which in fact may be the most important copyright goal of all. It can he stated very simply: a substantial increase in the rights of the author, considered not as a copyright owner but as a separate creative individual. It involves recognition that committees don’t create works and corporations don’t create works, and machines don’t create works. If, for the sake of convenience of companies or societies or governments, the copyright law forces individual authors back into a collective straitjacket or makes them into human writing machines, it will indeed have become a tool of the devil.

A case study for consensus building

Today, the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled, “A Case Study for Consensus Building: The Copyright Principles Project.” The hearing is the first in a planned series that will take place over the next several months aimed at a comprehensive review of U.S. copyright law.

Testifying at the hearing will be Copyright Principles Project convenor Pamela Samuelson (University of California at Berkeley Law School), as well as Project participants Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (University of North Carolina Law School), Daniel Gervais (Vanderbilt Law School Intellectual Property Program), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft).

The goal of the hearing appears to be on setting the tone for how Congress discusses copyright issues in a post-SOPA world, and it looks as though it will do so in two ways. First, it will begin by identifying overarching principles that should guide copyright law. And second, it will look specifically at the Copyright Principles Project as a case study for building consensus in an area of law that can sometimes generate a good deal of contention.

The Copyright Principles Project (PDF of report) began in 2007 with participants who included copyright law scholars, private practioners, and lawyers from broader industry firms. It concluded with a broad set of principles as well as a number of recommendations for bringing copyright law more in line with those principles. At the highest level, the Project participants wrote:

A well-functioning copyright law carefully balances the interests of the public in access to expressive works and the sound advancement of knowledge and technology, on the one hand, with the interests of copyright owners in being compensated for uses of their works and deterring infringers from making market-harmful appropriations of their works, on the other. Copyright law should enable the formation of well-functioning markets for creative and informative works that yield benefits for all stakeholders.

Agreeing on principles

The Copyright Principles Project suggests that consensus in the copyright realm is possible. And by leading with the Project as a case study in building consensus, the Subcommittee is sending a signal about how important consensus will be to the future of copyright policy. The Project participants testifying at the hearing should be able to provide the Subcommittee with valuable insights into how it can build its own consensus as it seeks to review copyright law to find out how well it is working.

Many of the Project’s broader points echo what Chafee wrote and Ringer endorsed half a century ago. At the same time, other contemporary scholars have offered their own principles to guide policy makers in ensuring that copyright law works for all.

In Justifying Intellectual Property, legal scholar Robert Merges argues in favor of foundational pluralism — a fancy way of saying that while we may disagree about the deeper principles of copyright (Is it utilitarian? Is it a natural right?) we can reach consensus on midlevel principles that guide how the law is shaped and applied.

Merges then offers his own principles that complement those identified in the Copyright Principles Project. He specifically identifies four midlevel principles in his theory of IP law: (1) efficiency (in the economic sense), (2) nonremoval (“information and ideas in the public domain must not be taken away or privatized”), (3) proportionality (“the scope of a property right ought to be commensurate with the magnitude of the contribution underlying the right”), and (4) dignity (“works covered by IP rights reflect and embody personal attributes of individual creators, therefore justifying special protection for some aspects of creative works”). You can see how readily these principles overlap and augment those other sets already discussed.

Keeping the Creator in Copyright Review

Of course, just as Ringer was concerned forty years ago that individual creators were in danger of being left behind, there is concern that the Copyright Principles Project had not heard from these voices. While it’s true that among the Project participants were private practitioners who have experience dealing with creators when something goes wrong, their perspective only tells a small part of the story of how copyright impacts creators.

In its positive sense, copyright provides the framework that encourages the creation and commercialization of expressive works that advance society at its highest level. To ask whether copyright is working, then, depends not only on whether it provides appropriate judicial remedies for infringement, but whether it is effective on a day-to-day basis. To answer that question, it is imperative that Congress has input from those in the trenches. Creators are engaged in copyright law decisions every day, both when they are creating — where is the line between permitted copying and misappropriation? What is fair use? — and when they are disseminating their works to the public — whether on their own or through various intermediaries.

U.S. Register of Copyrights Maria Pallante noted in her remarks about the Next Great Copyright Act (PDF) that “readability” should also be among the goals of any copyright law discussion. As more and more are affected by copyright laws, it’s important that one should not need “an army of lawyers to understand the basic precepts of the law.” The ideal copyright law will reflect artist and creator concerns in a clear and understandable way. It should not only spell out their rights, but provide meaningful protection of those rights — not only against infringers but also against those who would take advantage of them.

David Lowery spoke about this in a recent Politico op-ed:

Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.

Any number of creators (including me) would have been glad to hash out ideas for reforms. Ideas we get from on-the-ground practical experience. Experience you won’t find in the ivory towers of academia or corporate corner offices.

As technology makes it easier for all of us to participate in our culture as creators, it is even more important than ever to heed Ringer’s admonition that artists and authors are recognized not only as copyright holders but as separate individual creators. Any review of copyright law should keep that principle in mind above all. It is my hope that the Subcommittee uses the Copyright Principles Project as the title of the hearing suggests: as a case study for building its own consensus de novo — one that includes creators front and center — for reviewing copyright.

References

References
↑1 Reflections on the Law of Copyright, 45 Columbia Law Review 503 (1945).

Drawing Distinctions

By , November 11, 2010.

Earlier this month, I wrote about the Copyright Principles Project, an independent initiative that presented twenty-five recommendations for reforming copyright law for the digital age. One of the reasons I felt it was worth mentioning was because, unlike many other reform efforts, the Copyright Principles Project included participants from a wide variety of perspectives: academics, content industry representatives, and private practitioners.

One of the contributers to the Project was Jeremy Williams, Senior Vice President and Deputy General Counsel of Warner Bros. Entertainment. This past April, Williams joined Pamela Samuelson — the Project’s coordinator — and several other Project contributors for a two-day conference marking the 300th anniversary of the Statute of Anne, the first modern copyright law. Hosted by the Berkeley Center for Law & Technology, the Copyright @ 300 symposium used the anniversary as an opportunity to look back at “the law’s influence on the history and evolution of the Anglo-American copyright tradition” and look forward to copyright law’s challenges in the future.

Williams spoke to attendees at a seminar titled “Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.” The Berkeley Center has audio from the event available online. I recommend giving it a listen; Williams talks about the importance of copyright attitudes for the future and touches on a number of themes I’ve discussed here from a perspective that is seldom seen in online discussions and academic literature.

Copyright attitudes

Williams joshingly introduces himself as a “defender of those poor, down-trodden Fortune 500 companies.” The health of copyright in the future, he states, depends entirely on the attitudes of “Digital Natives.” It will not be long before the generation that never knew a world where everything is connected will be “lawmakers, norm-makers, and consumers.” Williams goes on to ask, “How do we promote respect for good copyright attitudes” when millions are simultaneously authors, distributors, and infringers.

This past Monday, I pointed out a recent paper that sheds some light on what these “Digital Natives” currently know and think about copyright law. Williams’s talk reflects a recognition of what the authors of that paper have found to be true. With those current attitudes in mind, he lays out what he considers should be the two main goals of copyright policy as it looks ahead:

  1. Empower individuals as creators. Policymakers and stakeholders should try to steer clear of talk about the “wrongness” of noncommercial copying. Extending this goal to small producers, content creators should strive to make licensing of their content for creative uses cheap and easy, and give wide berth for fair use.
  2. Move enforcement away from individuals and toward digital intermediaries.

Creative vs. Consumptive Uses

Next, Williams discussed the importance of distinguishing between creative and consumptive uses, a distinction I have previously made on this site. I wrote that the distinction is important to make because you’re dealing with an entirely different set of questions when you talk about fair use, remixes, and mashups then when you talk about filesharing. As it turns out, this is exactly the approach that Williams suggests is important for the future of copyright.

He says that promoting healthy copyright discussion requires a different approach for both types of uses: increased tolerance toward creative uses and increased focus on widespread, uncompensated dissemination of consumptive uses and the harm they cause.

From his own experience at Warner Bros., Williams identifies the primary creative uses that major creative companies deal with most often: fan uses and, as he puts it, ad hoc uses, like mash-ups. He suggests that companies like his should tolerate and support noncommercial uses — even tolerate some commercial uses. This is the approach he has taken, giving the okay to fan sites even when they use incidental advertising to support the site but drawing the line at fan merchandising. For third-party user-generated content sites like YouTube, he advocates “smart” technological filters that can identify uses of copyrighted works but allow creative uses like mash-ups.

Most importantly, Williams reiterates that these kinds of discussions should not revolve around copyright law. Rather, the focus should be on fostering mutually respectful behavior between creators and users.

Individual vs. Industrial Responsibility

The rest of Williams’s talk seemed to continue a meta-theme of drawing distinctions to further the health of copyright in the future. The next distinction he discussed was between individual responsibility for upholding copyright protection and “industrial” responsibility.

Basically, Williams says we should move away from placing responsibility on individuals as much as possible. People should be able to enjoy copyrighted works without thinking about copyright law.

The digital intermediaries — user-generated content and social networking sites — should instead be induced to help reduce the harm of widespread, uncompensated dissemination of copyrighted works, and copyright owners should be allowed to share in the value their works provide to these sites. Interestingly, Williams believes we should reduce the present focus on secondary liability doctrines. These doctrines suffer two disadvantages: because they require a showing of direct infringement, there is still a focus on individual behavior, and the factors involved in determining secondary liability — knowledge, inducement, etc. — are difficult to apply, leading to an uncertain and muddy legal landscape.

Williams’s recommendation? “Be direct about it.” Those who can protect copyright, should protect it. Those who can are likely to be the previously-mentioned social networking and user-generated content sites. Williams thinks the best way to implement this is through voluntary agreements and reasonable technological measures, with the law operating in the background as a way of inducing these sites to help solve problems in ways that are not commercially harmful to them.

Protest vs. Obliviousness

While you can find those people who embrace piracy as a “cause”, who believe they are making a “statement” or protesting against somebody or something when they share files without permission, the majority of people, especially digital natives, download simply because they can. Williams relates a conversation he had with his daughter. He asked her what her friends “think” when they choose to download music off p2p or torrent sites; she answered, “they don’t think.”

Unauthorized files are simply “there,” and unless you know otherwise, it is not unreasonable for someone to assume that if you find something online, you can download it. The future of copyright depends on addressing this obliviousness and helping the next generation understand the value copyright gives to creators.

Good Guys vs. Bad Guys

Williams wraps up his remarks by pointing out the one distinction that shouldn’t be made. Both sides in the copyright debates need to move past an “us vs. them” mentality, a “good guy-bad guy” way of thinking. Copyright is good for society and culture. Most people recognize the value of creativity and of artists. The emphasis should move away from the rules of copyright — ie, the notion that copyright exists solely to punish infringers — and toward the role of copyright.

Can the Copyright Office Regulate?

By , November 04, 2010.

In my previous post about the Copyright Principles Project, I highlighted those proposals that recommend a greater role for the US Copyright Office. Whether or not the Copyright Office should take on a greater role is a subject that undoubtedly can generate plenty of discussion. But today, I want to look at a different issue:

Can the Copyright Office take on a greater role?

Certainly, Congress could easily add new positions to the Copyright Office to bolster its expertise, or the Office can be more active in its advisory role; I’m not talking about that. The question I’m asking relates to those recommendations that contemplate the Office exercising substantive agency powers — creating regulations (rulemaking) and  resolving disputes in a quasi-judicial manner (adjudication). And the question is not whether taking on these powers is practical or worthwhile, but whether taking on these powers is constitutional. 1This article is largely adapted from a section I wrote in Copyright Reform Step Zero.

It’s kind of an odd question; after all, the Office currently does exercise rulemaking powers — creating exceptions to the prohibition against circumventing DRM and technological protections 2Technically, it is the Library of Congress which creates these regulations, after consulting with the Copyright Office, but for this article, I will be referring to the rulemaking authority of the Copyright Office regardless of which department ultimately promulgates the regulations. — and its sister department within the Library of Congress, the Copyright Royalty Board, exercises adjudicatory powers — determining certain compulsory license rates in a court-like setting. But unlike administrative agencies that were specifically created to exercise these types of powers, the Copyright Office began as a “paper-pushing” department and only over time “grew into” a more robust agency.

This unusual path from ministerial department to something approaching a full-fledged administrative agency has given rise to lingering concerns about the consitutionality of the Copyright Office’s authority to engage in rulemaking and adjudication. To understand these concerns, let’s first take a quick look at how federal agencies in general can exercise these powers in a constitutional manner and then trace the growth of the Copyright Office’s authority since its humble beginnings.

Agencies and Separation of Powers

Today, much of federal law is executed through administrative agencies. Congress passes a law, and then agencies — the EPA, the FCC, the IRS, etc. — create regulations to fill in the details of the law. Agencies might also engage in adjudication, resolving disputes or adjusting regulatory benchmarks within their purview through judicial-esque proceedings. The basic idea behind this system is that agencies have greater expertise and flexibility than Congress to address these details.

In one sense, administrative agencies act like mini-versions of a three-branch government: combining legislative (creating regulations), judicial (adjudication), and executive (enforcing regulations) functions. The Constitution, however, establishes a federal government based on separation of powers. Since the New Deal, Congress and Presidents have increasingly relied on administrative agencies to carry out many government functions, so the courts have had to figure out ways to fit this “fourth branch” of government within the constitutional framework while maintaining checks and balances.

The Constitution prohibits Congress from delegating legislative power to another body. But since 1825, courts have recognized a distinction between general, “important” legislative provisions and mere details. 3Wayman v. Southard (1825): “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.” Today, agencies can create regulations to “fill up the details” when “Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” 4Mistretta v. US, 488 US 361 (1989).

A second requirement to maintain constitutionally sufficient delegation is that the authority must go to an independent or executive branch agency; Congress cannot delegate quasi-legislative authority to a legislative agency. 5Buckley v. Valeo, 424 U.S. 1, 138-41 (1976). True legislation requires passage by both houses of Congress (bicameralism) and the President’s signature (presentment). 6INS v. Chadha, 462 U.S. 919, 946 (1983). If Congress retains any sort of control over the agency it delegates quasi-legislative authority to, courts view the delegation as a constitutionally improper circumvention of those two requirements. By control, I don’t mean mere influence. The control must be meaningful, like the ability to appoint or remove agency officers 7Bowsher v. Synar, 478 U.S. 714, 726 (1986). or the power to veto agency decisions. 8INS v. Chadha at 954-59.

Growing into a Regulatory Agency

Many of the federal agencies today began during the New Deal, and were expressly authorized by Congress to regulate specific areas of the law. The Copyright Office, however, began a few decades earlier, without any substantive regulatory purpose as the goal. Under the first Copyright Act of 1790, copyright registrations were handled by district courts. This continued until 1870, when copyright administration was centralized in the Library of Congress. Congress created the Copyright Office in 1897 as a department within the Library dedicated to copyright administration. For most of the Copyright Office’s history, its duties were limited to processing registrations and other “ministerial” tasks.

The Copyright Office has had the authority to issue regulations since its creation, but it has historically exercised that authority in a limited manner — rules governing interest on late payments to the Office, for example. 9MPAA v. Oman, 969 F.2d 1154, 1156 (DC Circ 1992). The triennial DRM exception rulemaking procedures set out in the DMCA in 1998 — 101 years after the Office was established — represents the first time the Copyright Office took on substantive rulemaking authority.

Perhaps because of the Copyright Office’s limited exercise of regulatory authority, little attention has been paid to whether that authority is constitutional. The notable exception is E. Fulton Brylawski’s 1976 article The Copyright Office: A Constitutional Confrontation, 1044 George Washington Law Review 12. written during the build up to the passage of the Copyright Act of 1976. Brylawski argued that the Copyright Office was a legislative agency and the Act would give the Copyright Office rulemaking authority that exceeds what the Constitution allows. As discussed earlier, Brylawski is right on the latter point: a legislative agency can’t make regulations. But is he right on his first point? Is the Copyright Office indeed a legislative agency?

Legislative or Executive?

At first glance, it might be difficult to see how anyone could say the Copyright Office is not a legislative agency. The Copyright Office is a department within the Library of Congress. The Library of Congress is, well, of Congress. Not surprisingly, then, the US government places the Library of Congress in the legislative branch. 11United States Government Manual, 2009-2010 p. v. Courts, too, have characterized the Library of Congress as legislative. 12See Harry Fox Agency v. Mills Music, 720 F.2d 733 (2d Cir. 1983) (“The Library of Congress … is a part of the legislative branch itself”); Barger v. Mumford, 265 F.2d 380, 382 (DC Cir. 1959) (“Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch of the Government”). The Copyright Office’s own website states that it is “part of the legislative branch of government.” And if you look through the US Code, you’ll find repeated references to the Library of Congress being in the legislative branch 13Check out 5 USC § 5531(4), for example. — the Library itself is codified under Title 2, which governs the legislative branch.

Noted copyright expert William Patry considers the above conclusive evidence that the Library of Congress, and by extension the Copyright Office, is a legislative agency. Other scholars have found the need to address the characterization of the Copyright Office when discussing proposals to increase rulemaking or adjudicatory authority. Michael Carroll notes lingering concerns about this subject in Fixing Fair Use. 14Pp. 1131-32. I noted previously that the proposal he makes inspired one of the possibilities for advancing recommendation #4 in the Copyright Principles Project. Edward Lee cites the fact that the Copyright Office is a legislative agency as one of the reasons why it cannot be relied upon to fill in gaps in the law through rulemaking. 15Warming up to User-Generated Content, 2008 University of Illinois Law Review 1459, 1475 (2008).

So … case closed, right? Not quite. When it comes to separation of powers, labels are irrelevant. After all, if the Library of Congress was renamed the National Library, it would be silly to think the constitutional analysis would change. What matters is what branch of government the Copyright Office is an agency of, and agency is determined by control.

Let’s take a look at the two most popular indicators of control: appointment (and removal) power and veto authority over regulations. The legislature has neither when it comes to the Copyright Office. The Register of Copyrights is appointed by (and can be removed by) the Librarian of Congress, who in turn is appointed by the President. Congress does not retain any power to approve or veto Copyright Office rules. Brylawski’s assertion that the Library of Congress is under the control of the Joint Committee of Congress on the Library? — simply not true. 1629 Cong. Rec. 1947 (1896) (Rep. Dockery).

Most strikingly, Congress debated at some length about what branch of government held sway over the Library of Congress when the Copyright Office was being created and if the Office would constitutionally have authority to issue regulations. The final bill gave the Copyright Office rulemaking authority, reflecting the fact that Congress was satisfied that the setup they settled on was constitutionally sound. 17For a comprehensive list of citations to those debates, check out 1 William Patry, Patry on Copyright § 1:41 n.4, especially , e.g., 29 Cong. Rec. 318-19 (1896) (Rep. Dockery): “This Library of Congress is a department of the Government. It is an executive department and should be under the control of the executive branch”.

Settle it in the Courts

Brylawski got an opportunity to take his arguments to the courts. In 1978, he was the attorney for the plaintiff in Eltra v. Ringer, one of the few times the constitutionality of the Register of Copyright’s rulemaking authority was raised. The Fourth Circuit rejected the “label” argument, stating:

It is irrelevant that the Office of the Librarian of Congress is codified under the legislative branch or that it receives its appropriation as a part of the legislative appropriation. The Librarian performs certain functions which may be regarded as legislative (i. e., Congressional Research Service) and other functions (such as the Copyright Office) which are executive or administrative. Because of its hybrid character, it could have been grouped code-wise under either the legislative or executive department. But such code-grouping cannot determine whether a given function is executive or legislative.

The court noted that other courts, including the Supreme Court, had given weight to Copyright Office regulations for decades. “It seems incredible,” said the court, “that, if there were a constitutional infirmity” for that long, no one ever noticed it. In the end, the court concluded that the Copyright Office was an executive office, operating under an officer appointed by the President, not Congress.

The characterization of the Copyright Office as an executive office was reaffirmed in a March 2010 DC Circuit memorandum order. In Live365 v. Copyright Royalty Board, Live365 challenged the constitutionality of the appointment of Copyright Royalty Board Judges.

Wait, what? What does the appointment of Copyright Royalty Board Judges have to do with the rulemaking authority of the Copyright Office?

As it turns out, quite a bit. The question in Live365 boils down to: “is the Library of Congress an executive or legislative agency”: the same question involved in determining whether the Copyright Office has rulemaking authority.

The DC Circuit rejected the argument that the Library of Congress is a legislative agency. The President, not Congress, appoints the head of the department, so it is an executive agency. 18For a detailed look at this and the other issues raised in Live365 v. CRB, check out Department of the Inferiors? posted at CommLawBlog.

That, along with the fact that Congress doesn’t retain any veto authority over the Library’s (and Copyright Office’s) regulations, leads to the conclusion that the Copyright Office does have authority to issue substantive regulations. So yes, the Copyright Office can take on a greater role in the administration of copyright law. The Copyright Principles Project and other proposals have advanced various recommendations embracing a greater role for the Office, whether through Congress delegating additional regulatory arenas or through the creation of new adjudicatory bodies. The question remains whether the Office should be given a greater role. Given the benefits an agency may provide — flexibility and expertise — I think this question merits further exploration.

References

References
↑1 This article is largely adapted from a section I wrote in Copyright Reform Step Zero.
↑2 Technically, it is the Library of Congress which creates these regulations, after consulting with the Copyright Office, but for this article, I will be referring to the rulemaking authority of the Copyright Office regardless of which department ultimately promulgates the regulations.
↑3 Wayman v. Southard (1825): “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.”
↑4 Mistretta v. US, 488 US 361 (1989).
↑5 Buckley v. Valeo, 424 U.S. 1, 138-41 (1976).
↑6 INS v. Chadha, 462 U.S. 919, 946 (1983).
↑7 Bowsher v. Synar, 478 U.S. 714, 726 (1986).
↑8 INS v. Chadha at 954-59.
↑9 MPAA v. Oman, 969 F.2d 1154, 1156 (DC Circ 1992).
↑10 44 George Washington Law Review 12.
↑11 United States Government Manual, 2009-2010 p. v.
↑12 See Harry Fox Agency v. Mills Music, 720 F.2d 733 (2d Cir. 1983) (“The Library of Congress … is a part of the legislative branch itself”); Barger v. Mumford, 265 F.2d 380, 382 (DC Cir. 1959) (“Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch of the Government”).
↑13 Check out 5 USC § 5531(4), for example.
↑14 Pp. 1131-32. I noted previously that the proposal he makes inspired one of the possibilities for advancing recommendation #4 in the Copyright Principles Project.
↑15 Warming up to User-Generated Content, 2008 University of Illinois Law Review 1459, 1475 (2008).
↑16 29 Cong. Rec. 1947 (1896) (Rep. Dockery).
↑17 For a comprehensive list of citations to those debates, check out 1 William Patry, Patry on Copyright § 1:41 n.4, especially , e.g., 29 Cong. Rec. 318-19 (1896) (Rep. Dockery): “This Library of Congress is a department of the Government. It is an executive department and should be under the control of the executive branch”.
↑18 For a detailed look at this and the other issues raised in Live365 v. CRB, check out Department of the Inferiors? posted at CommLawBlog.

Copyright Principles Project: Increasing the US Copyright Office’s Role

By , November 01, 2010.

On September 28, a group of leading copyright academics and practitioners released the Copyright Principles Project: Directions for Reform (full report [pdf] available here). According to the press release, the Project “attempts to ignite an informed debate about how to best balance the interests of copyright owners and users” by examining “several ways to improve and update the law in an era of rapid technological change.”

The project is well worth a read. Participants in the project come from a variety of perspectives, including academics like project leader Pamela Samuelson, Jessica Litman, Michael Carroll, and Christopher Sprigman; copyright practitioners like Jon A. Baumgarten of Proskauer Rose LLP and Kate Spelman of Cobalt LLC; and corporate attorneys like Troy Dow of Walt Disney, Terry Ilardi of IBM, Jule Sigall of Microsoft, and Jeremy Williams of Warner Bros. Entertainment. Working together, they crafted twenty-five specific proposals that address “how current copyright law could be improved and how the law’s current problems could be mitigated.” 1Copyright Principles Project, pg. 2.

The Copyright Principles Project came about in part from Samuelson’s idea of creating a “model copyright law” — akin to projects like the American Law Institute’s Model Penal Code — which could provide “an inchoate vision of a ‘good’ copyright law”; “provide a platform from which to launch specific copyright reforms”; and “prove useful as a resource to courts and commentators as they try to interpret ambiguous provisions of the existing statutes” and apply the statute to novel and unforeseen circumstances. 2Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 3 Utah L. Rev. 551 (2007). Samuelson discusses how the model copyright law project served as a genesis for the Copyright Principles Project during her remarks at Berkeley Law’s “Copyright @ 300” conference, audio available under Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.

Reaction to the report from the Copyright Principles Project has been generally positive. I haven’t been able to find too much analysis of the individual recommendations online, though there has been some. Copyright Chronicle’s Thomas Gulick, for example, points to recommendations that seem to “create imbalance for the sake of ease.”

Today, I want to look at those recommendations in the Project that call for an increased role for the US Copyright Office within copyright law. This topic is of special interest to me. In Copyright Reform Step Zero, I make the case for delegating substantive rulemaking authority to the Copyright Office as an important first step to maintaining an up-to-date and effective copyright law. Several of the recommendations in the Copyright Principles Project take the same approach while also envisioning adding adjudicatory functions to the Office.

Recommendation #3: The Copyright Office should develop additional policy expertise and research capability, particularly in the area of economics and technology.

The Copyright Principles Project specifically calls for two new positions to be created within the US Copyright Office: Chief Economist and Chief Technologist. These positions would help ensure that those areas of expertise which are most important for developing copyright policy in today’s world can be led by dedicated individuals. The Copyright Office already plays an important role preparing studies of specific copyright issues, advising Congress and other federal agencies on policy matters, and interacting with foreign and international organizations; so even if the Office didn’t take on a greater role in actual policymaking, it could still benefit by beefing up its expertise in these areas.

Recommendation #4: The Copyright Office should give serious consideration to developing some mechanism(s) through which users could receive guidance on “fair use.”

One of the mechanisms suggested by the Copyright Principles Project is the idea of a fair use “opinion letter,” likely inspired by an existing proposal from Project contributor Michael Carroll. In Fixing Fair Use, Carroll envisions as body within the Copyright Office that would hear from companies or individuals contemplating the use of a copyrighted work. The body would analyze if the contemplated use would legally be a fair use and issue an advisory letter with its opinion, similar to advisory letters that the IRS and SEC currently issue.

Recommendation #5: A small claims procedure should be available for resolving small-scale copyright disputes.

Interestingly, after orphan works, this recommendation may have the best chance for being adopted out of all the Copyright Principles Project’s recommendations. Although orphan works legislation failed to pass in 2006 and 2008 (and wasn’t even introduced in 2010), it is still considered by many to eventually become law. Both orphan works bills contained a provision commissioning the US Copyright Office to study the idea of a “small claims court” for copyright disputes which would otherwise stay out of courts because of legal costs. 3HR 5439 — Orphan Works Act of 2006, Sec. 4; HR 5889 — Orphan Works Act of 2008, Sec. 6.

Recommendation #23: Contributions to computer programs should be considered as a new category of specially commissioned work eligible for treatment as works made for hire.

The Copyright Principles Project discussion of this recommendation included the following: “We considered, for instance, whether the U.S. Copyright Office should be given rule-making authority to add computer software contributions or other types of works to the specially commissioned work for hire rule. We did not reach consensus on this approach.” This statement describes an example of how substantive rulemaking authority would be exercised by the US Copyright Office as I contemplate it in my paper. Congress incorporates a doctrine like “work for hire” into the Copyright Act. It lays out the broad strokes of the purpose and principles behind the doctrine. But it then delegates the nuts and bolts to the Copyright Office. In this example, the Copyright Office would have the authority to add additional categories to types of works eligible for treatment as works made for hire — within the limits of the statute and guided by the principles expressed by Congress.

References

References
↑1 Copyright Principles Project, pg. 2.
↑2 Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 3 Utah L. Rev. 551 (2007). Samuelson discusses how the model copyright law project served as a genesis for the Copyright Principles Project during her remarks at Berkeley Law’s “Copyright @ 300” conference, audio available under Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.
↑3 HR 5439 — Orphan Works Act of 2006, Sec. 4; HR 5889 — Orphan Works Act of 2008, Sec. 6.