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matters. My appearance and testimony today, however, is as a concerned individual and not in my official capacity as chairman of the Copyright Committee of the local bar association. At this point, I ask that my formal statement be accepted and printed in the record. And if I could, I will address myself from a rather truncated statement.

Mr. DANIELSON. Without objection, it is so ordered and I would appreciate it if you would do that. You can truncate it very well I am sure, and hit the high spots.

[The prepared statement of Mr. Brylawski follows:]

STATEMENT OF E. FULTON BRYLAWSKI Mr. Chairman. My name is E. Fulton Brylawski, Chairman of the Copyright Committee of the Bar Association of D.C. and an attorney specializing in copyright and related matters. In my brief testimony here today, I hope to alert the Subcommittee to a few constitutional disabilities of the copyright revision bill. principally the bill's violation of the separation of powers doctrine underlying the U.S. Constitution. Even the present method of administration of the copyright laws by the Copyright Office seems to be a violation of this doctrine, but any doubt on this score would be eliminated by reason of the additional powers and functions to be reposed upon the Copyright Office under the copyright revision bill.

The doctrine of Separation of Powers is often mentioned but little understood. Sometimes it is discussed as part of our federal system of checks and balanrex. While our Constitution bears its imprint, it has rarely been formulated or applied with any degree of specificity, so that it remains an amorphous and somewhat illusive concept.

Recognizing the need to better understand and clarify the doctrine, the Senate established in 1966 a subcommittee on the separation of powers, headed by Senator Sam Ervin, with the general purpose of investigating the incursions by any of the three branches of government into the constitutionally mandated sphere of another. More specifically, the committee's inquiry was directed to the problem of the exercise of emergency powers by the President in the absence of legislative authorization, the need for more effective congressional oversight of the interpretation of legislation by the judiciary and executive agencies and the extent to which the executive branch may ignore mandates contained in congressional legislation. Various methods of exercising legislative oversight of executive activity were explored to remedy the supposed imbalance of power between the legislative and executive branches. Yet, the subcommittee was also concerned with congressional encroachment upon the executive function. Res gardless of the individual stance taken either for or against the extension of executive power, it is interesting to note that no one questioned the validity or vitality of the separation of powers doctrine.

Unfortunately, as a result of its primary concern with executive encroach. ment, both Congress and the Ervin committee were guilty of a rather ironic oversight. While seeking to use the doctrine as a means of reasserting legislative power rightfully belonging to Congress, they failed to recognize that a sub. department of the legislative branch, namely the Copyright Office, had been poaching upon the executive function through its exercise of broad executire or administrative powers. This problem promises to become more critical in the near future since the Copyright Office, under the copyright revision bill now under consideration, soon hopes to assume the full trappings of a regulatory agply.

Before examining the constitutionality of the revision bill, it seems appropriate to examine the Copyright Office under the present statute to determine whether its current operation passes constitutional muster under the separation of powers doctrine. Inasmuch as the legislative department through Congress enacts the copyright laws and the same department through the Copyright Ofer administers or executes them, there is no separation between the legislative power of enactment and the executive power of executing the copyright laws. As a matter of fact, under the Copyright Act of 1870, Congress directly supervised the administration of the copyright law, so that substantially the same legislative instrumentality enacted and administered the copyright laws. How this rather patent violation of the sepa ration of powers doctrine esea ped the attention of constitutional scholars is puzzling. What is perbaps clear, however,

is that the Copyright Office found its way somewhat accidentally into the legislative department because copyright deposits provided a ready and cheap means for enrichening the collections of the Library of Congress, which happened to Impre lodged in the legislative department. As long as the Copyright Office performed only a record-keeping or depository function for such copyright deposits, it whared in a library-like fashion and did not exercise enough power to attract attention or raise any constitutional eyebrows. With its evolution and maturity into a full administrative or regulatory agency, however, the Copyright Ottice *** seems confronted with the constitutional question whether its adoption by a legislative parent was legitimate.

Today, the Copyright Office operates substantially under the Act of 1909 with few minor amendments. An examination of the pre-1909 proceedings, including the Librarian's conferences in 1905 to 1906, as well as the 1909 ComDiittee Report prohibiting the Register of Copyrights from exercising any "judicial functions", makes it extremely clear that our present copyright statute does mnt empower the Register of Copyrights to decide and pass upon the copyrightability « works submitted for registration or to interpret the copyright statute ar to apply any snch statutory interpretation to the facts of a particular copyricht application. This conclusion was supported by the early text writers such as Arthur Wril in his 1917 treatise - American Copyright law", as well as hy ConKI***man Frank (urrier, the congressional faiher of the Act of 1969, who was Chairn of the House Committee on Patents at the time of the passage of the Art of 119 and its earlier deliberations. His views on the limited functions of the Register of Copyrights as a record-keeper without the power of determining avpis rightablity are re-stated in the pre-1909 legislative proceedings as well as the 1912 bearings on the Morrison bill.

Nevertheleas, the restraints inposed upon the Register's function under the Act of 1909 have been eroded away or ignored. Perhaps, in obedience to Parkinson's Inw or the institutional imperative and, despite Congressman Currier's admonition that the ('opyright Other should not have an examining staff nor decide what is copyrightable, the Copyright Office today has acquired an examining staff of ammimately thirty lawyers as well as thirty-five non-legal examining special1 ts, and this staff decides what is copyrightable.

Thus, the copyright Office has evolved from small beginnings of a depository or registrv office into a full-grown administrative agency, exercising rather substantial discretionary and interpretative powers, however they may be denominted as judicial, executive or legislative. Perhape, Congressman (urrier Wawurong in his concept that the Copyright Office should be an office of registry onis. Possibly the 198099 statute sbould have been drafted to permit the broad exerrjep of administrative discretion and judicial interpretation which the ('opyright Office daily exercises. To the extent that the Copyright Office has mis. read the 1909 sintute to deny copyright secured by a simple deposit and payment of a fee and adopted instend the more traditional review and scrutiny of a team roferaminess as in the Patent Office, a serious question is posed whether the Art of 18 js constitutional if it authorizes this kind of copyright action. Particularly girmane to this constitutional inquiry is the fact that the Copyright Office is but a division of the Library of ('ongress which in turn is part of the legislative loranch of the federal government. If the Copyright Ofhre exercises broad pro ***11tive and interpretative functions, then the legislative branch, which enacts the pig right legislation, also would precute the ime laws through its subdivision, the Copyright Office. The executive branch of the federal government wind tuave nothing to do with the execution of the copyright laws. A court re. view of a rejerted copyright application would be available, but apparently only in a limited proceeding in the nature of mandamus. The legislative branch would thereboy be a governmental hermaphrodite which does everything. No other example of a more apparent violation of the constitutional separation of were doctrine can be found.

One of the features of the Copyright Office as a legislative subdepartment, $11pposedly distinguishing it from an administrative agency such as the Patent Once is that the copyright Ofbce does not make any factual determinations as jart of its examining procedure. Actually, the current examining proredures of the Patent Ollice and copyright Office are not so dissimilar. Where the patent or trademark examiner searches his own Office files to determine the eligibility of an applicant for a patent or trademark, the Copyright Office now does very much the same thing with its own records. Where the Patent examiner has a collection or library of reference materials which he cousults to deterinine the propriety of approving a patent or trademark application, the Copyright Office examiners similarly have developed a body of expertise, reference material and collateral source material as a basis for approving or rejecting copyright applications. In some instances, the copyright examiners have conducted research in the Library of Congress records and reference books having nothing to do with copyright, primarily to determine whether the work involved has been pre. viously published, whether the author is dead, or whether other information exists which might make the particular copyright applicant ineligible for the copyright claimed or might restrict him only to a more limited copyright. Clearly this type of copyright examination is legally indistinguishable from the Patent Office examination and the Copyright Office must thereby be performing an executive and/or adjudicative function similar not only to that of the Patent Office but also to almost any other federal executive or administrative agency.

The broad power presently exercised by the Copyright Office is well illustrated by a contemporary example. The present copyright statute includes no definition of publication and makes no provision for copyright in sound motion pictures, Moreover, no judicial determination has been made on how a motion picture, or more appropriately a sound track, might be published and none have commented upon whether a sound track is a copyrightable portion of a sound motion picture. Nevertheless, the Copyright Office has adopted a definition of publication applicable to sound tracks as well as a new regulation that sound tracks are copyrightable. If the copyright statute supports these interpretations, then the Copyright Office would have exercised the broadest judicial power in its de nos interpretation of the statute and, if these interpretations are not supported by the statute, then the Copyright Office would have exercised a legislative function in adding to the copyright law new provisions on publication and the copy. rightability of sound tracks. That the Copyright Office may not share in nor perform any such legislative or judicial function seems axiomatic and any attempt to do so would seem a clear violation of the separation of powers doctrine.

Mindful that the Copyright Office may now be acting in violation of its constitutional and statutory authority, it is appropriate to examine the copyright revision bill to determine what, if any, new constitutional problems may thereby be created. Under the Act of 1909, a rather modest and ambiguous rule and regulation power was given to the Register of Copyrights, apparently only to facilitate the internal administration of the Copyright Office. The revision bill. however, would vest in the Register explicit and new discretionary and regulatory powers, which would exacerbate the constitutional problems of the present law. One feature of the bill goes even further by creating within the Copyright Office a Copyright Royalty Tribunal which would have the authority to decide disputes with respect to the distribution of royalties and to establish new royalty rates from time to time on cable TV, jukeboxes, phonorecords and possibly performances if S. 1111 or its equivalent is adopted by the Congress. This Tribunal would provide for an on-going method of rate adjustment without recourse to Congress and this objective is laudable. However, a very restricted court review of these rate determinations is provided in the bill, generally limited to fraud, and excluded from this review would be the customary complaint that the adminis. trative determination is unsupported by the evidence, is arbitrary or capricious or suffers some other legal irregularity.

The new rate-making function vested by the revision bill of the Copyright Office would be substantially indistinguishable from the rate-making activities of certain agencies in the executive branch as the ICC, FPC and CAB. Rate-mahing has always been deemed a legislative function. Delegation of the legislative power to establish rates bas been permitted to the executive branch bot only within clear and rather narrow guidelines. Yet, no delegation of a legislative authority has ever been sanctioned to a congressional subdivision, not even a congressional committee, much less to a body not constituted of elected representatives such as the Copyright Office. Hence, the rate-inaking function of the Copyright Royalty Tribunal would involve a clear unconstitutional delegation of legislative power as would compound the serious constitutional disabilities of the present copyright law under the separation of powers philosophy.

Actually, it should be self-evident that the copyright revision bill is unconstitutional. The net result of the revision bill would be to weld the enactment, execution and judicial review of the proposed copyright law into a function administered almost entirely within the legislative branch of government, providing no participation by the executive branch and only a very limited review by the courts. If this combination of functions be constitutional, then there

would be no legal probibition against Congress transferring from the executive to the legislative fold all of the functions of the Patent Otfice, SEC, ICC, FTC a nd virtually any other administrative or executive agency of the federal government.

Apart from constitutional disabilities under the separation of powers doctrine and improper delegation of legislative power, the copyright revision bill may be unconstitutional as a denial of due process under the 14th Amendment. Under $ $09 of the copyright revision bill, the scope of judicial review of royalty distribuition has been substantially limited to matters amounting to fraud or corruption and judicial review of royalty rate determination has been ignored. It is true that the Congress may limit judicial review of an administrative agency except where constitutional questions are raised. Yet, the rationale of such a limited review is that all the parties would have their day in court in a quasi-judicial proceeding before the particular administrative body. Here, the Copyright Royalty Tribunal would be part of the legislative branch and it cannot be admitted that the procueding before it would be either administrative or quasi-judicial without doing some violence to the separation of powers doctrine. Even if we were to ignore this problem, there is nothing in the copyright revision bill which would provide the due process safeguards of notice and hearing, and because a legislative subdepartment would not fit the definition of "agency" under the Administrative Procedure Act, the procedural safeguards of that Act would be inapplicable.

It would be exceedingly fatuous of me to assume that I can do anything more than merely scratch the surface of these complicated issues within the brief span of time allowed and I respect the reasons why more time is not available. However, having stated the problem, I would at least like to briefly offer one possible solution apart from restricting the Copyright Office to its original function as a depository or registry office. A reasonable alternative would be to remove the Copyright Offre froin the Library of Congress and the legislative department and to reestablish it in the executive branch of the federal government, as would legitimatize its present executive and quasi-judicial operation and thereby save the constitutionality of the proposed copyright revision bill. By opting for a regulatory agency in the executive branch of government, the Copyright Office also would become subject to the due process safeguards of the Administrative Procedure Act, which even the Register of Copyrights admitted in a November 4, 1974 proceeding on type face designs was not now applicable to the Copyright Office as a legislative subdepartment.

Finally, removing the Copyright Office from the legislative branch would have some important in-house benefits. For instance, the Register of Copyrights presentis functions and has expertise totally dissimilar from the Librarian of Congress under whose supervision and direction she must opwrate. In addition, the Copyright Office cannot be promptly or directly responsive to the needs of its own personnel and other purely parochial matters if the Librarian's approval is required on matters relating to hiring, firing, pay scales, relationships with the Tental agent and the like. On the other hand, re-locating the Copyright Office as an autonomous agency within the executive department, like the Patent Office, would increase efficiency by removing the bureaucratic layer presently imposed by the requirement of the Librarian's approval for almost every act and function of the Copyright Office.

The separation of the Copyright Office from the Library of Congress, moreorer, would not hamper the Librarian's ability to enlarge and enrich his collections t'rom copyright deposits. It is clear that the Copyright Office does not have to be a subdepartment of the Library of Congress as a condition for copyright deposits to flow Into the Library. Prior to 1870, the very substantial accumulations of copyright deposits were nonetheless acquired by the Librarian of Congress even though bis department was not responsible for the administration of the copyright laws.

Because of the limits of time, I recognize that my brief statement will provide only a tip-of-the-iceberg glimpse of the constitutional problems. A more extensive review is incorporated in a longer study which I am preparing under the title *The Copyright Office: A Constitutional Confrontation" which is scheduled for publication in the November, 1975 issue of the George Washington Law Review. I thank the Committee for allowing me to appear and express these views

Mr. BRYLAWSKI. My formal statement essentially raises three constitutional pit falls of the copyright revision bill. The first, which is somewhat a legacy of current copyright administration and practice,

is that the execution of the copyright laws by the Copyright Office, a subdepartment of the legislative branch of the Federal Government, violates the separation of powers doctrine of our Constitution in that there is no separation thereby provided between the enactment of the copyright laws and their execution if both functions are performed within the legislative branch.

Today, the Copyright Office operates substantially under the act of 1909 with few minor amendments. An examination of the pre-1909 proceedings and the 1909 committee report clearly establishes that our present copyright statute reposes very narrow authority upon the Register of Copyrights, which some have characterized as merely ministerial to permit the Copyright Office to receive and record claims of copyright. At the annual ABA convention last year, the present Register of Copyrights, Ms. Barbara Ringer, acknowledged the rather passive nature of her office as being a Registry Office with little more than two old ladies with a filing cabinet.

The present bill, H.R. 2223, proposes to vest in the Register broad discretionary, administrative, and regulatory powers. In addition, chapter 8 of the bill establishes new ratemaking and royalty distribution functions in the Copyright Royalty Tribunal to be created within the Copyright Office. These functions would resemble the regulatory activities of certain agencies in the executive department such as the ICC, FPC, and CAB. Yet, rather limited judicial review is provided for these new Copyright Office functions.

The net result of the revision bill would be to weld the enactment, execution, and judicial review of the proposed copyright law into a function to be administered almost entirely within the legislative branch of government, providing no participation by the executive branch and only a very limited review by the courts. If this combination of functions is constitutional, then there would be no legal prohibition against Congress transferring from the executive fold all of the functions of the Patent Office, SEC, ICC, FTC, and virtually any other executive or administrative agency of the Federal Establishment.

How this patent violation of the separation of powers doctrine es. caped the attention of constitutional scholars is puzzling. Perhaps, the explanation derives from the fact that the Copyright Office quite accidentally found its way into the legislative department over 100 years ago when Librarian Ainsworth Spofford recognized that copyright deposits would provide a ready and cheap means for enrichening the col. lections of the Library of Congress into a great national library and, hence, persuaded Congress in 1870 to transfer the copyright registration or depository function to the Library of Congress. As long as the Library of Congress, and afterwards the Copyright Office, performed only a recordkeeping or depository function for copyright deposits, it behaved in a library-like fashion and did not exercise enough power to attract attention or raise any constitutional eyebrows. With its evolution and maturity into a full administrative or regulatory agency, however, the Copyright Office now seems confronted with the constitutional question whether its adoption by a legislative parent was legitimate.

The second constitutional reef over which Congress must cbart the copyright bill is that the ratemaking, if not the royalty distribution, function of the Copyright Royalty Tribunal is a legislative function

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