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is that the Copyright Office found its way somewhat accidentally into the legislative department because copyright deposits provided a ready and cheap means feir enrirhening the collections of the Library of Congress, which happened to
lodged in the legislative department. As long as the Copyright Ottice perTormed only a record-keeping or depository function for such copyright deposits ir khared 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 1*-** srems 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 105 to 1906, as well as the 1909 ComDuittee Report prohibiting the Register of Copyrights from exercising any "judicial functions", makes it extremely clear that our present copyright statute does mit empower the Register of Copyrights to decide and pass upon the copyrightalility of works submitted for registration or to interpret the copyright statute ar to apply any such statutory interpretation to the facts of a particular copyIlxht application. This conclusion was supported by the early text writers such as Arthur Weil in his 1917 treatise "American Copyright law", as well as by Con
***man Frank (urrier, the congressional father of the Act of 1909, who was Chairn of the House Committee on Patents at the time of the passage of the Act of 19 and its earlier deliberations. His views on the limited functions of the Register of Copyrights as a record-keeper without the power of determining
pyrightability are re.stated in the pre-1909 legislative proceedings as well as the 1912 hearings on the Morrison bill.
Vevertheless, the restraints iinposed upon the Register's function under the Act of 1409 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 Office should not have an examining staff nor decide what is copyrightable, the copyright Office today has acquired an examining staff of amnitimately thirty lawyers as well as thirty-five non-legal examining special
and this staff decides what is copyrightable. Thus, the copyright Offee has evolved from small beginnings of a depository or registry office into a full-grown administrative agency, exercising rather subxtantial discretionary and interpretatire powers, however they may be denominted as judicial, executire or legislative. Perhaps, Congressman Currier WAY wrong in his concept that the Copyright Office should be an office of registry onis. Possibly the 1900) statute should have been drafted to permit the broad exerop of administrative discretion and judicial interpretation which the ('opyright one daily exercises. To the extent that the ('opyright Office has mis. read the 1909 sintute to deny copyright secured by a simple deposit and payment of a fee and adopted instead the more traditional review and scrutiny of a team
of praminese 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 grmane 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 branch of the federal government. If the Copyright othee exercise, broad r. **tative and interpretative functions, then the legislative branch, which enacts the lyright legislation, nlso would precute the xume laws through its subdivision, the (opyright Office. The executive branch of the federal government Winild have notling to do with the precution of the copyright laws. A court re. View of a rejected copyright application would be available, but apparently only in a limited proceeding in the nature of mandamus. The legislative branch would thereliy be a governmental hermaphrodite which does everything. No of her example of a more apparent violation of the constitutional separation Of jwers doctrine can be found.
One of the features of the Copyright Office as a legislative subdepartment, supposedly distinguishing it from an administrative agency such as the Patent Office, is that the ('opyright Othce does not make any factual determinations as junrt of its examining procedure. Artually, the current examining procedures of the Patent Ollice and (opyright Office are not so dissimilar. Where the patent or trademark examiner senrches his own Office fileg 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 ex. ecutive 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 conmented 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 noto 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 copyrightability of sound tracks. That the Copyright Office may not share in tor 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 fra ud, 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-making has always been deemed a legislative function. Delegation of the legislative power to establish rates has 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 repre sentatives 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
Rould be no legal prohibition against Congress transferring from the executive to the legislative fold all of the functions of the Patent Otice, SEC, ICC, FTC and 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 Amendinent. Under $ 809 of the copyright revision bill, the scope of judicial review of royalty distribution 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 trefore the particular administrative body. Here, the Copyright Royalty Tribunal would be part of the legislative branch and it cannot be admitted that the pro
ding 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 ( e 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 det, 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 suhdepartment.
Finally, removing the Copyright Office from the legislative branch would have some important in-house benefits. For instance, the Register of Copyrights presentir functions and has expertise totally dissimilar from the Librarian of Congress under whose supervision and direction she must opmrate. In addition, the Copyright Oifice 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 from 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 adıninistered 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 escaped 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 collections 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 chart the copyright bill is that the ratemaking, if not the royalty distribution, function of the Copyright Royalty Tribunal is a legislative function
which can only be delegated to an executive agency within clearly defined and rather narrow standards if the copyright revision bill is not to be an unconstitutional delegation of legislative power. Standards for such ratemaking activities are not clearly established in the bill. Moreover, the Copyright Office, within which the Copyright Royalty Tribunal would operate, is not an executive agency but rather a legislative subdepartment. Since Congress may not delegate legislative powers to one of its own committees, it seems obvious that it may not delegate such power to a legislative subdepartment, here the Copyright Office, which is not even a segment of an elective body.
Third, there is a substantial danger that tlie Copyright Royalty Tribunal might run a foul of the due process clause under the fourteenth amendment. The procedural safeguaris of the Administrative Proce. dure Act would not apply since neither the Copyright Royalty Tribunal, nor the Copyright Oflice, of which it is a part, would seem to fit the definition of agency under section 551, title 5, United States Code, the coxlified version of the Administrative Procedure Act.
Unfortunately, section 804 of the copyright revision bill, dealing with the procedures of the Copyright Royalty Tribunal, does not seem to guarantee the constitutional minimum of a hearing, notice in the Federal Register, and certain other procedural guarantees. Moreover, jndicial review under section 909 of the revision bill of royalty rate determinations has been totally ignored and judicial review of royalty distribution has been limited to matters announting to fraud and corruption. All of these elements concerning the procedures of the Tribunal and the judicial review of its decisions raise the question whether the parties affected by such rate determinations or royalty distributions would have their day in court.
If the constitutionality of the present bill is to be saved it would seem necessary to remove the ('opyright Oflice from the Library of Congress and reestablish it in the executive branch like the Patent Office, its constitutional sibling. Transplanting the Copyright Olice thus into the executive branch would not only legitimatize the executive and quasijudicial operations of the Copyright Office under the revision bill, but would also subject the ('opyright Office to the due process safeguards of the Administrative Procedure Act, which even the Register of Copyrights admitted in a November 4, 1974, proceeding on typeface designs was not now applicable to the Copyright Office as a legislative subalepartment.
I recognize that my brief statement can only provide a superficial glimpse of the constitutional problems, but I trust that these remarks will prove to be constructive, and helpful to the committee.
I am now open to questions if I can elaborate on any of these points. Thank you very much. Mr. KASTENMEIER. Thank you, Professor Brylawski. I would like to yield to the gentleman from Illinois, Mr. Railsback. Mr. RUILSBACK. Yes. What would you do to correct the bill?
Jr. BRYLAWSKI. Well, I would provide an enabling provision whereby the Copyright Office function and the activity delegated to the Copyright Office would be moved into the executive department, possibly the Department of the Interior or the Department of ('ommerce.
Mr. RAILSBACK. You would move the whole Office and all of its functions?