Samue

amuel Clemens once said that the only thing God couldn't do was to find any sense in the copyright law. Mr. Clemens lived in fairly active times for copyright laws. When he was born in 1835, this country's second copyright law was four years old. By 1910 when he died, Congress had revised the law twice more, once in 1870 and again in 1909. This writer doesn't know which particular statute prompted the sarcasm, but most people who have any contact with the cumbersome law of copyright leave the experience dissatisfied if not completely undone.

Fewer distant signals Authors are not the only people who might share Sam Clemens's sentiment. We commoners puzzle over copyright notices posted over photocopiers, we videotape at home while four Supreme Court justices believe that we infringe, we see fewer distant signals on our cable systems because of unexplainable copyright rate increases. Our teachers labor under peculiarly exotic standards for copying classroom materials, standards of "brevity and spontaneity," and "cumulative effect." Librarians display warnings and keep a watchful eye out for "systematic reproduction or distribution" of "related or concerted" copies. We may be fined for "innocent" infringement, and the much relied upon doctrine of "fair use" turns out

Daniel Toohey is a member of the law firm of Dow, Lohnes & Albertson, Washington, DC. He is counsel to several states, colleges, universities, and telecommunications enterprises.

by Daniel Toohey

to be not fair at all, but a pusillanimous doctrine with narrow, grudging application.

Well-intentioned industry groups meet under the sponsorship of Congress to develop "fair use" guidelines that attempt to resolve competing interests informally, and having done so must admit that those who rely upon their conclusions do so perilously.'

Nothing in the underlying purposes of copyright prepares one for such a complex, vexatious law. Copyright simply strives to balance two principles: that authors should enjoy a monopoly on their works for a limited time in order to preserve their livelihood in such activities and thereby spur them on to further creation, and that their works should be accessible for people to use them as part of the artistic treasury of the nation. The middle ground between the propositions of monopoly and accessibility is the battlefield where cases are fought in the federal courts and where special interests are lobbied in Congress.

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up. Generally, because of the time it takes for them to act and a backlog of other duties, they fall far behind.

When the United States' first copyright law was enacted in 1790 (called by Congress "An Act for the encouragement of learning"), it protected little more than printing and engraving. A satisfactory protective balance between ownership and use was achieved with periodic legislative review and it occasioned interpretations of the statute by the courts. Technological and economic change occurred more slowly than today and comprehensive revisions to the copyright laws were enacted only every forty years or so until 1909.

Pulled and twisted

When the 1909 statute was super

seded in 1976, the old law was exhausted from having been pulled and twisted to fit applications never dreamed of by its authors. Revision was delayed by the impossibility of writing a law specific enough for the problems at hand and general enough to protect new forms of communication as they appeared. The 1976 Copyright Act occupies two and one-half times as many pages as the older law. While the 1909 law defined only two terms, the new law defined more than fifty. These two simple comparisons give only a hint of the statute's complexity. While most statutes lean on legislative intent to assist in interpreting their provisions, the 1976 law actually incorporates sometimes inconsistent documents from House and Senate proceedings. It also incorporates certain FCC

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rules which were in effect at the time but have since been repealed, leaving the law-assuming Sam Clemens was wrong-God knows where.

In spite of Congress' exertions, the 1976 statute lived up to no one's hopes. Only two years after its enactment, various parties were clamoring for major revision. Today the tumult continues. Omnibus legislation is once more in Congress, with little hope of passage. The rapid obsolescence of copyright law is not an indictment of Congress; it demonstrates that the widening scope of property rights under copyright protection cannot be contained in a static federal law. Technology easily outruns Congress's ability to provide adequate protection.

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The judiciary, the other principal actor in administering copyright law, fares little better than Congress in maintaining pace with demands for protection. The well-known "Betamax" case is good example. 'In January 1984, the U.S. Supreme Court held, by a vote of five to four, that the sale of video recorders is not per se an act of infringement. There are other elements to the decision, but for our purposes, two important aspects of this case stand out.

Stale facts

First, the Supreme Court's opinion rested on fairly stale facts. The case began with the filing of an infringement action in 1976; the Court based its opinion on surveys of video recorder use during a 1978 sample period. As any reasonably alert person will have noticed, video recorder use has expanded dramatically between 1976 and 1984, and "timeshifting" (programs recorded offthe-air for later viewing) was the only issue before the Court, not such practices as private "dubbing" of rented items, black-market rentals and so forth.

Second, the justices repeatedly alluded to a lack of direction from Congress. The majority noted that "one may search the Copyright Act

in vain for any sign that [Congress] has made it unlawful to copy a program for later viewing at home" or prohibited selling recorders. Justice Stevens, writing for the majority, said, "It is not our job to apply laws that have not yet been written."The four dissenting justices had words for Congress as well. Besides regarding the majority opinion as a disincentive for Congress to patch the Betamax hole in the law, Justice Blackmun observed in his final paragraph for the minority that, like so many problems created by the interaction of copyright law with a new technology, there can be no really satisfactory solution until Congress acts."

The sound one hears is that of the copyright ball being batted back and forth between two branches of government, with no need yet to awaken the President.

For the judiciary, the responsibility is to determine whether existing law has any currency to the facts at hand. If it does not, courts have two choices. They can apply a statute inadequate to the task, risking an unjust result but one which nonetheless observes the legislature's prerogative to write laws. Alternatively they may despair of Congress ever dealing legislatively with the issue before them and do some judicial lawmaking, behaving as an "activist" court.

In a hailstorm of change

For Congress, the responsibility is to write intelligible, lasting law in a hailstorm of change, with so many other demands upon its time. The author of an omnibus copyright bill wins few votes and is rewarded with few television news interviews. Yet the hapless member who undertakes that assignment must become expert in one of the most tangled, bedeviling areas of law as well as the various sciences and arts it protects, all the while facing some of the nastiest special interests in the halls of Congress. The legislators' reluctance, the long period between statutes, is not surprising. In fact, the present

demand for administering copyright is probably beyond Congress's abilities and exceeds the abilities of not a few judges as well.

As a consequence, communications and data processing industries continually produce new forms of copyrightable intellectual property and new methods of exploiting existing works, with no reliable assurance that protection is available under the copyright law or that the process or device is not itself an infringement.'The strict penalties imposed by the present law make it very risky to venture into the many gray areas of the copyright law, yet technological progress is almost impossible to stop. Usually it will roll right over an outmoded law.

This frustrating state of affairs results from Congress's belief that it must write a painstakingly specific all and no workable system is at statute. Instead it writes nothing at hand to balance, with the force and effect of law, the rights of creators and users of copyrighted materials as those materials become available.

An enormous difficulty

Congress could extricate itself from this enormous difficulty by writing a single law, one which creates a federal administrative agency with all-encompassing jurisdiction over copyright. Unlike the present federal agencies which have jurisdiction limited to a part of the present copyright law, such as the granting and recording of copyrights (the U.S. Copyright Office) or the collecting and dispensing of royalties (the Copyright Royalty Tribunal), the new agency would have broad administrative and adjudicative powers like Federal Communications Commission (FCC ). Fifty years ago Congress passed a law creating the FCC. The Communications Act of 1934 has undergone only moderate revision during the half-century of its regime and yet has survived radical changes in communications and technology. It has enabled the FCC to keep rela

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tively close regulatory pace with many of the same changes in communications technology which have outdistanced the copyright law.

Today federal agencies are more likely to be abolished rather than created in favor of the marketplace as a more effective regulator. But, the marketplace has its limits; its rough and tumble cannot achieve the delicate, shifting balance between protection of ownership and creation on one side and access by legitimate users on the other. An agency, let us call it the Federal Copyright Agency (FCA), could design standards for application of fair copyright principles through regula

the need for exactingly specific legislation by Congress would be avoided. Congress could do what it is best able to do, set general policy by statute and safeguard implementation through its oversight power, enacting corrective legislation only when necessary."

By means of any federal agency's well-recognized power to waive its own rules, the FCA could recognize special circumstances while promoting uniformity. Occasionally, strict application of a rule produces an inequitable result. In such cases, agencies can waive or suspend the rule without generally repealing it. Congress can achieve a similar re

"As new technologies enter the marketplace and new economic relationships among users and creators are formed, the traditional administrators of copyright law, Congress and the courts, struggle in vain to keep up."

tion and adjudication. The mere act of consolidating the critical government supervision of copyright into a single federal agency would bring immediate practical benefits to the public and to the industries affected by copyright.

Problems of narrow scope The FCA could clarify much of the present confusion about copyright by issuing policy statements and opinions. In the rule-making process, part of which includes public comment, the agency can deal specifically with problems of narrow scope. Through these regulatory devices, the agency could respond more speedily than Congress to strike the important balance between creators and users. By centering rule-making in such an agency,

sult but only in a cumbersome, plodding process involving special legislation.

The FCA might employ compulsory licensing when it is needed to maintain an equitable balance between public use and authors' compensation. More and more, we encounter circumstances where such a system might work well. For example, compulsory licensing might offer a simpler, more easily enforceable method of achieving a balance between the modern library and the authors whose works it stores in so many different formats. Somewhere in the many manifestations of storage, retrieval, book preservation, copying, and format transference there is an opportunity for the compulsory license to simplify in a way which fairly compensates authors

and yet allows libraries room to modernize. The ability to apply such compensation schemes to fit unique circumstances, even on a temporary basis, should reduce substantially the need for countless exceptions, provisos, and guidelines in either the agency's rules or its governing statute. But only an administrative agency is equipped to do the constant fine tuning that such a scheme requires.

Promoting consistency

The FCA could be given the power to adjudicate disputes arising under the copyright law, relieving federal courts of the obligation to administer it. Today every litigated controversy under the copyright law is an expensive, federal lawsuit. The fear of such litigation and the inevitable costs and delay undoubtedly chill many legitimate uses of copyrighted works. Through the legal doctrine of primary jurisdiction (which gives the agency first crack over the courts at deciding cases falling within its regulatory ambit) the FCA could promote consistency in the law and avoid the present difficulties flowing from conflicting district court opinions from various jurisdictions. More streamlined administrative proceedings would also permit speedier resolution of claims at less cost to the litigants. Any subsequent judicial review would take place on the basis of a record developed by the agency and doctrines which limit the reviewing court's ability to review the case.

A copyright agency could become expert in the copyright and its subject matter, promoting consistent administration of the law. By consolidating the functions now separately performed by the courts, Congress, the Copyright Office, and the Copyright Royalty Tribunal (CRT), the disharmonies resulting from the independent actions of these entities could end. Thus, for example, the agency could administer the functions performed by the CRT with full authority to interpret

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and enforce copyright rules and the underlying statutes. Moreover, the agency's continuing participation in these related functions will produce a staff that is thoroughly expert in these matters, reducing the time it now takes government to decide copyright cases.

An agency's ability to develop statistical data on the industries it regulates is also useful, enabling it to anticipate and respond to the demands of new technologies rather than to react to problems already out of control. The need to completely understand the market of

lines and make clear that it is Congress's intent that the guidelines represent the appropriate policy behind "fair use," and 2) if educators are sued, and they end up losing, Congress will undoubtedly consider that the courts have not construed the law properly and change it. This information comes from a memorandum sent by the Public Broadcasting Service to all of its managers on January 15, 1982. It is cold comfort indeed to the educator who relies upon these guidelines and is a classic example of the frustration industry groups encounter in their attempts to devise informal standards.

2. Article I, section 8, clause 8 of the U.S. Constitution grants Congress the power to promote the progress of "science and the useful arts" by giving authors and inventors exclusive rights to their writings and discoveries for limited times.

copyrightable works and their economic milieu underlies many established doctrines in the field. For example, in administering the doctrine of "fair use," the FCA could monitor developments in affected industries and identify those ele

ments of use that unfairly limit authors' rights or inequitably restrict public benefits. A realistic fairness is the ideal this doctrine has pursued, but it requires attentive experts to make it work.

A stitch in time

A congressional stitch in time to establish a permanent, effective agency of experts will ultimately save countless hours of futile legislative and judicial work. Congress's present functions force it beyond its proper role which is that of an over

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means no more wisecracks from Clemens.

FOOTNOTES

1. For example, Congressman Robert Kastenmaier, Chairman of the House Subcommittee on Courts,

Civil Liberties, and Administration of Justice appointed a negotiating committee in March 1979 to estab lish specific guidelines for off-air recording by educators. The committee met and adopted a set of guidelines, but two of its members dissented, the Motion Picture Association of America and the Association of Media Producers. A member of Congressman Kastenmaier's staff was asked what weight the guide lines would carry. The response made two points: 1) the subcommittee would stand behind the guide

al. v. Universal City Studios, Inc. et al., 104 S. Ct. 774 (1984).

4. Id. at 796.

5. Id. at 819.

6. Until 1980, when the 1976 Copyright Law was amended, much debate centered around the question of whether computer software could be protected by copyright. In Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240 (3rd Cir. 1983), decided after the 1980 amendments, the issues included tain forms of computer programs technical questions of whether cercould be copyrighted.

7. In the Betamax case, supra n. 3, the question was whether the sale of Sony's video recorder was itself an infringement because the device did the allegedly illegal recording. 8. When the FCC's comparative hearing process became too protected and cumbersome for deciding among competing applicants for low power television and certain nonbroadcast services, Congress simply authorized the use of a lottery to decide the winner.