periods without cost. of the Copyright Act. This is neither the intent nor the spirit It should be noted that most copyright users are prompt and accurate in the payments of royalty fees. The tardy payments problem for cable barely approaches 3%. It is harder to determine compliance in jukebox and it should be noted that the performing rights societies do actively enforce compliance. The Licensing Division would be able to provide more accurate accounting of the late payments problem upon request. Even though the tardy payments problem is small, clearly it refutes the intent of the legislation, and there is no reason to not strive towards 100% compliance. The threat of the assessment of fair market interest may help achieve that. Again, I feel strongly that the suit for infringement remedy (including attorney fees) is one of the greatest reforms to come from the 1976 Copyright Act and I believe it must be preserved at all costs. This suggestion would only supplement the greater remedy and would do so at no cost to the copyright owner, also in keeping with the intent of the Copyright Act. I have recently submitted draft legislation to Congressman Kastenmeier and Moorehead, upon their request, to suggest empowering the Tribunal to assess and collect interest for late payments. This draft also suggests establishing the Licensing Division under the Tribunal rather than the Copyright Office to facilitate the management of the funds, and eliminate some of the communications between the Copyright Office and the Copyright Royalty Tribunal. Part of this draft legislation is attached for your information. If you need any further information or assistance please do not hesitate to contact me. TO: Members of the Bar who practice before the Tribunal; The Copyright Royalty Tribunal was created by the Copyright Act of 1976 to be composed of five commissioners, but currently consists of two sitting commissioners. Several procedural questions have been raised because of this situation. The purpose of this letter is to inform you of conclusions reached by the Tribunal and to solicit your comments on these conclusions. First, Section 802 (c) of the Copyright Act of 1976 (Act) states, "Any vacancy in the Tribunal shall not affect its powers Section 301.7 (b) of the Tribunal's rules states, "A majority of the members of the Tribunal constitutes a quorum." 37 U.S.C. 301.7(b). It is the conclusion of the Tribunal that a quorum consists of a majority of sitting Commissioners, whatever its number. We find support for our conclusion in FTC v. Flotill Products, Inc. 389 U.S. 179 (1967), and Assure Competitive Transportation, Inc. v. United States, 629 F. 2d 467 (1980). Therefore, the Tribunal believes it has legal authority to carry out the functions conferred on it by the Act so long as both sitting Commissioners concur in the action. Secondly, the Tribunal has also researched the question of whether a Commissioner appointed during or after the course of an on-the-record proceeding, whether adjudication or rulemaking, may participate in the decision. The Tribunal believes that a deciding officer, in this case a Commissioner, does not have to be present to hear the testimony, except when the demeanor and credibility of the witness is of such a substantial factor that the absence of the deciding officer would be a denial of a fair hearing. The Tribunal believes that it is enough if the deciding officer considers and appraises the written record. The Tribunal has drawn upon the Administrative Law Text by Kenneth Culp Davis for this conclusion. The Tribunal solicits comments as to whether the Bar and the Administrative Conference of the United States agree with our conclusions. The Tribunal is especially interested in whether any party believes that the demeanor and credibility of any witness is of a substantial factor in the forthcoming proceedings. Although the Tribunal does not know when future Commissioners will be appointed and confirmed, it believes it is important to resolve this question at this time. Comments on the Tribunal conclusions must be filed by June 4, 1985. The comments will be discussed in our pre-hearing conference already schedule for June 7. Thank you for your cooperation. Edward W Ray Edward W. Ray Dated: May 12, 1985 |