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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 previously 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 novo 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 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 administrative 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 but 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-making 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 prohibition against Congress transferring from the executive to the legislative fold all of the functions of the Patent Office, 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 Amendment. 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 before the particular administrative body. Here, the Copyright Royalty Tribunal would be part of the legislative branch and it cannot be admitted that the proceeding 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 Office from 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 presently functions and has expertise totally dissimilar from the Librarian of Congress under whose supervision and direction she must operate. 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 rental 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, moreover, 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 his 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 pitfalls 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 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 the Copyright Royalty Tribunal might run afoul of the due process clause under the fourteenth amendment. The procedural safeguards of the Administrative Procedure Act would not apply since neither the Copyright Royalty Tribunal, nor the Copyright Office, of which it is a part, would seem to fit the definition of agency under section 551, title 5, United States Code, the codified 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 809 of the revision bill of royalty rate determinations has been totally ignored and judicial review of royalty distribution has been limited to matters amounting 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 Copyright Office from the Library of Congress and reestablish it in the executive branch like the Patent Office, its constitutional sibling. Transplanting the Copyright Office 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 Copyright 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 subdepartment.

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. KASTEN MEIER. Thank you, Professor Brylawski.

I would like to yield to the gentleman from Illinois, Mr. Railsback. Mr. RAILSBACK. Yes. What would you do to correct the bill?

Mr. 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 Commerce. Mr. RAILSBACK. You would move the whole Office and all of itafunctions?

Mr. BRYLAWSKI. Yes.

Mr. RAILSBACK. What about giving the FCC the power that is envisioned, that is given in the bill to the Copyright Royalty Tribunal? Mr. BRYLAWSKI. I think it would have authority over more than what the FCC does.

Mr. RAILSBACK. No, I mean the fee schedule, setting the fees and some of the other powers, giving that power to the FCC rather than to the Register of Copyrights?

Mr. BRYLAWSKI. I think it could be done insofar as the cable TV royalties and rates are concerned, but there are also the royalties and rates under the section relating to sound recordings and distribution of jukebox royalties and so forth which would not be matters, I think, normally within the competence or jurisdiction of the FCC.

Mr. RAILSBACK. Has there ever been a case that you know of where the authority of the Copyright Office to implement and execute laws has been challenged?

Mr. BRYLAWSKI. Well, there only have been approximately six reported challenges of copyright administration or the authority of the Copyright Office to reject registrations since the act in 1909. None of those cases have raised the constitutional questions which I raise before the committee today.

Mr. RAILSBACK. Thank you.

Mr. KASTENMEIER. The gentleman from California, Mr. Danielson. Mr. DANIELSON. I just want to say thank you. I had not thought about that constitutional problem at all, for which I can only sit here and blush and say thank you very much. And I will pass.

Mr. KASTENMEIER. The gentleman from New York, Mr Pattison. Mr. PATTISON. I feel the same way. No questions.

Mr. DANIELSON. I think you may have a point.

Mr. KASTEN MEIER. Mr. Pattison?

Mr. PATTISON. No. No questions.

Mr. KASTENMEIER. Let me just ask one further question. Quite apart from the theoretical constitutional question you cite, is there any practical disability or disadvantage to parties by virtue of the Librarian of the Congress or the Register of Copyrights theoretically being a part of the legislative branch? After all, they must exercise laws, and I think the Librarian and the Register are not appointed by the Congress as such. They are appointed, the Librarian is appointed by the President, and the Register by the Librarian I believe.

Mr. BRYLAWSKI. That is correct.

Mr. KASTEN MEIER. Consequently, for all practical purposes, they are as separate from us as any executive agency. I am talking about the practical, the practical rather than the theoretical constitutional question.

Mr. BRYLAWSKI. Well, I can think of several things, but I will try to boil them down to two things in response to your question. I think that the Copyright Office in recent years has felt certain constraints. I am not sure they would rationalize them as constitutional constraints. Because they are in the legislative department, they do not have quite the formal procedures and hearings of the Patent Office with respect to the exchange with the copyright applicant and his attorney concerning matters which they object to or afford the basis on which they refuse registration. They certainly have attempted to perform fairly,

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