Establishing the Constitutional executive authority is Article II which begins: "The executive Power shall be vested in a President of the United States of America." Following this general opening clause are enumerated several specific executive duties, such as acting as Commander-in-Chief, making treaties, appointing ambassadors, enforcing the law, etc. Collectively, these enumeral powers have generally been characterized by some courts as vesting authority in the executive department over "purely political matters," leaving unaffected the roles traditionally assumed by the two other branches of government.'

While the enumerated powers in Article II give the executive department wide powers, no specific executive functions are created in the patent and copyright areas. Therefore, as a general rule it would appear that Congress is under no obligation to create executive authority overseeing the administration of legislation in these areas. The one exception to this general rule would appear to be in the enforcement of criminal provisions since the law enforcement clause of Article II constitutionally mandates the prosecution of criminal offenses to the executive department."

D. The power of the Congress to create administrative agencies outside the executive department

Clearly the Congress has extensive power in determining the nature and scope of executive authority in administrative agencies. Once Congress decides, however, that an administrative agency should be established is it constitutionally mandated that the agency be placed in the executive department?

The first modern case to discuss this issue, Myers v. United States," appeared to answer this question in the affirmative. This case involved the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first class postmaster in the face of an act of Congress requiring the removal to be confirmed by the Senate. Speaking for the majority of a divided court, Chief Justice Taft declared the statute to be an unconstitutional encroachment on executive discretion and thereby upheld the removal as valid.

While the opinion could have limited the case to removal of purely executive officials, the Court did not restrict itself to the immediate issue before it. The Court went on the announce that the President had inherent constitutional power of removal of officials who have "duties of a quasi-judicial character . . . whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.” 12 This view of presidential power was deemed to flow from his constitutional duty of seeing that the laws be faithfully executed.13

13

The assertion that the executive department has inherent constitutional powers over all administrative agencies, no matter what the relation of the executive to the duties of the agency, was put to rest quickly in Humphrey's Executor v. United States." The material element of this case involved the removal by the President of Humphrey, a member of the Federal Trade Commission, in contravention of a federal statute which established a fixed term for Commissioners. In due course Humphrey sued for salary.

Speaking for a unanimous Supreme Court, Justice Sutherland found in favor of Humphrey, thereby affirming the right of Congress to place the functioning of the FTC outside the executive department. The Court distinguished Myers on the ground that Myers involved a purely executive officer whereas the Federal Trade Commission was intended to be an independent agency exercising quazilegislative and quasi-judicial power. In setting out this distinction the Court made the following statement:

"The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control... We think it plain under the

In these cases, the issue was raised whether certain executive actions were conclusive in determining disputes relating to property rights. In deciding in the negative, the courts held that property rights are to be determined by the judicial branch. Banco de Espana v. Federal Reserve Bank, 114 F. 2d 438 (2nd Cir. 1940); Smiths America Corp. v. Bendix Aviation Corp.., 140 F. Supp. 46 (D.C. D.C. 1956).

10 Confiscation Cases, 74 U.S. 454 (1868); United States v. Cox, 342 F. 2d 167 (5th Cir. 1965).

11 272 U.S. 52 (1926).

12 Id. at 135.

13 Id. at 135.

14 295 U.S. 602 (1935).

Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, (the Interstate. Commerce Commission, the Federal Trade Commission, the Court of Claims). The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

"The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute."

Curtailment of executive authority over independent administrative agencies was not to end with the Humphrey decision. A remaining and unresolved issue was the question of whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States.16 Emphasizing therein that the duties of the War Claims Commisison were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the life of that agency.

In reaffirming the Humphrey rationale, the Court characterized the overriding principle in the following manner:

"Humphrey's case was a cause celebre-and not least in the halls of Congress. And what is the essence of the decision in Humphrey's case? It drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President's constitutional powers, and those who are members of a body 'to exercise its judgment without the leave or hindrance of any other official or any department of the government,' (295 U.S.. at 625-26). . . This sharp differentiation derives from the difference in functions between those whose tasks require absolute freedom from Executive interference." In summary, it can be seen from this line of cases that administrative agencies which exercise executive functions as established by the Constitution must be placed within the executive department of government due to the sepa ration of powers concept. Administrative agencies which exercise quasi-legislative or quasi-judicial powers, on the other hand, may be placed outside the executive department in order to assure their independence in carrying out their assigned duties.

II. THE FUNCTIONING OF THE COPYRIGHT OFFICE UNDER THE 1909 COPYRIGHT ACT

A. Nature of the authority of the Register of Copyrights

Primary among the responsibilities of the Register of Copyrights is maintaining a system of registration of claims to copyright in order to promote the orderly exploitation of intellectual property. Although registration with the Copyright Office is not a prerequisite of obtaining copyright, registration must be made before an infringement action can be brought in federal court."

18

The utility of any system of records is, of course, negated if the authority responsible for administering the system does not have discretion in maintaining the files' accuracy and uniformity. For this reason Congress explicitly established the authority of the Register of Copyright to determine whether the requirements of the Copyright Act have been met. Establishing the essence of the registration process is Section 11 of the Copyright Act which provides that any person "may obtain registration of his claim to copyright by complying with the

15 Id. at 628-632.

10 357 U.S. 349 (1958).

17 Id. at 353.

18 17 U.S.C. § 13 (1974).

provisions of this title." In addition, Section 207 authorizes the Register of Copyrights to make rules and regulations to govern registration of claims to copyright and Section 209 establishes the content of the certificates of registration which are to be issued to persons "entitled" under the Act. In cases where the Register of Copyrights concluded that the requirements of the Copyright Act have not been met the decision is reviewable in a federal court through a mandamus proceeding.10

Under the provisions of the 1909 Copyright Act, the scope of the Register's discretionary authority essentially falls into two different areas. First, it must be ascertained whether a valid claim to copyright has been created, which includes an examination concerning copyrightability of the material deposited and a determination of compliance with the applicable formalities. Second, if a valid claim exists it must then be ascertained whether the proper materials have been deposited.

While the Copyright Office does not search the prior art in order to determine copyrightability, as does the Patent Office in ascertaining patentability, in certain cases questions will arise over whether the requirements of the Act have been met. In cases where it is clear from the material deposited that the provisions in regard to securing a claim to copyright have not been satisfied, a refusal to register the claim will be made. If doubts are raised, however, over the underlying facts supporting a claim to copyright, attempts will be made to resolve the questions through inquiries to the remitter and reference to any pertinent material held within the Copyright Office. Such inquiries are particularly important in registering renewal claims since the original copyright registration bears directly on entitlement to claim the renewal right.

Despite the explicit language of the 1909 Act making the issuance of a certificate of registration contingent on meeting the requirements of the Act, occasionally legal theories have been advanced which would deny the Register of Copyrights the authority to refuse registration. These arguments have been so consistently rejected by the courts, however, that today arguments of so sweeping a nature must be deemed frivolous.

The earliest decision concerning the right to refuse registration involved the Copyright Act of 1891 when the Librarian of Congress had the duties now performed by the Register of Copyrights. In United States, ex rel. Everson v. John Russell Young, Librarian of Congress," a mandamus action was brought against the Librarian for his refusal to record a claim to copyright in a book that contained no written material. The court sustained the Librarian's position, saying: "I think it is very clear that this proposed publication which, as already stated, is only a book containing blank forms and does not contain a single English sentence is not a composition of any sort-does not come within the purview of the copyright law, and that if a mandamus should issue requiring the Librarian of Congress to record it under the copyright law, that act would be of no advantage whatever to the applicant for this writ. Any court would adjudge that it was not protected by the copyright law at all." 21

The first mandamus action to be brought against the Register under the 1909 Act was Bouvé v. Twentieth Century Fox Film Corp.," involving the question of whether bound collections of page proofs of contributions to periodicals could be registered as a book. On this precise issue the Court held against the Register, finding that it was an abuse of discretion to refuse registration in the book classification. On the general issue of the discretionary powers of the Register, however, the Court of Appeals conceded that it seemed obvious "that the (Copyright) Act establishes a wide range of selection within which discretion must be exercised by the Register in determining what he has no power to accept.'

1923

Rendering a happier result for the Register was Brown Instrument Co. v. Warner. In this case the Register refused to enter a claim to copyright in a graphic chart used as a part of a machine on the ground that the nature of the work was controlled solely by mechanical or scientific calculations. In the mandamus action which ensued, the circuit court upheld the lower court in denying the petition stating that the plaintiff failed "to establish that its charts are

19 Vacheron Watches, Inc. v. Benrus Watch Co., 260 F. 2d 637 (2nd Cir. 1958).

20 26 Wash. L. Rep. 546 (Sup. Ct. D.C. 1898).

Id. at 547.

24 161 F.2d 910 (D.C. Cir. 1947), cert. den. 332 U.S. 801 (1947).

'writings of an author' or 'drawings' within the meaning of the Constitution and the copyright statute." 25

The next mandamus action against the Register of Copyrights was the landmark case of Bailie and Fiddler v. Fisher. In this case the plaintiffs sought to compel registration, as a "work of art," of a claim to copyright in a picturerecord device. The work consisted of cardboard in the shape of a five-pointed star with flaps on the lower two points, which, when folded back, provided a stand; in a circle on the face of the star was a picture of a Hollywood personality, and impressed over the picture was a phonograph recording of his voice. No argument was made as to the registrability of the claim on the basis of the photograph since the plaintiffs sought protection solely for the device itself. The Register's motion for summary judgment, on the ground that the device was not a "work of art" within the meaning of the Copyright Act, was sustained by both the district and circuit courts.

The last mandamus action brought against the Register involved both the manufacturing clause and the ad interim provisions. In Hoffenberg v. Kaminstein, an English-language edition of the book "Candy" was first published in France in 1958, probably due to the fact that the obscenity standards applicable at that time would not permit American publication. In 1964 those standards had liberalized sufficiently to permit publication of an American edition. In 1965 registrtaion was sought for both the French edition, under the ad interim provisions, and the American edition, without any statement of the new matter in the latter edition. Registration of both claims was denied by the Register. The French edition was not registrable under the ad interim provision because registration had not been made within the statutory six month period following first publication. Registration of the American edition was denied on the ground of a Copyright Office regulation which required books and periodicals first published abroad in the English language to comply with the ad interim provisions before domestic registration could be considered, unless the claim was limited to new matter.28

Subsequently, an action was brought against the Register to compel registration of the American edition. In both the district court and the circuit court the Register prevailed. In a per curiam opinion of the District of Columbia Court of Appeals it was pointed out that a regulation "is presumptively valid and ordinarily should be upheld unless it is inconsistent with the statute." The opinion went on to say that the regulation was consistent with the pertinent sections of the Copyright Act and that it accurately reflected the intent of Congress. B. The functioning of the Copyright Office and the separation of powers concept While the Copyright Office is given significant administrative duties under the 1909 Act, it is by no means the only government agency having responsibilities in the copyright area. Enforcement of the criminal provisions of the Act are assigned to the Justice Department as is constitutionally required by the law enforcement clause of Article II. In addition, the Justice Department represents the Copyright Office in court proceedings involving the Register which include compliance actions under Section 14 and mandamus petitions.

Another Executive Agency having considerable administrative responsibilities under the Copyright Act is the U.S. Customs Service of the Treasury Department. Section 106 of the Act prohibits the importation of materials bearing a false notice of copyright or works which are pirated editions and Section 107 establishes importation prohibitions against works not complying with the manufacturing requirements. Enforcement of these provisions is the responsibility of the Customs Service.

From this sketch of governmental responsibilities under the Copyright Act it is apparent that there is a mixture of authority which is similar in fashion to the interrelationship between the three branches of government under the Constitution. Under such a copyright system no one agency can determine government policy in all areas of copyright matters thereby establishing a checks and balances system tending to mitigate against arbitrary action.

In enforcing its assigned duties under the 1909 Act the Copyright Office must

25 Id. at 911.

29258 F. 2d 425 (D.C. Cir. 1958).

396 F. 2d 684 (D.C. Cir. 1968). 28 37 C.F.R. § 202.4(b) (1967). 29 Hoffenberg, supra note 27 at 685. 30 17 U.S.C. § 104 (1974).

occasionally work closely with the Executive Departments of Justice and Treas. ury. Being administratively located within the Library of Congress, however, it is clear that the Copyright Office can not be thought of as being part of the executive branch which, to some, might raise the question of whether such a placement is constitutionally permissible.

In order to analyze this important issue two related questions will be examined. First, the narrow question will be discussed of whether an agency exercising the powers of the Register of Copyrights must be placed in the Executive Department. Second, if the answer to the first question is no, a broader inquiry will be made whether there are any constitutional principles which would prohibit Congress from placing the Copyright Office within the Library of Congress.

1. Must an agency exercising the powers of the Register of Copyrights be placed within the Executive Department?

In order to answer this question it is clear that the Myers-Humphrey-Wiener line of cases establish the applicable principles. In administering its responsibilities it is clear that the Copyright Office performs a quasi-judicial function. In determining registrability of claims to copyright the Register is to apply the standards established by statute and a certificate of registration serves as prima facie evidence of the facts stated therein. Moreover, decisions of the Register are directly reviewable by the federal courts through mandamus petitions.

32

In exercising his discretion it is clear that the Register is to exercise independent judgment, ultimately relying on the law itself to determine decisions in individual cases. In situations where the law is ambiguous, it would clearly be proper for either Members of Congress or governmental officials from the Executive Branch to offer opinions as to the proper practice. In situations where the law is clear, however, it would certainly be improper for any official to instruct the Register of Copyright to perform in a way contrary to statute.

Having established that the Copyright Office is an independent agency exercising quasi-judicial functions it is clear that the first question is governed by the Wiener case. Since the Register of Copyright exercises no executive functions established by Article II of the Constitution, the Copyright Office does not have to be placed within the Executive Department.

2. Are there any constitutional principles which would prohibit the Congress from placing the Copyright Office in the Library of Congress?

It is clear from the Humphrey-Wiener decisions that only Executive functions precisely enumerated in Article II of the Constitution are required to be located in the Executive branch. In this way the application of the separation of powers concept as it relates to Executive powers is limited to those powers specifically set out in the Constitution. Clearly, if the separation of powers doctrine has been limited in a similar fashion over all aspects of constitutional jurisprudence, then there can be no objections to placing the Copyright Office within the Library of Congress since the functioning of such an agency has not been assigned to any of the three branches of government.

33

One of the clearest Supreme Court decisions in setting out the theoretical basis of the separation of powers concept was Williams v. United States, which discussed extensively the power of Congress to establish judicial power outside the scope of Article III of the Constitution. The facts of this case are relatively simple. The plaintiff, a judge of the Court of Claims of the United States, had grown comfortably accustomed to receiving his yearly salary of $12,500. When the Comptroller General reduced his compensation to $10,000 per annum, the judge objected on the ground that Section 1 of Article III forbad such action. The Comptroller defended the reduction on the ground that the Court of Claims was a "legislative court" and hence outside the judicial power as established by Article III.

Citing a long line of cases establishing that territorial courts were properly considered "legislative courts" and therefore outside the provisions of Article III, the Supreme Court concluded that a similar characterization must be made of the functioning of the Court of Claims. Once having determined that the judicial power of the Court of Claims was outside the scope of Article III, it

31 Bouvé, supra note 22. 32 17 U.S.C. 209 (1974). 33 289 U.S. 553 (1932).