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naturally followed that the provision of that Article forbidding a reduction in compensation was inapplicable. **
In reaching its decision on the objections raised by the plaintiff, Mr. Justice Sutherland dealt in a precise fashion with the concept of separation of powers. While acknowledging the significance of the doctrine, the Judge clearly limited its application to those powers “definitely assigned by the Constitution." In establishing this standard Mr. Justice Sutherland used the following language:
"The view under discussion—that Congress having consented that the United States may be sued, the judicial power defined in Art. III at once attaches to the court authorized to hear and determine the suits--must, then, be rejected, for the further reason, or, perhaps, what comes to the same reason differently stated, that it cannot be reconciled with the limitation fundamentally implicit in the constitutional separation of the powers, namely, that a power definitely assigned by the Constitution to one department can neither be surrendered nor delegated by that department, nor vested by statute in another department or agency. And since Congress, whenever it thinks proper, undoubtedly may, without infringing the Constitution, confer upon an executive officer or administrative board, or an existing or specially constituted court, or retain for itself, the power to hear and determine controversies respecting claims against the United States, it follows indubitably that such power in whatever guise or by whatever agency exercised, is no part of the judicial power vested in the constitutional courts by the third article. That is to say, power which may be devolved, at the will of Congress, upon any of the three departments plainly is not within the doctrine of the separation and independent exercise of governmental powers contemplated by the tripartite distribution of such power 8.” 35
Applying the standards advanced by Mr. Justice Sutherland, it is clear that the quasi-judicial powers of the Copyright Office regarding administration of the registration system have not been “definitely assigned to any department under the Constitution." Therefore, the doctrine of separation of powers is not applicable and the quasi-judicial power of the Copyright Office "may be devolved, at the will of Congress, upon any of the three departments."
As a result of the limited application of the separation of powers doctrine, as firmly established by the Supreme Court precedents, coupled with the century old tradition of administering the registration system of copyrights within the Library of Congress, it is clear that constitutional objections to the placement of the Copyright Office are without foundation.
III. THE IMPACT OF THE SEPARATION OF POWERS CONCEPT ON COPYRIGHT REVISION
Presently before Congress is a Copyright Revision Bill which, if passed, will completely replace the outdated 1909 Act.87 Like the copyright law presently in effect, the Revision Bill would divide the administration of the copyright law among several governmental authorities. The Executive Department would have essentially the same functions as under the present law, i.e. enforcement of the criminal and importation provisions. The Copyright Office would continue its administrative responsibilities of registering claims to copyright but with several significant modifications. In addition, the Register of Copyrights would have a new responsibility in constituting the Copyright Royalty Tribunal, a new governmental authority designed to review periodically compulsory licensing rates and to resolve disputes involving distribution of royalty fees.
From this sketch of the division of governmental authority under the Revision Bill it is clear that the new law would retain the advantages of the 1909 Act
34 This result was subsequently modified in Glidden Co. v. Zdanok, 370 U.S. 530 (1962) which arose after Congress had statutorily declared that the Court of Claims was to be considered an Article III court. None of the seven judges participating in the decision, however, advocated changing the Williams approach regarding the separation of powers concept. Thus, the tradition of limiting the application of the doctrine to those powers specifically articulated in each Article remained unimpaired by the subsequent modification of the status of the Court of Claims.
$5 Williams, supra, note 33. p. 580–581 (emphasis added).
36 Congress originally designated the Library of Congress as responsible for the administration of the registration system in the Copyright Act of 1870, 16 Stat. 212. In the 1909 Act which subsequently followed, the Register of Copyrights was substituted for the Librarian of Congress as the official primarily responsible for the administration of the conyright system. The Copyright Office, however, remained within the structure of the Library of Congress. During this century-long period, no constitutional questions were ever raised over improper location of these administrative functions.
37 S. 22, 94th Congress, 1st sess. (1975); H.R. 2223, 94th Congress, 1st sess. (1975).
in mitigating against arbitrary governmental action by mixing power among several agencies. However, due to the modification of the functioning of the Copyright Office, coupled with the creation of the Copyright Royalty Tribunal, a new analysis must be made regarding the impact of the separation of powers concept on these two entities. A. The functioning of the registration system by the Copyright Office
Under the Copyright Revision Bill deposit of copies and registration of claims to copyright would be treated as separate though closely related requirements. Deposit of published material for the Library of Congress would remain mandatory with the Register of Copyrights authorized to demand compliances Registration of a claim to copyright, on the other hand, would be permissive although registration would generally remain a prerequisite to bringing an infringement suit in federal court." In cases where the Register has refused registration, however, the copyright claimant would be entitled to institute an infringement action, provided the Register was notified of the complaint.“ Since the refusal to register would no longer serve as an absolute bar to federal court, the need for a mandamus action would be eliminated.
Despite these significant changes in the deposit and registration provisions, it is clear that essentially the functioning of the Copyright Office in administering the registration system would remain the same as under the present law. In determining the registrability of a claim the Register would ascertain that "the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met...." 4 The certificate of registration is to be accorded prima facie evidence of the facts stated therein as long as registration is made within five years after first publication.“ Where registration occurs after that time, the probative value of the certificate would be subject to judicial discretion. Finally, the Register of Copyrights would be authorized to establish regulations to assist in the carrying out of his responsibilities.“
From the nature of these provisions it is clear that the maintenance of the registration system would remain a quasi-judicial function. Determination of registrability of a claim is purely a legal question and a refusal to register is reviewable in federal court by instituting an infringement action with notification of the action to the Register. Since Wiener clearly established that agencies performing quasi-judicial functions need not be placed in the Executive Department, no change in the location of the Copyright Office would be required by passage of the Revision Bill with respect to the registration system. B. The Copyright Royalty Tribunal
Under the present Revision Bill, a Copyright Royalty Tribunal would be established in the Library of Congress for the dual purpose of adjusting the compulsory licensing royalty rates and settling disputes concerning distribution of royalty fees deposited with the Register of Copyrights (except for the mechanical reproduction of music). In order to establish the membership of the Tribunal, the Register would ask the American Arbitration Association or a similar successor organization to furnish a list of three potential arbitrators. The Register would then communicate the proposed names to all known parties of interest who would be permitted to submit written objections to any or all of the proposed names. If no objections were received, or if the Register determined that the objections were not well founded, he would certify the appointment of the three arbitrators. If the Register decided that the objections were well founded, on the other hand, he would request the American Arbitration Association to propose the necessary number of substitute individuals.
In order to discuss the constitutional issues associated with the establishment of the Copyright Royalty Tribunal, it is necessary to analyze the nature of the Tribunal's functioning in its two areas of responsibility-royalty rate adjustment and dispute settlement over distribution of collected royalties.
1. Adjustment of royalty rates
In reviewing certain compulsory licensing royalty rates in order "to assure that such rates are reasonable,” it is clear that the Copyright Royalty Tribunal performs a quasi-legislative function. Although administrative agencies performing such tasks are usually located in the Executive Department or are independent royalty agencies, it is clear from the Humphrey case that such placement within the Executive Branch is not a constitutional requirement.
The power of Congress to delegate certain of its responsibilities has been established law since Chief Justice Marshall delivered the opinion of Wayman v. Southard.45 In that case the issue was raised whether it was an unconstitutional delegation of legislative power for Congress to authorize the Judicial branch to adopt rules of civil procedure. In answering in the negative, Marshall said that: "It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” 18
As to the proper bounds of the authority of Congress to delegate, the Chief Justice frankly noted : "the difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." 67
In addition to delegating legislative powers to both the Executive and Judicial branches, Congress has on occasion delegated quasi-legislative powers to independent regulatory agencies. The first such agency established under federal law appears to be the Interstate Commerce Commission whose rate making authority was affirmed as a constitutional delegation of power in Intermountain Rate Cases. A similar result was achieved in First National Bank v. Union Trust
involving the power of the Federal Reserve Board to authorize national banks to serve as trustees.
Finally, even delegation of quasi-legislative powers to private individuals has been upheld in certain cases. In St. Louis & Iron Mountain Ry. v. Taylor, so the validity of a federal statute was affirmed which delegated to the American Railway Association the authority of determining the standard height of draw bars for freight cars and to certify the figure to the Interstate Commerce Commission which was required to accept it. Similarly, a federal statute providing that restrictions upon the marketing of tobacco become operative only upon a favorable vote by a prescribed majority of those persons affected was upheld in Currin v. Wallace.
From these Supreme Court precedents it is clear that there are no general constitutional prohibitions preventing Congress from delegating quasi-legislative power to whomever it chooses. Naturally, not all delegations of legislative power will be constitutional. The test, however, it not based on the nature of the legal authority receiving the power, (whet] the authority is in the legislative, executive, or judicial branches, or whether it is an independent agency or private individual), but rather, whether the legislative power has been delegated “under a limitation of a prescribed standard." 69
In ascertaining whether the minimum "standards” as required by the Constitution have been met, Chief Justice Taft established the following guideline: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.
." * Judging from the fact that the Supreme Court has declared only two acts of Congress unconstitutional for failing to meet this test, however, it is clear that standards of a very general nature have frequently been upheld." Thus, passing the "intelligible principle" test have been such general formulations as "just and reasonable," 85 "public
43 23 U.S. 1 (1825). 48 Id. at 41. 47 I 1. at 42. 48 234 U.S. 476 (1913). 40 244 U.S. 416 (1916). 50 210 U.S. 281 (1908). 611 306 U.S. 1 (1939). F2 United States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 281 U.S. 311, 324 (1931). 53 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
* The Constitution of the United States of America, Prepared by the Congressional Research Service, Library of Congress, p. 69 (1973).
6 Tagg Bros. & Moorhead v. United States, 287 Ú.S. 420 (1930),
..) 87 “unfair methods of competition,”
,"58 and "excessive profits." bø Comparing the standards establishing the bounds of authority of the Copyright Royalty Tribunal in adjusting the royalty rates with standards in other federal statutes which have been declared constitutional, there appears to be no question that the delegation of rate-making authority to the Tribunal is well within the constitutional powers of Congress. Established as the general standard in determining rate adjustment is the test of "reasonableness.” This standard, standing alone, was held to be constitutionally sufficient in Tagg Bro8. & Morehead v. United States.co
Providing even more significant guidance to the Copyright Royalty Tribunal than the general reasonableness standard, however, is the fact that Congress will initially set the compulsory licensing fee. Such a clear Congressional indication as to the nature of a "reasonable rate" is unusual in statutes delegating ratemaking power and may provide some guidance for the Tribunal.
Finally, if the rate is adjusted by the Tribunal it will not take effect until 90 days after the rate change has been reported to both Houses of Congress. If either House of Congress adopts a resolution during this 90 day waiting period stating that it does not favor the adjustment, the change will thereby become ineffective. This procedure of Congressional review before an adjustment can take place was patterned after several federal statutes such as the Reorganization Act of 1939,62 and the Postal Revenue and Federal Salary Act of 1967.* Through this method it is assured that the findings utilized by the Copyright Royalty Tribunal will be directly scrutinized by Congress before the adjustments become effective.
In summary, there are no constitutional problems over delegating to any agency such as the Copyright Royalty Tribunal the quasi-legislative power of reviewing statutory licensing fees in order to insure reasonableness. There are no authorities requiring such an agency to be placed in the Executive Department and the standards establishing the bounds of the Tribunal's discretion are clearly within the Supreme Court precedents. (2) Settling disputes over distribution of compulsory licensing royalties collected
by the Register of Copyright Under the Revision Bill as it is presently constituted, the Register of Copyrights would collect the compulsory licensing fees from cable transmission of broadcast programs and the performance of musical compositions by juke box operators. If the Register determines that no controversy exists over the distribution of the royalties, the money collected will be divided among the claimants. If a controversy does exists, however, the Register will constitute the Copyright Royalty Tribunal to arbitrate the dispute.“
In settling disputes between private parties over distribution of copyright royalties, the Copyright Royalty Tribunal performs a quasi-judicial function in much the same manner as the War Claims Commission settled war obligations in the Wiener case. Since Wiener established that such an agency need not be placed within the Executive Department, the locating of the Copyright Royalty Tribunal within the Library of Congress raises no problems.
IV. CONCLUSION In summary, it is clear that the framers of the Constitution embraced the separation of powers concept to prevent any one branch of government from acquiring complete dominance over all governmental affairs. The doctrine, however, was always intended to be flexibly applied so that the process of government could be efficiently carried out without pointless disputes over precise boundary lines of authority. Recognizing this fact, the Supreme Court has carefully limited the application of the separation of powers doctrine to those powers specifically enumerated in the Constitution. Any other result, would have greatly limited the
# New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).
capacity of American government to forge new solutions to problems which never could have been imagined by members of an eigtheenth century society.
If the Copyright Revision Bill ultimately secures passage in approximately the same form as is presently before Congress, a Copyright Royalty Tribunal would be created with independent, quasi-legislative and quasi-judicial powers to assist in the administration of a compulsory licensing system. Since compulsory licensing of copyrighted works was unknown to our founding fathers, it is not surprising that the Constitution fails to specify the location of an agency exercising the authority of the Tribunal. Under such circumstances, it is clearly within the authority of Congress to determine, within its own discretion, what placement of the Tribunal will best serve the public interest.
Washington, D.O., September 22, 1975.
DEAR MR. KASTENMEIER: This is in reference to H.R. 7149, a bill to amend title 17 of the U.S. Code with respect to registration for unpublished works and to increase the fees of the Copyright Office, and for other purposes. You introduced H.R. 7149 on May 20, 1975 at the request of the Librarian of Congress and the Copyright Office.
I am writing to urge separate enactment of this badly-needed measure as soon as possible, and apart from the bill to effect a general revision of the copyright law (H.R. 2223). It is, of course, true that H.R. 2223 is under active consideration, and that it incorporates all of the provisions of H.R. 7149. However, I believe that advance enactment of H.R. 7149 would greatly aid the Copyright Office in administration of the present statute and eventual implementation of the revised law.
As the Acting Librarian of Congress, John Lorenz, explained in his letter to Chairman Rodino requesting introduction of H.R. 7149, the last increase in the fees of the Copyright Office occurred in 1965. We are all too familiar with the inflationary spiral of the last decade. I share the philosophy that Copyright Office fees should never be so high as to discourage registration or to impose an economic burden on creative individuals. However, the ratio of expenses recovered by reg. istration fees to costs has fallen so low (approximately 40 percent in fiscal 1975), that we have been compelled by economic realties to propose the increases set out in H.R. 7149.
I am confident that the general revision bill will be enacted during the current Congress. This will involve enormous changes in the copyright law and the copyright system, and as a practical matter the effective date of the omnibus legislation will need to be at least one year after enactment in order to plan and prepare for implementation of the law. Thus, assuming the revision bill is enacted next year, the fee schedule of the bill would not go into effect until approximately January 1, 1978. On the other hand, if H.R. 7149 could be enacted this year, and assuming it provides a six-month period for implementation, we would start receiving the additional fees by the middle of next year, at least 18 months before the effective date of the revision bill.
In addition to the new fee schedule, H.R. 7149 contains several other important proposals, which Mr. Lorenz discussed in his letter to Chairman Rodino. Among these are proposals to eliminate the present barrier to unpublished registration for a large number of works, principally book material, and to permit a single registration for a group of contributions to periodicals by the same individual authors under specified conditions. These proposals in particular have the support of the Authors' League of America and I understand that enactment of H.R. 7149 is favored by the Authors' League because of these proposals.
Regarding the latter proposal, I call to your attention an inadvertent omission in the bill as submitted to you by the Library of Congress and the Copyright Office. On page 3, at line 23 of H.R. 7149 the word "individual” should be inserted between “same” and “author.” A similar correction should be made on page 4, at line 18.
A particularly important advantage of early enactment of H.R. 7149 would be the headstart it would give us in implementing some of the procedural changes called for by general revision. We are now registering well over 400,000 claims each year, and even minor changes in the formal processing of applications cause