The Administrative Law of Copyright

Here’s a paper that I don’t have time to write: The Administrative Law of Copyright.

Over the last couple of years, a number of academics have written about pieces of this issue. Off the top of my head, for recent work I count Julie Cohen and Dan Burk on fair use; Mark Lemley and Tony Reese on file sharing; Tim Wu on regulatory copyright; Lydia Loren on the music industry; and Joe Liu on regulation. There is Larry Lessig’s proposal regarding a maintenance fee for extended copyrights. Jacqui Lipton has just posted a new article to SSRN, emphasizing fair use.

There are different threads floating around. Some are emphasizing the idea that the structure of copyright law is predominantly regulatory, a thesis that is manifested both at the level of core doctrine, and through compulsory and statutory licenses. Some are exploring the administrative law issues surrounding the Copyright Office itself. Some are proposing administrative solutions to specific copyright law controversies, especially those involving fair use. And there are those who see risk for copyright law in administrative creep from other domains — the broadcast flag proceeding before the FCC, for example, and the growing role of the Justice Department in defining “piracy” for criminal law purposes.

Can the threads be woven together, under the theme that one of the core issues for copyright law is its institutional setting? Historically, copyright law was passed by the legislature, and it was interpreted by the courts. Now, we have a blended system. The law is passed by the legislature, and it is interpreted by both the courts and the Copyright Office. Recognizing the complex political and administrative impulses that lie behind recent activity at Justice and the FCC, should we take the next step, and re-design the institutions of copyright law to bring them into line with the other institutions of the modern welfare state? (We could do this with patent and trademark, too, or we could simply bring copyright into line with patent and trademark.) In either case, by making copyright an authentic administrative institution, we might limit inter-institutional poaching, and increase rulemaking flexibility. To save copyright for the 21st century, we might have to kill the copyright left over from the 20th century.

If we were to do so, what would those institutions (or that institution) look like? This isn’t a brand new topic. Reorganizing the Copyright Office, perhaps to combine it with the Patent & Trademark Office, is a proposal that has been floated before. There are political considerations to deal with. Where would the institution fit, organizationally? There are administrative law issues. What authority would it have? How about substantive rulemaking authority? Various authors have suggested an advisory opinion mechanism for fair use questions, similar to the opinion letter mechanism that exists for SEC and IRS matters. Would the new Office have enforcement authority, or do we need to figure out how courts in later litigation would treat fair use opinion letters? There are international issues; an administrative copyright institution couldn’t be in the business of issuing copyrights.

I know none of the answers, and my initial reaction here is to be skeptical of the whole enterprise. But the topic is worth more detailed exploration.