The Copyright Royalty Tribunal has gotten a lot of publicity lately, all of it bad. Marianne Mele Hall, the chairman, was forced to resign after working on a book that says blacks in America "insist on preserving their jungle freedoms."
The two remaining commissioners -- Edward Ray and Mario Aguero -- are Republican Party activists with no previous experience in copyright law. President Reagan's most recent nominee, Rose Marie Monk, has nothing in her background to suggest she knows the difference between a copyright and a trademark. For most of the last six years, she has been an aide to the president's longtime political adviser, Lyn Nofziger.
It would therefore be comforting to report that these appointees are supported by an expert staff. The tribunal, after all, is charged with a specialized mission: setting royalty fees for cable systems and then dividing the royalties among copyright holders, such as movie companies, TV producers and sports interests. Unfortunately, the CRT has never hired an accountant or an economist and only recently hired its first staff lawyer.
The U.S. Court of Appeals has chastised the CRT for its poorly reasoned opinions. Hall conceded, in congressional testimony, that her fellow commissioners often failed to show up for work. Sen. Charles Mathias has said that the White House considers the CRT a useful place to put some otherwise embarrassing applicants for jobs.
The problems at the CRT are symptomatic of the plagues of copyright law. The Copyright Act tries to provide economic incentives to creators, while protecting the public's interest in the widest possible dissemination of ideas. Though copyright law was devised to deal primarily with writers, composers and artists, major industries are growing up around new forms of expression -- video cassettes, computer programs, data bases and microprocessors. Each industry presents special problems that should be resolved quickly, so the creative proc, precedent- based legal atmosphere. Yet copyright law lags far behind these technological changes.
The main problem is that responsibility for copyright law is widely dispersed. The CRT shares authority with Congress, which is preoccupied with admittedly larger issues; the courts, which are too slow; and the Copyright Office, which like the CRT has too little power. We believe that responsibility for copyright should be vested in a new Federal Copyright Agency.
Right now, major copyright issues are battled back and forth between Congress and the courts. For Congress the challenge is to write an enduring statute despite all the other demands on a legislator's time. The sponsor of a copyright bill attracts a little media attention and probably no popular support for reelection back home. Yet the legislator who undertakes the job must become expert in one of the most tangled areas of law, all the while contending with aggressive special interests.
The difficulty is compounded by Congress's belief that it must write a painstakingly detailed statute. The Copyright Act, for example, prescribes the exact fee that jukebox owners must pay when they submit their annual copyright applications. This kind of arcana is usually found in footnotes to the Federal Register.
Predictably, Congress rarely gets around to revising the copyright statute. Despite rapid change in the nature of copyrighted works, the most recent statute was enacted in 1976; the previous statute was enacted in 1909.
The courts, meanwhile, must apply an antiquated statute to products that did not even exist when the law was written. If you pick up a New York Mets game on your home satellite dish, should you also pick up part of Dwight Gooden's salary? If you rent "The Godfather" at your local video store, should Mario Puzo receive royalties? Since the Copyright Act was written when your video store was still a laundromat, the courts are in a quandary. The slow pace of litigation exacerbates the problem.
Congress could improve matters by writing a single law. The law would create a Federal Copyright Agency with all-encompassing jurisdiction over copyright. The new agency would have broad adjudicative and administrative powers, like the Federal Communications Commission. Since creating the FCC in 1934, Congress has had to make only moderate revisions to the Communications Act. The act has survived radical innovation in communications and technology -- the same changes that are now paralyzing copyright law.
The Federal Copyright Agency would relieve Congress of the need to pass detailed legislation. By adopting new rules, the agency could address specialized problems more quickly than either Congress or the courts. By issuing declaratory opinions, before a dispute arises, the FCA could reduce the number of infringement lawsuits. And with the aide of an experienced staff, the FCA could handle routine regulatory issues, freeing Congress to set policy. Congress could safeguard its policy by overseeing the FCA and by enacting corrective legislation when needed.
The FCA should have the power to adopt compulsory licensing when negotiations between creators and distributors would be impractical. Compulsory licensing, for example, would allow cable TV systems to carry "The Cosby Show" without having to negotiate with the producers, writers and musicians who create the show. Instead, each cable system would pay a semi-annual fee to cover all of the copyrighted programs it carried over the previous six months.
Finally, the FCA would be authorized to resolve individual copyright disputes. Today, every controversy over copyright law winds up in federal court. The high cost of litigation keeps many legitimate products out of the marketplace, since entrepreneurs are afraid of being sued. At the same time, some copyright holders, such as college professors or struggling screenwriters, cannot afford to assert their legitimate rights. By giving the FCA first crack at deciding copyright cases, disputes could be settled more quickly and economically.
These days, it is more fashionable to abolish a federal agency than to create one. But given the weaknesses of the current system, we believe that an expert agency is needed to meet the demand for rapid innovation in the administration of copyright law.