Going back to first principles: the exclusive rights of authors reborn.

• Author: Oman, Ralph

1. Introduction

   Let's go back to the beginning. To explain the development of the law my old boss, Senator Charles Mathias of Maryland, the legendary former chairman of the Senate Subcommittee on Patents, Copyrights and Trademarks, invoked a compelling metaphor. He went back 10,000 years when Europe was emerging from the Ice Age. He explained that without a well-developed concept of real estate law, our cave-dwelling ancestors had to sit in their caves continuously to assert ownership. So there developed the concept of title in real property, and the cave dweller could leave the cave to hunt or fish and then reclaim the cave at the end of the day. That was real property law.

   Later, in biblical days, the notion of personal possessions was not well developed. People had to keep their property within their physical control at all times, or they would lose it. A shepherd had to keep his herd under his watchful eye. If a ram wandered over the hill and joined the flock of another shepherd, the original owner had no way to reclaim it. So there developed a system of branding, and a legally enforceable right to retrieve the ram that had strayed from the fold. That was personal property law.

   Then came the ownership of intangible ideas and artistic and literary creations. Before patents and copyrights, authors and inventors had to keep physical control over their works. They locked them in their desk drawers, and they shared them only with trusted friends or gave them to patrons. Or, like Sir Francis Bacon, they organized secret research societies to allow the select few to pool their collective knowledge and keep their discoveries to themselves, not a good way to promote the progress of science. After we adopted patent laws and copyright laws, authors and inventors could finally take their music and poetry and scientific tracts and breakthrough ideas out of their desks and laboratories and share them with the world at large without fear of losing control of them forever. That was intellectual property law. This legal innovation changed the course of music, science and literature, and triggered the industrial revolution, the mass production of books, and universal literacy.

   With this history in mind, the drafters of the Constitution adopted the patent and copyright clause:

   The Congress shall have Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (1) The clause does not define the scope of protection, but, instead, suggests that Congress can protect whatever it wants, however it wants. Article I, Section 8, Clause 8 doesn't require Congress to enact patent and copyright laws, but it gave Congress the authority to exercise this power and to determine their scope in ways that to them would most likely "promote the Progress of Science." (2)

   A key feature of the clause is the "the exclusive right," which provides the constitutional basis for Congress to grant authors and inventors an exclusive property right to the fruits of their intellectual labors. (3) In this context, the phrase "exclusive right," like Clause 8 itself, indicates broad authority, rather than a requirement. (4) Congress could grant an absolutely exclusive right under the Constitution if it wanted to, but it is not required to do so. It could give something less if, in its judgment, that would best promote the constitutional purpose.

   Let's focus on the copyright side of the equation. In the 1790 Act, Congress used that authority to grant absolute exclusivity to the authors of books, maps and charts. (5) Over the years Congress whittled away at the concept of exclusivity and both the 1909 Copyright Act and, with a vengeance, the 1976 Act, provide for broad compulsory licenses. (6)

   At 25 pages in length, the 1909 Copyright Act could comfortably fit in one's pocket without disturbing one's profile. (7) It contained only one explicit limitation on a copyright owner's otherwise exclusive power to grant (or to decline) a license for the use of a copyrighted work. (8) The "mechanical compulsory license" (9) gave all performers and record companies a compulsory license to make a recording of a musical work as soon as the songwriter or music publisher had authorized another performer or record company to make a recording of the music. (10) Congress enacted this restriction on authors' rights out of fear that the few existing record companies would monopolize the market for "mechanical reproduction rights" if it were left unregulated. (10)

   This compulsory license and those that followed owed their creation to the combination of (1) a desire to capture royalties from new technological uses of copyrighted works, (2) the perception that the marketplace could not cope with private negotiations because of the great number of very small transactions, the so-called market failure rationale, and (3) a fear that a purely private negotiation for those uses would result in a monopolized market, with artificially high prices, restricted output, or reduced public access to works of authorship. As technology has ratcheted forward, we have regularly discovered new ways to use copyrighted works, and, almost always, we have commercially exploited them. That exploitation has almost always been well underway before Congress got around to updating the law to make clear that copyright would govern the new use. (11)

   If one examines the history of United States copyright law in the 20th century, it becomes clear that however long it takes Congress to extend copyright to the new technological use, (12) that relief will likely appear in the form of a limited right to remuneration rather than a "classical" grant of complete copyright rights.

   I would like to examine, briefly, why Congress cut back the exclusive right, and why, because it did so, the copyright law has ballooned from 25 pages to 279 pages in less than 100 years. Last, I will discuss what Congress can do about it.

   Professor Pam Samuelson, in her recent article advocating top-to-bottom copyright reform, (13) has a few choice words for the current statute: they include "turgid;" (14) "hodgepodge;" (15) "an obese Frankensteinian monster;" (16) and "bloated and ugly." (17)

   I agree with her choice of words.

   Somewhere in this favored land a copyright Pooh-bah really understands Section 111 (18) (eight pages covering secondary transmissions by cable), Section 114 (19) (18 pages covering the scope of exclusive rights in sound recordings and, now, webcasting), Section 115 (20) (almost seven pages covering the compulsory license for making and distributing phonorecords, including digital delivery), and Sections 119 (21) and 122 (22) (almost 17 pages covering secondary transmissions by satellite). The current Register of Copyrights, Marybeth Peters, has stated publicly that there are large chunks of Section 114 that are utterly incomprehensible to most people, because over the years Congress has spliced and diced them, and then hemstitched them back together.

   What to do?

   To streamline and simplify the law, Professor Samuelson urges Congress to deep-six the current statute and draft a completely new one. She proposes that Congress give much greater rulemaking power to the Register of Copyrights and, in that way, avoid all of the industry-specific exceptions that now clutter Title 17 and make it a mare's nest of confusion. (23)

   I share her concern and applaud her objective. Even so, I wonder if her solution would work in practice. Marybeth Peters, the current Register, has the full support and respect of key members of Congress. But it is always difficult for an unelected government official to make and enforce major administrative changes. The Register could formulate a just and balanced solution to the music licensing conundrum, for instance, but does she have the political horsepower to make it stick? Will an aggrieved player in the music licensing drama who feels wronged run to allies in Congress to get the Register's carefully balanced compromise overturned legislatively?

   Instead, I would propose another path to the same end: a revival of the exclusive right.

2. Discussion

   Let me review the difficult birth of the 1976 law. (24) We all know that a variety of technology-related issues prevented Congress from quickly completing the process of modernizing the copyright law soon after publication of the Copyright Office's initial report recommending revision. (25) The Office prepared that report in 1961, fifteen years before Congress...