Copyright Rulemaking: Past as Prologue

Abstract

In deciding what rulemaking authority the Copyright Office should have, it may be helpful to take a close and careful look at how the Office has historically exercised its rulemaking powers. This article undertakes this task and makes a number of observations: (1) the Office’s rulemaking activity increased dramatically after passage of the 1976 Act; (2) the rules issued fall into a number of identifiable categories; (3) by far the largest category consists of rules administering statutory licenses set forth in the Act; and (4) the smallest category consists of precisely the kinds of substantive rules that some commentators propose the Copyright Office issue in the future. While Congress may, of course, change the balance of copyright regulation in the future, this Article argues that any future delegations of substantive rulemaking authority must take into account the fact that the Office’s regulatory efforts to date have largely involved a very particular and unique kind of rulemaking, one that focuses on administering legislative compromises between large industries rather than on furthering specific copyright policies. Care must be taken to ensure that this unusual regulatory perspective does not unduly influence or affect future substantive rulemaking.