rates of the television station and ultimately paid by the consumer (including the cable subscriber) as part of the price paid for an advertised product. Cable, rather than a detriment, is a benefit to both the broadcaster and the copyright holder. By providing clearer reception and in many instances greater local area distribution, the cable operator enhances the value of advertising on the local television station and, in turn, the value of the copyrighted work.

Cable systems choosing to retransmit other than local signals should pay a copyright fee for distant programming imported. An exception should be provided, however, for a cable system operating in an area which has no real local signals and where all the signals carried are thus distant signals.

A copyright holder should receive a fee for the carriage of the copyrighted work on å distant cable system. It is not unfair for the cable subscriber to pay a fee for the reception of additional and more diverse programming; but if a fee is paid, the subscriber's viewing opportunities should not be limited by federal regulations. FCC rules currently restrict the distant signals which may be imported by a cable system. These limitations on distant signal importation should be removed.

Copyright payments should be related to the number of imported signals. For example, cable systems retransmitting four or less distant signals should be liable for minimal payments. Systems importing more than four signals should be charged a higher level of copyright payments. Such a scheme of payments would encourage the importation of distant signals to a point, and then encourage additional programming other than distant signals. It would also afford a modified protection for existing national broadcast patterns.

If distant signal importation restrictions are removed, however, a fair degree of protection should be afforded broadcast stations, who pay full copyright fees. A modified exclusivity should be adopted which would be limited to the right of first showing of any program which the station has purchased or which it receives from a network. After the first showing, a cable system should be permitted to retransmit the program without further restriction.

When a cable operator pays full copyright fees for programming, the operator's usage of this programing should not be restricted by FCC rules, other than in exceptional circumstances. For example, all federal restrictions on pay cable's showing of motion pictures should be immediately removed.

The premise underlying the principles set forth is that the cable subscriber should pay copyright fees only in exchange for greater viewing opportunities brought about by diminished federal regulation of cable television. If these federal regulations are not significantly relaxed, the Massachusetts CATV Commission urges that no copyright liability be imposed on cable television.

[Memorandum submitted by the Register of Copyrights]

THE EFFECT OF THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS ON THE COPYRIGHT REVISION BILL

(By Kent Dunlap, Attorney, Copyright Office)

I. THE CONCEPT OF THE SEPARATION OF POWERS

A. General theoretical basis

The theory of separation of powers, on which the Federal Constitution is based, is designed to divide the total power of government among autonomous organs, each one serving as a check on the powers of the others. Although this theory generally seeks to distinguish between law making, law enforcing, and law interpreting, there was purposely established an interrelationship between the legislative, executive, and judicial branches in order to augment the checks and balances theory of government. The Congress received the power to establish inferior courts, to scrutinize appropriations, and to approve certain Presidential appointments including nominations to the Supreme Court. The President was granted the power to veto legislation passed by Congress and appoint justices of the Supreme Court. The Judiciary secured the power to pass on Constitutional questions although much of this authority was derived after the adoption of the Constitution through case law.

Due to this intermingling of the functions of the three branches of government, it is clear that the principle of separation of powers was not meant to be an

inexorable table of organization which would strangle the process of government, but rather, a practical demarcation of powers which would prevent any one department from acquiring absolute authority. Professors Jaffe and Nathanson probably expressed this point best when they wrote:

“(I)t has always been recognized that each of the three organs of government shares its function in some degree with the others, the exact admixture differing widely from age to age. The Constitution itself mixes powers. The President participates in the formal legislative process. Madison wrote a classic paper in the Federalist defending the Constitution from the charge of impure mixtures of powers. He pointed to the English Constitution, which never knew a time when there was an absolute separation of powers.

"Beyond the formal constitutional arrangements our system has always involved each of the agencies in the work for which the others were typically responsible, the distribution of functions varying from era to era. A few examples illustrate the point. For many years the legislature-and only the legislature-granted divorces, a task now regarded as inherently judicial; the executive establishment made and still makes regulations for the enforcement of the tax system, adjudicated the incidence of tax, and levied jeopardy assessment; the judiciary issued price regulations and licensed liquor dispensers, a task now performed by executive or administrative agencies. And finally, the basic judicial process either by application of the common law or interpretation of statutes is, perhaps, as important an engine of law creation as any."1

Along similar lines Chief Justice Howard Taft characterized the doctrine of separation of powers in the following manner:

"Federal Constitution and State Constitutions of this country divide the governmental power into three branches... (I)n carrying out that constitutional division... it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to commonsense and the inherent necessities of the governmental co-ordination."

B. The constitutional basis of legislative power

Establishing the majority of the legislative powers of Congress is Article I, Section 8 of the Federal Constitution. Clause 8 of this Section empowers Congress to enact copyright legislaiton in the following manner:

"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;"

In order to carry out the enumerated powers of Congress the last clause of Section 8 authorized Congress "to make all Laws which shall be necessary and proper for the carrying into execution the foregoing powers . . ." Interpreting the scope of this clause Chief Justice Marshall's classic opinion in McCullock v. Maryland held that it was within the discretion of the lawmakers to select any means reasonably adapted to effectuate their legislative duties. At the heart of that opinion he wrote the following language:

"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we thing the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with letter and spirit of the constitution, are constitutional."

In enacting legislation pursuant to its enumerated powers Congress may not, of course, encroach on the executive discretionary powers specifically granted

1 Jaffe and Nathanson, Administrative Law, p. 3 (1968).

2 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

817 U.S. 316 (1819).

4 Id. at 421.

to the President in Article II. The scope and nature of powers of administrators not specifically established by the Constitution, however, is a matter for determination by the Congress. This principle was established in the case of Kendall v. United States, ex. rel. Stokes," which involved Congressional supervision of an administrator located in the executive branch.

The facts of the Kendell case were relatively simple. The United States owed one Stokes money which the Postmaster General, Kendell, at Andrew Jackson's instigation, refused to pay. Taking his case before Congress, Stokes secured passage of a special statute ordering payment. Kendell, however, still proved noncompliant whereupon Stokes brought a mandamus action against the Postmaster.

The Supreme Court rejected the argument that administering the function of the Postal Service was solely the affair of the executive branch and, as a result, affirmed the issuance of the mandamus by the lower court. In its opinion the Supreme Court made it clear that when the powers of the executive branch come in conflict with an enactment of Congress, the legislation prevails unless it encroachs on one of the specifically enumerated powers of the President. In establishing this principle the opinion set out the following rule:

"The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not, and certainly cannot be claimed by the president. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character." "

C. SCOPE OF POWERS IN THE EXECUTIVE

While the President is granted general "executive power" by the opening clause of Article II, this power has been interpreted by the courts as having specific limitations. In discussing the executive powers of the President, the authoritative Congressional Research Service study breaks down the executive authority of the President in the following manner:

"The Constitution does not say that the President shall execute the laws, but that he shall take care that the laws be faithfully executed," i.e., by others who are commonly, but not always with strict accuracy, termed subordinates. What powers are implied from this duty? In this connection five categories of executive power shall be distinguished: first, there is the executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive ('administrative') agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally there are so-called 'ministerial duties' which admit of no discretion as to the occasion or manner of their discharge."

From this statement it can generally be seen that the executive power of the President stems from two sources--the enumerated Constitutional powers of the President and the executive powers created by legislation of Congress. As a result, to the extent that the President can trace an executive function to the enumerated powers under the Constitution, his authority cannot be made subservient to the will of another branch of government. Where an administrative function is created through legislation of Congress, however, the nature of that function is a matter for Congressional determination.

37 U.S. 524 (1838).

Id. at 610 (emphasis added).

The Constitution of the United States of America, Prepared by Congressional Research Service, Library of Congress, pp. 549-550. s Humphrey's Executor v. United States, 295 U.S. 602 (1935).

Establishing the Constitutional executive authority is Article II which begins: "The executive Power shall be vested in a President of the United States of America." Following this general opening clause are enumerated several specific executive duties, such as acting as Commander-in-Chief, making treaties, appointing ambassadors, enforcing the law, etc. Collectively, these enumeral powers have generally been characterized by some courts as vesting authority in the executive department over "purely political matters," leaving unaffected the roles traditionally assumed by the two other branches of government."

While the enumerated powers in Article II give the executive department wide powers, no specific executive functions are created in the patent and copyright areas. Therefore, as a general rule it would appear that Congress is under no obligation to create executive authority overseeing the administration of legislation in these areas. The one exception to this general rule would appear to be in the enforcement of criminal provisions since the law enforcement clause of Article II constitutionally mandates the prosecution of criminal offenses to the executive department."

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D. The power of the Congress to create administrative agencies outside the executive department

Clearly the Congress has extensive power in determining the nature and scope of executive authority in administrative agencies. Once Congress decides, however, that an administrative agency should be established is it constitutionally mandated that the agency be placed in the executive department?

The first modern case to discuss this issue, Myers v. United States," appeared to answer this question in the affirmative. This case involved the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first class postmaster in the face of an act of Congress requiring the removal to be confirmed by the Senate. Speaking for the majority of a divided court, Chief Justice Taft declared the statute to be an unconstitutional encroachment on executive discretion and thereby upheld the removal as valid.

While the opinion could have limited the case to removal of purely executive officials, the Court did not restrict itself to the immediate issue before it. The Court went on the announce that the President had inherent constitutional power of removal of officials who have "duties of a quasi-judicial character . . . whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control." " This view of presidential power was deemed to flow from his constitutional duty of seeing that the laws be faithfully executed.13

The assertion that the executive department has inherent constitutional powers over all administrative agencies, no matter what the relation of the executive to the duties of the agency, was put to rest quickly in Humphrey's Executor v. United States." The material element of this case involved the removal by the President of Humphrey, a member of the Federal Trade Commission, in contravention of a federal statute which established a fixed term for Commissioners. In due course Humphrey sued for salary.

Speaking for a unanimous Supreme Court, Justice Sutherland found in favor of Humphrey, thereby affirming the right of Congress to place the functioning of the FTC outside the executive department. The Court distinguished Myers on the ground that Myers involved a purely executive officer whereas the Federal Trade Commission was intended to be an independent agency exercising quazilegislative and quasi-judicial power. In setting out this distinction the Court made the following statement:

"The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control... We think it plain under the

• In these cases, the issue was raised whether certain executive actions were conclusive in determining disputes relating to property rights. In deciding in the negative, the courts held that property rights are to be determined by the judicial branch. Banco de Espana v. Federal Reserve Bank, 114 F. 2d 438 (2nd Cir. 1940); Smiths America Corp. v. Bendix Aviation Corp.., 140 F. Supp. 46 (D.C. D.C. 1956).

10 Confiscation Cases, 74 U.S. 454 (1868); United States v. Cox, 342 F. 2d 167 (5th Cir. 1965).

11 272 U.S. 52 (1926).

12 Id. at 135.

13 Id. at 135.

14 295 U.S. 602 (1935).

Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, (the Interstate, Commerce Commission, the Federal Trade Commission, the Court of Claims). The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

"The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute."

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16

Curtailment of executive authority over independent administrative agencies was not to end with the Humphrey decision. A remaining and unresolved issue was the question of whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States. Emphasizing therein that the duties of the War Claims Commisison were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the life of that agency.

In reaffirming the Humphrey rationale, the Court characterized the overriding principle in the following manner:

"Humphrey's case was a cause celebre-and not least in the halls of Congress. And what is the essence of the decision in Humphrey's case? It drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President's constitutional powers, and those who are members of a body 'to exercise its judgment without the leave or hindrance of any other official or any department of the government,' (295 U.S., at 625-26) ... This sharp differentiation derives from the difference in functions between those whose tasks require absolute freedom from Executive interference." In summary, it can be seen from this line of cases that administrative agencies which exercise executive functions as established by the Constitution must be placed within the executive department of government due to the separation of powers concept. Administrative agencies which exercise quasi-legislative or quasi-judicial powers, on the other hand, may be placed outside the executive department in order to assure their independence in carrying out their assigned duties.

II. THE FUNCTIONING OF THE COPYRIGHT OFFICE UNDER THE 1909 COPYRIGHT ACT

A. Nature of the authority of the Register of Copyrights

Primary among the responsibilities of the Register of Copyrights is maintaining a system of registration of claims to copyright in order to promote the orderly exploitation of intellectual property. Although registration with the Copyright Office is not a prerequisite of obtaining copyright, registration must be made before an infringement action can be brought in federal court.18

The utility of any system of records is, of course, negated if the authority responsible for administering the system does not have discretion in maintaining the files' accuracy and uniformity. For this reason Congress explicitly estab lished the authority of the Register of Copyright to determine whether the requirements of the Copyright Act have been met. Establishing the essence of the registration process is Section 11 of the Copyright Act which provides that any person "may obtain registration of his claim to copyright by complying with the

15 Id. at 628-632.

16 357 U.S. 349 (1958).

17 Id. at 353.

18 17 U.S.C. § 13 (1974).