Copyright's Administrative Law

Abstract

While a robust body of scholarship considers the regulatory dimensions of patent and copyright, there remains a puzzling absence of writing about copyright’s administrative law. This Article remedies this lacuna in the literature. It begins by tracing the history of regulatory copyright, which dates to the first Copyright Act in 1790. This analysis shows that—despite the absence of scholarly attention to the topic—there is a longstanding connection between copyright and administrative law. The Article then considers the stakes of relying on agency governance in the absence of a theory of copyright’s administrative law, which risks overdelegation, underdelegation, and institutional design flaws. It uses these failings to sketch out principles for identifying what copyright duties should (and should not) be committed to agencies. The Article then uses these principles to take a twofold normative turn. First, it suggests several operational reforms to the work of copyright agencies that would take best advantage of its core competencies. Second, it analyses the doctrinal administrative law issues that would be raised by such reform. In so doing, this Article seeks to sketch out the heretofore unexplored territory of copyright’s administrative law so that scholars and policymakers may better navigate it.

Keywords: copyright, office, administrative, agency, regulation, Hamiltonian, delegation, rulemaking, adjudication, property, allocation, USPTO