Copyright's Administrative Law

Journal of the Copyright Society of the U.S.A., Vol. 69, Forthcoming

Texas A&M University School of Law Legal Studies Research Paper No. 22-11

71 Pages Posted: 7 Jan 2022 Last revised: 25 Jan 2022

See all articles by Dave Fagundes

Dave Fagundes

University of Houston Law Center

Saurabh Vishnubhakat

Texas A&M University School of Law; Duke University School of Law

Date Written: April 15, 2021

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

Suggested Citation

Fagundes, Dave and Vishnubhakat, Saurabh, Copyright's Administrative Law (April 15, 2021). Journal of the Copyright Society of the U.S.A., Vol. 69, Forthcoming, Texas A&M University School of Law Legal Studies Research Paper No. 22-11, Available at SSRN: https://ssrn.com/abstract=4001078

Dave Fagundes (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Rd.
Houston, TX 77204
United States
713.743.1431 (Phone)
713.743.2238 (Fax)

HOME PAGE: http://www.law.uh.edu/faculty/main.asp?PID=5033

Saurabh Vishnubhakat

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

Duke University School of Law

Durham, NC

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