Memo: The Copyright Regulations

Professor David Post


H2O has permission to use this resource.

Volume 37 of the Code of Federal Regulations (CFR) contains the regulations issued by the Copyright Office, as authorized by the Copyright Act. See especially Copyright Act §§701 and 702 (“The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title. All regulations established by the Register under this title are subject to the approval of the Librarian of Congress.”).

The precise legal status of these regulations is a bit unclear (at least to me). I will leave the details to a course on Administrative Law, but the basic issue is this: virtually all federal regulations appearing in the CFR have been promulgated either by one of the agencies within the Executive Branch – e.g., the Department of Commerce, the Department of Labor, etc. – or one of the so-called “independent agencies” (e.g., the Securities and Exchange Commission, the Federal Trade Commission, etc.). The Copyright Office, however, is – unique among federal agencies, I believe – part of the Library of Congress, which is, as its name suggests, an arm of Congress. For complex constitutional reasons, there are substantial limits on the scope and the nature of rule-making and rule- executing functions that Congress can delegate to entities under its control. See Boweher v. Synar, 478 US 714 (1986) Nonetheless, notwithstanding this somewhat theoretical problem, the Copyright Office regulations are an important part of the practice of copyright law, and you should be aware of their existence. The following is a brief excerpt.