Re: Copyright Office's Responsibilities

On Sat, 29 Aug 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> We are left with a chain of procedural and substantive results.

I don't think so; only procedural.

> Joe Author tries to register his work. The CO refuses to register
> based on 17 U.S.C. sec. 410(b) (uncopyrightable subject matter or other
> reasons). Joe fights the CO, but the CO stands firm. Joe then has two
> choices. He can appeal (file suit in district court) the CO's decision,
> in which case the courts will show the CO a fair amount of deference
> (based on 17 U.S.C. sec. 701(d) and 5 U.S.C. sec. 706(2)(A)).

Okay, this is procedural.

> Or, in the alternative, even though there's no registration, he can
> wait for an infringement and sue the defendant, in which case the
> courts will give him a "full judicial review," although Joe will
> still have to overcome the presumption created by the CO that his
> work is not copyrightable. See Atari Games Corp. v. Oman, 888 F.2d
> 878, 887 (D.C. Cir. 1989) (Silberman, J., concurring).

I don't think it's accurate to characterize this as a presumption that the work is subject to copyright; rather, it's simply the absence of the presumption that the work is subject to copyright. The plaintiff is thus left with an ordinary plaintiff's burden: to prove each element of the case, including the ownership of a valid copyright.   

> All in all, I think a conclusion that the CO is purely administrative is
> overstating the case.

Based on the above, I would disagree. Certainly the output of the administrative function is valuable, but that doesn't make it any less administrative. However, whether one characterizes it as "administrative" is a different point from the one I made: that the Copyright Office is without jurisdiction to add or subtract to issue a holding that a particular work is or is not subject to copyright; its jurisdiction in this area is limited to issuing or withholding a registration based on its determination.

--
Terry Carroll       |    
Santa Clara, CA     |    
carroll[_at_]tjc.com     |       
Modell delendus est |