Chevron won’t affect copyright – no impact

THE US COPYRIGHT OFFICE We also do not anticipate that the overruling of Chevron will have a significant impact on copyright law and the Copyright Office because judicial review of Copyright regulations has not regularly applied Chevron deference. Congress has expressly delegated authority to the Copyright Office to develop regulations regarding many facets of copyright law. This includes the music compulsory licensing rates set by the US Copyright Royalty Board, the formation and implementation of the Copyright Office’s Copyright Claims Board, and the registration of different types of copyrighted works. Every three years, the Copyright Office issues exemptions for Section 1201 of the Digital Millennium Copyright Act (DMCA), specifically to the prohibition on circumvention of technological measures that control access to copyrighted works. These exemptions cover issues including right to repair, unlocking cellphones, “jailbreaking,” and ripping DVDs for archival or educational purpose. These regulations, to the extent that they do not interpret statutes, are unlikely to be affected. Though the Copyright Office falls within the Library of Congress, which is part of the legislative branch and thus not an agency within the meaning of the Administrative Procedure Act (APA) judicial review provision, the Copyright Act itself states that the actions of the Register of Copyrights are subject to APA review. In June 2024, the US Court of Appeals for the DC Circuit confirmed that “[i]rrespective of whether the Library is an ‘agency,’ . . . Congress has specified that copyright regulations . . . are subject to the APA.”[10] Further, the DC Circuit held that the Triennial DMCA rulemaking regarding the Section 1201 exemptions are subject to APA review.[11] Similarly, the actions of the Copyright Royalty Board are reviewed under the standards of the APA. Notably, these actions are typically reviewed under the APA’s “arbitrary and capricious” standard.[12] Courts have applied Chevron deference to Copyright Office regulations where they interpret ambiguous statutes via formal rulemaking,[13] a relatively rare occurrence. Many Copyright Office decisions, however, do not involve formal rulemaking, and have not received Chevron deference.[14] For example, a court refused to apply Chevron to the Copyright Office Compendium’s construction of the meaning of “preexisting work” where no formal rulemaking occurred.[15] Another court determined that the Copyright Office’s “[i]ndividual decisions about the copyrightability of works are not like ‘rules carrying the force of law,’ which command Chevron deference.”[16] In sum, the Court’s decision is anticipated to impact few regulations or decisions set by the Copyright Office.