This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!
Despite today’s access and ability to obtain via the Internet and libraries reams of knowledge about key copyright players, history is sometimes ignored or blurred. Many “all stars” who shaped the copyright law were public servants full of humility and not interested in drawing attention to their accomplishments. Congressman Robert W. (“Bob”) Kastenmeier (D. WI), who served in the U.S. House of Representatives for 32 years (1959-1991) and ultimately became the leading expert, in the eyes of his colleagues and outside observers, on copyrights (and patents) and how to protect intellectual property overall. After a surprising electoral defeat in 1990, he received due acclaim from editorial pages in the Washington Post and New York Times. In searching reasons why he was unseated, knowledgeable journalists opined that Kastenmeier devoted too much time to intellectual property issues. The voters were more interested in “what have you done for me today?”
Kastenmeier chaired a subcommittee in the House Judiciary Committee that had broad jurisdiction over courts, the administration of justice, civil liberties, prisons, and legal services during a time when subcommittees and committees were looked to for their expertise. He understood the link between laws that convey IP rights and the ability to enforce rights in the Federal (and State) judicial systems. Shortly after the 1990 election, in an unprecedented statement issued to the press, Chief Justice William H. Rehnquist publicly applauded Kastenmeier as a “good friend of the federal judicial system.” Chief Justice Warren E. Burger issued a similar statement. Also, the oldest publication of the Duke University Law School, Law and Contemporary Problems broke new ground by devoting an entire issue to Kastenmeier. Two copyright law professors, L. Ray Patterson (Emory) and David Lange (Duke) led the effort, concluding that good reasons exist for counting Kastenmeier among the greatest legislators the field of copyright has ever produced.
Copyright does not have a “hall of fame” similar to Rock & Roll (in Cleveland, OH) and Baseball (in Cooperstown, NY). Today, fake news even gets awards. Inevitably, the passage of time — twenty-five years in Kastenmeier’s case – clouds memories and blurs perceptions. It therefore is useful to weigh factual record.
Kastenmeier’s copyright contributions led to twenty-one public laws that he sponsored or floor managed in the House of Representatives. Three enactments stand out: the Copyright Law Revision of 1976; the Berne Implementation Convention Act of 1988; and the Computer Software Act of 1990. First, in the early 1960s, Kastenmeier was asked to chair a series of hearings on the 1909 Copyright Act. He accepted, not knowing that much of his first18 years in Congress would be devoted to an arduous, complicated endeavor. Passage of the 1976 Act modernized copyright law to the benefit of authors and copyright owners. It also introduced the concept of a compulsory license for a new distribution technology (cable television). Second, because the 1976 Act did not resolve pressing copyright issues of the day such as the protectability of computer software programs, Congress therefore established a national commission that proposed further legislation clarifying that computer programs could qualify as protectable subject matter. Third, years later, Kastenmeier steered through Congress to the President’s desk legislation that allowed the United States to join the world’s oldest and most prestigious treaty, the Berne Convention for the Protection of Literary and Artistic Works. After President Franklin D. Roosevelt raised the need to join the Berne Union in 1936, adherence to Berne standards languished for close to 50 years before requisite changes were made to copyright law. Other notable statutory enactments with Kastenmeier’s imprimatur were interspersed over the years: semiconductor chip protection; prohibition of piracy of sound recordings; record rental and computer software rental amendments; the satellite carrier statutory license; visual artists rights; low power television amendments; one could go on. Passage of legislation is not the only metric for success. Kastenmeier opposed legislative proposals designed to undercut copyright law. As a friend of the Copyright Office, he supported its budget and administrative needs, and regularly relied on the Office’s expertise. For a couple years after his retirement, he had a small office in the Library of Congress next to former Librarian of Congress, Daniel Boorstin, an author and historian.
Legacies are left for future generations. Kastenmeier’s recipe for success was well-known. Under a constitutional framework of governance, passage of a public law can take years, if not decades. Enactment of complicated legislation benefits from bipartisanship, open channels of communications between the House and Senate, good relations with the executive branch, and empathy for those individuals and entities that promote the progress of science and the useful arts. Elements of today’s current political environment may, in some regards, conflict with his recipe. Times change. But Kastenmeier’s high bar is available for his worthy successors. It should not be a secret; records are made to be broken.
Michael J. Remington served as a counsel to the House Committee on the Judiciary for 13 years, often at Bob Kastenmeier’s side. Mike is retired from government service and law practice. He serves as a consultant on select matters and can be contacted at email@example.com.