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Bridging the partisan divide in communications legislative reform

The recent passing of former Representative Robert Kastenmeier (D-WI) at age 91 generated numerous retrospectives about his record of distinguished public service. These tributes to his legacy have special relevance today as Congress attempts to reexamine and revise the Communications Act.

Congressman Kastenmeier’s leadership in managing the complex task of reforming our nation’s copyright laws multiple times a during period of partisan political strife set a powerful example that deserves greater attention in the current gridlocked halls of Congress.

At the zenith of Kastenmeier’s career, Congress was no less divided by partisan rancor than today. During the Nixon Administration, he was a staunch vocal opponent of the Vietnam War, castigating most of his Republican colleagues who were firmly backing the President’s desire to continue pursuing military action in Southeast Asia, despite diminishing results and increasing anti-war sentiment at home. He also earned a near-perfect score from the liberal advocacy group, Americans for Democratic Action.

Kastenmeier the steadfast liberal

Kastenmeier was a key figure in the impeachment of President Nixon, where he convinced his Democratic colleagues on the House Judiciary Committee to vote on individual articles of impeachment. This had the effect of highlighting President Nixon’s illegal Watergate-related activities in greater detail, making it more difficult for those serving on the impeachment panel to minimize the damage that had been created by a President that had gone seriously astray.

Throughout this era, and especially after President Nixon’s resignation, Congressman Kastenmeier pressed ahead with a decade-long campaign to comprehensively update the Copyright Act of 1909. Kastenmeier, in his role as chairman of the House Judiciary subcommittee dealing with intellectual property, was tenacious in advancing the notion that Congress, which enacted the initial legislation, had the responsibility to determine if that decades-old law was well equipped to handle issues that the original legislative drafters could not have imagined at the beginning of the 20th century

A roadmap for building compromise

With the end goal of a new law in mind, Congressman Kastenmeier worked diligently at building a constructive bipartisan policy bridge, emphasizing that he was not going to carry into the copyright realm the fierce partisanship that created such distaste for him in many Republican circles. Kastenmeier would not temper his liberalism in other areas, but he also realized that pragmatism would be the guiding light in copyright reform. He worked closely with the ranking Republican on his subcommittee, Representative Thomas Railsback of Illinois, in examining what legislative changes were necessary. Beyond Congress, he also worked closely with the Ford Administration to ensure necessary White House support.

The resulting new law, the Copyright Act of 1976, created a far more durable foundation for copyright protection, expanding the scope of that protection to technologies such as broadcasting, cable television, microfilm, tape recording and computer storage. Combined with extending the duration of copyright, these changes also positioned the U.S. well once copyright began to have such a positive impact on U.S. trade exports, as globalized markets began to grow.

Once enacted, the conventional wisdom in Washington was to relax after a significant legislative achievement. But Congressman Kastenmeier realized that as new technologies created new issues regarding content creation, Congress would need to pay closer attention to these dynamic marketplace shifts. Greater agility in fashioning amendments to the law would be necessary. Building upon the prior bipartisan activities that led to the enactment of the Copyright Act of 1976, he shepherded another round of copyright legislation in the 1980s that added protection for both computer software and semiconductor chips. The impact of these changes in the law on American innovation and investment has been staggering.

Today, Congressman Fred Upton (R-MI) and Greg Walden (R-OR) have launched an ambitious legislative review similar to Congressman Kastenmeier’s, in this case regarding the Communications Act of 1934. Senator John Thune (R-SD), Chairman of the Senate Commerce Committee, has also started to examine the law in greater detail. Given Republican control of Congress and the polarized nature of politics, it is easy to understand why Democrats may react negatively to these efforts.

Lessons for today’s leaders

Bob Kastenmeier best described the wisdom of resisting this partisan reflex in his final interviews. He argued, “Copyright and intellectual property is basically not ideological….If you think the law has to be changed, updated, that really doesn’t have anything to do with being conservative or liberal.”

Those words may not fit on a tombstone, but they are timeless and profound. Bob Kastenmeier’s words and deeds deserve careful consideration now. As momentum builds in the coming months for Congress to “futurize” communications law, the effectiveness of his work on copyright law represents an enduring achievement that merits emulation.

Author

Stuart N. Brotman

Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Communication - University of Tennessee, Knoxville

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