who performs someone else's authored work, and those musicians who perform spontaneously-that is, jazz-and create at that moment their own work, where, in fact, they not only perform but author their music. Do you legally recognize any distinction between these two things, Mr. Adler? Mr. ADLER. I would think not, from the standpoint of copyright. I think the bill already, in section 112, recognizes that there is no constitutional impediment to protecting a record in some form, because it is preventing dubbing, and if that doesn't derive from the constitutional power to pass copyright laws, then where does it derive from? And, also, I think in the Capitol Records case, the court very clearly faced the old problem which had been raised many times before, as to whether a recording was a writing, and said there is no doubt even Judge Learned Hand in his dissent agreed with this proposition and he had written the court's opinion in the Whiteman case that a performance is susceptible of statutory copyright protection. So I think that is an old bogeyman that died sometime in the middle thirties. Mr. FUCHS. Mr. Chairman. Mr. KASTENMEIER. Yes. Mr. FUCHS. But who owns the copyright in the record under existing law? Mr. ADLER. There is no copyright in the record under existing law. Mr. FUCHS. But the recording is a subject for copyright. A proper subject. Mr. ADLER. Not under existing law. Mr. FUCHS. Under the Constitution? Mr. ADLER. No one. The Copyright Office has rejected any attempt to record a record as an embodiment of a matter subject to copyright. Mr. FUCHS. But you have to insist that the act of performing is, itself, a right. Mr. ADLER. That the act of performing creates a right, and the physical recordation of the performance constitutes the embodiment of a subject matter of copyright. Mr. FUCHS. Thank you. Mr. KASTENMEIER. Thank you, gentlemen. Mr. TENZER. Mr. Chairman, just one more question, please. Mr. KASTENMEIER. Surely. Mr. TENZER. Does our committee counsel have the "helpful precedents" referred to in Mr. Ballard's statement on page 4 which refers to "successful methods of collection in foreign countries"? Do we have these precedents? Mr. Fuchs. I don't have them at hand, Mr. Tenzer, but they are available. Mr. TENZER. We have them available? Mr. FUCHS. Yes. Mr. TENZER. If not, I was going to ask that they be furnished or incorporated by reference in the memorandum that you are submitting. Mr. HUTCHINSON. Mr. Chairman, will they also furnish us with the citations of the Whiteman case and the Waring case? Mr. ADLER. Yes. You will find all that material very admirably collated in Miss Ringer's report: pamphlet No. 26, I think it is. Mr. KASTEN MEIER. Thank you. Thank you very much, gentlemen, for testifying. (Subsequently, the following were submitted:) Mr. HERBERT FUCHS, Counsel, Subcommittee No. 3, House of Representatives, VAN ARKEL & KAISER, Washington, D.C., August 31, 1965. DEAR MR. FUCHS: In accordance with the request of Congressman Kastenmeier made at the hearing on June 30, 1965, we enclose five copies of a memorandum of the specific changes which the American Federation of Musicians proposes in H.R. 4347. We have tried to the extent possible to remain within the structure and text of the pending bill. In broad outline, our proposal would grant the right of public performance in a sound recording to the performing artist. The duration of this right would be 10 years from the date of publication of the recording. The right would be subject to a compulsory license so that any public performer upon payment of a "just and reasonable" royalty might perform the recording. The rate of royalty would be fixed by the Register of Copyrights after hearing, and such rate would be reexamined at least at 10-year intervals. All performers on a specific record, as a condition of enforcing the peforming right, would be required to vest the collection of the royalty in a single entity so as to facilitate collection and distribution of the proceeds of public performance. As AFM Secretary-Treasurer Ballard stated to the subcommittee, we are ready and anxious to participate in the formulation of a copyright law revision which, with due regard to the public interest, will give creative performers long-denied participation in the fruits of their labors and will require users to pay a just and reasonable fee for what they have so long taken for nothing and used for great profit. I should like once again, on behalf of the federation, to thank the chairman and members of the subcommittee for their courteous consideration of the suggestions and the testimony presented by Secretary Ballard, Mr. Adler, and myself. Sincerely yours, PERFORMING RIGHTS IN SOUND RECORDINGS HENRY KAISER. Changes in H.R. 4347, S. 1006 (89th Congress, 1st Session) proposed by American Federation of Musicians of the United States and Canada: 1. Section 106 (a) (4) "(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, and sound recordings, to perform the copyrighted work publicly." 2. Section 106(b) (1) "(1) To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a sound recording, to make audible the sounds fixed in it, or in the case of a motion picture, to show its images or to make the sounds accompanying it audible." 3. Section 109 Add "sound recording" to each of subdivisions (2), (3) and (4). 4. Section 112(a) "(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (3), and (4) of section 106(a)." (b) Unchanged. "(c) This section does not limit or impair the exclusive right to perform publicly any of the works specified by section 106 (a) (4) other than by performing publicly sound recordings embodying such works. The exclusive right to perform publicly the work when embodied in a sound recording is independent of the exclusive right specified by section 106 (a) (4) to perform the sound record ing publicly. The exclusive right to perform a sound recording specified by section 106(a)(4) does not carry with it any right to use any other work embodied in such sound recording." 5. Section 114. Scope of exclusive rights in sound recordings: Compulsory license for public performance "In the case of sound recordings, the exclusive right provided by clause (4) of section 106 (a), to publicly perform such sound recordings is subject to compulsory licensing under the conditions specified by this section. "(a) Availability and Scope of Compulsory License. "(1) When phonorecords of a lawfully recorded sound recording have been distributed to the public under the authority of the copyright owner, any person may, by complying with the provisions of this section, obtain a compulsory license to perform such phonorecords publicly. If "(b) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after first performing any such phonorecord publicly, serve notice of his intention to do so on the copyright owner. the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served on him, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service with requirements that the Register of Copyrights shall prescribe by regulation. "(2) Failure to serve or file the notice as required in clause (1) forecloses the possibility of a compulsory license, and, in the absence of a negotiated license, renders the public performance of phonorecords fully actionable as acts of infringement under section 501. "(c) Royalty Payment Under Public Performance Compulsory License. "(1) To be entitled to receive royalties under a compulsory license to publicly perform a phonorecord, the copyright owner or his designee must be identified in the registration or other public records of the Copyright Office. In the case of joint works, such identification shall designate a single person duly authorized to receive the royalties in behalf of all authors for the public performance of a phonorecord. The owner is entitled to royalties for the public performance of phonorecords made after he is so identified but he is not entitled to recover for any previous public performances. "(2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every public performance of a phonorecord made in accordance with the license. "(3) The rate of royalty and the terms and conditions relating thereto shall be just and reasonable and shall be established from time to time by the Register of Copyrights after public hearing. Such rate, terms, and conditions may be reviewed and reestablished at any time by the Register of Copyrights after public hearing either on his own initiative or upon complaint and shall be reviewed and reestablished after hearing at least once in each ten year period. "(4) If a licensee fails to pay the royalty as established by the Register of Copyrights, the copyright owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of notice, the compulsory license will be automatically terminated. Such termination renders the public performance of phonorecords for which the royalty has not been paid, fully actionable as acts of infringement under section 501." 6. Section 115. Scope of exclusive rights in nondramatic musical works and sound recordings: Performance by means of coin-operated machine. "The proprietor of an establishment in which a copyrighted nondramatic musical work or a sound recording embodying such a work is performed publicly by means of a coin-operated machine is not an infringer unless :". (Remainder of present section 114 unchanged and renumbered section 115.) 7. Section 201. Ownership of copyright Insert (b) the following and reletter present (b)-(d): "(b) Sound Recordings. "(1) With respect to the exclusive rights to reproduce a sound recording specified by clause (1) of section 106(a) and to distribute copies or phonorecords of a sound recording specified by clause (3) of section 106 (a) the author of the sound record is the producer thereof. "(2) With respect to the exclusive right to perform a sound record publicly specified by clause (4) of section 106(a), the author of the sound record is the person whose performance of musical, spoken or other sounds is fixed in the sound recording." 8. Section 302. Duration of copyright: Works created on or after January 1, 1967 Insert a new clause (d) and reletter present (d)-(e). “(d) Sound Recordings. "In the case of a sound recording and with respect to the exclusive right to perform such sound record publicly specified by clause (4) of section 106 (a), the copyright endures for a term of ten years from the year of the first publication of phonorecords of the work." 9. Section 402 (b) (S), (4) "(3) with respect to the rights specified in clauses (1) and (3) under section 106 (a), the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, his name shall be considered a part of the notice. "(4) with respect to the right specified in clause (4) under section 160 (a), the name of the person duly authorized to receive royalties on account of the public performance of the sound recording as specified in clause (5) of section 114(c)." 10. Section 406. Deposit of copies or phonorecords for Library of Congress "(a) Except as provided by subsection (c), the owner of copyright or of the exclusive right of publication or in the case of a sound recording the owner of the exclusive right of public performance specified under clause (4) of section 106 (a) in a work published with notice of copyright in the United States shall deposit, within three months after the date of such publication:". 11. Section 602. Infringing importation of copies or phonorecords "(a) Importation into the United States, without the authority of the owner of the exclusive right to distribute copies specified in clause (3) under section 106 (a), of copies or phonorecords of a work for the purpose of distribution to the public is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. This section does not apply to importation by an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies or phonorecords intended to form a part of its library." 12. Transitional and supplementary provisions "Section 2. This act becomes effective on January 1, 1967, except as otherwise provided by section 304 (b) of title 17 as amended by this act, and except as to the exclusive right to perform sound recordings publicly as to which this act becomes effective on January 1, 1968." Mr. KASTENMEIER. The Chair will announce that the full committee is responsible for a bill on Presidential disability on the floor shortly after noon; for this reason, our colleague, Mr. Poff, must now leave the committee to attend that. Now the Chair would like to call Mrs. Bella Linden, representing the American Textbook Publishers Institute, and the Chair welcomes back Senator Keating and Mr. Deighton, both of whom have very ably testified already before this committee. We are pleased to have you back again. You may proceed. STATEMENT OF MRS. BELLA L. LINDEN, REPRESENTING THE AMERICAN TEXTBOOK PUBLISHERS INSTITUTE; ACCOMPANIED BY KENNETH B. KEATING, ESQ., AND LEE DEIGHTON Mrs. LINDEN. Mr. Chairman and members of the committee, I am a member of the firm of Linden & Deutsch, and I am appearing today as copyright counsel of the American Textbook Publishers Institute. I will not repeat the testimony of Senator Kenneth Keating and Mr. Lee Deighton offered on May 26. My statement today will be devoted to the impact of information storage and retrieval and new photocopying devices upon book publishing and the implications of this impact on copyright legislation. With your permission, I would like first to present the basic premise of my statement: a technological revolution in the world of authorship and book publishing is not imminent, is not prospective, but has already occurred. The computer age is here. The mechanisms of information storage and retrieval are in use. The devices of photoduplication are commonplace, economically feasible, convenient, and in constant use. May I recall to you the words of the Register of Copyrights in the opening pages of his report to this committee, dated May, 1965, from which I quote: In recent years we have seen, among a multitude of technological developments, the introduction of communications satellites, the tremendous growth in information storage and retrieval devices, changing patterns in broadcasting including the emergence of educational television and community antenna systems, radical changes in teaching methods by the use of new audiovisual devices, the proliferation of copying machines, and remarkable developments in the use of video tape. *** I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author's copyright. Those of us who have regularly attended these hearings or have read all the testimony have responded with the deepest respect to your rapid grasp of a highly technical bill. We have the fullest confidence that you appreciate the far-reaching prospective nature of the legislation before you. It is not simply a matter of long overdue revision of a 1909 statute. You are in fact confronted with decisions that may determine whether the intellectual gross product of the United States will continue to be the output of private authorship and private, competitive publishing. May I request that an address I gave entitled "Law and Computers in the Mid-Sixties" be accepted in the record, since it compares the present copyright law with the proposed statute, as they affect computer usage of copyrighted material. Mr. KASTENMEIER. Without objection, the article you refer to by yourself, "Law and Computers in the Mid-Sixties," will be accepted and made part of the record. Mrs. LINDEN. Thank you. |