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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.

“(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.

“(1) 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 (0)(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 pies 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 ercept 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.



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.
(Article referred to follows:)


By Bella L. Linden Presented at a course of study held March 25-27, 1965, cosponsored by the Joint

Committee on Continuing Legal Education of the American Law Institute and the American Bar Association and the Association of the Bar of the City of New York In essence, the questions assigned to me for discussion today are:

(a) Whether the present law of copyright contains provisions for the orderly utilization of and trafficking in literary property by the newly developed means of dissemination, and

(b) Whether the proposed revision of the copyright law eliminates the problems, if any, inherent in the present law. In order to establish a common frame of reference, it might be helpful if I were first to outline briefly the key concepts inherent in our copyright law pertinent to the uses of copyrighted material by information storage and retrieval systems.

It should be noted that not everything that is fed into a computer is the subject matter of copyright. Raw data, such as mathematical equations, chemical terms, statistics, etc., are not in and of themselves copyrightable. It is the organization and original expression of the data, in other words the expression of the ideas which constitutes copyright subject matter, which, for our purposes, may be broadly described as "information."

The information which is to be fed into a computer system may have been published prior to such utilization or may consist of an unpublished manuscript. In the case of the unpublished work, the copyright protection afforded is not statutory, but is restricted to remedies afforded by the common law. A previously published work qualities for copyright protection under title 17, United States Code—the Copyright Act.

When a work has achieved statutory copyright, section 1 of the Copyright Act accords to the copyright proprietor the exclusive rights, among others, to print, reprint, publish, copy, and vend the copyrighted work (under sec. 1(a)); to translate the copyrighted work into other languages or dialects or to make any other version thereof (sec. 1(b)); to make or procure the making of any transcription or record thereof by or from it, in whole or in part, which may in any manner or by any method by exhibited, delivered, presented, produced, or reproduced (sec. 1(c)).

Except for the rights granted by section 1(c) of title 17, the other exclusive rights I have mentioned under section 1 will be violated if a "copy" has been produced without the authority of the copyright proprietor.

Do any of the techniques or mechanisms of (1) input, (2) storage, and (3) output violate any such rights where the copyright proprietor has not consented to such uses by the computer system?

Input and storage, even at the present state of the art, are achieved via a variety of means, such as key-word indexing, conceptual abstracting, special electric typewriting, punchcards, microfilm, magnetic tape, and devices capable of capturing electronic impulses.

Aside from such issues as to whether uses such as conceptual abstracting and indexing other than conventional indexing violates the copyright proprietor's rights or is subject to the doctrine of fair use (which will be discussed later) the basic rights suspectible of infringement by computer usage appear to be the "copying” and “performance” rights,

Output or retrieval of the copyrighted work may be in the form of abstracts, excerpts, or the works as a whole. It may be delivered to the user in tangible form such as a photoduplication or in ephemeral form such as the temporary projection of an image on the screen. Thus, the information may be captured and disseminated by computers in tangible or intangible, ephemeral or visually perceivable form.

As noted, the copyright proprietor has exclusive "copy" rights. Are any of the techniques of input and storage "copying" so as to constitute a violation of the copyright proprietor's rights if done without his consent?

The term "copy" is a word of art that has been construed by Court decisions (in some respects conflicting ones).

The limitations on what constitutes a "copy" within the meaning of the law are twofold:

(a) That it be visually perceivable, and

(6) That it be in tangible form. The landmark decision was announced by the U.S. Supreme Court in the year 1908 in the case of White-Smith v. Apollo (209 U.S. 1). There, the Court held that a perforated roll of paper, a piano roll, was not a "copy" of a printed musical composition for the reason that a piano roll is only capable of being read by a person with a peculiar skill and with much effort and is therefore not in a system of "intelligible notation." Following the Apollo decision, the courts, with few exceptions, have held that a copy must be in visually perceivable form.

The Federal jurisdictions, with but two exceptions, have followed the Apollo case not only with respect to printed material but have also determined that a phonograph record is not a copy of a copyrighted work for the reason that the literary work which it embodies is not visually perceivable; that is, it cannot be "read" (Corcoran v. Montgomery Ward & Co., Inc., 121 F. 2d 572 (9th Circ. 1941; Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657 (2d Circ. 1955)).

Thus, under the present Copyright Act only such input or retrieval activities as result in visually perceivable material constitute the making of a "copy."

Some courts have based their findings as to what constitutes a "copy" for purpose of infringement not on the ground of visual perceptibility but on the determination that in order to be a "copy" the work must be in tangible form. Ephemeral reproductions have been held not to be infringing copies. For example, the cases of MGM Distributing Corp. v. Wyatt (21 Copyright Office Bulletin 203 (Dist. Ct. Md., 1932)) and Tiffany Productions Inc. v. Dewing (50 Fed. 2d 911 (Dist. Ct. Md., 1932)) held that a projection of a motion picture film on the screen does not constitute an infringing copy. The Court of Appeals for the Second Circuit, in a contrary decision, held that such ephemeral reproduction of a motion picture film does constitute an infringing copy (Patterson v. Century Productions, Inc., 93 Fed. 2d 489 (1937)).

It would seem that the courts following the Second Circuit decision of Patterson v. Century Productions, Inc. (93 Fed. 2d 489 (1937)) are likely to hold that the projection of the work on a screen would constitute the making of an infringing copy and those following the case of MGM Distributing Corp. v. Wyatt (21 Copyright Office Bulletin 203 (Dist. Ct. Md., 1932)) are more likely to conclude that where an ephemeral image of the work is projected no infringing "copy" has been produced.

The question remains as to whether the provisions of section 1(c) of the Copyright Act which grants the copyright proprietor the exclusive right to make a transcription or record of the copyrighted work from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced, would protect the copyrighted material from unauthorized use in input, storage, or output.

A literal reading of the language of section 1(c) would suggest that the making of punchcards, magnetic tapes, and the like and the projection of ephemeral images would constitute transcriptions of records of the copyrighted work. However, there exists a question as to whether section 1(c) was intended to apply to any situation other than to a case where a copyrighted work has been publicly "performed.” In this connection the House committee report recommending the amendment of section 1(c) in 1952 suggests that this section is applicable only in those cases where the work has been publicly performed for profit. The Committee on Copyright of the Association of the Bar of the City of New York has also interpreted section 1(c) as applying only to public performance rights. Can it be argued successfully that certain of the mechanisms and techniques of input and retrieval are, in fact, “performances" of the work within the meaning of section 1(c)?

If the computer system's uses of information protected under title 17 are construed neither as the making of copies nor as performances of the work in whole or in part, then such uses, no matter how injurious to the pecuniary interests of the copyright proprietor (absent fair use) are uses which appear to be unprotected by the Copyright Act. On the other hand, a contrary construction, which can find equal support, would accord protection to the copyright proprietor even in some cases where the computer processes have not produced a "copy" of the work.

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