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APPENDIX B. COPYING

NEW SECTION 111

“Section 111. Limitations on exclusive rights: Educational copies and recordings.

"Notwithstanding the provisions of section 106, it is not an infringement of cupyright for anyone lawfully entitled under section 109 to perform, exhibit, or to transmit a performance or exhibition of, a copyrighted work (save those originally consumable upon use, such as workbook exercises, problems, or answer sheets for standardized tests)

(a) to make no more than one copy or phonorecord of the work in the course of such use, provided that no copy or phonorecord may be made of dramatic works (including any accompanying music), pantomimes and choreographic works, and motion pictures or filmstrips unless the performers and the audience are limited to students, faculty, or staff; and

(0) to make a reasonable number of copies or phonorecords of excerpts or quotations from the work, provided that such excerpts or quotations are not

substantial in length in proportion to their source, solely for purposes of such person's or organization's own teaching, lawful performances, exhibition and transmissions, for course work study in connection therewith, for research or for archival purposes, provided that no such copsrighted material is sold or leased for profit and that no direct or indirect private gain is involved.”

APPENDIX C. INSTRUCTIONAL BROADCASTING

Amendment to section 109(4), page 8, lines 4 and 5, as follows (new language in italics, omit words in black brackets):

(4) “Performance or transmission of a nondramatic literary or musical work, [otherwise than in a transmission to the public,] without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers, if

“(A) there is no direct or indirect admission charge; or

"(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain." Mr. Sr. ONGE. Mr. Poff ? Mr. PoFF. Mr. Chairman, I have just one question.

I would like to understand exactly what you meant at the bottom of page 5, about the Council supporting the position of the Deputy Archivist of the United States whose recommendations will include for the first time “unpublished manuscripts” being duplicated for library and scholarly research purposes.

Recognizing, of course, that there is an element of personal privacy involved here, and being unfamiliar at the moment with the precise recommendations the Deputy Archivist made, I wonder if you would care to be a little more definitive?

Mr. SIEBERT. These recommendations do not apply to unpublished manuscripts in private hands. As I understand the recommendation of the Archivist, it was that if a manuscript had been deposited in a library, that manuscript can be duplicated for deposit in other libraries.

Mr. Poff. Don't you think it is important to make that point?
Mr. SIEBERT. Yes.
Mr. POFF. That is all I have.
Mr. Sr. ONGE. Mr. Tenzer?
Mr. TENZER. No questions.
Mr. Sr. OnGE. Mr. Hutchinson?

Mr. HUTCHINSON. I have no questions other than to welcome the gentleman before us. Dean Siebert is a respected member of the faculty of Michigan State University. Being from Michigan myself, it is always a pleasure to have witnesses from Michigan appear before us.

Mr. ST. ONGE. Mr. Fuchs?

Mr. Fuchs. You say your organization is a member of the ad hoc committee

Mr. SIEBERT. Yes. It has participated in their discussions.

Mr. Fuchs. Your second specification of changes in the new bill has to do with the elimination of the not-for-profit exemption for performances.

Mr. SIEBERT. There is no recommendation here on the retention of that not-for-profit exemption.

Mr. FUCHS. You say at the foot of those four changes that the American Council on Education is not opposed to these changes; it favors them.

Mr. SIEBERT. I don't know whether it favors them or not, but it is not opposed to them; that is, we are not recommending the retention of the not-for-profit exemption.

Mr. Fuchs. I have another question, Dr. Siebert: would you give the committee your view as to whether the for-profit limitation in the present copyright law extends to the copying of literary material such as poems, magazine articles ?

Nr. SIEBERT. I have to ask what you mean by “copying”?

Mr. Fuchs. You beat me to the draw. I take it that the present law,

Mr. SIEBERT. This is for performance, the not-for-profit exemption is for performances.

Mr. Fuchs. It is for performance ?
Mr. SIEBERT. Yes.

Mr. Fuchs. The reason I ask is that the record will show that on June 2 when Mr. Rosenfield was testifying here, I suggested to him that under the present law the for-profit limitation had nothing to do with copying, and he replied that he did not think that that was a fact. Then he proceeded to cite what he called three noted authorities, of whom you are one.

Would you care to clarify that?

Mr. SIEBERT. Yes. Two or three years ago I made a study in connection with a number of law students of this problem and I have a memorandum on that subject which I will be glad to send you, in which we went through the legislative history of that 1952 amendment.

(Subsequently the following was submitted on behalf of Mr. Siebert :)

STAFF MEMORANDUM No. 7

THE RECORDING CLAUSE OF SECTION 1 (c), (d), AND (e), OF THE COPYRIGHT Act

The use of dramatic and nondramatic literary works and also lectures, addresses, etc., occupies our attention here. The rights provision is section 1 of the Copyright Act Parts (c), (d) and (e) are of particular interest to us. They cover the performance and recording rights. Subsections (c) and (d) are here presented in full:

"(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not aware that he was infringing and that such infringement could not have been reasonably foreseen; and

117 U.S.C., sec. 1 (1958).

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced ; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever."

It will be noticed that dramatic works cannot be performed publicly, while lectures and nondramatic literary material can't be performed publicly for profit. Both categories purport to have exclusive recording rights. It is the meaning of the latter right which concerns us. Of course it means that you can't make a recording and sell copies of it or even distribute them free. But does it mean that you can't do with a recorded performance what you can do live? Also, can't you even record once? If you have a poem which you want to read on the radio, this is all right as long as it is not for profit. But what if you record it for broadcast later? Jorgensen says that you can't perform it at all if recorded. He is looking at the second clause of both 1 (c) and (d). On the face of the language it may seem that Jorgensen is correct, but I submit that he is in error.

First, let us look at the law as it stood before 1(c) was amended in 1952. Old 1(c) stated that the copyright owner had the exclusive right “to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address or similar production." + The shortcomings were that recording rights were not granted and nondramatic literary works had no performing rights. To remedy the latter problem the words “other nondramatic literary work” were added to 1(c). The recording problem was solved by adding the second clause to 1(c).

To gain an insight into what was meant by the amendment, we can look at the congressional committee report previous to the passage of the bill. It said, in part:

"It is intended that all recordation rights in nondramatic literary works will be protected and this protection includes any subsequent recordation or copying of the original record. The public performance of the works embodied in such recordations will be protected only if such performance is made for profit, so that such performances will be protected to the same extent as deliveries, readings, and performances in person.'

Thus, the limitation on performance is publicly for profit, whether live or recorded. In fact, I can find no authority holding otherwise. Moreover, the third clause of 1(c) actually says this.

1(d)'s second clause is like 1(c)'s, but the third clause of 1(d) merely reiterates the second clause's prohibitions. But this does not mean that a recording of a dramatic work can't be performed at all. Quite the contrary result has been reached. The court, in M-G-M Dist. Corp. v. Wyatt,' said that the recording clause in 1(d) must be read in conjunction with the first clause, so that a recording must be presented publicly to be an infringement. So in both 1 (c) and (d) the limitations are identical for live and recorded performances.

There remains the question of recording a copyrighted work in the first place. Granted, we have successfully interpreted the use rights of a recording, but can we get that recording by ourselves? Of course, a recording can be purchased, or made with permission, but is it forbidden to make your own? I think not.

Ibid.

Sec. 1 (c), (d); sec. 1(c) is as amended by the act of July 17, 1952 (66 Stat. 752). 3 Conference on Professional Rights and Responsibilities, etc., p. 75. * 35 Stat. 1075.

6 Kreymborg v. Durante, 21 USPQ 557 (D.C. N.Y., 1934), held that a poem did not come under 1(c) and could therefore be performed without permission.

* H. Rept. No. 1160, 820 Cong., 1st sess. (1951). ? Unreported (D.C. Md. 1932).

8

The right to record is not meant to be completely exclusive. The House report said:

"Nothing in this provision is, of course, intended to modify or restrict the established doctrine of fair use.

Thus, although fair use is not expressly written in the Copyright Act, Congress recognizes its existence in all courts and States that they don't wish to tamper with it. So the second clause of 1 (c) and (d) is not as absolute as it would seem, because fair use allows you to make a copy for your own or any permitted use. It is the illegal use which is prohibited, not the recording itself. That is, you can't record a poem in order to play the record publicly for profit, or sell copies, or reproduce the record. But you can make a record for yourself, play it privately, and other permitted uses.

To conclude, the recording clause of 1 (c) and (d) is only an extension of live performance rights to recordings plus the exclusive right to copy, vend, and reproduce records. It does not affect the right to make your own recording and you may use any recording in the same manner as a live performance. Thus, an educational not-for-profit show using nondramatic literary material may be performed live or recorded without any fear of legal reprisal.

Query: Can an educational not-for-profit show containing copyrighted nondramatic literary material be recorded and these recordings sold or leased to other educational not-for-profit outlets?

1(e)-RECORDING SECTION In this paper it is concluded that the apparent prohibition of any recording or use thereof was not so. The real proscription is only a repeat of the live performance rights, which is "in public for profit” under 1(c), and “publicly" under 1(d). The question here concerns the recording rights under 1(e), which refers to musical works. The section says you can't perform the copyrighted work publicly for profit if it be a musical composition. But here the resemblance to 1(c) ends. The recording clause of 1(e) is not absolute at all. It says you can't make a recording for the purpose of a public performance for profit or a 1(a) use (copy, vend, and reproduce). Thus, we need no interpretation to allow a recording to be made for a nonprohibited use, since 1(e) already says this. Furthermore, if there is any doubt that a recording being made has a legal purpose, 1(e) provides an easy out if the musical composition has ever been recorded before with the permission of the copyright owner. A mere payment of 2 cents per copy legalizes the making of the record, and the only remaining worry is the for profit performance proscription. The determination of this is the same as for 1(c),

Mr. SIEBERT. From that we derived the conclusion, all of us who worked on this, that for the purposes of performance, we could make a recording.

Mr. FUCHS. Just that?
Mr. SIEBERT. Just that.
Mr. Fuchs. And no more?
Mr. SIEBERT. No more.
Mr. Fuchs. Thank you.
Mr. St. ONGE. Thank you very much, Doctor.
Mr. SIEBERT. Thank you.

Mr. Sr. ONGE. The next witness will be Miss Martha A. Gable, representing the Pennsylvania Educational TV Advisory Committee.

STATEMENT OF MARTHA A. GABLE, CHAIRMAN, PENNSYLVANIA

EDUCATIONAL TV ADVISORY COMMITTEE

Miss GABLE. Honorable sirs, I request that my statement be made a part of the record. I appreciate very much this opportunity to be heard on this important matter.

Op. cit., note 6.

ness.

I am Martha Gable, chairman of the Pennsylvania State Educational TV Advisory Committee. The committee membership includes superintendents of schools, ETV station managers, representatives of universities, State colleges, diocesan schools, public schools, citizen groups, and the department of instruction, totaling about 40 persons.

The committee was organized by the Pennsylvania Department of Public Instruction about 5 years ago to develop a plan for educational television stations which will serve the Commonwealth, and to guide the development of TV programs of substance and value for in-school and adult instruction.

There are now four educational stations operating in Pennsylvania. Three more are underway. One will be operative in September. The educational stations in Philadelphia and Pittsburgh each transmit on a two-channel VHF-UHF operation.

Among the objectives of educational TV are the bringing of outstanding teachers and resources to pupils in many classrooms; to share the talents of gifted teachers at this time when quality education is of prime importance and when the shortage of teachers is critical. Particular attention is being paid to the provision of additional educational opportunities for children in culturally deprived areas. At the same time, massive and diversified approaches to parent education are being developed to help improve the home climate for learning readi

There is also a grave concern about the need to keep pace with the explosion of knowledge. Educators are seeking ways to teach children the facts and knowledge which they must know, more effectively, more rapidly, so that there will be more time for the "think" aspects of education wherein children acquire understanding, and learn how to apply what they have learned and to explore and to create.

Television is a powerful teaching device which has value in achieving these goals.

The copyright law, in its proposed form, may dilute the potential of TV instruction because of the limitations placed on the TV teacher in the use of valuable and important resources such as certain pictures, maps, films, slides, literary excerpts, and other materials.

These are the natural tools of the good teacher. The TV teacher, actually, is an extension of the classroom teacher. The intent, the goals, the pupils, are the same. The desperate shortage of qualified teachers, and the potential of TV to help overcome some of these critical needs, makes it seem illogical to place additional restrictions on the TV teacher simply because he stands in a studio instead of a classroom, and shares his competency with many classes instead of one.

I believe that educators recognize the importance of material incentives and rewards for the fruits of creative effort. In fact, educators understand and appreciate that the wellsprings of creative resources should be carefully nurtured, and that the results of such labor should be protected. However, as one who has been in the business of providing a variety of classroom instruction by TV for more than 10 years, it seems that restrictions on the use of films, books, and other materials may become so rigid that the use of these materials will be curtailed rather than stimulated, and everyone will lose.

For instance, I am puzzled by the restrictions among producers of educational films in connection with their use on instructional TV.

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