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the same year. Since then Congress has strengthened the legislation protecting the ownership rights of the innovator and has extended these rights to new areas of endeavor. Thus, in 1897, Congress provided that copyright holders should receive compensation for the public performance of their music for profit. Originally, new compositions were distributed primarily through the sale of sheet music, but when technological advance made possible the recording of sound, the phonograph record was born. In 1909, congressional legislation provided that record manufacturers should pay copyright holders a royalty of 2 cents on each recording they manufactured. Later, as radio and then television brought music to the American home, these broadcasters were also required to pay royalties on their public performances for profit.

In fact, today the composers and authors of music receive royalties from all of those who use their music for profit—all, that is, except the jukebox operators.

Why are jukebox operators exempt from these royalty payments? Why are copyright holders deprived of revenue from this group which is dependent for its profits on the new songs they compose? According to the Register of Copyrights :

"Jukebox operators are the only users of music for profit who are not obliged to pay royalties, and there is no special reason for their exemption.

“The reproduction or rendition of a musical composition by or upon coinoperated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs (sec. 1(e))."

This exemption was placed in the copyright law in 1909. It appears that there was little discussion then of its merits, but that coin-operated machines were considered as advertising medium were relatively unimportant.

It is because of the expansion of the jukebox industry that this exemption has become not only outdated but highly inequitable. More than 50 million records are reported to be purchased annually for Jukeboxes. Yet, the composers and the songwriters receive no royalty from the public playing of these records for profit. I have long been a supporter of adequate compensation for persons in the entertainment industry. It is important that the United States with its emphasis on economic growth and technological development not allow itself to lose its appreciation of culture. The performing arts, whether contributing to our cultural understanding or merely to our entertainment, are an essential part of American life. It is imperative that both those who perform and those who create productions for performance be adequately awarded. Yet, here the House Committee on the Judiciary is considering an instance, not where a higher level of royalties should be paid to composers and songwriters but where these copyright holders receive no royalties at all from the business operations of 10,000 jukebox operators.

It is not surprising that proposals to provide for the payment of royalties for the public performance of copyright musical compositions by jukeboxes have the support of the American Society of Composers, Authors, and Publishers, Broadcast Music, Inc., and the Society of European Songwriters, Authors & Composers. It is, however, significant that such proposals have also been supported by the American Bar Association, the American Patent Law Association, the General Federation of Women's Clubs, the Copyright Office of the Library of Congress, and the Senate Committee on the Judiciary. They recognize that the jukebox industry, like all other record purchasers, pays a 2-cent royalty per recording. They also recognize that unlike others who use music in public performances for profit, such as broadcasters and those charging admission fees, the jukebox industry does not pay on its public performance operation. The mechanical royalty, that is, that on record manufacture, and the royalty on public performances for profit are two separate ways of providing compensation to the copyright holders. The jukebox industry should not be relieved from paying the one because it pays the other. Thus, the Senate Committee on the Judiciary has stated: “* ** The committee believes that as a legal matter to exempt the jukebox industry from the same responsibilities and liabilities to which other users are subject is discriminatory, constitutes a special privilege and does not have a good or salutary effect. The committee believes that any person or organization using the compositions of another in respect to a public performance for profit should be required to pay his fair share for such use."

Justice demands that jukebox operators pay royalties on their public performances. It has been argued that the requirement of royalty payments would have an adverse effect on the jukebox industry. I fail to see the validity of this

argument. In its 1958 report the Senate Committee on the Judiciary set forth and answered the question of economic effect in the following manner:

“Would the repeal of this exemption be seriously injurious to manufacturers and operators of jukeboxes?

The hearings disclose that the answer to this question is in the negative. The operators of jukeboxes have expressed the fear that additional costs to their operations in the way of royalties would seriously impair, if not destroy, the business. The committee does not believe this to be a basically sound argument, in the light of all the testimony."

There are, then, two issues in question : To remove the copyright exemption now granted to Jukebox operators; and to establish the basis for royalty payments. Section 114 of H.R. 4347 removes the exemption contained in subsection 1(e) of title 17 of the United States Code. I have long advocated such change and I reiterate that this measure is long overdue. Although the bill does not establish a basis for royalty payments, it would finally permit negotiations on this issue by the parties directly involved, and this is precisely how the second issue can be most efficiently resolved.

This change, Mr. Chairman, will provide an equitable arrangement. I strongly urge this committee to take favorable action on the measure so that it may be taken to the House floor where the Members may vote upon this important piece of legislation.

HOUSE OF REPRESENTATIVES,

Washington, D.C., June 1, 1965. Hon. EMANUEL CELLER, Chairman, House Judiciary Committee, Rayburn House Office Building, Washington, D.C.

DEAR MR. CHAIRMAN : I understand that hearings are now being held on H.R. 4347 which provides for general revision of the copyright law, title 17 of the United States Code.

There is little doubt that revision is in order, however, I am sure that the members of the committee will retain the exemptions insofar as the use of copyright materials for educational purposes by recognized educational institutions and public education systems.

Should they be considering otherwise, I should like to persuade them to reconsider for many students would be deprived by inability of individual schools as well as school systems to either secure permission or pay the required royalties or both. In this day and age every effort must be made to upgrade the curriculums of our educational system and it is difficult enough to convince some of the board members and/or school directors to accept new ideas and install modernized devices without placing in front of them another roadblock in the form of securing permissions or paying royalties. I sometimes wonder if we will ever see equal educational opportunities available to all our young people regardless of where they might live.

The use of certain articles from newspapers, magazines, and even editorials— I understand-could be forbidden. Also, courses conducted by our educational television stations would be excluded unless permission had been obtained.

May I ask the members of the committee to carefully scrutinize this section of the bill and exert every effort to encourage education rather than hamper it? With kind regards, I am, Sincerely yours,

ELMER J. HOLLAND,

Member of Congress.

STATEMENT OF HON. ODIN LANGEN OF MINNESOTA ON COPYRIGHT REVISION

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Mr. Chairman and members of the subcommittee, in view of the concern registered with this office relative to H.R. 4347 and similar bills, pertaining to copyright revision, I wish to include in the hearings a typical observation made by a great number of educators thoughout my district.

The following concern was conveyed by Harold T. Hagg, professor of history and chairman, Division of Social Sciences, Bemidji State College, Bemidji, Minn:

"I am greatly concerned about the provisions of the proposed new copyright bill which opens the door to the free use of copyrighted materials by educational institutions.

"I am myself the author of a textbook which represents years of study and writing. My royalties have been modest. I feel that my greatest reward has been the writing of a book which, judging from sales, has been a worthwhile contribution to education,

"A substantial percentage of my royalties have gone for Federal and State income taxes. There will be little incentive for me to revise my material if I am to receive only a meager return for my writing, which is exacting and time consuming.

"I am presently a member of the National Education Association and have been for many years. I have been a college teacher for 29 years, interrupted only by a period of naval service during World War II.”

Mr. Chairman, this sets forth the significance of this legislation to educators devoted to studying and writing of textbooks, and I believe is worthy of your consideration and inclusion in the permanent record of your hearings.

AMERICAN BROADCASTING Co.,

LEGAL DEPARTMENT,

New York, N.Y., June 23, 1965. Re hearings on H.R. 4347, copyright bill. HERBERT FUCHS, Esq., House Judiciary Committee, Subcommittee No. 3, Cannon Office Building, Wash

ington, D.C. DEAR MR. FUCHS: This letter will confirm the conversation I had today with the receptionist in your office to the effect that I shall unfortunately not be able to appear as a witness at the hearings. Enclosed are 25 copies of the statement I intended to make tomorrow. We should like to have these filed with the subcommittee as the views of the American Broadcasting Co. Please accept my sincerest apologies for not appearing as scheduled. Sincerely yours,

HARRY R. Olsson, Jr.

General Attorney.

STATEMENT OF HARRY R. OLSSON, JR., OF AMERICAN BROADCASTING CO. Mr. Chairman, gentlemen, my name is Harry R. Olsson, Jr. I am a general attorney of the American Broadcasting Co. and a lawyer who for 17 years has had an interest in copyright and been active in professional copyright circles.

Sereral of the witnesses who have appeared at these hearings have addressert themselves to what I believe are the definite merits of the bill in that it provides for a prohibition of copyright in Government publications; a legislative notice of the doctrine of fair use without a definition of its scope, leaving that to the judiciary; a repeal of the present exemption of juke box operations from the payment of performance royalties and the narrowing of the scope of the pro tectionist manufacturing clause. The hill. has, of course, other merits and it also has its share of shortcomings. I shall try to limit my remarks to areas in which my company has some practical interest since I suppose other witnesses will finally cover all of the areas encompassed by the bill.

DURATION OF TERM--CHAPTER 3 OF THE BILL

The Constitution in article I, clause 8 provides that Congress shall have the power "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The author contributes to the nromotion of progress, which the founding fathers specified as the sole objective of copyright legislation, only when his work is made known to the public. That particular point in time is the rational point from which American statutory copyright duration should be measured. The proposed life-plus-50-years term for the works of natural authors bases the term of copyright protection on the longevity of the author, a factor not basic to the constitutional purpose nor to what the congressional rurrose should be.

Our present law and our law for 177 years has measured statutory protection from publication. The original Copyright Act of 1790 provided for a terın of 14 years and a renewal term of 14 years. In 1831 the original term was extended to 28 years while the renewal remained at 14 years. In 1909 the renewal term was extended to 28 years so that a total term of protection of 56 years was available from that date for all works.

No sufficient reason has been advanced in my view to lead the United States to abandon its tradition and to embrace the European life-plus-a-term-of-years system. Two principal arguments supporting the change have been that some American authors outlive the maximum duration of U.S. copyright protection for their works and that there is difficulty when the term of copyright protection in this country differs from that in Europe. It is regrettable when an author outlives the maximum term of copyright protection available for his work even though the occurrence is a very rare one (since most authors do not write works until they have attained maturity). In his July 1961 Report to Congress the Register of Copyrights recommended that the initial term of copyright remain at 28 years and that the renewal term be extended to 48 years. I supported the Register's proposal at the time he made it because the additional 20 years of available protection would take care of those occasional authors who survive the expiration of copyright in their works under the 56-year system. Weighing against any enlargement of the 56-year term, however, are the vastly more efficient modern means for rapid exploitation of works which have made our term, practically speaking, a much longer one than it used to be.

I have also supported the system of having a basic term and a renewal term for it has the desirable practical effect of providing a short term of copyright for works in which those entitled to renew copyright do not have sufficient interest to do so (about 85 percent of all registered copyrights are not renewed according to the Register's July 1961 Report) while presumably more deserving works get a longer term of protection.

There are no insuperable difficulties in continuing our term of protection tradition while the Europeans continue theirs. The compatibility of the two systems was demonstrated as recently as 1932 when countries embracing the two systems joined together in the Universal Copyright Convention under which "own-national-type" protection must be given to certain foreign works. As a broadcaster I have participated in arrangements with representatives of foreign broadcasters to secure copyright licenses for international broadcast so that I know this problem, as well as many other international copyright problems, can readily be solved as they arise.

Therefore I urge you to give favorable consideration to the Register's July 1961 Report proposal of 28 years plus 48 years which would take care of the needs of longer lived authors, and not give an excessive period of protection for most works and at the same time preserve the constitutional integrity of the American copyright philosophy and the continuity of our tradition of term measurement.

NOTICE OF COPYRIGHT-SECTION 404 OF THE BILL

Notice provides information about the year of publication, the identity of the copyright proprietor, and whether a work is under copyright.

Our present law requires a copyright notice on published copies and subject to a few ameliorative conditions a lack of notice on published copies forfeits the work. To avoid the forfeiture the copyright proprietor must show that the notice has been omitted by "accident or mistake * * * from a particular copy or copies." The omission of the notice by accident or mistake does not affect the copyright proprietor's rights with respect to willful infringers but it does limit his rights against an innocent infringer who is misled by the omission. Such an innocent infringer is not liable for damages and he cannot be subjected to a permanent injunction unless reimbursed for his outlay.

A large percentage of what is published does not bear any notice of copyright. For instance, most daily newspapers, placards, notices, advertisements, etc., do not. The notice requirement has also therefore served the purpose of placing published material which the author is not interested in protecting in the public domain. The absence of notice on a published work has generally led the public legitimately to assume that no copyright protection for the work is claimed. That assumption under the present law is almost always justified.

The Register in his May 1965 supplementary report (p. 99) goes too far when he suggests that the deliberate omission of notice should not forfeit copyright One who except by accident or mistake omits notice should forfeit protection in the interest of the legitimate expectancy of the public. The Register, defending his suggested changes in the law in that report, in rejecting a test of "deliberate" omission, concluded that "questions involving the subjective state of mind of one or more persons and their ignorance or knowledge of the law should be avoided if at all possible" (p. 105) but then he went on and justified the pro visions in the bill which limit the rights of the copyright owner against any person who "innocently begins an undertaking that infringes a copyright" provided “that person proves he was misled by the omission of notice.” Why is it of less concern to avoid subjective tests in this case, when the burden of proof is borne by the user, than in the other? It is obvious that these tests are all equally subjective. Further, section 404 is not consistent with what the Register says is its purpose for in 404 (a) it is provided that the copyright owner does not invalidate the copyright in a work if :

"(1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or

(2) registration for the work under section 407 has been made before or is made within 5 years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered." [Emphasis supplied.]

The emphasized language would make it appear that deliberate omission of copyright is not within the purview of subsection (2) despite what the Register says is its purpose.

The burden of justifying copyright notice omission should rest on the person who claims copyright. The omission of notice except by accident or mistake should forfeit protection whether the omission is from a small number of copies or phonorecords or all of them.

WIRE SYSTEMS, COMMUNITY ANTENNA TELEVISION, SECTIONS 106 AND 109 The community antenna television industry (by this designation I do not include that no-commercial-advantage and no-charge group which is exempt from performance and exhibition liability by section 109 (5) of the bill) have argued they should be exempt from the normal obligation of the rest of the copyrightusing community including the broadcasters and theater owners, the two traditional groups they most resemble in their operations, to obtain and pay for copyright licenses as a condition to their use for profit of copyright works. Their arguments fall basically into two classifications.

The first is a set of arguments to the effect that they serve the public. Frederick W. Ford, president of the National Community Television Association in a speech on February 19 of this year at the Waldorf-Astoria Hotel in New York before the International Radio & Television Society said that the systems offer the advantage of multiple signals to the public and that 1,600 CATV systems in the United States serve 1,700,000 subscribers or 5 million viewers and that the numbers are growing rapidly. We do not argue with these statements but we differ with the conclusion that CATV should therefore be made exempt from the normal operation of the copyright law. The broadcasting industry could make much more powerful recitations of facts about the extent of its service to the public, but if we did, I do not believe anyone would be persuaded that by virtue of those facts we ought not to be required to pay copyright proprietors the millions of dollars each year that we do.

The second set of arguments made frequently by the CATV industry is that legally a system consists of a greater receiving antenna and that the system is merely a more efficient part of each subscriber's receiver and that the antenna service is rented by the owner of the receiver instead of his purchasing a less efficient antenna of his own.

Insofar as the CATV's merely receive television signals their arguments are sound enough. However, the CATV's do more than merely receive signals. They transmit and furnish for a charge broadcast material, including copyright material, to their subscribers. The payment is usually in the form of a connection fee and a continuing monthly fee.

The argument that what they are providing and charging for is merely a giant antenna is somewhat akin to the unsuccessful contention of the defendant in Her.

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