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STATEMENT OF GORDON M. FREEMAN IN OPPOSITION TO PRESENT SECTION 107 OF

H.R. 4347, AND IN SUPPORT OF AMENDMENT TO THIS SECTION 107 So As To PROVIDE PROTECTIVE LANGUAGE SIMILAR TO THAT OF H.R. 11947 IN THE LAST SESSION OF THE CONGRESS

The International Brotherhood of Electrical Workers, with around 800,000 members, has long been engaged in the training of those employed in the electrical industry. This embraces all phases of electrical work.

Jointly with our employers, and unilaterally where such cooperation is not available, the IBEW has expended hundreds of thousands of dollars to develop and distribute training materials. These materials are designed for use of the industry in training those employed in the industry and are financed and developed by the industry. They are copyrighted to prevent misuse and abuse.

Last fall we were alerted to a legislative move which might easily disrupt this safeguard. We have been in correspondence with officers of the Library of Congress regarding H.R. 11947 of last session and more recently H.R. 4347, now before you. We note that H.R. 5680 and S. 1006 are similar to H.R. 4347 with reference to section 107 thereof.

Our protest was on possible relaxation of "fair use" resulting from a resolution by the National Education Association and other groups for free use of copyrighted materials (Imprint, vol. 4, No. 3, November 1964, McGraw-Hill). As stated in that article “This innocent-sounding resolution would virtually destroy the benefits of copyright protection in this country.” We had little objection to the "fair use" provision in H.R. 11947 as introduced.

We are now concerned with the present "fair use" provision in H.R. 4347 (also H.R. 5680 and S. 1006) in that there is only the bare and nondefinitive statement "Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.” As there is no definition or delineation of "fair use" in the bill, action of the type visualized in the resolution for free use of copyrighted materials would be a distinct possibility and settlement would require resort to the courts.

Subsequent limitations on provisions of section 106 (sections 108 through 114) are quite specific as to application of the limitation. This makes the deficiency in section 107 more serious. A provision for "fair use" without an indication of, or a basis for determining, what is meant by the term could only lead to varying interpretations.

This is, therefore, to urge that the present section 107 of H.R. 4347 (and similar bills) be amended to give full value of the safeguards provided in section 6 of H.R. 11947, 88th Congress, by adding that part of that section 6 which reads:

"In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include

(1) the purpose and character of the use ;
“(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work.”

INTERNATIONAL PUBLISHERS ASSOCIATION,

Geneva, July 12, 1965. Hon. EDWIN E. WILLIS, Chairman, Subcommittee 3, Committee on the Judiciary, House of Representa.

tives, Washington, D.O. DEAR MR. WILLIS: At its recent congress held in Washington from May 30 to June 5, 1965, the International Publishers Association adopted the following resolution with respect to the imposition of manufacturing requirements in the copyright laws of member countries :

"That the 17th Congress of the IPA condemns any legislation which restricts copyright protection to works of indigenous manufacture and urges any gorernment administering such a restriction to repeal it in the interest of the full freedom of works of the mind.”

Two other resolutions of more general character have likewise been adopted. These have been communicated by the “United International Bureaux for the Protection of Intellectual Property" at Geneva to their member participants of the Committee of Governmental Experts who recently met in Geneva ; at this meeting also observers from the United States were present.

It is our understanding that the copyright bill presently being considered by your subcommittee, H.R. 4347, continues in effect, though with some modifications, the so-called manufacturing clause of the American copyright law, which for many works requires that they be manufactured in the United States in order to obtain a copyright in that country.

This is a requirement which we believe is imposed by no other country in the world, and one contrary to those policies of the free flow of books among countries and of the universal respect of the rights and work of authors and com. posers so generally followed by the United States.

We would respectfully request that this letter, and the quoted resolution, be admitted to the record of the hearings on this legislation being conducted by your subcommittee.

I should like to be allowed to express the earnest hope of publishers and men of letters throughout the world, that the United States may find it possible to terminate this legislative requirement which is so at variance with the practices of other countries and with the general policies of the United States and which, in view of the preeminent present position of the American printing and binding industries seems now wholly unnecessary to their protection.

Moreover, the U.S. manufacturing clause, if maintained, could easily be regarded as a precedent by other countries or groups of countries who wish to defend their special interests or the interests of special groups, which might lead to a disintegration of the international exchange of books and consequently of cultural life and progress. Respectfully yours,

HJALMAR PEHRSSON,

The Secretary General.

INFORMATORY DOCUMENT: COMMENTS FROM THE INTERNATIONAL PUBLISHERS'

ASSOCIATION

The 17th Congress of the International Publishers' Association (IPA), which met at Washington, D.C. (U.S.A.) from May 30 to June 5, 1965, adopted the following resolutions: "BERNE CONVENTION—UNIVERSAL COPYRIGHT CONVENTION-U.S. COPYRIGHT ACT

"The 17th Congress of the International Publishers' Association, whose members are the national publishers organizations from 28 nations in 4 continents, has studied in detail the problem of a future international adaptation of the existing copyright laws, especially with regard to the Revised Berne Convention, the Universal Copyright Convention and the U.S. Copyright Act. The Congress welcomes the efforts that will be made for another revision of the Berne Convention during the forthcoming Stockholm Conference of 1967, as well as the propositions formulated in the reform bill of 1965 concerning the U.S. Copyright Act; it therefore pleads for a reform of adaptation of the Universal Copyright Convention. With the aim at reaching protection of the copyright laws which would as far as possible be internationally uniform, the Congress considers the following reforms as indispensable:

"1. That the field of applying the Revised Berne Convention be extended also to publications that have appeared in a nonsignatory country but of which the author is a citizen of a signatory country;

“2. That the right of reproduction be stipulated in the Revised Berne Convention determining that the article concerned leaves it to the national legislations to define the restrictions to this right, but that for these restric. tions it also establishes a number of uniform directions, and especially that it describes the notions of nonprofessional authorized uses such as 'personal use', 'fair use', or "fair dealing';

“3. That the rights of reproducing excerpts and quotations be generally regularized in the Revised Berne Convention, including unconditional pro. tection of articles taken from newspapers and periodicals and dealing with current questions of economic, political, and religious nature;

“4. that the terms of copyright as stipulated in the Universal Copyright Convention and in the U.S. Copyright Act, be adjusted to the stipulations of the Revised Berne Convention and be laid down in the Universal Copyright Convention as a minimum right;

"5. that any provision in the Universal Copyright Convention and in the U.S. Copyright Act be abolished when it stipulates the accomplishment of formalities as a condition for the protection of copyright as far as thes formalities pass beyond the generally accepted copyright notice © with the mention of the proprietor's name. Comprised herein is the elimination of any possibility to restrict protection of the copyright for publications in certain languages, as practiced through the manufacturing clause in the U.S. Copyright Act;

“6. that the possibilities to limit translation rights provided in the Uni. versal Copyright Convention be gradually abolished;

*7. that the author's personal right be taken into consideration by the Universal Copyright Convention and the U.S. Copyright Act, as, for instance, the right of the author to publish his work, to obtain recognition of his propriety, to protest against falsifying modifications of his work, even if the rights of exploitation have already been transferred."

COPYRIGHT The 17th Congress of the International Publishers' Association recommends to all nations adherence to the Berne Convention or the Universal Copșright Convention, and suggests further the desirability of working as rapidly as puissible towards modifications in these two major copyright conventions to make possible a better integration of the latter to a single and uniform system of international copyright conventions.

BRIEF SUBMITTED BY G. S. KESTER, JR., ATTORNEY AT LAW, COLUMBIA, S.C.

Herein is proposed the addition of a proviso to section 113 of the bill to allow the copyright owner the option of licensing phonorecords of his work without rendering such work compulsorily licensable for other sound recordings,

The writer of this brief has seen the sad results of the compulsory license in the 1909 act now in effect, inasmuch as his wife's late father, Julius Brammer. with his co-librettist Alfred Grunwald, wrote some world-famous Viennese operettas with composers Kalman, Straus, Lehar, etc. The exhibits hereto will amplify this adverse result.

The 1961 Kaminstein “report” recommended elimination of the compulsory license, and author interests universally applauded. But section 113 of the present bill was a blockbuster, incorporating the cancerous malignancy in the new law. Quoting from the published “Discussion" of the said “report", I concur with ASCAP's recommendation that the compulsory license be eliminated (pp. 62, 291); with John Schulman, copyright chairman of American Patent Law Association, "devastating influence on musical culture in the United States"; and Music Publishers Protective Association's Julian T. Abeles “a real shield to * * * bootleg record outfits" (pp. 63, 61); Irwin Karp of Authors League of America “inconsistent" (p. 66); the American Book Publishers Council "Violates basic concept of copyright protection" (p. 228); American Guild Authors and Composers "owner's right to a measure ** * of control over the artistic and technical elements of the recording” (is needed) (p. 241); Orme E. Cheatham “even in * * * reputable companies it is usually necessary discover their recording and serre notice before the * * * owner collects" and "it fosters racketeering" (p. 267); Walter J. Derenberg "eliminate it” (p. 273).

My position is clear: If any sole owner, or if all the joint owners of any work desire to avail themselves of the advantages claimed to flow from the compulsory license, let them do so by choice; and section 113 may contain an adequate device for doing so. But give the option not to do so, to those who have seen their work exploited without either credits or pay.

The failure to give credits results from what the A.G.A.C. points out, the owner's loss of control of such matters; the purpose of credits is that anyone wishing to use the music can learn the source of the legal rights, and use it after paying. Lack of credits makes it impossible to adequately monitor the uses of one's work: it is all too easy for the recording studio to forget to pay anyone. except the owner's of works used who happen to find out: for them it is an apology and a check. In the attached exhibits there are a number of domestie

and foreign works without names of composer, Lyricist, or publisher. There may be several coowners of one such composition scattered over the world. Under U.S. decisions, a jointly created work with music and words is coowned by composer and lyricist, even if only the music is played. Even after a coowner learns of such a use, he does not know whether it is under the compulsory license or whether one of his coowners licensed it (as any coowner of a joint work can do).

Exhibit No. 1 is the copyright page of the world-known operetta “Countess Maritza,” “Operette (by) Brammer and Grunwald, music by Kalman." No. 2 is the sheet music "Play Gypsies" therefrom, giving full credit. But No. 3 shows the jacket of the 1950 LP record; the librettists (who wrote the lyrics sung) get no mention at all. And No. 4 shows the RCA record of the same work, mentioning the librettists but not a hint they wrote the lyrics; in fact it implies otherwise.

But Yos. :), 6, 7, and 8 also omit any credit to the composer. This is a common occurrence, and such a disastrous state of affairs is the direct result of the compulsory license. No. 9 illustrates the fact that the performer dominates the field, because the writer is underprotected. The Beatles not only sing the songs, they wrote all of them except one.

Let me stress the oportance of giving an option other than section 113; and in the event it is a joint work, requiring all coowners to agree, to make it com. pulsory licensable.

(The exhibits referred to are in the files of the subcommittee.)

LAW OFFICES OF KIRKLAND, ELLIS, Hopsox, CHAFFETZ & MASTERS,

Washington, D.C., March 2, 1965. HERBERT Fucus, Counsel, Housc Judiciary Committee on Copyrights, Cannon Office Building, Washington, D.C.

DEAR Mr. Fuchs: I enjoyed speaking with you today concerning my article on the King case which appeared in the most recent issue of the Georgetown Law Journal, and appreciate your willingness to consider this article for inclusion in the appendix of the printed hearings on the omnibus copyright revision bill.

If space is a crucial factor in the determination of whether this article is to be reprinted, I suggest that you might want to consider printing the "Introduction" (pp. 403-405) which highlights the recent scientific advances in the communications process as it relates to the traditional concepts of publication and public performance, and the concluding section of the article entitled "A Necessary Retreat to Legislation" (pp. 4264429), which sets forth a proposed legislative solution to these problems.

I am enclosing a copy of the article with penciled notations as to the abovenoted suggested excerpts. Sincerely yours,

ErwiX G. KRASNOW. (The extracts from Mr. Krasnow's article follow :)

COPYRIGHTS, PEP.FORMERS' RIGHTS AND THE MARCH ON CIVIL RIGHTS : REFLECTIONS

ON MARTIN LUTHER KING, JR. V. MISTER MAESTRO

(By ERWIN G. KRASNOW*) Employing the King decision as a case in point, the author analyzes the problems involved in attempting to apply antiquated common-law and statutory copyright theories in our modern era of mass communication. He then reviews various performers' rights theories which he contends can be rationally applied in cases such as King, and examines the conflict of lau's problems involved therein, particularly between state and federal courts. Recognizing that the ultimate solution lies in

Associate, Kirkland, Ellis. Hodson, Chaffetz & Masters, Washington, D.C. A.B., Boston University; LL.B., Harvard Law School; LL.M., Georgetown University Law Center. Member of the Bars of the District of Columbia and the Commonwealth of Massachusetts.

legislation, Mr. Krasnow concludes with a commentary on recent proposals for amendment of the copyright laws.

"This action for copyright infringement presents us with a picture all too familiar in copyright litigation: a legal problem vexing in its difficulty, a dearth of squarely applicable precedents, a business setting so common that the dearth of precedents seems inexplicable and an almost complete absence of guidance from the terms of the Copyright Act."

INTRODUCTION

A speech delivered to an audience of nearly a quarter million people and simultaneously broadcast to untold millions presented the United States District Court for the Southern District of New York with a modern-day sequel to the landmark American copyright case of Ferris v. Frohman,' which held that public performance of a play does not constitute publication. The facts in the case, garbed with all the accouterments of recent technological innovation, squarely raised the issue of whether traditional concepts of public performance and publication are now outmoded in view of scientific advances in the communications process.

The very physical staging of the speech and its widespread dissemination stands in stark contrast the methods available of presenting performances of The Fatal Card” to audiences at the turn of the century. A powerful public address system network enabled the assembled throng of over 210,000 to witness a live performance of the speech. Forty-nine television cameras were used by the three major television networks to capture the speaker's image and words and deliver them into the homes of millions of American viewers. In addition to domestic television coverage, transmission of the speech was relayed "live" to Europe by Telstar II and telecast in nine West European countries by the Eurovision network and in seven Iron Curtain nations by the Intervision network. Television film crews from countries such as Britain, Japan, France, Canada, and West Germany added to the extensive world-wide dissemination of the speech. Hundreds of radio circuits, private lines and direct lines were installed for maximum radio coverage. Reporters for news. papers and magazines, equipped with advance copies of the speech, were able to record both the message and the manner of delivery of the speaker to their vast reading public. All in all, the coverage makes the numbers who attended the performances of The Fatal Card seem, in relative terms, to be of minimum proportions.

In King v. Mister Maestro, Inc.,' Judge Inzer B. Wyatt was moved neither by the weight of numbers nor by the force of technological innovation. He held that the oral delivery of a speech, no matter how vast the audience, does not amount to a general publication, citing the 1912 Ferris decision and that providing advance copies of a speech to members of the communications media does not place the work in the public domain.

A NECESSARY RETREAT TO LEGISLATION

According to Nimmer, “the temptation of legal writers to solve problems by calling for new legislation is in a sense a retreat from reality." 12 Heedful of this advice, this writer has concentrated in the preceding section of pro posing a judicial approach to the problems presented by King. However, many of the perplexing issues posed in King can only be resolved by legislation.

Essentially, the King case demonstrates the complexities arising from our unique dichotomous system of common-law and statutory protection for unpublished works whereby the law of each of the fifty states, “with their possibly varying internal judicial interpretations and statutes,” determines whether so-called unpublished works, fully exploited for commercial profit by performance, should be accorded perpetual protection. Since the Copy.

W 125

1 Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304 (2d Cir. 1963). 2 223 U.S. 424 (1912) ; see pp. 416-17 infra. 3 The name of the play involved in Ferris v. Frohman, supra note 2. * Washington Star, Aug. 29, 1963, p. 1, col. 1. 5 Broadcasting, Sept. 2, 1963, p. 47. 6 Television Digest, Sept. 2, 1963, p. 6. 7 224 F. Supp. 101 (S.D.N.Y., 1963). 124 Nimmer, Copyright Publication, 56 COLUM. L. Rev. 185, 201 (1956). 125 Sargoy, supra note 87, at 8.

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