ported) to fix the royalty either by general regulations or individual action.2 273 274 Periods and methods of accounting for, and payment of, the royalty should be set forth in the statute in such a way that the composer (or assigns) is assured honest, periodic accounting and prompt payment. Penalties for failure to so account and pay should also be prescribed." Since the copyright owner does not select his licensees, he should have the right of reasonable inspection of the manufacturer's books and records in order to check on the accounting. For the same reason, royalty claims might be collected, in advance, in behalf of the copyright owner, by pressing plants from the licensee under a compulsory license. Perhaps such claims ought to enjoy some preferential status in the event of the insolvency or bankruptcy of a licensee under a compulsory license. D. PROCEDURAL IMPLEMENTATION The present section 1(e) requirement 275 that the copyright owner file a notice of use, when recording rights are to be exercised, may be desirable in order to enable interested recording companies to determine which compositions are available for recording under compulsory license. As a practical matter, of course, some recording companies actually commence recording before clearing the rights. Negotiated licenses are attempted before resort to the compulsory license provision. The Copyright Office would seem to be the logical place of filing. Changes in filing procedure would seem to be matters within the discretion of the officials of that office. The filing fee should probably be sufficient to cover the costs involved. The present penalty for failing to file is the barring of an action for infringement of recording rights. This would not appear to be overly burdensome. The present section 101 (e) requirement 276 that the prospective licensee under a compulsory license send to the copyright owner a notice of intention to record the composition would appear to be a slight burden under the circumstances, and should undoubtedly be continued as a means of letting the copyright owner learn of prospective recording of his composition. Appropriate penalties for failure to give such notice should be prescribed.277 Negotiated licenses usually waive this requirement. E. EXTENSION OF COMPULSORY LICENSE PRINCIPLE TO NONMUSICAL WORKS The arguments relating to the retention of the compulsory license principle with respect to musical works do not necessarily apply in the case of nonmusical works. Dramatic works have been protected against recording since 1909, and nondramatic literary works since 1953.278 When such recording rights were recognized, there was no agitation to subject them to compulsory licensing. There is not and never has been any threat of monopoly; the scale of operations is substantially smaller; there has been no industry reliance on lack of 273 See pp. 34, 38, supra. 274 See pp. 18-21, supra ; note 65, supra. 278 See note 61, supra. 270 See notes 64, 65, supra. 277 See pp. 18-21, supra note 65, supra. 278 See notes 4, 191, supra. recognition of such rights or on any compulsory license provision relating to the same. On the other hand, the composer, so far as recording rights are concerned, has a status inferior to that of the creators of other copyrightable works. F. STATUTORY LANGUAGE Any revision of the present compulsory license provisions might well eliminate the awkward constructions and inconsistent phraseology of the present provisions.279 G. EFFECTIVE DATE OF AMENDMENTS Any amendments which substantially affect rights in works in which statutory copyright is subsisting should, following the example of the act of 1909, probably not be retroactive. If the revision represents substantial changes, its effective date might well be delayed for a sufficient period to enable the various interests involved to make the necessary adjustments in their trade practices.280 VI. RECAPITULATION OF MAJOR ISSUES A. Should the principle of the compulsory license for the mechanical recording of music be retained or eliminated? B. If that principle is retained: (1) What types of recording should be, and what types should not be subject to compulsory license? (2) If more than one type of recording is subject to compulsory license and the copyright proprietor authorizes the making of one such type, should another person be allowed to make a different such type under compulsory license? (3) What should be the limitations on the right of arrangement incidental to recording under compulsory license? (4) Should the royalty rate be a flat sum per composition (or per unit of playing time), a percentage of the retail sales price (or of the manufacturer's price), or something else? What should the flat sum or percentage figure be? Should there be any provision for allocation? How should a composition which is recorded on two sides of a recording be treated? (5) Should the royalty rate be applied to records manufactured in the United States, to records sold in the United States, or on some other basis? Should only the manufacturer be liable for the same? (6) Should the present provisions requiring the copyright proprietor to file a notice of use, and making his failure to file such notice a defense to any suit for infringement of recording rights, be retained, modified, or eliminated? See pp. 13-15, supra. Such matters as the "jukebox exception," protection of musical compositions of foreign authors against mechanical reproduction, and the various matters discussed in notes 68-74, supra, are beyond the scope of this study. (7) Are the present provisions requiring the manufacturer to give notice of intention to use and to account and pay royalties monthly, adequate to safeguard the copyright proprietor? If not, what other and different safeguards should be provided for? (8) Should the present penalties for the manufacturer's failure to fulfill the conditions for exercising the compulsory license be retained, modified, or eliminated? C. Should the compulsory license principle be extended to mechanical recording rights in other classes of works or to other rights in musical compositions and/or other classes of works? If so, what should be the detailed features thereof? COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON THE COMPULSORY LICENSE PROVISIONS OF THE U.S. COPYRIGHT LAW |