COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON LIMITATIONS ON PERFORMING RIGHTS With respect to the summary of basic issues (Study, p. [119]), I am in favor of the following: 1. Maintaining the "for profit" limitation in its present form; 2. Not imposing any such limitation on the public performing rights in dramatic works; 3. Not imposing any such limitation on public exhibition rights in dramatic or nondramatic motion pictures, on the theory that the present law precludes unauthorized exhibition, by analogy to unauthorized copying without any "for profit" limitation or, for that matter, any "public" limitation. Sincerely yours, The analysis made by Mr. Varmer of the above subject is very useful, and needs only a brief comment. Were we considering an ideal copyright statute, there might be some utility in discussing an abandonment of the term "for profit" in limiting performing rights in some works and in attempting to substitute specific exemptions parallel to those which have been enacted in foreign statutes. Since we are trying to attain some feasible and workable revision of the statute, no such attempt should be made. In the area of performance rights the courts, in my judgment, have construed the present statute in a fashion which makes a valid adjustment between the public interest and private rights. That delicate balance should not be disturbed. The concept of the kind of performance which constitutes a "public performance for profit" has been canalized by the courts with great care. It is no longer a vague term in our jurisprudence, but one which has a reasonably precise meaning. Any change in the statutory language would impair doctrines now firmly established in our law, and would create the necessity of resorting to new litigation to determine the extent to which the boundaries have been changed. Reliance upon limited and foreseeable exceptions does not allow for the flexibility necessary to enable a statute to keep pace with the changing world in which it must operate. Take, for example, the jukebox exemption in the present law. Whatever may have been its usefulness in 1909, its validity is admittedly now outmoded although the operators assert a vested interest in the exemption. The history of copyright revision is that the laws have been changed about once in each half century. No one can presently prognosticate what changes will take place in the channels of communication in the next 50 years, and any rigid statutory provision might well be outmoded before the ink on the statute is dry. The basis for distinguishing between the exclusive rights accorded to dramatic works and motion pictures, and the more limited rights in relation to the performance of songs and rendition of literary material is well appreciated in the entertainment field. We often speak of the difference between the "grand right" and the "small right" and know pretty well what is meant by each of these terms, even though they have no legal precedent and are not found in legal literature. Perhaps a better understanding would follow from the general adoption of simple colloquial terms instead of stilted statutory phrases. As a matter of policy, although not necessary by standards of absolute theory, I suggest that the formulae of the present statute be followed in respect of the right of performance. Sincerely, JOHN SCHULMAN. |