VI. REVIEW OF BASIC PROBLEMS A. THE BASIS OF PROTECTION 444 It is generally recognized that unauthorized dubbing constitutes a problem in the sound recording industry, and that some legal protection against it is desirable.445 At present, the only protection available in the United States (aside from one municipal ordinance) must be sought under State common law. The drawbacks of this type of protection are well known-limited jurisdiction, lack of uniformity, uncertainty of outcome, ineffectiveness of available remedies, and danger of retaliatory State legislation. Moreover, if the courts continue to extend the boundaries of unfair competition and common law copyright in the area of sound recordings, the result may be that an uncopyrightable work receives more protection than one that qualifies for copyright. At best, this result would be anomalous and undesirable; at worst, it could threaten to undermine the entire concept of copyright. It could apparently be prevented only by bringing sound recordings under the Federal copyright law, and imposing whatever limitations may be necessary on their protection. Several alternatives to common law protection have been suggested: 1. Uniform State statutes; 2. Action by the Federal Trade Commission; 3. Federal criminal statute; 4. Federal copyright statute. The practical problems of achievement and administration presented by the first two suggestions may outweigh their advantages. As for the third, a statute imposing criminal liability in the absence of someone's consent gives that person an exclusive right of authorizationin other words, a de facto copyright. It is possible to argue that a right of this kind should appropriately be granted as an integrated part of the Federal copyright law. B. THE CONSTITUTIONALITY OF COPYRIGHT IN SOUND RECORDINGS Attacks on the constitutionality of a statute granting copyright in sound recordings have usually involved four basic arguments: and 1. Records are not "writings" since (a) they are not legible, (b) the Supreme Court has held that they are not "copies,' (c) they are "material objects" or "mechanical devices" and thus belong under patent rather than copyright protection. 2. Protection for a recording would violate the author's "exclusive right" in the work that has been recorded. 3. Performers cannot be regarded as "authors" since their contributions do not amount to original intellectual creations. 4. Record manufacturers cannot be regarded as "authors" since their contributions do not amount to original intellectual creations. Recent decisions, together with the weight of opinion of the many commentators on this subject, seem to have weakened, if they have not destroyed, the force of the first three of these arguments.446 However, although the record manufacturers have persuasively defended the artistic nature of their activities, the fourth argument represents a more doubtful question. Certainly, a statute expressly conferring copyright on recorded performances would be much less vul nerable on constitutional grounds than one which granted copyright to manufacturers or was silent as to the beneficiary of protection. C. THE BENEFICIARY OF PROTECTION One of the most frequently repeated criticisms of the "acoustical recording" bills in the 1940's was directed at their failure to identify either the performer or the record company as the beneficiary of protection. The performers have argued that their contribution to s record is far more creative and artistic than that of the manufacturer, and that copyright should be accorded to them in the first instance. The manufacturers have argued that a performers' copyright would be impractical because of the difficulty in indentifying all of the beneficiaries, and that the artists' interests would be better served by their reliance on royalty contracts. The manufacturers have stressed the artistic nature of their contribution to the records, and base their claims on an analogy to the present copyright in motion pictures. Judged solely from the creative viewpoint, the claims of the performers appear to outweigh those of the manufacturers. On the other hand, various practical considerations lend weight to the manufacturers' claims. Compromise solutions might include (a) treating the performers and the record company as "joint authors" or (b) granting copyright in the performance but protecting the manufacturer as "employer for hire" or "implied assignee." Whatever solution is found to this problem, it seems important that it be clearly expressed in the legislation. D. IMPACT ON SECONDARY USERS The ordinary commercial users of recorded music-broadcasters, jukebox operators, cafe owners, etc.-could presumably find little objection to the principle of copyright in recordings, if it was strictly limited to the dubbing situation. However, they may fear that, once the principle of copyright is firmly established, the exclusive rights of the copyright owner will be extended to include broadcasting and public communication. On the other hand, it might be argued that sound recordings are now in a position to claim protection against all these types of uses under the present court decisions, and that broadcasters and other secondary users would actually stand to gain from a copyright statute confined to dubbing. E. IMPACT ON VENDORS If expressed in their traditional form, the exclusive rights conferred by an antidubbing statute would probably be "to make, copy, and vend" the recordings. Standing alone, this might well mean that a retail vendor could be liable for statutory damages and to seizure and destruction of his stock, even if he had no reason to suspect that the records were piratical. Unless some special provision were included limiting the liability of innocent vendors, it seems likely that retail record dealers would be among the opponents of a copyright bill including antidubbing provisions. 447 See notes 114-117 supra, and text thereto. F. IMPACT ON AUTHORS AND COPYRIGHT OWNERS 1. In general.-Aside from their constitutional objections, most of the main arguments of the authors-multiplicity of licensing, danger of new collecting agencies, restrictive control of performances-do not apply to an antidubbing statute. As in the case of the broadcasters, they may fear that copyright control would gradually be extended to other uses, but again it is possible that recent court decisions broadening the scope of common law copyright and unfair competition could be considered an even greater danger. 2. The compulsory licensing problem.*-Under the present copyright law, the recording rights of copyright owners of musical compositions are subject to a compulsory license; once the owner has licensed his work for recording, anyone else may record it for a statutory fee of 2 cents per record. It is highly unlikely that any such limitation could ever be imposed upon rights against the dubbing of records. This fact provides the author-publisher groups with three grounds of attack: (a) The author is unfairly discriminated against because he can never receive more than 2 cents per record, while the performer can bargain freely for his services. (b) Under the compulsory licensing provisions, a record manufacturer may record a song without permission from the copyright owner. Under the proposed legislation he could then secure copyright in his recording and prohibit rerecordings a right that is denied the author of the song. (c) The compulsory licensing provisions were intended to prevent a monopoly in the record industry. The proposed legislation would foster such a monopoly, since the largest companies have long-term exclusive contracts with the most popular recording artists. In answer, the record manufacturers have advanced the following arguments: (a) In 1909 the compulsory licensing provision was imposed on a right then being recognized for the first time. In contrast, rights of record manufacturers against dubbing have been consistently recognized under the common law. To impose a compulsory licensing provision upon a copyright in records would constitute a deprivation of recognized property rights. It would also countenance dubbing, a practice the courts have condemmed as a social evil. (b) The performer is a much more important factor in the success of a record than the song. It would be unjust to impose. a ceiling on the amount a performer can receive for making a record. (c) Authors receive royalties from many sources in addition to the sale of records: sheet music, public performance, broadcasting, motion pictures, etc. Performers and record companies receive remuneration for a recording solely through the sale of records, and it would be unfair to impose a compulsory license on their one source of revenue. In the course of their efforts to secure copyright legislation, the performers urged that compulsory licensing provisions be repealed, *For an extended discussion of the compulsory license see Studies 5 and 6 in the present series of committee prints. thereby removing the cause for the authors' claim of unequal treatment. The record manufacturers may be more reluctant to agree to this suggestion, since the compulsory licensing provision was created for their benefit. One suggested solution to this dilemma was to make copyright in recordings conditional upon the consent of the copyright owner. and provisions to this effect were embodied in several of the bills. Unfortunately, the results of this proposal seemed to please no one. The authors-publishers had two main objections: (a) The requirement for consent in the first instance does not alter the fact that, once he has secured his copyright, the manufacturer can prevent copying of his records-a right that is still denied to the author. (b) The requirement is illusory, since the record companies are in a superior bargaining position. If the copyright owner withholds permission, the record manufacturer will simply record another song. The objections of the record manufacturers can be summarized as follows: (a) The provision would make it essential for the record company to obtain a copyright, since otherwise his work would fall into the public domain and he would lose the common law antidubbing rights he now has. (b) Since it is imperative for the manufacturer to secure a copyright, and since the author can give or withhold consent as he chooses, he may sell his consent for whatever he can get. This would allow him to discriminate against one company and in favor of another. It would also virtually do away with the principle of compulsory licensing, since the copyright owner could charge anything he wished in exchange for his consent. VII. SUMMARY OF ISSUES 1. Should the Federal copyright statute provide protection against the unauthorized dubbing of sound recordings? 2. Who should be the beneficiaries of this protection-the performers, the record manufacturers, or both? 3. Should the legislation embody any effort to resolve the problems presented by the compulsory licensing provision? 4. What formalities, if any, should be provided for sound recordings? (a) Should registration for unpublished and/or published recordings be permitted or required? (b) What should be the form of the copies deposited? (c) Should a copyright notice be required for published records? (d) If so, what should be the form and position of the notice? (e) Should the manufacturing provisions be extended to recordings? 5. What should be the duration of copyright in a sound recording? 6. Should there be a special provision covering rerecordings made by a broadcasting organization for its own broadcast or archival purposes? 7. Should remedies for infringement include: (a) Specified minimum damages? (b) Seizure and destruction of infringing copies? |