3. SOME LANDMARKS OF TECHNOLOGY-CONDITIONED COPYRIGHT POLICYMAKING 3.1 EARLY HISTORICAL ACTIVITIES The Constitution was declared in effect on March 4, 1789, having been ratified by the minimum nine States and two others by that time. The first U.S. Congress began regular sessions on April 6, 1789 and the Copyright Act of 1790 was adopted on May 31 of that year. 16 Maps, charts, and books were covered by the first Act. The very early adoption of a Copyright Act may be indicative of the general inclinations of the members of our first Federal government towards the pursuit of knowledge for its practical implications. A less practical, more esthetic class of work, prints, were protected in 1802, although Taubman states that the art of the engraver had been protected in England by 1735.17 Musical compositions embodied as sheet music were added as a protected class in the general copyright revision of 1831. Photographs were added by the Act of 1865 and works of fine arts were enumerated in the second general copyright revision in 1870. The adaption of the copyright laws to the technologies of the twentieth century (except for computer technology) is detailed in Appendix A, Chapter A.2 of this report. Much of the following part of this chapter is essentially a summary of that material. Special organization and additional information and interpretation have been added to clarify and elucidate certain concepts. 3.2 COPYRIGHT IN SOUND RECORDINGS This technology is considered first because of the early consideration by the Supreme Court of a principle that was to have effect on thinking about copyright, even with respect to other technologies, until 1976. The essential question at issue before the Supreme Court in the 1908 case of White-Smith Music Publishing Co. v. Apollo Co. was whether a perforated piano roll constituted a "copy" of sheet music. Now a piano roll, which is simply a cylinder of hard material with holes in it, is a sound recording, as that term is understood today. True, music is only heard when the piano roll is used together with a properly-instrumented piano, but the analogy with a phonograph record or magnetic tape is clear. Neither of those latter recording media contain sounds either; they contain grooves or altered magnetic domains. When a record or tape is used together with properly-instrumented equipment, the intended music is heard; and it cannot be heard from the recording without that equipment or other equipment performing the same function. In effect, the piano used with the piano roll is the playback equipment. However, sound recordings were not a protected class in 1908 and the Supreme Court decided in White-Smith that the definition of a copy of a musical composition was "a written or printed record of it in intelligible notation." To the Supreme Court in 1908, a piano roll, or for that matter a phonograph record, was not a copy (because it was not humanly intelligible through the sense of sight) and therefore, in the Court's opinion, was not covered by the copyright statute. Furthermore, the Court said, in keeping with its narrow construction of the word "copy", that issues of a new technology not specifically covered in the current statute "properly address themselves to the legislative and not to the judicial branch of the Government." However, it was clear from other Court statements that the Court was sympathetic to sound recording protection, despite its contrary ruling on the basis of its interpretation of the law as written. At the time of the White-Smith ruling, Congress was working on the prospective Copyright Act of 1909, and one issue was whether copyright owners should have a new exclusive right to make recordings of their music. During hearings, Congress was told that one company had contracted with most of the major music publishers for exclusive licenses under the anticipated new law to record all the music controlled by those publishers for many years to come. The result was that Congress, in the 1909 Act, established a compulsory license for musical recording, requiring that once an owner of a musical copyright had permitted his work to be recorded by one company, any other company could record it similarly, upon payment of 2 cents for each reproduction of the composition manufactured. This step prevented the anticipated recording monopoly. However, this did not mean, necessarily, that recordings of musical compositions were copyrightable. They were not, strictly speaking, even though no one could lawfully manufacture records of copyrighted music without paying the compulsory license fee. Nevertheless, Congress provided for the copyright owner of a dramatic work to have exclusive rights in "any transcription or record thereof" in the 1909 Act, and extended this right this right to nondramatic literary works in 1952. The question whether, under the Constitutional clause on copyright, a recorded performance could be considered the "writing" of an "author" and therefore eligible for copyright protection if Congress so chose to grant it, was apparently disposed of in the affirmative in the case of Capitol Records, Inc. v. Mercury Records Corp., heard by the 2nd Circuit Court in 1955. However, it was not until 1971 that Congress passed a law naming "sound recordings" as a category of copyrightable works, when it became evident that "record piracy" had become rampant and was growing. In the 1976 General Revision, Congress provided for copyright of works "fixed in any tangible medium of expression" and defined "sound record ings" as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects such as disks, tapes, or other phonorecords in which they are embodied" (Section 101). Thus motion picture sound tracks are not covered as "sound recordings," although they are covered elsewhere. This is due to their judicial history and their closer connection with motion pictures as an industry. 3.2.1 Copyrighted Music in Sound Tracks In 1946, the question arose whether a producer of motion pictures was entitled to a compulsory license for 2 cents per recording for use of a performance of copyrighted music in a sound track of a motion picture. Clearly, in 1909, when the compulsory license for music recordings became law, sound tracks in motion pictures were unknown. Consequently, this was a clear case for judicial interpretation. That the Court decided in the negative on purely economic grounds may be noted from the following quotes from the Court decision on this case, Jerome v. Twentieth Century Fox Film Corp: "Counsel assert that no more than 500 positive prints of a In the 1976 Act, the view that the compulsory license provision did not apply to sound tracks was stated explicitly. Owners of copyrights in music retained the exclusive rights to record on sound tracks and the compulsory license to record was confined to the making of "phonorecords" which excludes sound tracks as a subset. 3.2.2 Educational and Library Reproduction of Phonorecords In the 1976 General Revision of Copyright Law, sections 107 and 108 and related pages of House Reports 94-1476 and 94-1733 concern the concepts of fair use and permitted educational and library reproduction of works. The content of this material is discussed in Section 3.6.2 below in the context of photocopying because the problems addressed by that material arose primarily from that cause. However, a review of the documents shows that the solutions applied to photocopies also apply, in general, to phonorecords. 3.3 COPYRIGHT IN MOTION PICTURES With this technology, as with others, the Federal Courts struggled with the question of whether new technology not specifically provided for by Congress is protected by virtue of extension of concept or is not protected by virtue of strict literal interpretation. The problem arose in 1903 in the question whether a sequence of photographs telling a story could be protected with the affixation of a single copyright notice or whether each photograph had to have its own notice, as literally intended when Congress protected (individual) photographs in 1870. This was the situation in Edison v. Lubin. In that case, the District Court said: "...if...the law is defective, it should be altered by Con- On the other hand, the Circuit Court of Appeals, in reversing the District Court, said: "When Congress...saw fit...to extend copyright protection to In 1912, Congress amended the copyright statutes to include "motionpicture photoplays" and "motion pictures other than photoplays" as protected classes of works. The 1909 revision had made no mention of these concepts, although they were well-known at the time. After 1912, then, there was protection for motion pictures against unauthorized copying, but due to the specific language of the statute, it was clear that there was protection against unauthorized "public performances" (as distinguished from copying) only for dramatic and musical works. The question whether a motion picture photoplay was a dramatic work arose therefore through litigation. Specifically, this question arose in Tiffany Productions v. Dewing, (1931), and in M. G. M. v. Bijou Theatre, (1933). The effect of both cases was to insure that a motion picture photoplay was legally defined as a type of dramatic work and that the protection of copyright was accorded to public performances or exhibitions of this type of motion picture. In the Tiffany Productions case, the Court (holding that a motion picture photoplay was a form of a dramatic work) said that: "The statute must be given a sensible meaning in its applica- In the M. G. M. case, the District Court, in a decision later countermanded, had said: "...the effect of a new invention in any given field seems to 3.3.1 Sound. Tracks in Motion Pictures "Talking motion pictures began to be produced about 1924, some 12 years after motion pictures were added to the copyright statutes as a protected class of work. Despite the lack of explicit copyright protection, the industry groups concerned tacitly accepted and operated on the premise that the sound track is protected as an integral part of the motion picture; and this premise appeared then and continues to appear to be logically valid since the pictures and sound together are necessary to constitute the complete work and to convey its artistic effect. This concept was given some judicial validity in the case of L. C. Page & Co. v. Fox Film Corp., (1936); in which the Court stated that "as the plaintiff well says, talkies' are but a species of the genus motion pictures." In 1971, in the House Report on the amendment to the copyright statute which extended protection to sound recordings excepting those sounds accompanying a motion picture, a statement on sound tracks was made. The House Report stated: "The exclusion of sound tracks from the protection accorded Finally in the 1976 General Revision, it was clearly stated that the definition of motion picture included accompanying sounds, and that the copyright in a motion picture included the right to perform it publicly by making its images visible or its sounds audible. Thus, from 1924 until 1976, more by general unstated agreement than by actual law or judicial interpretation, sound tracks were accepted as an integral part of motion pictures. 3.4 RADIO AND TELEVISION BROADCASTING In 1909, radio and television broadcasting were unknown and a public performance was thought of as a performance given in the presence of a group of persons assembled within sight or hearing of the performers. When the use of the copyrighted music and plays in radio broadcasts became common in the early 1920's, the question arose whether broadcasts of copyrighted works were public performances within the scope of the 1909 Statute. This question was considered in the case of Jerome H. Remick & Co. v. American Automobile Accessories Co. in 1925 with respect to a radio broadcast of a musical work. The court held that the broadcast did constitute a public performance, stating: "While the fact that the radio was not developed at the time |