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White-Smith case was to receive greater acceptance thereafter than the principle of narrow construction adopted in the majority opinion.

A.2.3.1.1 Copyright Act of 1909. At the time of the White-Smith decision, Congress was working on legislative proposals that were to become the copyright law revision of 1909. The most hotly disputed issue in the legislative proceedings was a proposal to give copyright owners of musical compositions a new exclusive right to make recordings of their music. (Incidentally, the fact that Congress was considering this proposal may have been a factor in the Supreme Court's pronouncement in White-Smith that the issue of making recordings should be resolved by Congress rather than by the Court.) During the hearings on the revision bills (1906-1908) there was strong and repeated testimony from a number of witnesses that one recording company (Aeolian) had made contracts with most of the major music publishers whereby that company would acquire exclusive licenses to make recordings under the anticipated new law, in all the music controlled by those publishers then and for many years thereafter.

The reaction of Congress to this testimony is shown in the following passage from the House Committee Report (No. 2222, 60th Cong.) on the bill eventually enacted:

"It was at first thought by the committee that the copyright
proprietors of musical compositions should be given the
exclusive right to do what they pleased with the rights it
was proposed to give them to control and dispose of all rights
of mechanical reproduction, but the hearings disclosed that
the probable effect of this would be the establishment of a
mechanical music trust."

Elsewhere in the same Report the House Committee said:

"Your committee have felt that justice and fair dealing, how-
ever, required that when the copyrighted music of a composer
was appropriated for mechanical reproduction the composer
should have some compensation for its use and the composer
should have the further right of forbidding, if he so desired,
the rendition of his copyrighted music by the mechanical
reproducers. How to protect him in these rights without
establishing a great music monopoly was the practical question
the committee had to deal with. The only way to effect both
purposes, as it seemed to the committee, was, after giving
the composer the exclusive right to prohibit the use of his
music by the mechanical reproducers, to provide that if he
used or permitted the use of his music for such purpose then,

upon payment of a reasonable royalty, all who desired might reproduce the music.

So was born the first compulsory license under the copyright law. Section 1(e) of the Copyright Act of 1909 gave the copyright owner of a musical composition the exclusive right "to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"; but to this was added the condition that "whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduct mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each part manufactured, to be paid by the manufacturer thereof."

It may also be noted here that the 1909 Act provided that the copyright owner of a dramatic work was to have the exclusive right to make "any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced." (sec. 1(d)); and that the same right was extended to nondramatic literary works by an amendment (of sec. 1(c)) in 1952.

Thus, in the 1909 Act, Congress did not overturn the holding of the Supreme Court in White-Smith that a reproduction of a work which was not visually perceptible was not a "copy" of the work, and did not infringe the right to make "copies"; but it rendered that holding ineffectual with respect to the making of any form of "record" from which a musical, dramatic, or nondramatic literary work may be reproduced in any manner.

A.2.3.1.2 Copyright Act of 1976. The new copyright law revision of 1976 confirms the exclusive right of the copyright owners of all categories of works "to reproduce the copyrighted work in copies or phonorecords" (sec. 106 (1)). The definition of both of these terms is stated broadly (in sec. 101):

"'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

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"'Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual

work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

These provisions and definitions in the Act of 1976 seem to wipe out any lingering vestige of the White-Smith decision.

The 1976 Act retains the compulsory license for the making of phonorecords of musical works, with several changes in detail (sec. 115). Thus, the royaity rate for each musical work recorded is increased from the old rate of 2 cents per record manufactured, to the new rate, per record distributed, of two and three-fourth cents, or one-half cent per minute or fraction thereof of playing time, whichever amount is larger.

This history of the copyright law respecting the right to make sound recordings of musical and other works demonstrates the adaptation of that law to new technology by legislative enactment where the courts abstained from effecting a judicial adaptation.

A.2.3.2 Sound Recordings as Copyrightable Works. The technological development of sound recording brought forth another question in the field of copyright: Are sound recordings in themselves (as distinguished from the musical or literary works recorded) works of authorship that should be accorded copyright protection?

Sound recordings, as exemplified by phonograph records or tapes, generally contain more than the musical or literary work reproduced aurally: They embody also the rendition of the musical or literary work by performers (musicians, singers, actors, etc.), as well as the technical skill and esthetic judgment of the director and operators of the various mechanisms that are manipulated to produce the finished record. Performers were long ago regarded as creative artists but their aural performances were evanescent events before the invention of sound recording devices. The advent of those devices, making it possible to preserve souncs in a fixation from which they could be reproduced, raised the possibility of treating recorded performances as works of authorship, and opened up the question of whether the recordings of those performances should be given the protection of copyright.

The first suggestion that sound recordings should be made a category of copyrightable works came in a proposal advanced by producers of such recordings in the early stages of the Congressional proceedings in 1906

on the general revision of the copyright law. During the progress of those proceedings in the following two years, the producers of sound recordings became concerned primarily with opposing the extension to composers of the exclusive right to make recordings of their music; and since the Constitutional arguments presented by the producers on the latter issue would have barred the coverage of sound recordings under the copyright law, they dropped their efforts to secure such coverage. The Copyright Act of 1909 therefore contained no provision for securing copyright in sound recordings, and the House Committee in its Report (No. 2222, 60th Cong.) on the 1909 Act said:

"It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor (of musical compositions, the control, in accordance with the provisions of the bill, of the manufacture and use of such devices."

Thereafter the Copyright Office, as well as most commentators, took the position that sound recordings were not copyrightable under the 1909 Act, both because the categories of copyrightable works listed in the Act did not include them, and because they did not fit into the basic requirements of the Act as to copyright notice and the deposit of copies.

Beginning in the 1930s, a number of court decisions held that the unauthorized reproduction of the recording of a performance could be enjoined under principles of unfair competition or "common law copyright" (the latter being property rights under the common law in unpublished works). The judges differed as to whether the sale of records constituted "publication" so as to terminate common law copyright protection.

The most important of these decisions was Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657 (2d Cir. 1955), in which the court made several significant pronouncements. It concluded first:

"There can be no doubt that, under the Constitution, Congress can give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition."

Thus, it disposed of the issue, which has been much disputed, of whether a recorded performance could be considered the "writing" of an "author" within the scope of the Constitutional clause on copyright. The court then went on to conclude that Congress had not provided for copyright protection of recorded performances either before or in the Act of 1909.

It concluded further that under the common law of New York the recorded performance was protected against unauthorized duplication, and that the sale of records did not terminate those common law rights.

In a dissenting opinion in the Capitol Records case, Judge Learned Hand agreed that:

"The performance or rendition of a 'musical composition' is a
'Writing" under Article I, Sec. 8, C1. 8 of the Constitution
separate from, and additional to, the 'composition' itself.
It follows that Congress could grant the performer a copyright
upon it, provided it was embodied in a physical form capable
of being copied... Now that it has become possible to capture
these contributions of the individual performer upon a physi-
cal object that can be made to reproduce them, there should
be no doubt that this is within the Copyright Clause of the
Constitution."

Judge Hand also agreed with the court's conclusion, though on somewhat different reasoning, that Congress had not provided for copyright in recorded performances; and he agreed further that such recordings qualified for common law protection, but differed in his view that common law protection was terminated by the sale of records. Concerning this last point he observed:

"I recognize that under the view I take the plaintiff can have
only a very limited use of his records. This is indeed a
harsh limitation, since it cannot copyright them... Unhappily
we cannot deal with the situation as we should like, because
the copyrightability of such 'works' is a casus omissus from
the Act. That was almost certainly owing to the fact that in
1909 the practice of recording the renditions of virtuosi had
not sprung up.'

The Capitol Records and other similar court decisions paved the way for Congressional legislation extending copyright protection to sound recordings, by holding that recordings of performances were the "writings" of "authors" within the scope of the Constitution, and that they merited the protection afforded by copyright. The influences of these court decisions was augmented by the concurring views expressed by most commentators.*

* See, for example, Chafee, Reflections on the Law of Copyright in

45 COLUMBIA LAW REVIEW 503 (1945)

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