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A.2.3.2.1 Congressional Legislation. The successive bills for general revision of the copyright law, beginning with the bill first considered by Congress in 1965, contained provisions naming "sound recordings" as a category of copyrightable works, and giving the copyright owner of those (and other) works the exclusive rights "to reproduce the copyrighted work in copies or phonorecords" and "to distribute copies or phonorecords of the copyrighted work to the public." During the hearings on the revision bills there was virtually no opposition to these provisions.

When action on the general revision bills lagged (for reasons unrelated to the question of protecting sound recordings) and it became evident that "record piracy" had become rampant and was growing, a special bill was introduced to add to the existing copyright statute, provisions for the protection of sound recordings against unauthorized duplication. The provisions of this special bill were the same in substance as those in the general revision bills, making sound recordings a new category of copyrightable works and giving the copyright owner the exclusive rights to reproduce them and to distribute them to the public. This special bill was enacted on October 15, 1971, as Public Law 92-140.

The general revision bill was eventually enacted on October 19, 1976, as Public Law 94-553. To expand on the earlier summary of its pertinent provisions :

"Sound recordings" are listed among the categories of works protected by copyright (sec. 102(a)), and that term is defined (in sec. 101) 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."

The copyright owner of all categories of protected works,
including sound recordings, has the exclusive rights
"(1) to reproduce the copyrighted work in copies or phono-
records; (2) to prepare derivative works based upon the
copyrighted work; (3) to distribute copies or phonorecords
of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending."
(sec. 106).

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It is stated specifically (in sec. 114) that the exclusive rights of the copyright owner in a sound recording do not include any right of performance (this was a matter of

sharp controversy in the hearings); and that the right to reproduce a sound recording is limited to the duplication of the actual sounds fixed in the recording and does not extend to the independent fixation of other sounds even though they imitate those in the copyrighted recording.

Generally speaking, wherever the new Act makes provisions
respecting "copies" of copyrighted works, it extends those
provisions to "phonorecords" as well. (The definitions
in sec. 101 of "copies" and "phonorecords" have been quoted
earlier.)

In sum, the history of the extension of copyright protection to sound recordings reflects a situation where court opinions concerning a new technology, supported by the concurring views of commentators, laid the foundation for subsequent legislation.

A.2.4 RADIO AND TELEVISION BROADCASTS

The Copyright Act of 1909 incorporated in substance, in section 1, provisions giving the copyright owner the exclusive right to "perform" the work "publicly" in the case of a dramatic work, and to "perform" it "publicly for profit" in the case of a musical composition; and the 1909 Act added, for the new category of lectures and similar works prepared for oral delivery, the corresponding right to "deliver" the work "in public for profit." In 1909, of course, radio and television broadcasting was unknown; 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.

A.2.4.1 Broadcasting as Performances. When radio broadcasting was developed and the use of copyrighted music and plays in radio broadcasts became common in the early 1920s, the question arose whether broadcasts of copyrighted works were public performances within the scope of the 1909 Statute. In the case of Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (6th Cir. 1925), this question was presented with respect to a radio broadcast of a musical work. The court held that the broadcast did constitute a public performance, saying:

"While the fact that the radio was not developed at the time
the Copyright Act...was enacted may raise some question as to
whether it properly comes within the purview of the statute, it
is not by that fact alone excluded from the statute. In other
words, the statute may be applied to new situations not antici-
pated by Congress, if, fairly construed, such situations come

within its intent and meaning. Thus it has been held both in this country and England that a photograph was a copy or infringement of a copyrighted engraving under statutes passed before the photographic process had been developed ... While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries."

"... A performance, in our judgment, is no less public because
the listeners are unable to communicate with one another, or
are not assembled within an inclosure, or gathered together in
some open stadium or park or other public place. Nor can a
performance, in our judgment, be deemed private because each
listener may enjoy it alone in the privacy of his home. Radio
broadcasting is intended to, and in fact does, reach a very
much larger number of the public at the moment of the rendition
than any other medium of performance. The artist is consciously
addressing a great, though unseen and widely scattered audience,
and is therefore participating in a public performance."

This decision was frequently cited and consistently followed and its rulwas generally accepted in practice by the broadcasters and other concerned,

The conclusion that broadcasting constitutes a public performance was confirmed, though indirectly, by a statutory enactment in 1952 (66 Stat. 752) the primary purpose of which was to extend performing and recording rights to nondramatic literary works. At the request of the broadcasting industry, a sentence was added to that enactment to place a limit of $100 on "the damages for the infringement by broadcast" of nondramatic literary works where the broadcaster was unaware and could not have reasonably foreseen that he was infringing.

A further question related to the broadcasting of music was whether such broadcasts were public performances "for profit," since the performance right in music was limited to those that were given "for profit." This question was also considered in the Remick v. Automobile Accessories case reviewed above, where the broadcasting station was operated by the manufacturer of radio products and supplies and was licensed as a commercial station and used as a medium for advertising its products. Citing earlier cases to the same effect, the court held the broadcasts to be public performances "for profit" and observed:

"That, under the Copyright Act, a public performance may be
for profit, though no admission fee is exacted or no profit
actually made, is settled by Herbert v. Shanley, 242 U.S.
591 ... It suffices, as there held, that the purpose of the
performance be for profit, and not eleemosynary; it is
against a commercial, as distinguished from a purely philan-
thropic, public use of another's composition, that the statute
is directed. It is immaterial in our judgment, whether that
commercial use be such as to secure direct payment for the
performance by each listener, or indirect payment, as by a
hat-checking charge, when no admission fee is required, or a
general commercial advantage, as by advertising one's name
in the expectation and hope of making profits through the
sale of one's products, be they radio or other goods."

In later cases the question of whether radio broadcasting of music was "for profit" was considered in other circumstances where the commercial purpose was less evident. It would appear to be irrelevant here to review those cases. We note simply that broadcasts by commercial stations have generally been regarded as being for profit, either because they are operated as commercial businesses or because they carry commercial advertising, while broadcasts by stations licensed as noncommercial educational stations have generally been regarded as being not for profit.

A.2.4.2 Reception of Broadcasts as Performance. The development of broadcasting also gave rise to a more difficult question: was the reception of a broadcast (as the question arose initially, of a radio broadcast of music) in a place where the performance being broadcast would be reproduced, by means of the receiving equipment, for the entertainment of the public, a further performance under the 1909 Copyright Act?

This question reached the U.S. Supreme Court in the famous case of Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931). In that case a hotel maintained a master radio set which was wired to loud speakers from which the radio programs could be heard in all of the public and private rooms in the hotel. The Court held that the hotel's reproduction of the broadcast performance, through its receiving set and loud speakers, for the entertainment of its guests, was itself a public performance under the statute. Because of the novelty of the technology involved and the far-reaching effect of the decision, and the parallel with the question of cable television retransmission of broadcasts which the Supreme Court ruled on more than 35 years later, the reasoning of the Court in the Jewell-LaSalle decision, by Justice Brandeis, merits quotation at some Tength:

"The defendant contends that the Copyright Act may not reasonably be construed as applicable to one who merely receives a composition which is being broadcast. Although the art of radio broadcasting was unknown at the time the Copyright Act of 1909 was passed, and the means of transmission and reception now employed is wholly unlike any then in use, it is not denied that such broadcasting may be within the scope of the act... The argument here urged, however, is that, since the transmitting of a musical composition by a commercial broadcasting station is a public performance for profit, control of the initial radio rendition exhausts the monopolies conferred...

"The defendant next urges that it did not perform because there can be but one actual performance each time a copyrighted selection is rendered, and that, if the broadcaster is held to be a performer, one who, without connivance, receives and distributes the transmitted selection, cannot also be held to have performed it. But nothing in the act circumscribes the meaning to be attributed to the term 'performance', or prevents a single rendition of a copyrighted selection from resulting in more than one public performance for profit. While this may not have been possible before the development of radio broadcasting, the novelty of the means used does not lessen the duty of the courts to give full protection to the monopoly of public performance for profit which Congress has secured to the composer...

"The defendant contends further that the acts of the hotel company were not a performance because no detailed choice of selections was given to it. In support of this contention it is pointed out that the operator of a radio receiving set cannot render at will a performance of any composition, but must accept whatever program is transmitted during the broadcasting period. Intention to infringe is not essential under the act... And knowledge of the particular selection to be played or received is immaterial. One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played. Similarly, when he tunes in on a broadcasting station, for his own commercial purposes, he necessarily assumes the risk that in so doing he may infringe the performing rights of another...

"Second. The defendant contends that there was no performance because the reception of a radio broadcast is no different from listening to a distant rendition of the same program. (In footnote: "Hence it is urged that the radio receiving set

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