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is no more than a mechanical or electrical ear trumpet for
the better audition of a distant performance.") We are satis-
fied that the reception of a radio broadcast and its trans-
lation into audible sound is not a mere audition of the
original program... Radio waves are not audible. In the
receiving set they are rectified; that is, converted into dir-
ect currents which actuate the loudspeaker to produce again in
the air sound waves of audible frequencies. The modulation
of the radio waves in the transmitting apparatus, by the
audible sound waves, is comparable to the manner in which the
wax phonograph record is impressed by these same waves through
the medium of a recording stylus. The transmitted radio waves
require a receiving set for their detection and translation
into audible sound waves, just as the record requires another
mechanism for the reproduction of the recorded composition.
In neither case is the original program heard; and, in the
former, complicated electrical instrumentalities are neces-
sary for its adequate reception and distribution. Reproduction
in both cases amounts to performance... In addition, the
ordinary receiving set, and the distributing apparatus here
employed by the hotel company are equipped to amplify the
broadcast program after it has been received. Such acts
clearly are more than the use of mere mechanical acoustic de-
vices for the better hearing of the original program. The
guests of the hotel hear a reproduction brought about by the
acts of the hotel in (1) installing, (2) supplying electric
current to, and (3) operating the radio receiving set and
loudspeakers. There is no difference in substance between
the case where a hotel engages as orchestra to furnish the
music and that where, by means of the radio set and loud-
speakers here employed, it furnishes the same music for the
same purpose.

This opinion of the Supreme Court in the Jewell-LaSalle case presents a prime example of analogizing the operation and effect of new technological devices with those of previously known devices that the law has already dealt with. In this opinion we see the Supreme Court taking much the same philosophical approach, to the adaptation of the copyright statute to new technology, as we have seen earlier in the court decisions on motion pictures, in the concurring opinion of Justice Holmes in White-Smith, in the judicial recognition of the possible extension of copyright to sound recordings in the Capitol Records case, and implicitly in the extension of the copyright statute by Congress to the products of new technology and their use.

It may be noted briefly that the ruling in Jewell-LaSalle was carried a step farther in the case of SESAC v. New York Hotel Statler Co., 19 F. Supp. 1 (S.D.N.Y. 1937). In the latter case, the hotel received the broadcast programs of two stations on a master receiving set and transmitted those programs to speakers in each of its individual guest rooms; each guest could turn the speaker in his room on to his choice of two programs or could turn it off. Relying on the Remick and Jewell-LaSalle decisions, the court held the transmission by the hotel of the copyrighted music in the broadcasts was a public performance for profit.

A.2.4.3 Wire Transmissions. Mention should be made of a process of transmitting performances of copyrighted works somewhat similar, in its effect, to broadcasting; that is, the use of wire systems for supplying performances of music from a central source to a number of subscribing business establishments for the entertainment of their patrons. (A well-known system of this kind is Muzak.) In Leo Feist, Inc. v. Lew Tendler Tavern, 162 F. Supp. 129 (E.D. Pa. 1958), both the company that supplied the music by transmissions over leased wires and the tavern in which the music was received and played over loudspeakers were held to have given public performances for profit. Citing several earlier cases, including Jewell-LaSalle and SESAC, the court said:

"The circumstance of the novelty of the combination of mechani-
cal means involved, however, does not appear to vary the
principles established in the three cases heretofore cited.
For that matter, the numerous cases of musical infringement
under the act involve infinite combinations of means of
musical performance. The principles applied, however, are
those of the same leading cases, despite the individual dif-
ferences as to where and how the music is produced, transmit-
ted, and made audible."

The foregoing decision of the District Court in the Lew Tendler case was affirmed by the Circuit Court on appeal: 267 F. 2d 494 (3rd Cir. 1959).

(The question of retransmissions of broadcasts as public performances of the works in the broadcast was to be raised again years later in the context of retransmissions by cable television systems. We shall consider the cases dealing with cable television below.)

A.2.4.4 Copyright Act of 1976. The recently enacted revision of the copyright Taw gives statutory confirmation to the results reached in the decisions reviewed above concerning broadcasts and wire transmissions of performances of copyrighted works, and their reception and retransmission. Thus, the 1976 Act provides that:

In the case of enumerated categories of works capable of
performance, the copyright owner has the exclusive right
"to perform the copyrighted work publicly" (sec. 106(4).
(This right is subject to certain exemptions provided for
elsewhere in the Act which need not be detailed here).

To "perform" a work is defined as meaning "to recite,
render, play, dance, or act it, either directly or by
means of any device or process or, in the case of a motion
picture or other audiovisual work, to show its images in
any sequence or to make the sounds accompanying it audi-
ble" (Sec. 101).

The exclusive right of the copyright owner "to display the
copyrighted work publicly" is specified for the first time
in the new statute with respect to enumerated categories
of works that may be so displayed (sec. 106(5)). (This
right of public display is subject to some of the same
exemptions as the right of public performance.)

To "display" a work is defined as meaning "to show a copy
of it, either directly or by means of a film, slide,
television image, or any other device or process or, in
the case of a motion picture or other audiovisual work,
to show individual images nonsequentially" (sec. 101).

To perform or display a work "publicly" is defined as
meaning:

"(1) to perform or display it at a place open to the

public or at any place where a substantial number of persons outside of a normal circle of a family

and its social acquaintances is gathered; or (2) To transmit or otherwise communicate a performance or

display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times" (sec. 101).

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To "transmit" a performance or display is defined as meaning "to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent" (sec. 101).

It will be observed that the preceding definitions embrace all forms of transmission and communication, including broadcasting and wire transmission, by which a performance or display is brought to members of the public, in a group or individually, at another place or places. The definitions would also include the communication to the public of a performance or display reproduced from a broadcast or wire transmission.

A.2.5 PHOTOCOPYING

In common usage, the duplication of a printed page by modern copying machines is referred to as "photocopying" whether the process used by the machines is photographic or is of another kind such as a thermal or xerographic process. As the making of copies by such machines became easier, faster, more effective, and less costly, the practice of using those machines to provide copies of copyrighted material for persons engaged in study, research, teaching, and other activities, created serious and difficult problems concerning the application of the copyright law to such copying.

The 1909 Copyright Act (like all the earlier acts) made no provision allowing any copying of copyrighted material without the copyright owner's permission. The Act gave the copyright owner the exclusive right to make copies of his work, without qualification. The courts, however, over a long period of time, had developed the doctrine of "fair use" which, stated in broad terms, allowed the copying of small portions of copyrighted works, for a legitimate purpose, in circumstances where such copying would have no appreciable effect upon the copyright owner's market for his work. The court decisions dealt mainly with short quotations from the work of one author in the later works of other authors; how far the doctrine of fair use extended to photocopying for research or scholarly purposes remained problematical.

At an early stage when the photocopying processes were less proficient and more costly, the processes then in use being mainly photostatic and mimeographic, copies made by libraries for scholars and researchers were relatively few in number and short in length and were made in response to isolated and occasional requests. Even then the existence of a copyright problem was recognized, and the first efforts to resolve the problem were made by members of the groups concerned -- publishers, scholarly and research organizations, and libraries -- who sought to work out an agreement defining the area and limits of permissible photocopying. In 1935 members of those groups adopted a statement known as the "Gentlemen's Agreement" which stated that a library owning copyrighted books or periodicals "may make and deliver a single photographic reproduction or reduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such

publication or in place of manual transcription and solely for the purpose of research.

The "Gentlemen's Agreement" had no binding effect for several reasons: Among others, the persons signing it were not representative of the generality of the groups concerned. Nevertheless, it suggested guidelines that were followed thereafter by many libraries, and that were to be referred to as a basis for working out a solution to the copyright issue concerning library photocopying. It is also significant as an example of attempts to adapt the copyright law to a new technology by a practical agreement negotiated between the opposing interest groups.

The photocopying problem became acute as copying machines became highly proficient in producing excellent reproductions rapidly and at steadily declining cost. During the 1960s and early 1970s the volume of copyrighted material being photocopied by libraries, as well as in schools and elsewhere, ballooned continuously to the point, and beyond the point, where publishers - especially of scientific and technical journals and of educational texts -- expressed the fear that the resulting loss of subscriptions and sales might force them to discontinue publication of some of those materials.

The problem was given attention in the preliminary stages of the program looking toward the general revision of the copyright law*, but the groups concerned were agreed, when the first revision bill to be considered by Congress was introduced in 1965, that no specific rules for library photocopying should be incorporated in the bill; they were all willing to leave the photocopying issue for resolution by agreement among themselves or by the courts under the general principles of the fair use doctrine.

Meanwhile, a suit was instituted in the U.S. Court of Claims, Williams and Wilkins Co., v. United States, in which the plaintiff, a publisher of medical journals and books, charged two Government libraries, the National Institutes of Health library and the National Library of Medicine, with having infringed the copyright in several of its medical journals by supplying photocopies of articles in those journals to the staff researchers of NIH and to medical libraries, research institutes, and practitioners throughout the country. The main defense (among

* See the Report of the Register of Copyrights on the General Revision

of the U.S. Copyright Law, published as a House Judiciary Committee Print in July, 1961, at p. 25.

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