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Again in the several opinions in the Teleprompter case, as in Fortnightly, the courts called for Congressional action as the way to resolve

the complex issues of cable TV transmissions of broadcast programs. As the Circuit Court of Appeals put it:

"The complex problems represented by the issues in this case are not readily amenable to judicial resolution... We hope that the Congress will in due course legislate a fuller and more flexible accommodation of competing copyright, antitrust, and communications policy considerations, consistent with the challenge of modern CATV technology."

What we see reflected in these disparate decisions in the Fortnightly and Teleprompter cases is, first of all, the realization that the basic issue of the copyright liability of cable systems for their transmission of broadcast programs cannot be resolved satisfactorily by the simple yes-or-no answer of a judicial decision, but requires a multi-faceted formulation that can be molded only through the legislative process. Further, inasmuch as the courts must decide particular cases presented to them in the meantime, we see a conflict among the judges between the desire to extend the principles of the copyright law as it exists so as to give the copyright owner's the benefit of the economic value of their works as used in a new medium, and the desire to promote the development and growth of the new medium for the benefit of the public by shielding it from the heavy burden that would be imposed by holding it fully and retroactively liable for copyright infringement.

A.2.6.1 The Copyright Act of 1976. As we have already noted, bills for the general revision of the copyright law, including proposed provisions on the CATV problem, were under consideration by Congress during the time that the Fortnightly and Teleprompter cases were making their way through the courts. The controversy over the CATV issue was so intense that when the revision bill first reported out by the House Judiciary Committee was debated by the full House in 1967, the opposition to the CATV provisions was strong enough to force the proponents of the bill to agree to deleting the entire section dealing specially with CATV transmissions, and the bill was passed by the House without any resolution of the issue. For several years thereafter the revision bill languished in the Senate, mainly because of the intractable dispute over the CATV issue.

We will not tract the twists and turns taken in the provisions of the successive revision bills dealing with the CATV problem; they were changed substantially from the version in the bill of one year to the bill of the next. Nor will we recount the series of regulations proposed and issued by the FCC to control the carriage of broadcasts by

cable systems or the steps by which the interested parties copyright owners, CATV operators, and broadcasters -- ultimately reached agreements on the essential points of a legislative solution. What finally emerged was a complex and highly detailed set of provisions in section 111 of the revision bill based on two main premises: That commercial cable systems should have a compulsory license for those retransmissions of broadcasts that were authorized by the Federal Communications Commission, and that they should pay copyright royalties in a lump sum under a formula fixed initially in the statute. Omitting many of the details in the complicated structure of section 111, the Copyright Act of 1976 provides in main substance that:

A cable system may obtain a compulsory license to retransmit the broadcasts of those stations whose signals the system is authorized to carry by the FCC. It obtains the license by filing certain pertinent information in the Copyright Office.

A cable system will be fully liable for copyright infringement if it willfully or repeatedly retransmits the signals of a broadcast station that the FCC has not authorized it to carry, or if it willfully alters the content of a broadcast program or the accompanying commercial advertising.

Under the compulsory license the cable system must deposit
semiannually with the Register of Copyrights a statement
of account giving the specified information needed to
determine the sum it is required to pay as the royalty fee
for the preceding six months. The royalty fee is computed
on the basis of specified percentages of the gross
receipts of the cable system from its subscribers for its
retransmission service; the percentages are fixed on a
sliding scale according to the number and character of
distant stations whose nonnetwork programs are imported by
the cable system, with a special fee schedule provided for
smaller systems.

The aggregated royalty fees are to be distributed, as de-
termined by the Copyright Royalty Tribunal (established
under sections 801-810 of the Act), among the copyright
owners who file claims for their works that were included
in the nonnetwork programs of distant broadcast stations
carried by the cable systems. The Copyright Royalty
Tribunal is also authorized to review and adjust the roy-
alty rates from time to time under standards stated in
the Act.

A.2.7

MICROFILM, VIDEOTAPE, AND COMPUTER PROGRAMS

When the Copyright Office first received, as a deposit for copyright registration, copyrightable textual material on microfilm, it had to make a decision on what appeared, at least at first glance, to be a doubtful question: In view of the 1908 decision of the Supreme Court in the White-Smith case holding that a "copy" of a work had to be visually perceptible -- could microfilm reproductions of a work qualify as the "copies" required by the 1909 statute to be deposited for registration? The effect of the White-Smith ruling had been avoided in subsequent legislation and court decisions dealing with sound recordings, but the ruling itself had never been overturned.

The work could not, of course, be read from the microfilm with the naked eye. It could, however, be made plainly visible and readable by placing the microfilm in a reader, a device that magnified the text in the microfilm. On this ground the Copyright Office decided that the WhiteSmith ruling on piano rolls of music, which could not have made the music visually perceptible by any means and was not intended to do so, did not preclude its acceptance as a "copy," of a microfilm from which the textual work was intended to be, and could be, made visually readable with the aid of a device readily available for that purpose.

The Copyright Office was presented with the same question again when it first received, for copyright registration, a motion picture produced on videotape. Nothing could be seen on the video tape itself, but when used in a projector designed for the purpose the videotape would reproduce plainly the visual images constituting the motion picture. Following its reasoning with respect to copyrightable text on microfilm, the Copyright Office concluded that it would accept video tape recordings as deposit "copies" of motion pictures for purposes of copyright registration.

The Copyright Office was faced once more with a similar question when it was asked to register copyright claims in computer programs embodied in magnetic tape. On the preliminary question of whether the program itself, consisting of a series of instructions by which a computer could be made to operate as directed, was a copyrightable work, the Copyright Office took the position, in substance, that if the instructions would constitute a copyrightable work if printed in the form of a book, they would be copyrightable in the form of a computer program. The question remained of whether the program in the form of punched card or magnetic tape, from which the instructions could not be read, was acceptable for copyright registration in view of the White-Smith ruling. The Copyright Office concluded that its reasoning with respect to microfilms and

videotape should be extended to the punched cards or magnetic tape bearing the copyrightable program, since the copyrightable series of instructions could be made readable by the human eye in the printout or projection from the computer. It may be noted that the Copyright Office announced its conclusions regarding the acceptance of computer programs for copyright registration in a circular (No. 61, issued initially in 1964) expressing some doubt about its conclusions in the absence of any court ruling on the precise questions involved, and stating that it would require the deposit of a printout or other readable form of the program, in addition to copies of the form in which the program was published, in order to identify the copyrighted content of the program.

The foregoing account illustrates how the Copyright Office may play a role in the adaptation of the copyright law to new technologies. Its conclusions concerning the copyrightability and registrability of works embodied in microfilms, videotapes, punched cards or magnetic tape have not been tested in the courts but have generally been accepted and followed in practice by the groups concerned.

The new Copyright Act of 1976 removes any lingering doubt as to copyright protection or registrability of works embodied in forms which the work is not visually perceptible but from which it can be made perceptible by the use of a machine or device. As we have noted earlier, the new Act, in section 101, defines "copies" as meaning:

"material objects...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."

A.3

PROVIDING TECHNOLOGICAL EXPERTISE TO THE JUDICIARY

The following discussion is responsive to the task as stated in these terms:

"Discuss the utility of institutionalizing, by any appropriate new means, the provision of technological expertise to the judiciary with specific application to copyright litigation."

It is inherent in our judicial system that the courts may be called upon to render judgment in an infinite variety of cases involving some element of technology based on the various physical and social sciences. Thus, in particular cases the court may need to be informed, on an ad hoc basis, of the fundamental theories and operating principles and mechanisms of a scientific technology involved in the issues it must decide.

Over the years procedures have been instituted whereby such information, to the extent considered necessary, is furnished to the courts. It is characteristic of the adversary process in our judicial system that the parties to litigation are expected, through their counsel, to present testimony to the court -- including testimony by experts in a specialized field of knowledge where necessary -- - explaining the salient facts in the case, the issues they raise, and the rationale advanced for the proposed decision. Witnesses offered as experts in a particular field of knowledge are required to be qualified as such, and their examination and cross-examination, including questioning by the judge, are expected to elicit the technical intelligence needed by the court to render an informed decision. Also, in the course of a trial or hearing, the court may be given a physical demonstration of the operation of a technological device or process.

Courts are also given memoranda and briefs prepared for counsel for the parties, which purport to explain fully and persuasively the factual data including the technical information considered pertinent --, as well as the legal analysis and arguments, that make up the case for each party. And the court, if it feels the need for further information, may call for the submission of additional memoranda or briefs on specified subjects. In cases of general importance the courts often receive informative memoranda and briefs also from interested persons or organizations other than the parties to the case. And, of course, judges may gain the information they need through their own research or through research conducted for them by their aides.

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