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DETROIT PUBLIC LIBRARY, Detroit, Mich., August 6, 1973.

Hon. PHILIP A. HART,
U.S. Senate,

Senate Office Building,

Washington, D.C.

DEAR SENATOR HART: I am wriing to you in your capacity as a member of the Subcommittee on Patents. Trademarks and Copyrights-Senate Committee on the Judiciary, and asking if this letter can be placed in the record on Senate Bill 1361 (the copyright revision bill), Section 108 (d), Photocopying for Libraries.

At a hearing held July 31, 1973, Senator McClellan proposed that the record be held open until the 10th of August so that additional testimony could be given concerning the amendment proposed by the American Library Association. I am writing in support of that amendment, that libraries need more protection under th provisions than "fair use." The bill should specifically state that libraries are free to make single copies to aid in teaching, research, and particularly in interlibrary loan. This act should be permissible and not subject to possible suit on behalf of the public good.

Thank you for your help in making this endorsement part of the record. The Detroit Public Library and its Commission feel strongly that this protection is essential in order to continue quality library service.

Sincerely yours,

MILDRED M. JEFFREY,

Member, Detroit Library Commission.

INFORMATION INDUSTRY ASSOCIATION,
Bethesda, Md., August 10, 1973,

Senator JOHN L. MCCLELLAN,
U.S. Senate,

New Senate Office Building,
Washington, D.C.

DEAR SENATOR MCCLELLAN: We are pleased ot submit this letter as a supplemental statement on the Copyright Revision Bill, S. 1361.

We respectfully urge that the library and education exemption proposals be referred to the National Commission on New Technological Uses of Copyrighted Works to be established by Title II of the Bill. These exemptions raise serious and far-reaching queestions bearing directly on the ability of the copyright laws to fulfill its original constitutionally mandated purposes in informaton technology

areas.

The proponents failed to provide any supporting economic data as to the impact of the proposed exemptions on suppliers of information and publications. The proponents failed completely to establish a sound case for their proposals.

The information industry is the only industry with any significant experience in the day-to-day business of creating and supplying information services of the kind libraries and schools would be in position to perform free of copyright if the exemptions were to be adopted. Great private resources are being applied to obtaining permission to use copyrighted materials, to account for their use and to fulfill user needs in creative and meaningful ways. It is the burden of the proponents of the exemptions to demonstrate by economic data that these efforts would not be damaged by their proposals.

They have failed to do so.

We believe this failure is a logical extension of two factors:

(1) The information industry is new and has grown up in the years since the Senate, in 1967, first passed legislation to create the National Commission. The Information Industry Association came into existence in 1969.

(2) The Library exemption proposal has been resurrected from a much earlier phase of the copyright revision effort and it is patently clear no effort has been made to accommodate its language to the fact of the new information technology applications and capabilities represented by information industry activities.

We believe this industry offers the most stimulating, creative and economically productive means for harnessing the new technologies to the dissemination of

information and for the fulfillment of the purposes of the copyright law. There is no question that the effect of the proposed exemptions, together or separately, would be to destroy the economic foundations of this industry.

We recognize that that is not the intent of the exemption proposal. But that nonetheiless would be the result.

The development of the full potential of information technologies to store, search, find and deliver the precise information you want, when you want it, where you want it and in the form you want it is a costly and complex effort. The effort has only been started.

Private risk capital is being devoted to developing and refining information services designed to deliver just the single copy desired. Granting exemptions to provide alternative sources for similar services free of copyright would not only construct and eliminate opportunities for the industry, but it would also deny the people of the United States the benefit of the innovations in products, services and systems currently being funded by private risk capital.

It should be noted that no evidence was submitted as to the financial or other capabilities of publicly funded schools and libraries to perform these costly and sophisticated activities in place of the efforts currently being made with private risk capital.

In this phase of technological development affecting the information service structure of the nation, the single copy and free-input exemption proposals far transcend the claim that they merely codify “Fair Use” in library and educational settings.

Section 107 of the bill restates the fair use doctrine and provides guidance for individual users in schools and libraries. It is far better that there be some uncertainty about occasional individual uses that come close to the line in exceeding the known boundaries of fair use, than that the creative and economic resources devoted to developing economically sound information services for all aspects of our society be undercut and eliminated. No broadening of the fair use concept should be undertaken until the role of industry in this process is understood and taken into account.

The appropriate mechanism for resolving the new technology questions raised by the exemption proposals is to refer both to the National Commission. They clearly fall within the jurisdiction and purposes of that Commission. The experience and existence of the information industry underscore the wisdom of establishing the Commission and the need to develop further information and economic data prior to legislation on these proposals. If necessary, the mandate to the Commission might be so defined as to ensure that these matters receive priority consideration.

Without supporting economic data on which to evaluate their effect and on which to base a sound decision as to their effect on the operations of the copyright law of the United States, there is no basis for the enactment of these farreaching proposals.

Thank you for this opportunity to share our perspectives with you.
Sincerely,

PAUL G. ZURKOWSKI,

President.

Hon. JOHN MCCLELLAN,
Senate Office Building,
Washington, D.C.

THE JOURNAL OF INVESTIGATIVE DERMATOLOGY,
Boston, Mass., July 19, 1973.

DEAR SENATOR MCCLELLAN: It has come to my attention that the Copyright Revision Bill will in the near future be considered by your Subcommittee on Patents, Trademarks and Copyrights. As the editor of a limited subscription, highly specialized medical journal I would like to express some thoughts concerning this bill.

Evidence has been developed, particularly by the Williams and Wilkins Company, that the increasing use of photocopying has led to a definite decrease in subscriptions to journals such as ours. I have examined this evidence and believe it to be valid. My basic feeling is that the cost of production of materials such as that which we publish should be spread as broadly as possible among the users of the material. For that reason, I feel it imperative that the new copyright bill be written in such a way that some royalty for use of the material can be returned to those who take primary responsibility for publication of the material. If this

is not done, it is my belief that in the relatively near future we will see either the demise of journals such as ours or the need for very substantial governmental intervention so that type of medical information will not disappear. The simplest way seems to be to write the new copyright bill in such a way that the cost of production can be equitably spread.

It is my hope that you will bring these views before the members of your subcommittee. I will be very happy to give you any further help in this matter. Sincerely,

IRWIN M. FREEDBERG, M.D.

U.S. SENATE,

OFFICE OF THE MAJORITY LEADER,
Washington, D.C., July 24, 1973.

Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks, and Copyright, U.S. Senate. DEAR MR. CHAIRMAN: Enclosed is a detailed letter and attachments I have received from Earl Morgenroth of the Rocky Mountain Broadcasters Association, Missoula, Montana, discussing the copyright bill now pending before your subcommittee.

Mr. Morgenroth is presenting the views of the small market broadcasters and I would appreciate any consideration that can be given to the contents of the enclosed correspondence.

Thanking you, and with best personal wishes, I am

Sincerely yours,

Enclosures.

MIKE MANSFIELD.

Hon. MIKE MANSFIELD,
U.S. Senate,

Washington, D.C.

ROCKY MOUNTAIN BROADCASTERS ASSOCIATION,
Missoula, Mont., July 9, 1973.

DEAR SENATOR MANSFIELD: On my last trip to Washington, D. C., I discussed with you the Copyright Bill currently in the McClellan Committee, and the CATV Broadcaster Compromise (Consumer Agreement). Attached please find the CATV Broadcast Compromise which was drafted two years ago but never implemented. It is a good agreement in part, but provides virtually no protection for the small market broadcaster.

Any CATV copyright legislation adopted by Congress should include the following modifications of the "Compromise" in order to protect small market broadcasters:

1. Local Signal definition should remain the same as the current FCC Definition.

2. Television stations not in the top 100 markets must be extended the same syndicated programming protection as the compromise agreement gives to the second 50 television markets.

3. On leapfrogging, the language of B of the compromise agreement is okay, but the language of A should be changed to provide that on network signal importation, the closest such signal must be carried in all markets.

4. On Copyright Legislation, in B of the Compromise Agreement, the less than 3,500 subscriber exemption for existing independently owned CATV systems should be changed to a less than 500 subscriber exemption for such systems.

5. The Grandfathering provisions of the Compromise Agreement should be entirely deleted, with no Grandfathering exemption on Copyright liability provided to cable systems.

6. The Radio Carriage provision of the Compromise Agreement should be deleted, and replaced with a total ban on CATV carriage of AM or FM station signals.

Under the heading “Radio Carriage,” all aural signals including Muzak type signals and other taped music (without visual material) should be banned from CATV. CATV should be restricted to visual transmission.

There is neither need nor justification for CATV aural-only transmission. In fact, under the "One-to-a-Market" rule of the FCC, an owner of a radio station in one market is prevented from owning a television station in the same market and vice versa. In addition, most small markets are adequately served by aural signals (AM and FM). If CATV Systems are allowed aural origination, it would severely limit the expansion of radio services in small market communities and in some cases, jeopardize existing service.

Our position is that CATV Systems should not be allowed to carry AM or FM broadcasts or other aural only signals. CATV was originally conceived to expand television service and it should be limited to transmission of television.

In regards to leapfrogging (bringing in distant signals by microwave) it should be limited to current FCC rules which state that a CATV system may carry the three network signals plus one independent and one educational station in small markets as well as live originations. Leapfrogging should be limited to the closest network affiliates and independent stations.

In addition to the Compromise, I am submitting several pages of background material which does not necessarily represent the small market position, but will provide additional information concerning the Compromise (Consensus Agreement).

We need your help in getting a new Copyright Bill through Congress including Copyright legislation for cable systems that protects the small market free broadcasters of Montana and the Rocky Mountain West.

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The U.S. Court of Appeals for the Second Circuit ruled on March 8, 1973 that "when a CATV system imports distant signals it is no longer within the ambit of the Fortnightly doctrine, and there is then no reason to treat it differently from any other person who, without license, displays a copyrighted work to an audience who would not otherwise receive it." The effect of this decision is to render CATV systems fully liable under copyright law for the performance of programs carried via distant signals. It also placed the Supreme Court's 1968 Fortnightly decision in proper perspective, i.e., that the copyright exemption afforded cable systems by that case only applied to acceptable signals received off the air by a CATV antenna "adjacent to the CATV community." The Court of Appeals decision overruled an earlier District Court ruling which would have exempted all CATV carriage of TV signals from copyright liability.

Teleprompter, on June 5, 1973, asked the Supreme Court to review the Appeals Court's decision. Presumably, if the Supreme Court denies review or upholds the Appeals Court decision, the case will be remanded to the District Court for a determination of damages.

The CBS v. Teleprompter case has given broadcasters and copyright owners the upper hand in dealing with cable on copyright and this factor should weigh heavily in the legislative arena.

B. FCC role in CATV copyright question

The CATV rules adopted by the FCC in February 1972 presuppose the enactment of copyright legislation which would call for the payment of fees by CATV systems for the use of copyrighted television programs. (See Government Relations Department memo for a discussion of the status of copyright legislation.) If copyright legislation is not forthcoming in the immediate future, the Commission's CATV rules would no longer be defensible as a balancing of the equities between cable and broadcast interest. In this regard, Chairman Burch stated in Senate testimony early this year that if copyright legislation is not forthcoming, the CATV rules will have to be revisited.

II. PAY-CABLECASTING DOCKET NO. 19554

As part of the reconsideration of its cable actions in Docket No. 18397, the Commission, on July 24, 1972, instituted a new rule making proceeding to review the existing anti-siphoning rules applicable to cablecasting for which per program or per channel charges are made. The existing rules are essentially the same as those applicable to over-the-air pay-TV (STV).

In comments filed on November 1, 1972, NAB emphasized the proliferation of pay-TV via cablecasting and closed circuit arrangements. We urged the FCC to insure that pay cable serves as an outlet for new and diverse programming and does not become a vehicle for siphoning off programming now seen on free TV. Vigorous opposition to the existing pay-cable rules was raised, particularly by NCTA, the Justice Department and the program suppliers. In reply comments, NAB supported the FCC's jurisdiction to adopt anti-siphoning rules and countered the First Amendment arguments and other alleged obstacles to the imposition of pay-cable restrictions which had been advanced by the opposition. An FCC decision in this docket could be close at hand.

III. TRANSMISSION OF PROGRAM MATERIAL TO HOTELS AND SIMILAR LOCATIONSDOCKET NO. 19671

On January 24, 1973, the Commission initiated a broad inquiry and rulemaking proceeding concerning the competitive relationships between various methods of transmitting program material to hotels and existing broadcast and cable services. Additionally, the Commission noted its concern about similar transmissions to non-transient locations, such as homes and apartments. Essentially the proceeding covers all new forms of pay-TV, other than cable and STV.

NAB filed Comments on May 21, 1973. We pointed out that hotel pay television already is in operation nationwide and that widespread home service would soon follow thereby posing a direct and immediate siphoning threat to free broadcast television. We urged the Commission to adopt antisiphoning rules applicable to all methods of closed-circuit transmission (e.g., common carrier, MDS, Business Radio Service) which provide pay-TV to homes and other non-transient dwelling places, thus preserving free television as a vital and viable public service. Reply comments are due July 23, 1973.

IV. PROPOSED SPORTS BLACKOUT RULE-DOCKET NO. 19417

Together with its February 2, 1972 cable actions, the FCC issued a Notice of Proposed Rule Making to deal with the sports blackout question. The proposal would generally prohibit systems within the Grade B contour of a TV station located within the home city of a professional baseball, basketball, football or hockey team from carrying a TV broadcast of the same sport when the local team is playing at home. In comments filed on March 16, 1972, NAB supported this proposal and urged that it be extended to cover intercollegiate and scholastic events as well as professional contests. We also asked the FCC to address itself to the even more important question of the effect of unrestricted CATV importation of sports contests upon the ability of local stations to obtain revenues substantial enough to support the broadcasts of the home or away games of a local team engaged in the same sport. These points were stressed further in oral argument held last August.

While no decison has been issued in this docket, the FCC removed a measure of the prevailing inequity by ruling last December that a CATV system in the West Palm Beach, Florida market could not "import a distant network television station not normally carried on the system, which is broadcasting a professional sports program that is being blacked out, pursuant to a league-network contract, on network stations normally carried on the cable system."

V. PROPOSED CABLE/RADIO RULES-DOCKET NO. 19418

Concurrently with the issuance of its new cable rules in February 1972, the FCC issued a Notice of Proposed Rule Making looking toward adoption of rules governing CATV carriage of radio signals. The Commission cited the following CATV/radio provision of the consensus agreement as a focus for comments:

"When a CATV system carries a signal from an AM or FM radio station licensed to a community beyond a 35 mile radius of the system. it must, on request carry the signals of all local AM or FM stations respectively."

Additionally, they suggested a rule providing that whenever a local signal is carried, all signals of the same type must be carried. All comments and reply comments have been on file since early last summer and this matter should be ripe for decision.

Pending final action in this proceeding the FCC will not authorize new CATV service which would bring distant radio signals (1) into comunities of less than 50,000 having licensed radio stations or (2) into any community unless all local

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