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[Vol. 68, 1989] The nature of the legislation that emerged from the conference and compromise process increased the problems of applying a narrowly worded statute to industries transformed by technological change. Multilateral bargaining produces statutes ill-suited to traditional interpretation. It is problematic to discuss a statute's "overall purpose" in connection with a web of negotiated deals. 160 Where specific provisions are predicated on the peculiarities of individual industries, and new industries develop their own very different peculiarities, it is difficult to formulate a basis for drawing the appropriate analogies.

Industries, however, adjust in time to even the most inhospitable law. 161 Where the copyright statute failed to accommodate the realities faced by affected industries, the industries devised expedients, exploited loopholes, and negotiated agreements that superseded statutory provisions. The broadcast industry formed its own performing rights society to compete with ASCAP.162 The recording industry developed a form license that incorporated the basic concept of a compulsory license for mechanical reproduction, but at more favorable terms, and used it instead of the license conferred by the statute.163 The motion picture industry established an ASCAPlike operation to deal with unauthorized exhibition of films. 164 An enterprising group of talking machine manufacturers used the copyright exemption for the performance of musical compositions on coin operated devices 165 to launch the jukebox industry, and marketed jukeboxes to establishments that wished to play music but not

radio broadcasts in large commercial establishments infringed the copyrights in the music that was played, but radio broadcasts were not themselves copyrightable.

160 See Easterbrook, supra note 8, at 540-44; Posner, supra note 8, at 273; infra notes 203-27 and accompanying text; see also Litman, supra note 15, at 879-82.

161 See, eg.. General Revision of the Copyright Law: Hearings Before the House Comm. on Patents, 72d Cong., 1st Sess. (1932) (testimony of Will Irwin, Authors' League of America).

162 See Oman, supra note 83, at 252. The broadcasters' performing rights association, Broadcast Music, Inc., was established in 1939 as a performing rights society owned entirely by broadcasters. Like ASCAP, it licensed its entire repertory of compositions for a flat fee. See generally Columbia Broadcasting Sys. v. American Soc'y of Compos. ers, 400 F. Supp. 737 (S.D.N.Y. 1975), rev'd, 562 F.2d 130 (2d Cir. 1977), rev'd sub nom. Broadcast Music, Inc. v. Columbia Broadcasting Sys., 441 U.S. I (1979).

163 See 1926 Joint Hearings, supra note 90, at 314-15 (testimony of Nathan Burkan, ASCAP); id. at 86 (testimony of Alfred L. Smith, Music Indus. Chamber of Commerce).

164 See 1936 House Hearings, supra note 125, at 1026-37 (testimony of Gabriel L. Hess, Nat'l Distributors of Copyrighted Motion Pictures).

165 See supra note 62 and accompanying text.

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to pay royalties. 166

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THE POST-War Revision EFFORT

A. Returning to Conference

By the end of the second world war, industries had been operating within the confines of the 1909 Act for a third of a century. Everybody criticized the law as outmoded;167 it had, after all, been drawn to accommodate the requirements of particular media before the advent of radio, jukeboxes, sound motion pictures, Muzak®, and now television. 168 The affected industries accommodated the arcane law through combinations of trade practice, 169 collectively bargained form contracts, 170 and practical contortions. The re

166 See General Revision of the Copyright Law: Hearings Before the House Comm. on Patents, 72d Cong., 1st Sess. 199-208 (1932) (testimony of Erwin M. Treusch, Automatic Music Indus.).

167 See, e.g.. Chafee, supra note 7, at 503, 516-22; Ebenstein, supra note 7, at xv-xx; Stern, supra note 7, at 512. Even the industries that had opposed all prior proposals for change came to view the outmoded 1909 Act as unsatisfactory.

168 Television was invented in the 1920s, but the first commercial television broadcast station began operation in 1942.

169 See, e.g.. Recording and Performing Rights in Certain Literary Works: Hearings on II. R. 3589 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 82d Cong., 1st Sess. 7-8 (1951) [hereinafter 1951 House Hearings] (testimony of John Schulman, Authors' League of America); Kaminstein, Divisibility oF COPYRIGHTS 18-25, reprinted in SUBCOMM. On Patents, Trademarks and Patents of THE SENATE COMM. ON THE JUDICIARY, 86TH CONG., IST SESS., Copyright Law Revision (Comm. Print 1960). The trade practice in periodical publishing, for example, involved a complicated series of conveyances of the copyright in contributions to the periodical in order to achieve the publisher's acquisition of the rights it needed and the author's reservation of other rights without forfeiting the copyright. See id. at 18-22. In the music industry, prevailing practice gave the music publisher legal title to the copyright, but the publisher behaved as if it held certain portions of the copyright in trust for the composer. Although composers did not have legal title to their copyrights, they routinely granted some rights to ASCAP and similar organizations without the publishers' formal participation. See id. at 23-24. These practices made little legal sense because the courts treated copyright in a work as an indivisible whole. See generally id. at 1-17. 170 See, eg, Blaisdell, THE ECONOMIC ASPECTS of the Compulsory License 92100, reprinted in SUBCOMM. ON Patents, Trademarks and Patents of the SENATE COMM. ON THE JUDICIARY, 86th Cong., 1st Sess., Copyright Law Revision (Comm. Print 1960); Henn, THE COMPULSORY LICENSE PROVISIONS OF THE U.S. Copyright Law 44-53, reprinted in SUBCOMM. on Patents, Trademarks ANI) PATENTS OF THe Senate Comm. On the JUDICIARY, 86th Cong., 1ST SESS., COPYright Law Revision (Comm. Print 1960). Composers, music publishers, and dramatists, for example, belonged to associations that acted as bargaining agents and negotiated complicated form contracts for the transfer or licensing of rights. These associations behaved like labor unions but were not labor unions because composers and dramatists were not employees for the purposes of the National Labor Relations Act.

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[Vol. 68, 1989] sulting distortions in industry structure and clout produced new vested interests and hardened bargaining positions. 172

Industry representatives, having learned the difficulty of comprehensive statutory reform, declined to press for complete revision. Instead, they focused their legislative efforts on obtaining narrow amendments to redress specific grievances. Some of the bills introduced at the behest of particular industries succeeded;'” others became perennial visitors in successive congressional sessions.'7

The most imperative problem after the war was the United States' isolation from international copyright relations. 175 Prior efforts to amend the copyright law to permit adherence to the Berne Convention had ended in failure. The government directed its attention to devising a way to establish international copyright rela

See Blaisdell, supra, at 91-92; Note, Copyright in the Stage Direction of A Broadway Musical, 8 COLUM.-VLA J.L. & ARTS 309, 323 n.94 (1983).

171 See, e.g., Kaminstein, supra note 169, at 18-22; Henn, supra note 170, at 44-47. Securing copyright protection abroad for a work published in the U.S. required particularly convoluted procedures. Securing copyright protection in the U.S. for a work published abroad was, in some cases, even more troublesome. See Stern, supra note 7, at 508-11.

172 See. e.g., Chafee, supra note 7, at 517-18; Ebenstein, supra note 7, at xix. Proposals to eliminate the compulsory license for mechanical reproductions of music or to increase the statutory royalty rate, for example, drew increasingly strident objections. The dispute between jukebox owners and operators, who insisted on retaining the jukebox exemption, and composers and music publishers, who demanded its repeal, became a pitched war. Suggestions that the United States eliminate the labor protection provisions contained in its copyright statute inspired fierce opposition.

173 See Act of July 17, 1952, Pub. L. No. 82-575, 66 Stat. 752 (extending public performance for profit and recording rights to nondramatic literary works, lectures, and sermons); Act of June 3, 1949, Pub. L. No. 81-84 (extending ad interim protection for foreign books and periodicals).

174 Bills to repeal or restrict the jukebox exemption, see, e.g., H.R. 5473, 82d Cong. 1st Sess. (1951); H.R. 1269, 80th Cong., 1st Sess. (1947); H.R. 3190, 79th Cong., 1st Sess. (1945), to extend limited copyright protection to recordings, see, e.g., S. 1206, 79th Cong., 1st Sess. (1945), and to provide copyright for textile designs, see e.g., H.R. 2860, 80th Cong., 1st Sess. (1947), showed up again and again.

175 Most of the world's developed nations had joined the Berne Convention and modified their copyright laws to accord with its terms. See supra note 12. This left the United States with a copyright statute distinctly out of step with the international community, and dependent upon bilateral arrangements or simultaneous publication in Berne nations for protection of its copyrights abroad. See Removal of Domestic Manufacturing Requirements for the Acquisition of Copyright by Certain Foreign Nationals: Hearings on H.R. 4059 before Subcomm. No. 3 of the House Comm, on the Judiciary, 82d Cong., 2d Sess. 207-09 (1952) (hereinafter 1952 House Hearings) (testimony of Arthur Fisher, Register of Copyrights); id. at 3-4 (testimony of Luther E. Evans, Librarian of Congress); American Bar Association Section of Patent, Trademark and Copyright Law, Report of Committee No. 15: Program for Revision of the Copyright Law, 1957 COMMITTEE REPORTS 51, 60-61; Stern, supra note 7, at 508-12.

176 See supra notes 101-30 and accompanying text.

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307

178

tions without undertaking the politically-charged endeavor of overhauling the copyright statute to comply with Berne's requirements. 177 The outcome was the Universal Copyright Convention." The Copyright Office asked industries affected by copyright to delay requests for statutory revision until the international effort could be completed. The strategy proved successful, but the clock continued to tick. The 1909 Act passed its fortieth birthday, and the need for copyright revision failed to evaporate.

Meanwhile, the subject matter of copyright remained frozen in the form it had taken in 1912. More recently developed works were copyrightable only to the extent they could be analogized to the statutory list of works subject to copyright and received rights whose scope was limited by the category in which they best fit. Decorative lamp bases and children's toys, for example, could be registered as "works of art" or "reproductions of a work of art."80 Motion pictures and television programs recorded on film could be copyrighted as unpublished motion picture photoplays.18 Live or taped television programs, radio programs, and phonograph records were deemed uncopyrightable. Neither the copyright statute nor case law recognized that the multiplicity of copyright rights could

177 The United States, working through UNESCO, used its new world power status to craft a second worldwide copyright treaty designed to accommodate the quirks of United States law without affecting copyright relations among Berne nations. See 1952 House Hearings, supra note 175, at 4 (testimony of Luther E. Evans, Librarian of Congress); id. at 209 (testimony of Arthur Fisher, Register of Copyrights). See generally Henn, The Quest for International Copyright Protection, 39 CORNELL L. Rev. 43 (1953). The government created a commission of interest group representatives and government agency employees to facilitate domestic compromises. See Fisher, Introduction, 2 BULL. Copyright Soc'y 83 (1955).

178 Seven years of negotiations among United States and foreign industries under UNESCO's auspices produced substantial concessions to American demands and near unanimity in favor of the treaty among United States industry representatives. See Universal Copyright Convention and Implementing Legislation, Hearings on The Universal Copyright Convention and S. 2559 Before a Subcomm. of the Sen. Comm. on Foreign Relations and a Subcomm. of the Senate Comm. on the Judiciary, 83d Cong., 2d Sess. 177-79 (1954) (testimony of Arthur Fisher, Register of Copyrights). The Senate ratified the treaty and Congress passed the modest implementing legislation the treaty required. Act of Aug. 31, 1954, Pub. L. No. 83-743, 61 Stat. 655.

179 See Legislative Appropriations for 1956: Hearings Before the Subcomm. on Legislative Appropriations of the House Comm. on Appropriations, 84th Cong., 1st Sess. 11516 (1955) (testimony of Arthur Fisher, Register of Copyrights).

180 See Derenberg, Copyright Law, in 1955 Annual. Survey of American Law 278, 280-81 (1956); Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn. L. REV. 707, 715-17 (1983).

181 See Cohn, Old Licenses and New Uses: Motion Picture and Television Rights, 19 LAW AND CONTEMP. PROBS. 184 (1954); Kupferman, supra note 7.

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[Vol. 68, 1989] be separately owned and exploited. 182 Because the law viewed copyright as unitary, the industries relied on form contracts negotiated by industry groups to divide up control of subsidiary uses and the revenues they produced. 13 New technological uses waited in the wings; how the copyright statute would affect them seemed unclear.

To revive the process of comprehensive copyright revision, Congress returned to a suggestion that it had rejected summarily fifty years before. 184 In 1956, it appropriated funds for the appointment of a special committee of copyright experts.185

The Register of Copyrights, Arthur Fisher, initially conceived a three year revision process that would depart significantly from the familiar conferences. 186 Fisher envisioned a committee of copyright experts acting in a purely advisory capacity, while the Copyright Office's research division performed comprehensive studies of prior revision efforts, copyright laws of other nations, and each of the major substantive issues involved in copyright revision. The com

182 See generally Kaminstein, supra note 169. Notwithstanding the courts' reluctance to recognize the divisibility of copyright, most industries had long relied on the separate licensing and exploitation of particular copyright rights. See sources cited supra note 169.

183 See sources cited supra note 170.

184 See supra note 38 and accompanying text.

185 Legislative Appropriation Act of 1956, Pub. L. No. 242, 69 Stat. 499; see H.R. REP. No. 1036, 84th Cong., 1st Sess. 6 (1956). Three members of Congress introduced bills in the 84th Congress calling for the appointment of a special Presidential Commission to revise the copyright law. See H.R. 2677, 84th Cong., 1st Sess. (1955); H.R. 5366, 84th Cong., 1st Sess. (1955); S. 1254, 84th Cong., 1st Sess. (1955). Two of the bills would have set up a commission comprising three Senators, three Representatives, and seven members appointed by the President, and charged them to return a report within one year. See 101 CONG. Rec. A1652-53 (1955) (extension of remarks of Rep. Thompson, sponsor of H.R. 2677). The proposal alarmed members of the copyright bar, who suggested that a more appropriate committee might be appointed by the Librarian of Congress, supervised by the Register of Copyrights (the Copyright Office and the ABA enjoyed particularly cozy relations during those years), and composed exclusively of copyright experts. See id. at A1652 (reprinted letter from Prof. Walter Derenberg to Rep. Thompson); American Bar Association Section of Patent, Trademark and Copyright Law, 1955 Summary of Proceedings 38. The Librarian of Congress included the copyright bar's alternate plan in his annual appropriations request. See Legislative Appropriations for 1956, supra note 179, at 114-23 (testimony of Luther E. Evans, Librarian of Congress, and Arthur Fisher, Register of Copyrights). The ABA adopted a resolution disapproving the Presidential Commission bills, and Congress did not pursue them further.

186 See LIBRARY OF CONGRESS, ANNUAL REPORT Of The Librarian of ConGRESS FOR THE Fiscal Year Ending June 30, 1959, H. Doc. No. 245, 86th Cong., 2d Sess. 72-73 (1959) (hereinafter Register's 1959 REPORT]. Ultimately, the revision process lasted 21 years.