Copyright Legislation and Technological Change 319 For example, the performance right developed through the conferences into something much broader than the Register had initially proposed, with much narrower exceptions. The 1909 Act gave the owner of the copyright in a musical work the exclusive right to perform the work publicly for profit, subject to the jukebox exemption.239 A 1952 amendment extended the right of public performance for profit to lectures, sermons, and other nondramatic literary works.240 Dramatic works had had a public performance right without a for-profit limitation since 1856, while motion pictures had no explicit performance right at all.241 The Register's 1961 Report recommended that musical and nondramatic literary works continue to have a public performance for profit right and that motion pictures be given a public performance right with no for-profit qualification.242 Representatives of authors and composers, however, insisted that the for-profit limitation be discarded; 2composers and motion picture producers argued for a broader definition of public performance.244 The Copyright Office drafted a provision granting copyright owners the exclusive right to perform the work publicly, subject to express exceptions for educational and religious performances, charitable benefits, and retransmissions of television and radio broadcasts.2 245 243 The response from the panelists was guardedly positive; they shifted their emphasis to requesting that the exceptions be radically narrowed.246 Representatives of industries that performed copyrighted works were willing to go along so long as the exemptions and privileges set forth in the bill continued to address their con 234, at 85 (testimony of Harold Wigren, Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision). 239 See supra note 62. 240 See supra note 173. 241 See generally CLR PART 1, supra note 196, at 22-23, 27-32. 242 See id. at 27-32. The Register also recommended the repeal of the jukebox exemption. Id. 243 See, e.g.. CLR PART 2, supra note 6, at 286-88 (written comments of Herman Finklestein), CLR PART 3, supra note 203, at 135-36 (remarks of Barbara Ringer, Assistant Register for Examining). 244 See, e.g.. CLR Part 2, supra note 6, at 404-07 (written comments of John F. Whicher); CLR PART 3, supra note 203, at 148 (remarks of Herman Finklestein, ASCAP); see also id. at 155 (remarks of Douglas Anello, Nat'l Ass'n of Broadcasters). 245 See CLR PART 3, supra note 203, at 4-14 (Preliminary Draft §§ 5(c), 8, 13); id. at 135-40 (remarks of Barbara Ringer, Assistant Register for Examining). 246 See, eg, id. at 149 (remarks of Herman Finklestein, ASCAP); id. at 152-53 (remarks of Irwin Karp, Authors' League of America); id. at 241 (remarks of James A. Stabile, Nat'l Broadcasting Co.). 320 OREGON LAW REVIEW (Vol. 68, 1989) cerns.247 Industry representatives got together in meetings sponsored by the Copyright Office or subcommittees of the bar associations and tried to come to terms on the scope of exceptions to the performance right. In 1964, the Copyright Office circulated a draft bill with a more expansive definition of public performance and further restrictions and conditions on specifically worded exemptions and privileges. 248 Panelists insisted that the exemptions and privileges were still too broad, general, and ambiguous.249 Claimants of privileges and exemptions complained that the language of the bill was still unclear.250 Another round of meetings produced an even more conditional and restrictively worded series of exemptions and privileges. By the time the 1965 bill was ready for Congressional hearings, the broadly defined public performance right had become encumbered with specifically worded conditional exceptions for classroom teaching, educational television transmissions within educational institutions, religious services, charitable benefits, cable retransmissions at no charge, transmission to private hotel rooms, and reception of broadcasts in public places.25 By the time Congress enacted a revision bill in 1976, these exceptions and privileges had grown still more numerous, more narrowly worded, and more detailed.2 252 That pattern of evolution pervaded the revision bill. Copyright owners wanted the broadest possible rights with the narrowest possible exceptions. 253 Many representatives of interests that used 241 See, e.g., id. at 145 (remarks of Eugene N. Aleinikoff, National Educational Television and Radio Center); id. at 241-44 (remarks of George Schiffer, Schiffer & Cohen); id. at 433 (written comments of George Schiffer). 248 See CLR PART 5, supra note 205, at 4-9 (S. 3008, §§ 5, 6, 8, 12, 13); id. at 94-96 (remarks of Abe Goldman, Copyright Office General Counsel). 249 See, e.g., id. at 59 (remarks of Edward A. Sargoy, ABA); id. at 96 (remarks of Phillip B. Wattenberg); id. at 105 (remarks of Sidney M. Kaye, BMI); id. at 224-25 (written comments of American Book Publishers' Council and American Textbook Publisher's Institute). 250 See id. at 60, 75 (remarks of George Schiffer, National Community Television Ass'n); id. at 64-65 (remarks of Eugene N. Aleinikoff, Nat'l Education Television and Radio Center). 251 See H.R. 4347, 89th Cong., 1st Sess. § 109 (1965). 252 Compare H.R. 4347, 89th Cong., 1st Sess. § 109 (1965) with S. 22, 94th Cong., 2d Sess. §§ 110, 111, 116, 118 (1976). 233 See, e.g.. CLR PART 5, supra note 205, at 58-59 (remarks of Edward Sargoy, ABA); id. at 78-80 (colloquy); id. at 233 (written remarks of American Textbook Publishers' Institute); CLR PART 4, supra note 238, at 316 (written comments of Authors' League of America); id. at 323 (written comments of Joshua Binion Cahn); CLR Part 3, supra note 203, at 112 (remarks of Herman Finklestein, ASCAP); id. at 112-14 (re 66-469-93 - 11 Copyright Legislation and Technological Change 321 copyrighted works were agreeable to such a strategy on the condition that such exceptions explicitly cover their activities. 254 In addition, some insisted that the product of their use of pre-existing copyrighted works itself be copyrightable and entitled to the expansive rights.255 Thus, the field of copyrightable subject matter grew progressively more inclusive.256 The Copyright Office had committed itself to seeking a consensus solution, and consensus jelled around a strategy of granting broad rights in an expansive field of copyrightable works and subjecting the rights to specific, narrowly tailored exceptions.257 marks of Edward A. Sargoy, ABA); id. at 130-31 (remarks of Irwin Karp, Authors' League of America). 254 See. e.g.. CLR Part 5, supra note 205, at 60 (remarks of George Schiffer, Nat'l Community Television Ass'n); id. at 77 (remarks of Douglas A. Anello, Nat'l Ass'n of Broadcasters); CLR Part 4, supra note 238, at 54 (remarks of Raymond G. Larocca, Midwest Program on Airborne Television); CLR Part 3, supra note 203, at 127, 145 (remarks of Eugene N. Aleinikoff, Nat'l Television Educ. and Radio Center); id. at 158 (remarks of Barbara Ringer, Assistant Register for Examining); id. at 198-99 (remarks of Douglas Anello, Nat'l Ass'n of Broadcasters). 23 See, e.g., CLR Part 5, supra note 205, at 78-80 (colloquy); CLR Part 3, supra note 203, at 322-23 (remarks of Eugene N. Aleinikoff, Nat'l Educ. Television and Radio Center); CLR Part 2, supra note 6, at 13 (remarks of Thomas J. Robinson, Motion Picture Ass'n of America). 256 The Register's 1961 Report recommended retaining the 1909 Act's approach to copyrightable subject matter by specifying classes of copyrightable works. The Register suggested specifying all classes mentioned in the 1909 Act, plus any others Congress chose to add, but describing them in somewhat broader language to permit the development of new forms of traditionally copyrightable works. See CLR PART 1, supra note 196, at 11. Conference participants preferred a more general approach. See, e.g., CLR PART 3, supra note 203, at 46-59 (colloquy). The 1965 revision bill defined copyrightable subject matter broadly, declaring that copyright subsisted "in original works of authorship fixed in any tangible means of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." H.R. 4347, 89th Cong., 1st Sess. § 102 (1965). Accompanying the declaration was a nonexclusive list of categories of works of authorship. The law enacted in 1976 retained the quoted language with a slightly augmented list of categories. See 17 U.S.C. § 102(a). The scope of copyrightable subject matter extends copyright protection to most creations fixed in tangible form, including television and radio programs, toys, sound recordings, computer software and video games. The Register of Copyrights anticipated that enactment of the new statute would increase copyright registrations significantly. See LIBRARY OF Congress, RePORT OF THE LIBRARIAN of Congress for the FISCAL YEAR ENDING JUNE 30, 1976, reprinted in 3 N. HENRY, COPYRIGHT, Congress and TecHNOLOGY: THE PUBLIC RECORD 316-17 (1978). 257 See. e.g.. 1965 House Hearings, supra note 233, at 1858-59 (testimony of Abraham Kaminstein, Register of Copyrights); CLR PART 5, supra note 205, at 56-58 (remarks of Abe Goldman, Copyright Office General Counsel). Some of my colleagues would quarrel with my characterization of broad rights subject to narrow exceptions. Professor Jane Ginsburg, for example, argues that the fact that the performance and display rights granted by the statute are limited to public performance and display makes those rights 322 OREGON LAW REVIEW [Vol. 68, 1989] The bill introduced in Congress in 1965 followed this scheme. In the first of a long series of congressional hearings on copyright revision, Deputy Register George Cary explained the bill's approach: The problem of balancing existing interests is delicate enough, Obviously, no one can foresee accurately and in detail the For these reasons the bill reflects our belief that authors' rights should be stated in the statute in broad terms and that the specific limitations on them should not go any further than is shown to be necessary in the public interest. 258 Thus, a strategy born by accident of accretion had acquired its rationale. The revision bill spelled out five expansively defined exclusive rights: the right to reproduce or copy the work, the right to make derivative works or adapt the work, the right to distribute the work, the right to perform the work publicly, and the right to display the work publicly.259 It then subjected the exclusive rights to a narrow indeed in an era of widespread private use. Ginsburg also suggests that the statute's incorporation of the first sale and fair use doctrines, see infra notes 338-70 and accompanying text, represents very broad limitation of the copyright owner's bundle of rights. See also Brown, Eligibility for Copyright Protection: A Search for Principled Standards, 70 MINN. L. Rev. 579, 593-94 (1985) (describing exemptions from performance and display rights set forth in 17 U.S.C. § 110 as "the pork-barrel exemptions''). Professors Ginsburg and Brown would, I believe, nonetheless agree that the grant of rights in the 1976 Act is far broader, and that the statutory exceptions are more narrowly worded, than their counterparts in the 1909 Act and the early drafts of a revision bill. 258 1965 House Hearings, supra note 233, at 32-33 (prepared testimony of George Cary, Deputy Register of Copyrights). 259 See H.R. 4347, 89th Cong., 1st Sess. § 106 (1965). Copyright Legislation and Technological Change variety of narrowly drawn exceptions. 260 D. Ongoing Negotiations and Narrower Solutions 323 Not all of the disputes were resolved through the prelegislative process. When Congress held its first hearings on the revision bill in the tenth year of the revision program, several controversies remained, 261 and more disputes arose as the rapid pace of technological change created new players and new problems. 262 Significantly, however, none of the unresolved controversies concerned the overall structure and approach of the bill. 263 Almost all of the disputes involved specific details of particular privileges and exemptions.264 Members of Congress declined, for the most part, to respond to the controversies by attempting to arrive at policy solutions of their own devising. Instead, Congress involved itself in the mediation process, urging opposing interests to meet, cajoling them to reach agreement, and sometimes sitting down with them and demanding that they compromise. 265 During the eleven additional years that it 260 See id. §§ 107-114. Compare the greater variety of even more narrowly drawn exceptions in 17 U.S.C. §§ 107-118. 261 See 1965 Senate Hearings, supra note 234, at 68-72 (testimony of Abraham Kaminstein, Register of Copyrights). 262 The entry of computer programs and computer databases into the arena, for example, significantly complicated already difficult disputes. See, e.g., 1967 Senate Hear ings, supra note 210, at 192-201 (testimony of Arthur Miller, Ad Hoc Committee of Educ. Insts. and Orgs. on Copyright Law Revision); 1965 House Hearings, supra note 233, at 74-79 (testimony of Len Deighton, American Textbook Publishers Inst.). 263 See 1965 House Hearings, supra note 233, at 1857-73 (testimony of Abraham Kaminstein, Register of Copyrights). 264 According to Register Kaminstein, the controversies that remained unresolved as of the 1965 Hearings were the fate of the jukebox exemption, the scope of privileges or exemptions to be provided for education and educational broadcasting, the scope of privileges or exemptions for cable television, the statutory rate for the compulsory license for mechanical reproductions of music, and the retention of the manufacturing clause, which required some books to be printed from type set within the United States. See 1965 Senate Hearings, supra note 234, at 68-72. All but the last of these disputes involved the conditions under which uses of copyrighted material would be privileged or exempt. The parties ultimately settled the jukebox, public television, and cable television disputes by agreeing to establish new compulsory licenses. The rate dispute for the mechanical compulsory license settled when the parties agreed to let it be decided by the Copyright Royalty Tribunal, an agency invented to administer the three new compulsory licenses. Interested parties resolved the manufacturing clause dispute with a complicated agreement to limit the scope and duration of the domestic typesetting requirement and reduce the penalties for noncompliance. The Register of Copyrights disapproved of the substance of all of these agreements, but nonetheless recommended that Congress enact them. See Litman, supra note 15, at 869-78 and sources cited therein. 269 Litman, supra note 15, at 871-79; see also 1975 House Hearings, supra note 204, at 237-38 (testimony of Townsend Hoopes, Ass'n of American Publishers); id. at 363 (re |