COMMITTEE ON THE JUDICIARY EMANUEL CELLER, New York, Chairman PETER W. RODINO, JR., New Jersey JOHN DOWDY, Texas ROBERT W. KASTENMEIER, Wisconsin WILLIAM L. HUNGATE, Missouri WILLIAM M. MCCULLOCH, Ohio EDWARD G. BIESTER, JR., Pennsylvania DAVID W. DENNIS, Indiana R. LAWRENCE COUGHLIN, Pennsylvania LAWRENCE J. HOGAN, Maryland JAMES D. McKEVITT, Colorado BESS E. DICK, Staff Director BENJAMIN L. ZELENKO, General Counsel KENNETH R. HARKINS, Chief Counsel, Antitrust Subcommittee HERBERT FUCHS, Counsel JOSEPH FISCHER, Law Revision Counsel FRANKLIN G. POLK, Associate Counsel THOMAS E. MOONEY, Associate Counsel SAMUEL A. GARRISON, III, Associate Counsel SUBCOMMITTEE No. 3 ROBERT W. KASTENMEIER, Wisconsin, Chairman JOHN CONYERS, JR., Michigan TOM RAILSBACK, Illinois R. LAWRENCE COUGHLIN, Pennsylvania HERBERT FUCHS, Counsel (II) 14 GL 15 oct 71 KF27 CONTENTS Celler, Hon. Emanuel, a Representative in Congress from the State of New York and chairman, House Committee on the Judiciary. Feist, Leonard, executive vice president, National Music Publishers Gortikov, Stanley M., on behalf of Recording Industry Association Grossman, Jack, president, National Association of Record Mer- chandisers, Inc., accompanied by James Schwartz, past president; Earl W. Kintner, general counsel, and Charles B. Ruttenberg, Esq., Arent, Fox, Kintner, Plotkin & Kahn. Ladd, Bruce C., Jr., Deputy Assistant Secretary for Commercial Fulton, Hon. Richard H., a Representative in Congress from the Allen, Nicholas E., Esq., Armour, Herrick, Kneipple & Allen, repre- senting Music Operators of America, Inc_-- Berman, Albert, managing director, the Harry Fox Agency. Davis, Hal C., president, American Federation of Musicians. Meyers, Ernest S., general counsel, Recording Industry Association Osterberg, Robert C., Esq., Abeles & Clark, counsel, the Harry Fox Patterson, Perry S., Esq., Kirkland, Ellis, Hodson, Chaffetz, Masters & Rowe, on behalf of U.S. Automatic Phonograph Manufacturers, the Wurlitzer Co., Rock-Ola Manufacturing Corp., Rowe Interna- Schafer, Charles A., president, Custom Recording Co.-- 80 65 PROHIBITING PIRACY OF SOUND RECORDINGS WEDNESDAY, JUNE 9, 1971 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 3 OF THE Subcommittee No. 3 of the Committee on the Judiciary met, pursuant to notice, at 10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Messrs. Kastenmeier, Mikva, Drinan, Biester, and Coughlin. Also present: Herbert Fuchs, counsel, and Samuel A. Garrison, III, associate counsel. Mr. KASTENMEIER. The hearing will come to order. The subcommittee has met today to hear testimony concerning S. 646, an act to amend title 17 of the United States Code to provide for the creation of a limited copyright in sound recordings for the purpose of protecting against unauthorized duplication and piracy of sound recording, and for other purposes, and concerning H.R. 6927, a bill identical to S. 646 as that measure was introduced. Primarily, this legislation would attack the subject of record piracy, whose cost, it is alleged, in loss of legitimate sales for 1970 is estimated at $100 million, by granting a limited copyright to authors of sound recordings. Secondly, S. 646 removes existing limitations on the remedies available to owners of copyrighted musical compositions against infringements involving phonograph records. Both provisions found their way into copyright law revision legislation reported by this committee and passed by the House in 1967. They failed of enactment, however, when the copyright revision project bogged down in the other body. I must say almost scandalously so for 4 years. The legislation has the approval of the Copyright Office and the Departments of State and Justice. Copies of S. 646 and H.R. 6927 will be inserted in the record at this point. (The bills referred to are as follows:) [S. 646, 92d Cong., first sess.] AN ACT To amend title 17 of the United States Code to provide for the creation of a limited copyright in sound recordings for the purpose of protecting against unauthorized duplication and piracy of sound recording, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 17 of the United States Code is amended in the following respects: (a) In section 1, title 17, of the United States Code, add a subsection (f) to read: (1) "To reproduce and distribute to the public by sale or the transfer of ownership, or by rental, lease, or lending, reproductions of the copyrighted work if it be a sound recording: Provided, That the exclusive right of the owner of a copyright in a sound recording to reproduce it is limited to the right to duplicate the sound recording in a tangible form that directly or indirectly recaptures the actual sounds fixed in the recording: Provided further, That this right does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording; or to reproductions made by transmitting organizations exclusively for their own use." (b) In section 5, title 17, of the United States Code, add a subsection (n) to read: "Sound recordings." (c) In section 19, title 17, of the United States Code, add the following at the end of the section: "In the case of reproductions of works specified in subsection (n) of section 5 of this title, the notice shall consist of the symbol P (the letter P in a circle), the year of first publication of the sound recording, and the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner: Provided, That if the producer of the sound recording is named on the labels or containers of the reproduction, and if no other name appears in conjunction with the notice, his name shall be considered a part of the notice.” (d) In section 20, title 17, of the United States Code, amend the first sentence to read: "The notice of copyright shall be applied, in the case of a book or other printed publication, upon its title page or the page immediately following, or if a periodical either upon the title page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title page or the first page of music, or if a sound recording on the surface of reproductions thereof or on the label or container in such manner and location as to give reasonable notice of the claim of copyright." (e) In section 26, title 17, of the United States Code, add the following at the end of the section: "For the purposes of this section and sections 10, 11, 13, 14, 21. 101, 106, 109, 209, 215, but not for any other purpose, a reproduction of a work described in subsection 5(n) shall be considered to be a copy thereof. 'Sound recordings' are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture. 'Reproductions of sound recordings' are material objects in which sounds other than those accompanying a motion picture are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, and include the 'parts of instruments serving to reproduce mechanically the musical work', 'mechanical reproductions', and 'interchangeable parts, such as discs or tapes for use in mechanical music-producing machines' referred to in sections 1(e) and 101 (e) of this title." SEC. 2. That title 17 of the United States Code is further amended in the following respect: In section 101, title 17 of the United States Code, delete subsection (e) in its entirety and substitute the following: "(e) INTERCHANGEABLE PARTS FOR USE IN MECHANICAL MUSIC-PRODUCING MACHINES.-Interchangeable parts, such as discs or tapes for use in mechanical music-producing machines adapted to reproduce copyrighted musical works, shall be considered copies of the copyrighted musical works which they serve to reproduce mechanically for the purposes of this section 101 and sections 106 and 109 of this title, and the unauthorized manufacture, use, or sale of such interchangeable parts shall constitute an infringement of the copyrighted work rendering the infringer liable in accordance with all provisions of this title dealing with infringements of copyright and, in a case of willful infringement for profit, to criminal prosecution pursuant to section 104 of this title. Whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this title, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice." SEC. 3. This Act shall take effect four months after its enactment except that section 2 of this Act shall take effect immediately upon its enactment. The provisions of title 17 of the United States Code as amended by section 1 of this |