material progress by encouraging technological innovation. In doing so, the Congress is free to combine different intellectual property concepts on a pragmatic basis. It should do what it feels will work, and should not feel limited merely to what worked 200 years ago for different technology.

Congress should eschew the either-or approach of traditional intellectual property law. Instead, Congress should carefully tailor rights and remedies to meet new needs. If the Congress is concerned about the consequences of recognizing new intellectual property rights, it should fine tune the kind and extent of relief it allows to owners of new forms of intellectual property rather than deny them any rights at all.

The high front end costs of new technologies, and the low costs of copying them, make them particularly vulnerable to piracy. This raises serious fairness and incentive questions, which may properly be balanced against possible short run price effects of condoning piracy. The Congress is particularly suited and able to strike such a balance.

Mr. KASTENMEIER. The second is by Edward M. Cramer, president of Broadcast Music, Inc.

[The statement of Edward M. Cramer follows:]

MEMORANDUM TO

THE HOUSE SUB-COMMITTEE

ON

COURTS, CIVIL LIBERTIES
AND THE ADMINISTRATION OF JUSTICE

Submitted by

Edward M. Cramer

President

Broadcast Music, Inc. (BMI)

July 14, 1983

More than five years has elapsed since the new copyright act was enacted; certainly adequate enough time to judge whether or not it fulfilled the hopes of those who pressed for its enactment.

Although I was one of its sponsors, I had grave doubts at the time as to whether the new act was really designed to meet the problems of the future as well as the present.

I expressed these doubts in an article written six years ago entitled "Some Observations on the Copyright Law of 1976: Not Everything is Beautiful" in COMM/ENT, a Journal of Communications and Entertainment Law, Vol. I, No. 1, November 1977. A copy of that article is attached.

It is not my purpose here to make general comments about the act except to note that it did produce a number of beneficial changes, such as the duration of copyright and the elimination of the dual Federal and State systems. I will limit my present observations, therefore, to one area in which the act is woefully deficient. Specifically, I refer to the question of the "new technology".

It was long argued that a new copyright law was well overdue because the old law failed to take into account and was not equipped to handle many technological changes, such as computer software, reprography, and satellite broadcasting, to name just a few. In fact, the reports of both the Senate and House Judiciary Committees contain language suggesting that this new technology was a major impetus behind the Copyright Revision Act. The very first paragraph of the Senate report on the Act states that "many significant developments in technology and communications have rendered (the present Copyright Law) clearly inadequate to the needs of the country today". The House report expands this idea further:

...Motion pictures and sound recordings had just made their
appearance in 1909, and radio and television were still in
the early stages of their development. During the past
half-century a wide range of new techniques for capturing

and communicating printed matter, visual images, and
and recorded sounds have come into use, and the in-
creasing use of information storage and retrieval devices,
communications satellites, and laser technology promises
even greater changes in the near future. The technical
advances have generated new industries and new methods
for the reproduction and dissemination of copyrighted
works, and the business relations between authors and
users have evolved new patterns.

The legislative history clearly shows that the technologies of the '80s were known and considered by those who drafted the new act, and yet I submit that the act provides no real answers to the problems raised by the use of these technologies.

For example, if Williams v. Wilkins, the leading case on reprography, were to be decided under the Copyright Act of 1976 instead of the old act, would the results be the same? I don't purport to know the answer, but I know it can't be found within the confines of the act itself. The same is true for the copyright status of information storage and retrieval devices, satellites, home video, audio taping, etc. All of these things were in existence during the '70s; most of them were mentioned in the legislative history, and yet there is no statutory scheme for dealing with the known problems they created, to say nothing of those problems which will arise out of areas of technology yet to be developed.

though elaborate

In other instances, the statute was clearly inadequate. Cable, for instance, was certainly not a new development and was the subject of an elaborate statutory scheme. The implementation of the statute has now raised serious concem. I note in passing that, in my view, Section 111 is probably the worst piece of statutory drafting I have ever seen. By comparison, it makes some of the more complex IRS regulations look like "See Spot Run".

The deficiences of the current copyright act are the result of a combination of factors, including the fact that representatives of narrow interest groups were so concerned with their own constituency that they failed to view the act in its totality. As one of those who was instrumental in the revision, I share the blame, but it should be corrected. Unfortunately, what I now see happening is a repetition of what took place in the past special interest groups again seeking their own narrow revisions. This counter-productive activity should be discouraged. I urge that there be convened a conference of representatives of creators and users spanning all known and affected technologies to attempt to work out, in a businesslike manner, practical solutions to practical problems. And, in my view, participation should be limited to whatever degree is possible to only those with a first-hand knowledge of the problems. (Lawyers, bureacrats and academics should, for the most part, be excluded.) The Betamax case, for example, is not an easy one to decide. The recent Supreme Court action clearly bears this out. Setting it down for additional legal argument may assist the Court in ultimately arriving at a decision for the specific case but it will not solve the basic problem. Home taping will not disappear, and

affected copyright owners deserve to be compensated. A conference consisting of manufacturers of equipment and tape, together with representatives of creators, would probably do more to bring about an overall practical solution than any amount of additional legal arguments.

I am convinced that this committee is truly concerned with finding an equitable solution (s) to the problems arising out of the use of the not-so-new technology. I urge you to take the initiative in convening a meeting, or a series of meetings, where the issues can be explored informally and without a written record of the procedings.

:mb

Reprinted from

A Journal of Communications and Entertainment Law
Volume 1 Fall 1977 No. 1

Copyright 1977, Hastings College of the Law

Some Observations on
The Copyright Law of 1976:

Not Everything is Beautiful*

By EDWARD M. CRAMER

President, Broadcast Music, Inc. (BMI) B.A. Columbia College, 1947; LL.B. Cornell Law School, 1950; LL.M. New York University School of Law, 1953. The author gratefully wishes to acknowledge the assistance of Gary F. Roth, staff attorney for Broadcast Music, Inc., in the preparation of this article.

Introduction

LAST FALL, delegates representing authors and composers from

all over the world attended the meeting of the Confederacion Internationale des Societies d'Auteurs et Compositeurs (CISAC) in Paris. It was an extraordinary week. It featured CISAC's 50th anniversary, the 125th anniversary of the French performing rights organization (the Societe des Auteurs, Compositeurs et Editeurs de Musique (SACEM)), and the 200th anniversary of the Societe des Belles Lettres. Sharing the spotlight during the week of meetings, deliberations and festivities was the constant discussion among the delegates of the proposed new copyright law in the United States.' It was particularly appropriate that, at the concluding session of the Congress, an announcement was made to the assembled delegates that the United States had at long last passed its Copyright Revision Act. However, as the senior representative of the largest American performing rights organization, I felt compelled to publicly express some misgivings. The purpose of this commentary is to elaborate on those misgivings

1. The Copyright Act in effect at the time had been enacted by Congress in substantially its present form in 1909. 17 U.S.C. § 1 et. seq. (1970 & Supp.V 1975). For a history of the attempted revisions of this Act, see H. R. REP. No. 94-1476, 94th Cong., 2nd Sess. 47 (1976).

2. The Copyright Revision Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (to be codified in 17 U.S.C. § 101 et. scq.) [hereinafter cited as Copyright Revision Act). This Act, however, with minor exceptions, does not become effective until January 1, 1978. 17 U.S.C. NOTE PREC. § 101.

"Copyright 1977 by Edward M. Cramer.