No. 1] COPYRIGHT LAW OF 1976 171 whichever is greater. But there the advance falters. Most of the other changes in the law will result in only the most insignificant increase in the income of the average music writer or publisher, at least for the foreseeable future. Writers and publishers should be aware, therefore, that the new law is not the bonanza that wishful thinkers believe it to be. Three aspects of the new law underscore the fact of its limited economic impact. 81 1. Jukeboxes, which long enjoyed a statutory exemption from performing rights fees,80 are now required to pay. The requirement reminds me of a scene from Neil Simon's play, The Prisoner of Second Avenue.82 In that scene, members of a family gather together and each agrees to contribute “x” to assist an ailing brother until someone asks, "How much is 'x'?" In the case of jukeboxes, "x" is only $8.00 per jukebox per year, and this sum is to be divided among all those whose music is used on the jukeboxes.83 In other words, the jukebox royalty will be divided among all the members of the three major United States performing rights societies, Broadcast Music, Inc. (BMI), the American Society of Composers, Authors, and Publishers (ASCAP), and SESAC, Inc., as well as among those writers and publishers not affiliated with any licensing society. It is estimated that the total amount collected from the jukeboxes will not exceed $4 million a year, and this is before deducting the expenses of collection and distribution. Thus, the net gain to all American music writers and publishers, whose numbers will likely exceed fifty thousand, plus the tens of thousands of foreign composers and publishers, should be no more than $3 million a year. 2. Statutory liability is now imposed on the cable television industry for the retransmission of copyrighted material which originated on broadcast television.85 This major change should result in additional income to copyright owners. However, the Congressional Committee estimated that the total revenues from the cable industry during the 79. Id. 114. See note 32 & accompanying text, supra. 80. 17 U.S.C. § 1(e) (1970). See note 27 & accompanying text, supra. 81. Copyright Revision Act § 116. See note 28 & accompanying text, supra. 82. N. SIMON, THE PRISONER OF SECOND AVENUE (Avon Books, New York, 1973). 83. Copyright Revision Act § 116. 84. This is computed on the basis of a statutory rate of $8.00 per year on 500,000 jukeboxes in use. 85. Copyright Revision Act § 111. See note 19 & accompanying text, supra. 172 COMM/ENT [Vol. 1 first few years would be in the neighborhood of $8.7 million a year.80 This figure is for all copyrighted material used on cable, including films, specially-packaged television shows, news, sports events and music. There is no exact indication of what music's share will be, but initially it will not exceed $2 million a year. And this figure, too, is before overhead and expenses. 87 3. Under the new law, royalty fees may now be collected for the performance of a musical composition under non-commercial auspices, which includes public broadcasting. Prior law limited such collections only to public performances of a musical composition "for profit.”88 However, the earlier law distinguished between music and drama, giving a copyright owner of the latter the exclusive right to perform the work publicly, regardless of whether or not "for profit."89 Thus, for example, if a public broadcaster wanted to present a copyrighted dramatic work, permission of the copyright owner was required. But when the public broadcaster performed a piece of protected music, no such clearance was necessary. This glaring inequity has been corrected," at least in part. Under the new law, the copyright owner has the exclusive right to perform his musical work publicly, whether or not "for profit."" However, public broadcasters may still take advantage of a compulsory license for the use of the copyrighted music,92 a benefit which they do not have in the case of other protected works, such as dramas and motion pictures. The gross income from these nonprofit performances of published nondramatic musical works cannot be estimated with accuracy; but the figure will not be great. Non-commercial users cannot be expected to pay the same rates as commercial operations.94 93 Despite some significant changes, it seems clear that the new law will not result in substantial economic benefits for the majority of composers and music publishers. It is not likely that the changes in the Copyright Act will bring about more than a five per cent increase in total performing rights income. 86. H. R. REP. No. 94-1476, 94th Cong., 2nd Sess. 91 (1976). 87. Copyright Revision Act § 111. 88. 17 U.S.C. § 1(e) (1970). 89. 17 U.S.C. § 1(d) (1970). 90. See H. R. Rɛp. No. 94-1476, 94th Cong., 2nd Sess. 62-63 (1976). 91. Copyright Revision Act § 106(4). 92. Copyright Revision Act § 118. See note 19 & accompanying text, supra. 93. Id. 94. See note 22 & accompanying text, supra. 29-909 0-84-6 No. 1] Conclusion COPYRIGHT LAW OF 1976 173 Congressman Edward W. Pattison, a member of the House Copyright Subcommittee who played an instrumental role in securing the passage of the new Copyright Act, observed: There remain unanswered and unaddressed issues. No doubt defects will be discovered in this legislation as it becomes operative. I hope the Subcommittee (of the Judiciary) will address itself to these matters in the next and succeeding sessions of the Congress so that a major revision such as this one will never again be necessary.95 It is indisputable that, in the main, the Copyright Revision Act of 1976 has long been overdue and that its enactment is welcomed by all concerned. In any major piece of legislation, and certainly in any one which has been in the making for over twenty years, there will be areas which will be touched upon too lightly, areas which will be written too expansively, and areas which will be neglected altogether. But one has the right to expect that once Congress undertakes such a monumental task as the wholesale revision of an entire body of law it will carefully analyze the priorities, potential abuses, and ultimate long-range effects of each provision before it gives any new provision its imprimatur. Unfortunately, too often in the Copyright Revision Act of 1976 Congress failed to take into account those things which would have made their revision of the law balanced between the creators and users of copyrighted works. Equally to blame of course were the representatives of the creators and users themselves, who were concerned almost exclusively with their special interests and so failed to take an objective look at the Revision Act in its entirety. Now that the smoke has settled and we have a new Copyright Act, perhaps all interested parties can examine it more impartially and make those corrections which will bring the law into conformity with all of our objectives. Then we can have a copyright law that is fair to both creators and users while at the same time being administratively manageable. 95. 122 CONGRESSIONAL RECORD E5244 (daily ed. Sept. 23, 1976) (remarks of Rep. Pattison). Mr. KASTENMEIER. Both statements are well written, well reasoned, and I commend them to my colleagues. I would also like to thank Mr. Stern and Mr. Cramer for taking the time to formulate their views on the broad issue of the impact of new technologies on copyright law. In this regard, I would encourage industry representatives, trade associations, attorneys, and others interested in the field to submit similar written statements to us. Hopefully, we will have more statements on these questions. We may have yet another day of general hearings sometime after the August recess. I am not sure that we have completely heard all useful points of view on the issues before us. In any event, with these thoughts in mind, I would like to thank our witnesses, who have appeared before us. The committee stands adjourned. [Whereupon, at 12:15 p.m., the subcommittee was adjourned.] Additional Statements NEW TECHNOLOGIES and COPYRIGHT: ARTHUR J. LEVINE Our President, the President of the United States, said “Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression, they omit provision for many articles which under modern productive processes are entitled to protection. They impose hardships upon the copyright proprietor which are not essential to the fair protection of the public. They are difficult for the courts to interpret and impossible for the Copyright Office to administer with any satisfaction to the public. A complete revision of them is essential.' That was said not by President Ford, prior to the 1976 amendment to the Copyright Act in the United States; that was said by President Theodore Roosevelt in December of 1905, prior to the 1909 Act. But as much as things change they remain the same, and President Ford could easily have said that before 1976. Think, since 1909, of the methods of creating and transmitting copyrighted material, which did not exist when our 1909 Copyright Act was passed. Photorecords, audio tapes, motion pictures, talking motion pictures, radio, television, and cable television computers, satellites, and lasers, photocopiers; and the list is endless and you've heard them discussed this morning. What happens when the new technologies come along? The Director General of the Hungarian Bureau of Authors Rights suggests a series of steps that copyright owners face with new technologies. First a new way of using works emerges. Then there is neither a specific provision in the legislation nor a precedent in jurisprudence for the use. If the users can interpret the lack of a clear cut answer in copyright laws in a way which makes free use possible, they base their practice on that. The possibility of the new use is more and more widely exploited and the fight begins for the rights and interests of the copyright owners. At the last stage, the chances of the copyright owner are weak because the use has now become common and legislatures are reluctant to change well established practices by creating what they see as new rights for the copyright owner. The tension in copyright exists because the problem of access to information and the means of providing access are now so great that the copyright owners and copyright laws are seen by some as unnecessary and troublesome road blocks to the utopian society. But let it not be forgotten that the purpose of copyright is to promote the general welfare and culture of the society by providing adequate incentives for authors to create. At least in the US, the foundation of copyright rests on the belief that these individual incentives will be for the general good. BROWN, RUDNICK, FREED & GESMER, Representative ROBERT W. KASTENMEIER, DEAR REPRESentative KasTENMEIER: I write you in connection with your current hearings on copyright and technological change. Since I was unable to attend the hearings, I take the liberty of submitting some observations for your consideration. I trust that I am not unduly tardy. The revolutionary technological developments that seem to be undermining copyright protection instead actually are dramatizing for the first time the realities of the inherent limitations of that protection. Those developments which happen to be in reprography generally, have made it remarkably inexpensive to copy most types of works of authorship, whether they are recorded on paper or magnetic media. The |