No. 1] COPYRIGHT LAW OF 1976 163 The extension of compulsory licensing is an erosion of the rights of the copyright owner. From a limited exception in 1909, compulsory licensing has grown to become a major factor in our copyright law. Even such champions of the Copyright Revision Act as Barbara Ringer, the Registrar of Copyrights, conceded that the expansion of compulsory licensing was not a desirable change. Unfortunately, I can only see that concept creeping into other areas with the result of further diminishing what should be left to the copyright owners to decide for themselves. The Fixed Rate 32 31 Closely related to the problem of compulsory licensing of previously recorded musical works is the concept of a fixed statutory rate for that license, which is contained in the mechanical licensing provision.3 Unfortunately, for the past sixty-nine years, through both depression and inflation, this fee has remained unchanged. Although the new law does change the fee, it still perpetuates the static concept of fixed rates. However, the new law goes beyond the old by extending the concept of a statutory rate to jukeboxes as well, at the rate of $8.00 for each jukebox per year. The statute also fixes the fees to be paid by cable television operators, basing those fees on the percentages of their gross receipts.34 The concept of a fixed statutory fee for a compulsory license is not only antagonistic to the rights of the copyright owner,35 but the likelihood is that with the passage of time the concept will be expanded, and probably unjustifiably, to cover new areas. The Copyright Office Another significant change, which also was added to the new law without a great deal of discussion, was the expansion of the role of the Copyright Office. Under the present law, the Copyright Office merely 30. See House Hearings, supra note 22, at 976-77. 31. 17 U.S.C. § 1(e) (1970). The section provides that one may obtain a compulsory license for musical compositions which have been previously recorded by the copyright owner by giving notice of intention to become a licensee thereunder and by paying the statutory rate of $.02 for each record manufactured. 32. Copyright Revision Act § 115. The rate has been increased to the larger of $.0275 per recording or $0.005 per minute of playing time, and it applies to each record made and distributed, rather than manufactured. Id. § 115(c)(2). 33. Copyright Revision Act § 116. The rate is subject to review and further revision by the Copyright Royalty Tribunal. Id. § 801(b). 34. Copyright Revision Act § 111(d)(2)(B). 35. See S. REP. No. 94-473, 94th Cong., 1st Sess. 101 (1975). 164 36 performs ministerial functions, such as recording assignments of copyright, preparing copyright certificates and maintaining a catalogue of copyrighted material.38 Under the new law, however, the Copyright Office has been given responsibilities far beyond anything it has ever undertaken previously. For example, the Office will now send to Congress a judgmental report on whether the Revision Act's library reproduction provisions have forged a fair balance between creators and users. It will suggest methods for affixing a copyright notice that will comply with the law.10 And it will make threshold administrative determinations of whether a work contains uncopyrightable subject matter or whether a copyright claim is invalid." This expansion of the Office's role has raised questions of whether the new law is constitutionally sound. In fact, the Department of Justice sent an eleventh hour memorandum to President Ford urging that he veto the Revision Act because it violated the constitutional requirement of separation of powers by, among other things, housing the newly formed Copyright Royalty Tribunal in the Library of Congress and providing it with Copyright Office staff. 42 48 Without commenting on this constitutional question, I certainly feel that a good deal can be said as a practical matter in opposition to the expanded role of the Copyright Office. For implicit in this expansion is a threat to the underlying interests of copyright owners. If questions on the validity of the administration of copyrights arise, they should be answered squarely by the courts, and not by the direct or indirect influence of the Copyright Office. The New Technology Leaving aside these general observations, I would like to turn now to some more specific problems with the new law. It was argued that a new copyright law was long overdue because the old law had failed 36. 17 U.S.C. § 30 (1970). This practice has been continued under the new law. Copyright Revision Act § 706. 37. 17 U.S.C. § 31 (1970). The practice has been continued under the new law. Copyright Revision Act § 701. 38. 17 U.S.C. § 13 (1970); 37 C.F.R. § 201.3 (1973). This practice has been continued under the new law. Copyright Revision Act § 704. 39. Copyright Revision Act § 108(i). 40. Id. § 401(c). 41. Id. 410(a). 42. See Brylawski, The Copyright Office: A Constitutional Confrontation, 44 GEO. WASH. L. REV. 1 (1975). 43. See VARIETY, Oct. 27, 1976, at 93; also RECORD WORLD, Jan. 15, 1977, at 45. No. 11 COPYRIGHT LAW OF 1976 165 to take into account and was not equipped to handle recent 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 recorded sounds have come into use, and the increasing 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. 45 Yet, despite these justifiable and important concerns, when one actually looks at the long history of the new copyright law to see precisely how it handles them, it appears that Congress only decided to create the National Commission on New Technological Uses and Works (CONTU) in 1974. This Commission must report to the President and Congress recommendations for future changes in the Copyright Act which will keep them abreast of the developments in technology." The Commission rendered its preliminary report on October 8, 1976; it is required to submit another by December 31, 1977.48 The Commission is also authorized to submit as many interim reports as it deems necessary," although to my knowledge no such reports have been issued. BMI is the largest performing rights organization in the world, with over 30 thousand writers and 15 thousand publishers. In addition, it administers hundreds of thousands of works from abroad. It is the leader in establishing new technologies to handle 166 COMM/ENT [Vol. 1 the mass volume of copyright usages. Other countries have come to look upon our system as a model for their own. Yet, CONTU made no inquiry into our operation, and it was only at BMI's request that CONTU staff members visited our headquarters on March 11, 1977, and later granted BMI an appearance before it on March 31, 1977, to demonstrate how we function. So, with all the time that was available to draft the Copyright Revision Act, the final version still did not accomplish its stated objective of preparing for the technology of today, let alone the technology of tomorrow. What Ever Happened to George Aiken? When faced with a difficult problem, it appears that the draftsmen of the new law preferred to avoid its resolution. I refer specifically to the situation created by the decision of the United States Supreme Court in 20th Century Music Co. v. Aiken." In that case, the Court was confronted with an infringement action against a restaurant owner who furnished music to his customers during business hours by tuning in his radio, augmented by four loudspeakers, to a local broadcast station. The local broadcaster was licensed to broadcast the music, but the restaurant owner was not. Nonetheless, the Court held that there was no infringement since the restaurant owner was not "performing" the music, but merely "receiving" it." The Court based its decision on the functional analysis that it had developed earlier in the Cable Television Cases: "2 "Broadcasters perform; viewers do not perform."ss The decision in Aiken runs contrary to the one in its famous predecessor, Buck v. Jewell-LaSalle Realty Co. In Jewell-LaSalle, the Court was presented with the certified question: 54 Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loudspeakers installed in his hotel and under his control for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of (the Copyright Act)?55 To this question the Court answered “Yes.” It is difficult to reconcile 50. 422 U.S. 151 (1975). 51. Id. at 162. 52. Fortnightly Corp. v. United Artists Television Inc., 392 U.S. 390 (1968); Teleprompter Corp. v. Columbia Broadcasting Sys., Inc., 415 U.S. 394 (1974). 53. 20th Century Music Co. v. Aiken, 422 U.S. 151, 161 (1975). 54. 283 U.S. 191 (1931). 55. Id. at 191. No. 1] COPYRIGHT LAW OF 1976 167 Jewell-LaSalle, which holds that a hotel proprietor who makes broadcast music available to his guests through loudspeakers is "performing" the music, with Aiken, which holds that a restaurant owner who provides the same service is not. Nevertheless, the Supreme Court did not expressly overrule Jewell-LaSalle. Mr. Justice Blackmun, in a concurring opinion in Aiken, expressed his discomfort with the decision, noting that "... the Court dances around Jewell-LaSalle, as indeed it must, for it is potent opposing precedent for the present case and stands stalwart against respondent Aiken's position. I think that we should be realistic and forthright and if Jewell-LaSalle is in the way, overrule it."57 Justice Blackmun also pointed out the need for Congressional action to clarify the result of the Court's decision in Aiken: Resolution of these difficult problems and the fashioning of a more 58 Similar sentiments were also voiced by the dissent." 59 But despite this advice, when it came time for the draftsmen actually to resolve the problem, it appears that they decided to avoid it instead. Section 110(5) of the Revision Act, which supposedly deals with the Aiken situation, reads as follows: § 110. Limitations on exclusive rights: Exemption of certain performances and displays. Notwithstanding the provisions of section 106, the following are not infringements of copyright: (5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless (A) a direct charge is made to see or hear the transmission; or (B) the transmission thus received is transmitted to the public." 56. Twentieth Century Music Co. v. Aiken, 422 U.S. 151, 160 (1975). 57. 422 U.S. at 167 (Blackmun, J., concurring). 58. Id. at 166. 59. Id. at 167. (Burger, C. J., with whom Douglas, J., joins, dissenting). Chief Justice Burger began his dissent by stating: "My primary purpose in writing is not merely to express disagreement with the Court but to underscore what has repeatedly been stated by others as to the need for legislative action." 60. Copyright Revision Act § 110(5). |