168 COMM/ENT [Vol. 1 When they asked whether this section would change the result in Aiken, reporters received different answers from the counsel for the Senate Subcommittee, the counsel for the House Subcommittee, and the Registrar of Copyrights, all certainly distinguished authorities on the subject.01 Section 101 of the Revision Act, the definitional section, states that “(t)o 'transmit' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." Arguably, playing broadcast music over the type of inter-room loudspeaker system which the Court addressed in Jewell-LaSalle (or for that matter, Aiken,) would constitute a further transmission of the music to the public, and so fall within § 110(5)(B). However, in the Conference Report of September 19, 1976, which accompanied the final version of the Revision Act, the Conference Committee stated: 63 With respect to section 110(5), the conference substitute conforms to the language in the Senate bill. It is the intent of the conferees that a small commercial establishment of the type involved in Twentieth Century Music Corp. v. Aiken, . . . which merely augmented a home-type receiver and which was not of sufficient size to justify, as a practical matter, a subscription to a commercial background music service, would be exempt. However, where the public communication was by means of something other than a home-type receiving apparatus, or where the establishment actually makes a further transmission to the public, the exemption would not apply.** If ever language invited ligitation, the foregoing is it. What is a "small commercial establishment?" Who can define a "home-type" receiver? Is a "practical matter" determined on anything other than a completely subjective basis? Thus, section 110(5) of the new Copyright Act apparently leaves us with the same unpalatable result as existed under Aiken, trying to determine "as a practical matter" whether the device in question is merely an "augmented home-type receiver" which only "receives" 61. Mr. Thomas Brennan, the counsel for the Senate Subcommittee of the Judiciary of the 93rd Congress, said that "the George Aikens of this world would be liable" under the provisions of the Revision Act. RECORD WORLD, July 5, 1975, at 3. Ms. Barbara Ringer, the Registrar of Copyrights, was quoted as saying: "My feeling is that (Aiken) would not be liable, although this case does fall into an unclear area." Id. The counsel for the House Subcommittee of the Judiciary of the 93rd Congress, Mr. Herbert Fuchs, made probably the most honest remark of all when he admitted that: "I just don't know." Id. 62. Copyright Revision Act § 101. 63. See H. R. REP. No. 94-1733, 94th Cong., 2nd Sess. 86-88 (1976). 64. H. R. CON. Rep. No. 94-1733, 94th Cong., 2nd Sess. 75 (1976). .vo. 1] COPYRIGHT LAW OF 1976 169 broadcast music, or whether it is somehow "something else" which actually transmits to the public and so "performs" the music. And Mr. Justice Blackmun's suggestion" to Congress to clarify the copyright liability with respect to music emanating from a loudspeaker seems, in the final result, to have fallen on deaf ears. The Not-So-Constructive Notice Section 401 of the Revision Act requires that whenever a work is protected under the copyright law, "in the United States or elsewhere," a notice shall be placed on all publicly distributed copies." The notice consists of a ©, the word "copyright," or the abbreviation "copr."; the year of the first publication of the work; and the name of the copyright owner." Accepting the fact that some notice is desirable," then why is it necessary to include the date? In fact, the Revision Act provides that the date may be omitted when a pictorial, graphic, or sculptural work is reproduced on greeting cards, stationery, jewelry, toys, or any useful article." If the date is not required in these instances, why should it be required in the case of music? The purpose of the date is supposedly to advise the public when the work was first published so as to compute when the work will enter the public domain. But under the new law, the date of publication is almost irrelevant, since the term of copyright is measured by the life of the author plus fifty years.70 Even in the case of pseudonyms and works for hire, where the term is seventy-five years from the year of first publication, there exists an alternative term: one hundred years from the year of creation, whichever expires first." Therefore, even in those cases the date of publication is not necessarily the determining factor of when the work will be available to the general public. 65. See note 57 & accompanying text, supra. 66. Copyright Revision Act § 401(a). 67. Id. § 401(b). - 68. Besides the obvious reason of informing a potential user of the existence of copyright protection, the type of notice described in the text is a prerequisite to protection under the Universal Copyright Convention (U.C.C.), signed at Geneva September 6, 1952, entered into force July 10, 1974, 25 U.S.T. 1341, T.I.A.S. 7868, U.N.T.S. A copy of the Paris text may be found in 2 NIMMER, supra note 8, App. Q, at 1072 (1975). See also BOGSCH, THE LAW OF COPYRIGHT UNDER THE UNIVERSAL CONVENTION, at 26 (1968). However, since it was the United States which insisted that the Convention include the notice provision, would be circular to argue that the only reason for including the provision in the new law was to comply with the U.C.C. 69. Copyright Revision Act § 401(b)(2). 70. Id. § 302(a). 71. Id. § 302(c). 170 COMM/ENT [Vol. 1 Furthermore, the effect of an omission of notice from a work no longer automatically results in the loss of copyright, as was often the case under prior law. Under the new law, if, for example, within five years of publication without notice, a work has been registered and thereafter a "reasonable effort" has been made to add appropriate notice of copyright, the copyright is not invalidated. Moreover, section 406 liberalizes the rules when there are errors in the names or dates of notice." Considering the longer duration of the term of copyright, and the right of the author to recapture protection for his work, there may well be a great number of assignments made after the work is originally published. Nothing is said in the Revision Act as to the notice requirements in the event of an assignment." It is hard to see how the original copyright notice can be of any value when the first copyright owner has assigned the work and there have been several intermediate assignments. In view of the changes governing the duration of copyright and the liberalization of the statutory remedies in the event that notice of copyright is omitted from the work, it seems clear that the preferable approach would have been to eliminate the notice requirement altogether, or at least modify it so that the date would no longer be required as part of the copyright notice. Economic Impact What does the new copyright law mean in terms of dollars and cents for the average composer and publisher of music? Certainly, the extension of the term of copyright protection is significant for them. And an equally meaningful economic advance is provided by the increase in the mechanical royalty rate from $0.02 per record manufactured to $0.0275 per record manufactured or $0.005 per minute, 72. See 1 NIMMER, supra note 8, § 82, at 302 (1975). 73. Copyright Revision Act § 405(a). 74. Id. § 406. 75. Id. 302. See note 7 & accompanying text, supra. 76. Copyright Revision Act § 405. 77. Present law allows for the assignment of copyrights by an instrument in writing. 17 U.S.C. § 28 (1970). However, such assignments must be recorded with the Copyright Office within specified period or risk being held void as against a subsequent purchaser for valuable consideration and without notice whose assignment has been duly recorded. 17 U.S.C. § 30 (1970). For a general discussion of assignments and other transfers of copyright, see 2 Nimmer, supra note 8, §§ 119-130, at 509-565 (1975). 78. Copyright Revision Act § 302(a). broadcast music, or whether it is somehow "something else" whic actually transmits to the public and so "performs" the music. And M Justice Blackmun's suggestion" to Congress to clarify the copyrig liability with respect to music emanating from a loudspeaker seer in the final result, to have fallen on deaf ears. The Not-So-Constructive Notice 67 1 Section 401 of the Revision Act requires that whenever a worl protected under the copyright law, "in the United States or elsewher a notice shall be placed on all publicly distributed copies." The not consists of a ©, the word "copyright," or the abbreviation "copr."; year of the first publication of the work; and the name of the con right owner. Accepting the fact that some notice is desirable," than why is it necessary to include the date? In fact, the Revision Ant provides that the date may be omitted when a pictorial, graphic, or sculptural work is reproduced on greeting cards, stationery, jewelry. toy's, or any useful article."" If the date is not required in t instances, why should it be required in the case of music? The purpose of the date is supposedly to advise the public v wi the work was first published so as to compute when the work enter the public domain. But under the new law, the date of pub" cation is almost irrelevant, since the term of copyright is measured L the life of the author plus fifty years.7o Even in the case of pseudonyme and works for hire, where the term is seventy-five years from the of first publication, there exists an alternative term: one hundred y from the year of creation, whichever expires first." Therefore, evi those cases the date of publication is not necessarily the determi... factor of when the work will be available to the general public. 65. See note 57 & accompanying text, supra. 66. Copyright Revision Act § 401(a). 67. Id. § 401(b). - 68. Besides the obvious reason of informing a potential user of the existence of cur right protection, the type of notice described in the text is a prerequisite to proter under the Universal Copyright Convention (U.C.C.), signed at Geneva Septemba 1952, entered into force July 10, 1974, 25 U.S.T. 1341, T.I.A.S. 7868, U.N.T.S A copy of the Paris text may be found in 2 NIMMER, supra note 8, App. Q, at (1975). See also BOGSCH, THE LAW OF COPyright Under THE UNIVERSAL CONVEN at 26 (1968). However, since it was the United States which insisted that the Co tion include the notice provision, it would be circular to argue that the only rease including the provision in the new law was to comply with the U.C.C. 69. Copyright Revision Act § 401(b)(2). 70. Id. § 302(a). 71. Id. § 302(c). |