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COPYRIGHT LAW REVISION

THURSDAY, JULY 10, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met, pursuant to call, at 10:10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.

Present: Representatives Kastenmeier, Danielson, Drinan, Badillo, Pattison, Railsback, and Wiggins.

Also present: Herbert Fuchs, counsel.

Mr. KASTENMEIER. The committee will come to order. The hearing this morning will be on the revision of the Copyright Law, H.R. 2223 relating principally to public broadcasting. The House is set to go into session at 11 o'clock this morning.

We will proceed as well as we can. In the event of a vote, we may have to recess temporarily. With that in mind, the Chair will advise witnesses and members that the time allocation will be rigidly adhered to including colloquies in terms of questions and answers.

We will try to limit testimony to 5 minutes; if there is a compelling need to extend that period of time, we will turn to members for a continuation of examination.

We are meeting this morning principally to receive testimony on two amendments that were offered to the Subcommittee bill, were introduced in the Senate but were not adopted. Amendment No. 1815 was offered by Senator Mathias and would subject public broadcast of certain works to compulsory licenses to be determined by a copyright Royalty Tribunal. No. 1831 offered by Senator Bayh eliminates all qualifications and limits on the distribution of so-called ephemeral copies by government and nonprofit organizations.

Inasmuch as these provisions were not adopted they were not included in the Senate bill. However, the package before the members does include the text of both amendments. Both amendments are favored by public broadcasting interests and both are opposed by copyright owners.

A copy of S. 1361 amendments follow:]

[S. 1361, 93d Cong., 2d sess.]

AMENDMENTS

Intended to be proposed by Mr. MATHIAS to S. 1361, a bill for the general revision of the copyright law, title 17 of the United States Code, and for other purposes, viz:

On page 86, line 3, insert the following new section in the table of contents to read as follows:

"118. Limitations on exclusive rights: Public broadcast of nondramatic literary and musical works, sound recordings, and pictorial, graphic, and sculptural works.".

On page 115, following line 14, insert the following new section to read as follows:

"§ 118. Limitations on exclusive rights: Public broadcast of nondramatic literary and musical works, sound recordings, and pictorial, graphic, and sculptural works

"(a) Public broadcast of nondramatic literary and musical works, sound recordings, and pictorial, graphic, and sculptural works shall be subject to compulsory licensing as follows:

"(1) Any public broadcasting organization or institution wishing to obtain a compulsory license under this section shall fulfill the following requirements:

"(A) At least one month before initial broadcast and thereafter at intervals and in accordance with requirements prescribed by the Register of Copyrights, record in the Copyright Office a notice stating its identity, address, and intention to obtain a copyright license under this section.

"(B) Deposit with the Register of Copyrights, at intervals and in accordance with requirements prescribed by the Register, a statement of account and the total royalty fees for the period covered by the statement based on the royalty rates provided for in clause (2).

"(2) The royalty rates under this section shall be determined by the Copyright Royalty Tribunal as reasonable royalty fees for the inclusion of nondramatic works in public television and radio broadcasts. Such royalty rates may be calculated on a per-use, per-program, pro rated or annual basis as the Copyright Royalty Tribunal finds most appropriate with respect to the type of the copyrighted work and the nature of broadcast use, and may be changed or supplemented from time to time as deemed appropriate by the Copyright Royalty Tribunal. In particular circumstances, royalty rates negotiated between one or more public broadcasting organizations or institutions and one or more copyright owners or agencies may be substituted for the applicable rates determined by the Copyright Royalty Tribunal.

"(3) The royalty fees deposited with the Register of Copyrights under this section shall be distributed in accordance with the following procedures:

"(A) During the month of July of each year, every person claiming to be entitled to compulsory license fees for public broadcast during the preceding twelve-month period shall file a claim with the Register of Copyrights in accordance with the requirements prescribed by the Register. Notwithstanding any provision of the antitrust laws (as designated in section 1 of the Act of October 15, 1914, 38 Stat. 730; 15 U.S.C. 12, and any amendments of such laws), for purposes of this clause any claimants may agree among themselves as to the proportionate division of compulsory license fees among them, may lump their claims together, and may designate a common agent to receive payments on their behalf.

"(B) On the first day of August of each year, the Register of Copyrights shall determine whether there exists a controversy regarding the statement of account or distribution of royalty fees. If the Register determines that no such controversy exists, the Register shall, after deducting reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If the Register finds the existence of a controversy, the Register shall certify to such effect and proceed to constitute a panel of the Copyright Royalty Tribunal in accordance with section 803. In such cases the reasonable administrative costs of the Register under this section shall be deducted prior to distribution of the royalty fees by the Tribunal.

"(C) During the pendency of any proceeding under this subsection the Register of Copyrights or the Copyright Royalty Tribunal shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy.

"(b) For the purposes of this section, 'public broadcast' shall mean production, duplication, interconnection, distribution, and transmission of ‘educational television or radio programs' by or for 'noncommercial education or radio programs' by or for 'noncommercial educational broadcast stations,' as those terms

are defined in title III, part IV of the Federal Communications Act of 1934, except as may be otherwise exempted under sections 110(2), 111(a) (2) and (4), 112(b), and 114(d).".

[S. 1361, 93d Cong., 2d sess.]
AMENDMENT

Intended to be proposed by Mr. BAYH to S. 1361, a bill for the general revision of the copyright law, title 17 of the United States Code, and for other purposes, viz: On page 102, line 23, strike lines 23 to 35 and insert in lieu the following: (b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work under section 110(2) or 114(a) to make copies of a particular transmission program embodying the performance and display, and to distribute such copies for transmission by or through other governmental bodies or nonprofit organizations.

The subcommittee will hear the arguments for both sides. It will examine the proponents and then the opponents in turn. At this hearing, it is the Chair's hope that the witnesses will confine themselves to these amendments and the subject matter of the amendments. I understand that the parties here this morning have other issues which will perhaps need to be the subject of future hearings.

The Chair does not object if you wish to allude to those subjects but I would hope that you would not go into any depth or debate those questions this morning.

At this time, the Chair is very pleased to greet the witnesses already at the table, some of whom testified 10 years ago including representing Public Broadcasting System, Mr. Eugene N. Aleinikoff, counsel, Public Broadcasting Agency for Instructional Television and Mr. Donald Quayle, senior vice president for broadcasting, Corporation for Public Broadcasting.

Eric Smith, associate general counsel, Public Broadcasting Service, and the Association of Public Radio Stations is represented by Mr. William Giorda, manager, KUT-FM, member of the board of APRS. The Agency for Instructional Television is represented by Edwin Cohen, and the Florida Department of Education is represented by J. Warren Binns.

Gentlemen, you may proceed.

TESTIMONY OF A PANEL COMPOSED OF WITNESSES FAVORING THE LEGISLATION: EUGENE N. ALEINIKOFF, COUNSEL TO PUBLIC BROADCASTING SERVICE AND AGENCY FOR INSTRUCTIONAL TELEVISION; DONALD QUAYLE, SENIOR VICE PRESIDENT FOR BROADCASTING, CORPORATION FOR PUBLIC BROADCASTING; ERIC SMITH, ASSOCIATE GENERAL COUNSEL, PUBLIC BROADCASTING SERVICE; WILLIAM GIORDA, MANAGER, KUT-FM, MEMBER OF BOARD OF APRS, ASSOCIATION OF PUBLIC RADIO STATIONS; EDWIN B. COHEN, EXECUTIVE DIRECTOR, AGENCY FOR INSTRUCTIONAL TELEVISION; J. WARREN BINNS, ADMINISTRATOR, EDUCATIONAL RADIO AND TELEVISION, STATE OF FLORIDA, FLORIDA DEPARTMENT OF EDUCATION, TALLAHASSEE, FLA.

Mr. ALEINIKOFF. We here at this table represent principal organizations in public and educational broadcasting as those terms are com

monly used and we have been active in copyright revision proceedings over the past 10 years or more.

We are here as we indicated on two major issues, the first being a compulsory license for public broadcasting. By the term "public broadcasting" we mean public broadcasting to external, general audiences such as appears during the late afternoon and night time on most educational and public stations, both radio and television across the country.

We are also here to ask that the original provisions on multiple recordings for instructional television be put back into the bill in the same way the revision bill was enacted in 1967 by the House of Representatives. Since that time, in the course of the Senate proceedings there have been restrictions placed on those recording rights for school broadcasting, differing from time to time, and the present draft of H.R. 2223 retains some of those restrictions.

I would like to emphasize the difference between the two amendments in terms of what kind of noncommercial broadcasting they relate to. In the case of general audience public broadcasting we are asking for the consideration of a compulsory license. For instructional broadcasting where there already exists an exemption, we are requesting recording rights to go along with that exemption.

I think that the best way to proceed is for Mr. Quayle, Senior Vice President of CPB, to give us an overall picture of public broadcasting. Mr. KASTENMEIER. Let me interrupt to say that without objection, the statements as submitted to the committee will be received and printed in the record in full at this point.

[The documents referred to and certain related submissions follow:]

STATEMENT BY EUGENE N. ALEINIKOFF, Esq. As COUNSEL TO THE AGENCY FOR INSTRUCTIONAL TELEVISION AND OTHER EDUCATIONAL TELEVISION AGENCIES As counsel to the Agency for Instructional Television and other educational television agencies, I should like to take this opportunity to comment on the proposed provisions relating to instructional television in H.R. 2223.

"Instructional television" is the term commonly applied to television programing specifically designed for classroom use as part of the formal educational process. These are the school programs regularly broadcast over most educational television stations during the school hours from 9 a.m. to 3 p.m. Instructional television schedules are almost always developed by the local public educational authority in conjunction with the ITV specialist at the local ETV station, and form an integral part of the teaching curriculum of the local school system.

From its earliest drafts, the Copyright Revision Bill in both the House and Senate has fully recognized the parallel needs of electronic and classroom teachers, and so included an instructional television exemption in Section 110(2) akin to the "face-to-face" teaching exemption in Section 110 (1). Unfortunately, the recording restrictions currently imposed on instructional television in Section 112(b) of H.R. 2223 cannot help but substantially frustrate the practical application of the Section 110 (2) exemption to American education.

Relevant Provisions of H.R. 2223. The instructional television exemption provided in Section 110 (2) is as follows:

"S 110. Limitations on exclusive rights: Exemption of certain performances and displays.

Notwithstanding the provisions of Section 106, the following are not infringements of copyright:

(2) performance of a nondramatic literary or musical work or display of a work, by or in the course of transmission, if:

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and

or

(C) the transmission is made primarily for

(i) reception in classrooms or similar places normally devoted to instruction;

(ii) reception by persons to whom the transmission is directed because of their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction; or

(iii) reception by officers or employees of governmental bodies as part of their official duties or employment."

It should be emphasized that the Section 110 (2) exemption does not apply to dramatic works such as plays or operas, since limited to non-dramatic literary and musical works. Nor does the ITV exemption apply to motion pictures and other audio-visual works, since limited to "display" which is defined in Sec. 101 as "in the case of a motion picture or other audio-visual work, to show individual images nonsequentially". What the ITV exemption does cover, therefore, is literature and poetry, biography and news, music and records, pictures and photographs, illustrations and charts-all materials that would commonly be available in classrooms under standard educational practice.

The Section 110(2) exemption is limited, however, to "performance" and "display". Recording permission for ITV transmission purposes must be found in Section 112(b), which reads in H.R. 2223 as follows:

"(b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work, under section 110 (2) or under the limitations on exclusive rights in sound recordings specified by section 114(a), to make no more than thirty copies of a particular transmission program embodying the performance or display, if—

(1) no further copies or phonorecords are reproduced from the copies or phonorecords made under this clause; and

(2) except for one copy or phonorecord that may be preserved exclusively for archival purposes, the copies or phonorecords are destroyed within seven years from the date the transmission program was first transmitted to the public."

Thus the present Section 112(b) limits ITV recordings both in number of copies to thirty and in period of use to seven years insofar as the Section 110 (2) exemption is concerned.

In order to eliminate these prohibitory restrictions under Section 112(b), the following substitute paragraph has been proposed by amendment offered by Senator Bayh in the current Senate Judiciary Committee proceedings on S. 22:

"(b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to transmit a performance or display of a work under section 110 (2) or 114(a) to make copies of a particular transmission program embodying the performance and display, and to distribute such copies for transmission by or through other governmental bodies or nonprofit organizations."

The Senate Judiciary Committee has not yet acted on the proposed Section 112 (b) amendment, but is scheduled to do so before reporting out the Senate 1975 Revision Bill.

Legislative History. Attempts at restricting the scope of the Section 110(2) ITV exemption are not new and have been made in one way or another since its original proposal in the 1960s. Indeed, the present House Revision bill went so far as to include a geographical broadcast limitation of 100 miles without interconnection, and an ephemeral recording restriction of no more than two copies, to be used for no longer than one year. The undisguised intent of the tight restriction was to confine the ITV exemption to unimportant and inconsequential local "live" school programming-an increasing rarity in instructional television where the prime emphasis is and must be on increased quality, long-term usefulness, wide availability and maximum effect from the tax-dollar. Consequently, when enacted by the House in 1967, the 100-mile broadcast limitation was early abandoned and the recording restrictions completely deleted on the House floor.

But the copyright interests have never given up on their earnest efforts to nullify the ITV exemption during the Senate deliberations since 1967. At their demand, the earlier two-copies-in-one-year limitation removed by the House was re-inserted in the Senate bill. Over their continuous objections, this 112(b) restriction has been successively expanded through efforts of Senate Judiciary Committee members to twelve copies usable within five years, and then

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