SECTION 110 (5)

There is contained in the Report of the Register of Copyrights on the General Revision of the Copyright Law, dated July 1961, the recommendation that "the statute should exempt the mere reception of broadcasts from the public performance right, except where the receiver makes a charge to the public for reception." The American Hotel & Motel Association endorses this

recommendation.

As the law now reads, the slightest intervention of copyrighted music, however incidental, in a news or dramatic program received by radio or television in a public room of a hotel or motel may make the proprietor liable for infringement of a copyright unless he has a performing license.

Section 110(5) proposes to exempt from copyright infringement anyone who merely turns on, in a public place, an ordinary radio or television receiving set of a kind commonly sold to members of the public for private use. The exemption would be denied in any case where the audience is charged directly to see or hear the performance. So far, we have no quarrel. However, we are concerned with the possible scope of paragraph (B) of Subsection (5) of Section 110. We are concerned less this paragraph make liable the small motel-hotel owner or operator who has a master antenna on his premises and who uses such a device to retransmit programs without charge, to certain portions of his establishment. We favor removal or amendment of this paragraph (B) of Subsection (5) of Section 110 so that the exemption will still apply in that case where a broadcast is received by means of a so-called "master antenna" where the retransmission of the broadcast is not made to any point off the premises.

It is now established practice that the use of copyrighted music in network broadcasts is "cleared at the source," i.e., the license to perform the music is obtained by the network broadcaster and no further license is required of local stations for their retransmission of the broadcast. As does the Register of Copyrights, "we believe this principle of clearance at the source should apply to the reception of broadcasts." The Association, in general, endorses Section 110(3) but favors removal or amendment of paragraph (B) of Subsection (5).

SECTION 111 (A) (1)

The proposed language would exempt from copyright infringement a secondary transmission to the private rooms of a hotel or other public establishment," provided "no direct charge is made to the occupants" for the transmission.

While to our knowledge only one of the performing rights societies has demanded payment of royalties for radio and television reception of copyrighted music in private hotel rooms, in the case of SESAC v. Statler, 19 F. Suppl 1(DCNY, 1937) the court did uphold such a right. The validity of the decision in the Statler case is extremely dubious because we do not believe that the reception of a broadcast by an individual hotel guest in his own room is a "public performance" as that term is used in the Copyright Law. The confusion created by the Statler decision should be eliminated.

We believe that the mere act of relaying broadcasts to occupants in private rooms, without change and without charge, warrants an exemption which should be made explicit in the statute. The Association strongly endorses the exemption contained in Section 111 (a)(1).

We ask that it be made clear that (1) the mere placing and use of an ordinary radio or television set in a private hotel room does not constitute an infringement of copyright and, (2) the exemption is intended to extend to all relays of the primary transmission in a hotel or motel provided such relays are not made to any point off the hotel-motel premises

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,

New York, N.Y., April 17, 1967.

Hon. JOHN L. MCCLELLAN, Chairman, Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights, Senate Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: The American Newspaper Publishers Association herewith submits its views for inclusion in the record of hearings held by your Subcommittee on Bill S. 597 providing for the general revision of the Copyright Law of 1909.

The ANPA is a trade association of daily newspapers with more than 1,000 members representing more than 90 per cent of the total daily newspaper circulation in the United States. Our members are both users and creators of copyrighted materials and their interests would be affected by certain provisions of the Bill. Of particular interest to our membership are the provisions of the Bill with respect to advertisements published as contributions to collective works such as newspapers, Government ownership of copyrights, and the damages recoverable in the case of unauthorized reproduction of a copyrighted photograph by a newspaper.

COPYRIGHT IN ADVERTISEMENTS

Section 403 (a) of the draft Bill provides in effect that, with one exception, a single copyright notice applicable to a collective work such as a newspaper will satisfy the copyright notice requirements of Sections 401 and 402 with respect to any separate contribution to the collective work which does not bear a separate copyright notice, regardless of the ownership of the copyright in the contribution. This provision serves the laudable purpose of preventing the loss of copyright protection for any such contribution. We question, however, the wisdom of including the parenthetical language contained in Section 403(a) stating that this rule would not include "advertisements inserted on behalf of persons other than the owner of copyright in the collective work." In our view, the parenthetical language in Section 403 (a) is not meaningful. Substantially all advertising in newspapers is "inserted on behalf of persons other than the [publisher] owner of copyright in the collective work." We think the parenthetical language should be deleted from the Bill. It seems to mean that newspapers cannot protect their copyright in advertisements unless they use a separate copyright notice on each such advertisement. This would be impractical and unnecessarily burdensome. While newspapers do publish ads which are wholly created by the advertiser and copyrighted in the name of the advertiser, they also publish many other ads in which newspapers hold a copyright interest under the terms of a written agreement with the advertiser. It would seem unwise to insert in this Bill what apparently amounts to a statuory rule that newspapers do not have a copyright interest in newspaper advertisements. Accordingly, we urge that the parenthetical material in Section 403(a) be deleted.

GOVERNMENT COPYRIGHT

Section 105 of this Bill continues the present law's general prohibition against securing a copyright on any work of the United States Government. We feel strongly that this was a sound decision. We note, however, that while the 1965 version of this section defined a "work of the United States Government" as a "work prepared by an officer or employee of the United States Government within the scope of his official duties or employment" [Emphasis supplied], the present Bill defines such a work as a "work prepared by an officer or employee of the United States Government as part of his official duties" [Emphasis supplied].

We are concerned that the present Bill is narrower in its definition of a "work of the United States Government" than the 1965 bill. This Association expressed its concern to your Subcommittee in the 89th Congress that even the phrase "within the scope of his official duties or employment", as used in the corresponding bill then before you, might not afford adequate protection for the general public since a narrow interpretation of that language would greatly restrict the category of noncopyrightable Government works. We also pointed out that many Government officers and employees, including administrative assistants, research workers, lawyers, economists, and other, devote substantial amounts of time and effort to the preparation of copyrightable material although their activity might not be held to be within the scope of their official duties or employment. We also expressed our concern that the 1965 bill established no standards whatever regarding the ownership of copyrighted material created in the course of performing contracts between private individuals or corporations and the United States Government. Finally, this Association took the position that no person should be permitted to copyright any material where a substantial part thereof was created by Government employees or with Government funds. We still hold these same views.

We think it is unfortunate that the language of the present Bill eliminates the familiar “scope of employment" concept and leaves the "official duties" test

79-397-67-pt. 4- -7

as the sole criterion. We urge that the Subcommittee reinsert the provisions of the 1965 bill. Inadequate as the earlier provision was in our point of view, it at least would have provided a familiar legal standard which would be much fairer to the general public than the narrow "official duties" requirement. We think it is fundamental that any material generated with Government funds should be made available to the general public without copyright restrictions so as to encourage the widest possible dissemination of Government information. documents, or other writings.

NEWSPAPER REPRODUCTION OF COPYRIGHTED PHOTOGRAPHS

The damage provisions of Bill S. 597 are also of special concern to newspapers. Section 101 of the present Copyright Law (17 U.S.C., Sec. 101) provides that in the case of a newspaper reproduction of a copyrighted photograph the damages recoverable shall not exceed the sum of $200 nor be less than the sum of $50. The present bill deletes that special damage limitation and adds in lieu thereof a so-called "innocent infringer" provision in Section 504 (c) (2) which provides:

*** In the case where the infringer sustains the burden of proving. and the court finds, that he was not aware and had no reason to believe that his acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $100.” Bill S. 597 also changes the present copyright law in other material respects. Under present law, the court has the discretion in cases not involving special limitations to award statutory damages in lieu of actual damages and profits in an amount of not less than $250 nor more than $5,000. Section 504 (c) (1) of the Bill provides that the copyright owner may elect, at any time before final judgment is rendered, to receive statutory damages instead of actual damages and profits and the limitation of such damages has been increased to $10 000. As we have previously informed the Subcommittee, this Association opposes the deletion of the special limitation of damages applicable to a newspaper reproduction of copyrighted photographs. We recommend that the provision be reinserted in Section 504 (c) by adding a new subdivision designated as Section 504 (c) (3), as follows:

"(3) In a case where there is an unauthorized reproduction of a copyrighted photograph by a newspaper, the damages recoverable shall not exceed $200 nor be less than the sum of $50."

ANPA is convinced that the special considerations which prompted Congress to enact the present damage limitation are still present today and that the provision should be retained in the law. It is also our opinion that the present "innocent infringer" provision is inadequate to protect the legitimate interests of newspapers in cases of innocent infringement.

The report of the House Committee on Patents on the 1909 Copyright Act (H. Rep. 2222, 60th Congress, 2nd Session, 1909), at p. 15, stated that the special limitation of damages relating to the newspaper reproduction of copyrighted photographs was made "because such reproduction had little permanent value or usefulness and a reproduction in this form does not damage the copyright proprietor to as great an extent as would the reproduction and sale of copies of the photograph in a different form."

This is just as true today. Where proper credit is given the reproduction of a photograph in a newspaper actually confers a benefit, not an injury, because of the promotional value of such a publication. It is quite doubtful that the publication of photographs would result in a measurable profit for the newspaper. Accordingly, the copyright proprietor would be certain to elect statutory damages under the provisions of the Bill. The Court before whom the action is pending would then be authorized to award as much as $10,000 for a single photograph. This Bill provides no standards for the guidance of the Court except its discretion.

In view of the risk of substantial financial penalties which could be imposed under the present Bill, the deletion of the special damage provision regarding photographs and the substitution of the “innocent infringer" provision could have far-reaching consequences for daily newspapers. We believe it would be in the public interest to retain that special damage limitation in any revision of the present law.

Yours very truly,

STANFORD SMITH,
General Manager.

STATEMENT ON BEHALF OF AMERICAN PATENT LAW ASSOCIATION RE S. 597, A BILL TO REVISE THE COPYRIGHT LAWS

Whereas legislation is pending in the Congress of the United States to revise completely the copyright law, title 17, United States Code: Be it

Resolved, That the American Patent Law Association approves the following principles as a basis for said revision:

(1) A single Federal System of copyright;

(2) A basic term consisting of the life of the author plus 50 years after his death, with an extension of subsisting copyrights. For works made for hire, the terms should be 75 years from publication;

(3) A modified statutory license for the making and distribution of phonorecords of musical works;

(4) A modified form of reversion after 35 years, but permitting the continued use of derivative works made during the 35 year period;

(5) Protection of sound recording against unauthorized dubbing;

(6) Recognition of the doctrine of fair use;

(7) Elimination of the jukebox exemption; (8) A relaxation of formalities as to notice;

(9) Divisibility of copyrights;

(10) Provision for judicial review of a determination by the Copyright Office; (11) Protection of foreign works, both published and unpublished, only on the basis of treaty or proclamation; be it further

Resolved, That the American Patent Law Association opposes the following: (1) Government ownership of copyright;

(2) Limitation of copyright by way of a manufacturing clause;

(3) Exemption from copyright protection permitting free use of copyrighted material except under the doctrine of fair use; be it further

Resolved. That a copy of this resolution be forwarded to the Chairman of the Judiciary Committee of the Senate and to the Chairman of the House Judiciary Committee of the U.S. Congress.

Further, the Association submits the following Statement with reference to the Revision of the Copyright Law and offers it as a possible solution of some of the problems presented although not as a specific legislative program, namely:

To facilitate dissemination of copyrighted works by users by providing prompt access, while preserving the incentive of owners by providing for reasonable payment, it recommends the establishment of a Clearing House system in accordance with the following:

(1) Nonexclusive licensing by a centralized Clearing House of closely interrelated categories of works to be jointly operated by representatives of copyright owners, users and, possibly, of the public.

(2) Voluntary participation with inducements to encourage participation. (3) Published rates providing for payment depending on type of copyrighted work and use.

(4) Adequate provision to avoid antitrust problems, if any.

(5) A provision by Congress in any Copyright Law revision for the establishment of an appropriately funded Commission to bring about the operation of such a centralized Clearing House system by July 1, 1968. The Commission shall report to Congress by such date. If such Commission is not successful, Congress shall provide a solution to the problem by way of specific legislation.

STATEMENT OF HARRIET F. PILPEL ON BEHALF OF THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS AND THE SOCIETY OF MAGAZINE WRITERS ON S. 597 FOR SUBMISSION TO THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY ON MAY 10, 1967

My name is Harriet F. Pilpel. I am a senior partner in the New York law firm of Greenbaum, Wolff & Ernst; a member of the United States Copyright Office Panel of Experts; a trustee of the Copyright Society of the United States; co-author with Morton D. Goldberg of the book, "A Copyright Guide"; co-author with Theodora S. Zavin of the book, "Rights and Writers"; and author of a monthly column entitled, "But Can You Do That?" in the magazine "Publishers Weekly." I submit this statement as General Counsel for the American Society of Magazine Photographers and the Society of Magazine Writers. Both organizations derive their membership from all over the country.

Before I address myself to the specifics of why the magazine photographers and the magazine writers regard the enactment of the new copyright law as a must, I want, on their behalf and on behalf of myself personally, to thank the United States Copyright Office, Mr. Kaminstein, Miss Ringer, Mr. Goldman, Mr. Carey. and all the others who have done such a superb job for the creative people of this country. Their intensive research and lengthy deliberations are reflected in the bill which is now pending before you for action and which is the subject of today's hearings.

The Magazine Photographers and Magazine Writers support the bill S. 597 with enthusiasm for the same cogent reasons that other groups of authors and other creators of copyright property support it. But, in addition, they have special reasons to advance in support of the Bill because of the peculiarly onerous impact upon them of several aspects of the present copyright law applicable espe cially to collective works. And the Magazine Photographers and Writers believe that the confusions and unfairnesses and the utter impracticability of the present law in its impact on them as prime contributors to collective works defeats not only their best interests but also the best interests of the American public.

The Bill defines "collective work" in § 101 as a "work, such as a periodical issue, anthology or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." Obviously, this defines the medium in which the Magazine Photographers and Magazine Writers operate. Their importance to life and letters in the United States is considerable. One need only remember the statement that one picture can be worth 1500 pages of text or to recall that such major seminal contributions to the law as the very concept of "the right of privacy" first appeared in a periodical. Under the present law, confusion and hardship keynotes the copyright situation of contributions to periodicals or other collective works. It is not clear, in the absence of a separate copyright notice, who owns what part of such works or of the separate contributions of which they are comprised; or what kind of copyright notice the collective work should carry (e.g., is one overall new notice in the name of the owner of the collective work sufficient, or must there be a listing of the prior effective copyright notices of all the constituent works or both?). Moreover, in the case of photographs or other works of graphic art, a further question arises as to the relation between the original physical picture, for example, and the right to reproduce it. The present manufacturing clause of the copyright act bears down heavily on United States contributors to foreign books, magazines and newspapers-with respect to illustrations and photographs as well as text. In most instances, the United States contributor to a foreign work, of course, has no control over where it is printed so that loss of his copyrights is an ever present threat. And this, despite the fact that surely among our best ambassadors of good will to friend and foe abroad are magazine photographers and writers who are in a unique position to interpret the United States to the rest of the world.

Many of the confusions and ambiguities in the present law will disappear if the proposed bill is enacted into law. Thus, § 201 (c) of the Bill provides:

"(c) CONTRIBUTION TO COLLECTIVE WORKS.-Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it. "the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

But dwarfing even these problems which pertain particularly to those who write and photograph for our newspapers, magazines and other composite works is another of even greater importance, practically speaking. Other witnesses, no doubt, have and will testify fully as to the many and important reasons why a term of life, plus fifty years, is infinitely preferable for all copyrighted works to the present system of an original term of 28 years with the right to renew for another 28 years. Pragmatically—and I am speaking as someone who has struggled with this problem on behalf of a number of contributors to collective works as well as their wives, children, estates and next of kin the so-called right to renew is often no right at all. It may not be too difficult for those who write major works like books and symphonies, or who paint great pictures, to see to it that they are copyrighted in the name of the creator in the first