(b)," before the present Section 411, and adding the following as Section 411(b):

"(b) Notwithstanding the provisions of subsection (a), all of the remedies provided by this title, including statutory damages and attorney's fees, shall be available in an action under this title for infringement of the copyright in a work consisting of sounds, images, or both, that are being transmitted which is not fixed in a tangible medium of expression before its transmission if the defendant in any such action or any predecessor in interest has received notice, prior to the institution of any such action and at least ten days before the transmission of said work, that said work, or a class of works of which said work is a part, will be transmitted and will be registered for copyright in accordance with this title. Registration of said work may be made within three months after its transmission."

S. 597 also makes the copyright privilege turn, in certain situations, on whether a local television station in the particular market has been given an exclusive license within the area to transmit "the same performance or display of the work" (Section 111(b) (6) (A)). Under the patterns of operations of most sports leagues, including professional football, the grant of exclusive licenses to local stations will rarely be so narrowly limited. Neither will such licenses be such as to prevent, under the language of the present bill, local CATV's from appropriating outside games without the consent of the leagues or from interfering wiht local "blackout" patetrns when a game is being played in that community. The licensing privilege which sports leagues should be permitted to grant, with the effect of according full copyright protections to the producers of these game telecasts, should be more realistically phrased. Section 111(b) (6) (A) should be amended to read as follows:

“(A) A transmitting facility other than the primary transmitter has the exclusive right within that area, under an exclusive license or other transfer of copyright, to transmit a performance or display of the same version of the work, or to transmit a performance or display of a class of works of which the work is a part, and"

NORCROSS, INC., New York, N.Y., May 9, 1967.

Re: Copyright Law Revision on Behalf of National Association of Greeting Card Publishers.

Hon. JOHN MCCLELLAN,

Chairman, Subcommittee on Patents, Trademarks, and Copyrights, Committee on the Judiciary, U.S. Senate, New Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: I am writing on behalf of The National Association of Greeting Card Publishers and Norcross, Inc. in support of amending Section 401(b) (2) of the copyright revision bill, S. 597, by omitting the use of the date in the notice of copyright for greeting cards, gift wrapping paper and other similar articles, such as textiles. It is my understanding that the textile industry through its trade association, the Textile Distributors Association, has also urged the Subcommittee to similarly amend the pending bill.

As you will remember, I testified before your Subcommittee on April 6th to urge that you give consideration to this amendment. The report of my Testimony is at Pages 943 to 950 of the minutes of Testimony of the hearings. To repeat the arguments set forth in my Testimony here would be redundant, but I cannot state too strongly the necessity for this amendment if the Greeting Card Industry and other related industries are to be able to avail themselves of copyright protection under the law which your Subcommittee is considering.

In my Testimony, I specifically refrained from introducing language for the amendment. This was to enable us to obtain approval and clearance of the wording from the Copyright Office and other interested groups.

Such approval has now been obtained, so in order to eliminate the hazards resulting to the Greeting Card industry, as well as other related industries, from the present wording, we propose adding to Section 401 (b) (2) (date requirement) the following:

****; however, for reproduction of (a) works of art; (b) photographs; (c) prints; and (d) pictorial illustrations used in products to be sold for profit, the year date may be omitted."

I understand the Textile Distributors Association has also urged adoption of this proposed amendment in a statement by its counsel dated May 2, 1967,

which was made a part of this record. As stated before, we have obtained approval by other interested groups and associations and of the Copyright Office. I respectfully submit and believe the wording of the proposed amendment is in the public interest, and I therefore urge that the law be so amended.

I would appreciate acknowledgement of the receipt of this letter.
Very truly yours,

ROBERT W. WEIST,

Chairman, Legislative Committee on the National Association of Greeting Card Publishers.

SUPPLEMENTARY STATEMENT OF NATIONAL AUDIO-VISUAL ASSOCIATION, INC.. FAIRFAX, VA., BY DON WHITE, EXECUTIVE VICE PRESIDENT

In this statement, I would like to expressly re-affirm the positions and discussion appearing in the earlier NAVA statements, made by Mr. Ellsworth Dent, Mr. Charles Stewart, and me on April 11, 1967, and, in addition, comment on certain discussion and suggestions made by others during the Senate subcommittee hearings. An appendix setting forth the exact wording of our recommendations is attached.

CLARIFYING AMENDMENTS

In his earlier presentation, Mr. Charles Stewart pointed out certain clarifying amendments which we believe should be made in order to conform the following four points to the intent of the persons drafting the Bill as expressed in the House Committee Report, and to the intent of the House as expressed in the floor discussion.

1. the definitions of "audiovisual works", "to display", "to perform", and “to perform or display a work publicly" in Section 101;

2. the grant of exclusive rights in Section 106 (5) ;

3. the grant of exemptions in Sections 110(2), (3), (4) and 112(b), and 4. the grant of exempt importations in Section 602 (a) (1).

We strongly urge you to adopt these clarifications in order to avoid improper or ambiguous interpretations of the express statutory language. We believe statutory language should be drawn in such a manner that there is no doubt as to its meaning. Here, this is possible, but is not presently accomplished.

In addition to these important clarifying amendments, Mr. Stewart urged adoption of two modifications in the exemptions of Section 110(1), which would correct problems created therein for producers of educational materials but would not limit the privileged uses sought by the educational spokesmen. We once again urge adoption of these modifications.

WHAT IS THE PUBLIC INTEREST?

We believe that while the basic proposition the educational spokesmen take as a foundation for their position is presented in all good faith it is based upon a short-sighted and improper interpretation of what best serves the public interest. They contend that public and private schools should be able to make free use of copyrighted works created by authors and others. A quick look at and comparison with an oft-cited example should place this contention in its proper perspective.

If someone produces mousetraps, our public policy grants him the right to control the distribution and sale of the mousetraps he produces. If he wishes to give them away, to sell them for a low price, to sell them for a high price, or refuse to sell them at all, he may do so. As long as there are others who also produce mousetraps, the natural market forces will place some practical limitations upon the way in which he can exercise his control.

People with mice in their homes are most in need of mousetraps. Certainly it is in the public interest for those people to have mousetraps. Yet we would never consider requiring a producer to furnish mousetraps free of charge to such persons. We realize that any such approach would not only deprive the manufacturer of his rightful property, but would eventually put him out of business since it would do away with his major, if not sole, market. The continuing production and availability of mousetraps is of far greater importance than the temporary free availability of mousetraps to those persons with mice.

The same factors are present in the creation and distribution of copyrightable works. No one person or concern controls the production of creative works. There

is no need to place controls upon distribution in order to prevent unconscionable profits or insure proper quality, since the market forces will take care of that. While access to copyrighted materials for educational purposes is very important, we should not require the producers to furnish their products free of charge to even such a limited class of users, since this would do away with the major, if not sole, market of the producers of educational materials. Loss of the producers of educational materials certainly would not be in the public interest.

EDUCATIONAL TELEVISION PROPOSALS

One area which has been repeatedly addressed in the hearings is the extent and scope of exemptions which should be provided for educational television [ETV] use. While we do not disagree with the underlying principles expressed by the ETV spokesmen, we do object to some of the language they propose to effectuate the principles since we believe the language has serious harmful ramifications beyond the expressed desires. In summarizing their position one of the ETV spokesmen made the following statement:

"As to 'fair use', all that we are asking is that ETV be given equivalent privileges with classroom teachers and educational publications. As to 'compulsory license', we are asking for the principle of availability at a reasonable fee and providing for quick access. As to classroom exemption, we are only asking for a limited use of educational materials for teaching purposes-su: ely not an unreasonable asking of copyright owners."

If this statement accurately expresses the desires of the educators, these desires are not in discord with those of copyright owners. The difficulty is that the methods recommended by the educators to accomplish these ends go far beyond the expressed desires, and provide for substantial unrequested uses which are very harmful to copyright owners. Let us look at the stated three points one at a time.

(a) Fair Use

As to fair use, the spokesman states that ETV is seeking "equivalent privileges with classroom teachers and educational publications." This is exactly what is presently provided by section 107. The same criteria are expressly applicable in determining if a use is a fair use, whether made by classroom teacher, ETV, newspaper, or other. The four expressed criteria are a summary of the judicially developed doctrine, agreed upon after long and tedious consideration:

1. Purpose and character of the use;
2. Nature of the copyrighted work;

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. Effect of the use upon the potential market for or value of the copyrighted work.

They are to be applied to all uses of all types of copyrightable works. If a particular use in an educational broadcast meets the criteria set forth, it is a fair use and proper. However, if the use in the educational broadcast does not meet the criteria of a fair use, its use should not be exempt under the Bill as a fair use. The ETV spokesmen realize that certain uses which they desire are not fair uses as that doctrine has been developed. They therefore attack the criteria for fair use, not on the basis that these criteria do not properly express the fair use doctrine, but on the basis that certain uses which do not meet these criteria should be allowed. To justify these uses they in effect substitute four criteria to be used in place of, but not to expressly replace, the criteria in section 107. (1) The copyrighted excerpt is desirable for the programmatic subject matter, (2) The coprighted excerpt serves a valid critical, analytical or exemplification purpose,

(3) The copyrighted excerpt is properly circumscribed as to length,

(4) A copyrighted excerpt is appropriately presented in context.

A quick analysis of these criteria shows that in effect they would allow as a "fair use" almost any use which is desired, if made in connection with other materials and not merely by itself. These criteria are not a standard for determining the fairness of a use, but are a means of allowing almost any use desired by the user without consideration of the effect upon the copyright owner.

The spokesman endorsed this interpretation as “a clarification of 'fair use' to include educational television irrespective of numbers of TV recordings, frequency

of broadcast or geographical distribution, so long as only limited excerpts are used in a valid program context." An application of the fair use doctrine which ignored these three points would not be an "equivalent application" of the doctrine to ETV but application of a new and special doctrine to ETV different from the doctrine appliced to classroom teachers and educational publications. In reality, the ETV interests appear to be seeking an additional exemption for behavior which does not constitute a fair use, but are seeking this special treatment by means of a change in the concept of fair use. We are distressed by their categorization of this overhaul as a mere "clarification".

In the preparation of section 107 it was agreed by all interests that the fair use provision incorporated in the Bill should not change the doctrine as developed by the courts. There was good reason for this policy and we urge that it be followed by the Senate. If there is justification for the additional exemptions sought for educational television and computer uses [which we do not believe there is], it is incumbent that there reasons be presented and that they be presented as a basis for special treatment under a different section, and not as an attempt to obtain special consideration through a misconstruction or revision of the fair use doctrine as applied to one particular use. The fair use doctrine must be applied to all uses in the same manner.

(b) Compulsory License

The second desire expressed by the ETV spokesman, and joined in by the educational spokesmen in general, is for availability of materials at a reasonable fee and with quick access. In order to accomplish this, the spokesmen have suggested a new substitute section, one portion of which is a mandatory license provision. While that is one possible way of working toward this goal, it is not the only or the best method. Such an approach makes it impossible for a copyright owner to grant an exclusive right to a producer, a common practice necessary to justify the economic investment, particularly found in the production of motion pictures. In addition, contracts with performers sometime prohibit certain uses of a work, often television use of the work.

Various systems are currently working quite satisfactorily in making certain types of materials available promptly and at a very reasonable cost. These systems, which have been organized privately and apart from any statutory provision, are examples of, and establish the fact that, a system to meet this desire of the educators can effectively be created without unnecessarily and improperly interfering with the contractual and other rights of the copyright owners. (c) Classroom Exemption

The third expressed desire is for "a limited use of educational materials for teaching purposes." This is described by the spokesman as “the classroom exemption which already is adopted as a recognized principle in the current copyright revision bill." In supporting this contention, closed-circuit transmission within a single school is used as an illustration of the desired uses. In fact, one spokesman expressly states that they "seek an exemption only for the instructional use of copyrighted material, not for its use in general, cultural and community ETV programs." However, the provisions which the educational interests support go far beyond this exemption.

It is worthwhile taking a few minutes to look at the actual proposals and argu ments presented by the educational spokesmen.

The ETV spokesmen first contend, in support of section 110(2), that the "instructional" limitations on the exemptions in that section are adequate to limit the exempt uses and to protect the copyright owners. However, those exemptions clearly allow free and unlimited use of copyrighted materials in open-circuit transmissions which can be received by the public. As the section now stands it exempts use of some audiovisual works. If clarified to expressly exclude all audiovisual works, as discussed in our earlier statements, the producers of audiovisual works would have no objections to the subsection. A second ETV recommendation is for inclusion of a new subsection 110(1A) which would expressly allow use of all types of copyrighted works in a closed transmission if in the course of teaching activities. No limits are placed upon the type of work which can be used, the number of times it can be used, or the extent or coverage of the closed transmission. It is not clear whether a "closed transmission" means a closed-circuit transmission, an open-circuit transmission to a particular audience, or has still some other meaning. In any

case a closed transmission which was city, county, or state wide would in many instances have serious economic consequences on the continuing production of educational audiovisual materials.

Another proposal of the ETV interests is a substitute provision for sections 110(2) and 112(b). This has been suggested in at least two forms. The "classroom exemption" comes within the scope of subsection (a) and does not apply to those works listed in subsection (b). One version excludes performance or display of a "motion picture or other audiovisual work" from this exemption. We do not object to this version of the so-called classroom exemption. However, the other version excludes performance or display of a "motion picture or continuous audiovisual work". This version, which adopts the word "continuous" as a limitation upon the type of audiovisual work excluded from the exemption, is not acceptable to the producers of educational audiovisual materials since it once again opens problems expressly discussed by Mr. Stewart in his earlier statement.

NEW TEACHING TECHNOLOGY

The educational spokesmen violently object to section 110(2) (d), arguing that it "virtually bars individualized uses of newer classroom technology whose purpose is to encourage independent learning." If that were in fact the effect of this subsection, we would fight its inclusion with at least as much spirit as do the educational spokesmen. We do not wish to have any educational techniques reduced or destroyed by the copyright bill. This sentiment comes from our desire to encourage, improve, and stimulate education of our young people and adults, as well as from our desire not to close the door on development and sale of potential future educational training materials.

The effect of that subsection is not at all as described by the educational spokesmen. This provision does not bar individualized uses of materials. It merely provides that when materials for such uses are developed, the users will be required to obtain them through purchase, rental, lease, or permission, as they obtain other educational materials such as printed books, motion picture films, maps, and photographs. Instead of barring the use of such materials, this approach will encourage and make possible their availability since the financial incentive of the market will insure the development of appropriate materials in a usable form by private industry. Without such incentive, private industry will not create and develop materials and equipment to make possible more modern and effective teaching technology.

PROPOSED NEW SECTION III

Let us analyze the statutory language changes and report language suggested by the educational spokesmen to determine what would be the actual effect of these provisions, without regard to what is expressed as the intended purpose.

New section III is proposed by the educational broadcasting interests to replace and broaden the exemptions currently granted in sections 110(2) and 112(b). New section III is written as a limitation upon the exclusive rights granted to the copyright owner in section 106. It is divided into four subsections, three of which are substantive, the fourth consists of definitions. In general, subsection (a) provides that certain educational transmissions are not infringements of copyright and thus are completely exempt from control of the copyright owner; subsection (b) enumerates certain educational transmissions which remain fully actionable as copyright infringements; subsection (c) places limitations upon the infringement liability for all types of educational transmissions not covered by subsections (a) and (b).

The exemptions granted in new section III are granted in the case of "educational transmissions". This term is defined in that section to mean public broadcasts over noncommercial educational stations operated by nonprofit educational organizations.

This definition can easily be interpreted to mean not only stations operated by schools, but to mean any noncommercial station making "educational" transmissions. The term is not even limited to transmissions of a direct instructional nature but includes all transmissions which could be considered educational.