Subsection (a) concerns educational transmissions "embodying the performance or display of a nondramatic musical, literary, pictorial, graphic or sculp tural work". The scope of this subsection is similar to that of present section 110 (2) of the Bill. In essence it allows free and unauthorized transmission of the performance or display of a copyrighted work by an educational television or radio station in all instances allowed by section 110(2) but without any geographic limitations. In addition it allows such transmissions where received. other than in classrooms, by students enrolled in nonprofit educational institutions. It does not impose any special limitations upon computer or storage retrieval systems, as in section 110(2) (D). It allows the transmitting organization to copyright the transmission and make copies of the transmission, which copies are then protected from unrestricted use in the same manner as audiovisual works which did not have free and unrestricted access to copyrighted materials.

Clause (b) provides that "an educational transmission embodying the performance or display of a dramatic or choreographic work, pantomime, motion picture or continuous audiovisual work," is fully actionable as an act of infringement. As discussed above, this provision adequately removes the transmission of audiovisual works from the exemptions provided by this section only if the word "continuous" is not used.

Clause (c) provides mandatory licensing for any educational transmission of a work other than those specified in clause (b), if not a type of transmission specified in clause (a). It provides that there shall be no injunctive remedy (section 502), impounding of copies (section 503), or criminal offense (section 506), in the case of the specified infringements. Where the transmitting or ganization does not make a timely request or does not accept a timely offer of a reasonable license fee, the copyright owner may receive no less than $250 and no more than three times a reasonable license fee, plus costs and attorneys' fees, at the discretion of the Court. Where the copyright owner has made no timely answer to a request by the transmitted for a license, or where the copyright owner has not made a timely offer of a license for a reasonable fee, the Court at its discretion may reduce or withhold damages entirely and award the costs and attorneys' fees to the infringing transmitter. This second provision is entirely unacceptable to copyright owners in that it prevents them from granting exclusive transmission or recording rights.

The effect of the entire clause is to prevent a copyright owner from refusing to license his work for an educational transmission. When he licenses the work. the transmitting organization under this section is then authorized to make a copy of the work to retain the copy indefinitely, and to exchange the copy freely with other educational transmitting organizations.

The recommended new section III prevents the copyright owner from denying any of his works to an educational television station for use in any manner or in any form and prevents the owner from being able to grant exclusive rights to any of his creations. It allows such stations to make as many copies as they like of their transmissions of copyrighted works and to distribute these copies freely by loan, exchange, rental, sale, etc., without any control of the copyright owner, but subject to complete control by the transmitting or ganization.

These exemptions are not limited to closed-circuit instructional broadcasts within a particular school. Instead the exemption allows use of materials in broadcasts far beyond these activities. This should not be allowed.

SUMMARY

The producers of audiovisual enducational materials do not object to the basic conceptual propositions of the educational spokesmen. In fact, these basic proposi tions are the underlying principles which cause these companies to be producing materials in the field of education rather than in some other field. We strongly support efforts to adopt a copyright bill which will encourage these principles. However, we strongly object to intentional or inadvertent steps which will go beyond the necessary and important aspects, and which when viewed over a long period of time conflict with these principles. We have presented this and our earlier statements due to our confidence that the Senate in its wisdom will look beyond apparent immediate benefits, and will make its determinations on a lasting, long range consideration of the welfare of all elements of our society, not the least of which is education.

We are certain the Senate believes the producers of better mousetraps or of better educational materials should not be destroyed by a free gift of their

products to members of their major market. The public policy in favor of encouraging continued creativity, and the basic right to own property and to use, permit use, or deny use, outweigh the contention for a public policy requiring free access to educational materials. Revision of the Bill to allow such free use of educational materials, while possibly resulting in a short range benefit to education, would undoubtedly be very harmful to the educational process in the years to come since the production of such necessary and useful materials would be drastically curtailed, just at a time when the educators are emphasizing the importance of these materials to modern educational methods. We fear adoption of such provisions would result in the mouse being caught in its own trap.

APPENDIX

RECOMMENDED CLARIFYING AND MODIFYING AMENDMENTS TO S. 597 [Bracketed materials are deletions from and italic materials are additions to the language in S. 597]

Section 101

"Audiovisual works" are works that consist of [a series of related] images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show an individual image [s nonsequentially].

To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any combination [sequence] or to make the sounds accompanying it audible.

To perform or display a work “publicly" means:

(2) to transmit or otherwise communicate a performance or display of the work to the public or to a substantial number of persons outside of a normal circle of a family and its social acquaintances by means of any device or process, whether the [members of the public] persons capable of receiving the performance or display are capable of receiving [receive] it in the same place or in separate places and at the same time or at different times.

Section 106 (5)

Subject to sections 107 through 116, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, [and] pictorial, graphic, or sculptural works, and motion pictures and other audiovisual works, to display the copyrighted work publicly.

Section 110

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

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless the same image appears simultaneously on more than one receiving apparatus, or unless [, in the case of a motion picture or other audio-visual work,] the performance or display is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance or display knew or had reason to believe was not lawfully made;

(2) performance of a nondramatic literary or musical work, other than an audiovisual work, or display of a work, by or in the course of a transmission by a governmental body or other nonprofit organization, if:

(3) performance of a nondramatic literary or musical work, other than an audiovisual work, or of a dramtico-musical work of a religious nature, or display

of a work, in the course of services at a place of workship or other religious assembly;

(4) performance of a nondramatic literary or musical work, other than an audiovisual work, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if:

Section 602

(a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired abroad is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. This subsection does not apply to:

(1) importation of copies or phonorecords under the authority [or] and for the use, other than in schools, of the government of the United States or of any State or political subdivision of a State, but not including copies of any audiovisual work imported for purposes other than archival use;

NATIONAL COMMITTEE FOR THE RECORDING ARTS: THE NEED FOR COPYRIGHT PROTECTION FOR PERFORMERS ON SOUND RECORDINGS, MAY 9, 1967

INTRODUCTION

The National Committee for the Recording Arts is an organization formed for the purpose of securing a basic right for performers on sound recordings; the right to copyright protection for their artistic creations. That right, so long afforded by the Constitution, but so long denied by the courts as a matter for legislative action, and by Congress as being too controversial, is essential to assure the performing artist compensation when others utilize his recorded performance for profit.

The record performer has been singled out from among all performers to be denied protection against the economic exploitation of his artistic creations and to be denied reward for his years of study. Composers, whose works are brought to life by the performing artist have enjoyed that protection for nearly 50 years. Sound recordings are used thousands of times daily, on radio and TV stations. in jukeboxes, and in nightclubs. Great industries are thriving through use of records, yet the performer, whose own creation displaces his live performance, receives nothing. Such a situation is totally unjust.

Performers have brought their plight to the attention of the courts and to Congress many times over very many years, yet each time they have been told; "Your cause is just-but your remedy lies in another forum," or "You are entitled to relief-but at another time." Those that have opposed and which continue to oppose the granting of copyright protection to recording artists are the very ones whose businesses thrive on the uncompensated appropriation and use of performers' artistic creations.

Presently pending before Congress is an amendment to the Copyright Law of 1909 which would, for the first time, permit compensation of performing artists when others play their recordings for profit. It would allow those, who are most important in the music industry, to share in the rewards that their talents produce. The record is clear that Congress can grant protection. It is equally clear that the performers need that protection. To be denied the right, at this time, to be compensated when others use their creations for profit will perpetuate an injustice which has too long existed.

History of Efforts to Secure Copyright Protection for Performers

The concept of copyright protection has existed since early Roman times. Under this concept, the owners of literary property possessed exclusive rights to the use of their works until dedicated to the public. It was not until 1710 that the first copyright statue, made necessary by the invention of the printing press, was enacted in England.'

1 See. The Meaning of "Writings" in the Copyright Clause of the Constitution at 68. Study No. 3. prepared for the Subcommittee on Patents, Trademarks and Copyrights, of the Senate Committee on the Judiciary, 86th Cong., 1st Sess., (Comm. Print 1960).

By the time of this country's independence the importance of copyright laws was so obvious that between 1783 and 1786 twelve of the thirteen states enacted statutes protecting intellectual creations. The Preamble of the Massachusetts Statute typified the purpose of these laws.

"Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind."'

These statutes, however, were varied in coverage and limited in operation to the territorial jurisdiction of a particular state. The resulting confusion produced an atmosphere at the Constitutional Convention receptive to the creation of authority enabling the establishment of a federal copyright law. The keystone of our present copyright law was thus made a federal matter by the inclusion in the U.S. Constitution of the provision that "The Congress shall have Power To promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries." "

The first federal copyright law was enacted in 1790, but it was not until 1831 that musical compositions were added to the list of protected subjects. The Act of 1856 was the first to grant protection to public performances of any kind and was limited to dramatic compositions. The Act of 1897 further extended the protection of public performance to musical compositions, but probably due to the infancy of the phonograph industry, the last general revision of the Copyright Law in 1909 did not include any protection for sound recordings.

994

In 1925 the first bill specifically including sound recordings as copyrightable works was introduced by Representative Randolph Perkins of New Jersey, and included "phonographic records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced." Hearings on the Perkins Bill was held, but no action was taken. Between 1926 and 1931, Representative Albert Vestal of Indiana, introduced general revision bills which also would have extended copyright protection to phonograph records and the first time would have prohibited the unauthorized broadcasting and public performance of records. Later versions of this bill excluded any rights to control public performance of recordings. In 1936 another attempt was made to enact a general revision to the copyright law and to that end, bills were introduced by Representatives John Daly of Pennsylvania and William Sirovich of New York which again would have extended protection to phonograph records and which would have protected the right to be compensated for the public performance of those recordings.

Record performers for the first time organized for the purpose of securing a right which even then they felt had long been denied. An organization known as the National Association for the Performing Arts was founded which included among its members Fred Waring, Paul Whiteman, Guy Lombardo, Eddie Duchin, Andre Kostelanetz, Fred Astaire, Bing Crosby, Jeanette MacDonald, Eddie Cantor, Helen Hayes, Sophie Tucker, Alexander Walcott and Leopold Stokowski. The complaint of the performers, then, was the same as it is today; that their recordings were being used in direct competition with their live performances and that others were reaping profits through the use of the performer's talent without the performer receiving any compensation."

The arguments of the opponents of performance rights, too, were the same as they are today. They attacked the idea of copyright in sound recordings as "rather fantastic," as "unconstitutional," as "dangerous," and as "serously prejudicial to their legitimate interest." They urged the danger of new "power trusts and of new licensing societies which could cut off the people's supply of

2 Act of March 17, 1783, Ch. 26, Found in, Copyright Enactments, Copyright Off. Bull. No. 3, at 4 (1963).

3 Art. I, Sec. 8, cl. 8.

H.R. 11258, 68th Cong., 2d Sess.

H.R. 10632, H.R. 11420, 74th Cong., 2d Sess. (1963).

Hearings Before the House Committee on Patents on Revision of Copyright Laws, 74th Cong., 2d Sess. 655-693 (1936).

79-397 0-67-pt. 4- -14

music." The author-publisher groups argued that the creation of new rights in recordings would represent an unwarranted abridgement of their rights.' Neither the Sirovich nor the Daly Bill was reported.

A number of other bills were introduced between 1936 and 1947 to grant copyright protection to sound recordings. Among them were bills introduced by Senator (then Representative) Hugh Scott in 1943, 1947 and 1951. The Scott bills would have amended the copyright law to grant copyright protection for the public perfromance for profit of sound recordings. Hearings were again held in 1947 and performers again testified urging passage of the legislation, stressing the creative nature of a performance, its paramount importance to the popularity of a record, and the inadequacy of common law protection. These bills, like all previous efforts to secure copyright protection in sound recordings, failed, and no further action was taken until the present efforts to revise the copyright law. Performers not only attempted to secure protection of their recorded performances through legislation, but also sought judicial relief. The earliest and most famous case to deal with the problem of unauthorized broadcasting of phonograph records was brought by Fred Waring against the WDAS Broadcasting Company in the state court of Pennsylvania." The court held that the performer's contribution was creative and deserving of common law copyright protection, and enjoined the further commercial broadcast of Waring's records without his express consent.

Since radio waves do not respect state boundaries, it was necessary to file suits against broadcasters in neighboring states. In a suit brough in the federal district court of North Carolina " the Waring decision was followed, but as a result of the latter decision, three states, North Carolina, South Carolina, and Florida passed statutes cutting off common law property rights in the performances on phonograph records once the records were sold.

12

Following Waring's lead, Paul Whiteman filed suit against station WNEW in New York, seeking to enjoin the use of his records without his consent. The Court of Appeals was unwilling to follow the Pennsylvania decision, as that would have resulted in granting perpetual common law copyright protection in an area where Congress would only grant a monopoly for a limited period of years. The court, assuming that an orchestra conductor had a common law property right in his rendition, held that the sale of the record constituted "publication" i.e., a dedication to the public, which destroyed the common law meaning of a copyright. It held "any relief which justice demands must be found in extending statutory copyright to such works, not in recognizing perpetual monopolies, however limited their scope.""

13

The court recognized the effect of the Waring decision in Pennsylvania but refused to enjoin the use of records by a radio station in New York. Although knowingly permitting a violation of the laws of Pennsylvania since the broadcasts reached receiving sets in that state, the court was unwilling to safeguard Pennsylvania property rights by the use of its judicial powers in New York."

Discouraged by the Whiteman decision, the members of the NAPA lost the impetus to carry the fight further in the courts and after their appearance at the 1947 House hearings, the organization disbanded. Attempts by the bandleader, Tommy Dorsey, to reorganize the record performers failed, and it was not until the formation of the National Committee for the Recording Arts that any further organized effort was made to secure perfromance rights in sound recordings.

An excellent summary of the arguments is provided in Barbara Ringer's study of the history of attempts to include sound recordings in the copyright law. "The Unauthorized Duplication of Sound Recordings," at 29-30, Study No. 26, prepared for the Subcommittee on Patents. Trademarks, and Copyrights of the Senate Committee on the Judiciary. 86th Cong., 2d Sess., (Comm. Print 1961) (hereinafter cited Ringer, The Unauthorized Duplication of Sound Recordings).

H.R. 1570, 78th Cong., 1st Sess. (1943); H.R. 1270, 80th Cong., 1st Sess. (1947); and H.R. 2464, 82nd Cong., 1st Sess. (1951).

Hearings before the Subcommittee on Patents, Trademarks, and Copyrights of the House Committee on the Judiciary on HR. 1269, H.R. 1270, and H.R. 2570, 80th Cong. 1st Sess.. at 6-16, 20-22, and 203-231 (1947).

10 Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 Atl. 631 (1937). 11 Waring v. Dunlea, 26 F. Supp. 338 (E.D.N.C. 1939).

19 RCA Mfg. Co. v Whiteman, 114 F. 2d 886, 89 (2nd Cir.), cert. denied, 311 U.S. 712 (1940).

13 114 F. 2d at 89.

14 The holding in the Whiteman case that sale of a record constituted a "publication" which destroyed the common law copyright has apparently been overruled in a later decision by the Second Circuit in Capitol Records, Inc. v. Mercury Records Corp., 221 F 2n 657 (2nd Cir. 1955). See Ringer, The Unauthorized Duplication of Sound Recordings supra note 7 at 15-17.