UNITED KINGDOM (Absolute right) Copyright Act 1956, § 12 provides: "12. Copyright in sound recordings.— "(1) Copyright shall subsist, subject to the provisions of this Act, in every sound recording of which the maker was a qualified person at the time when the recording was made.... "(4) Subject to the provisions of this Act, the maker of a sound recording shall be entitled to any copyright subsisting in the recording by virtue of this section.. "(5) The acts restricted by the copyright in a sound recording are the folowing. whether a record embodying the recording is utilised directly or indirectly in doing them, that is to say "(a) making a record embodying the recording; URUGUAY (Right to compensation) Law No. 9739 of 1937, art. 36 provides: "Article 36. The performer of a literary or musical work shall have the right to demand a remuneration for any of his performances which are broadcast or retransmitted by means of radio or television, or which are recorded or printed on a disc, film, tape, wire, or any other medium capable of being used for sound or visual reproduction. If an agreement cannot be reached, the amount of the remuneration shall be established in a summary proceeding by the competent judicial authority." "(2) A performance which has been lawfully fixed on visual or sound records may be broadcast without the consent of the performer if such records have previously been published; however, in such circumstances the performer shall be paid an equitable renumeration. "Public communication "Article 77. If a performance is publicly communicated by means of visual or sound records, or if a broadcast performance is publicly communicated, the performer shall have the right to an equitable remuneration with respect thereto. "Right of participation "Article 86. If a published sound record on which a performance has been fixed is used for public communication, the producer of the sound record shail have a right as against the performer to an equitable participation in the remuneration which the performer receives pursuant to Article 76, paragraph (2), and Article 77." Recourse to an arbitration tribunal or to the courts is available to settle disputes as to rates. GVL, a society established jointly by the record producers and performers. administers the rights. On the basis of recent negotiations, GVL's contracts with broadcasters will provide for 35 hours per week per station of record programmings, with the rates being: a. Non-commercial radio and television.-based upon a fixed fee per licensed set, with future increases in licensed sets to be paid at an increased rate. Estimated 1967 remuneration would be 5,400,000 Deutschemarks ($1,350,000). b. Commercial radio and television. Rates to be approximately 8 Deutschemarks ($2.00) per minute of recorded music broadcast producing estimated additional 1967 remuneration of further 2,570,000 Deutschemarks ($642,500). SCHIFFLI LACE & EMBROIDERY MANUFACTURERS ASSOCIATION, INC., Mr. HASSER, Senate Patent Subcommittee, Senate Office Building, Washington, D.C. DEAR MR. HASSER: Thank you for being so understanding about the cancellation of our hearing appearance on Tuesday, April 11. Members of our industry, with whom I consulted, are very concerned with the following three items: (a) Inasmuch as we are suppliers to the apparel and home furnishings markets which emphasize current styling, any requirement to put the year of the copyright on the notice could cause great hardship. Many embroidery designs created for a particular season or market do not find acceptance the first time they are offered, but are readily used in the same or different markets several seasons later. Dating them could make them unacceptable the second time around. (b) The copyright law provision requiring that notice of the copyright be permanently attached after each repeat in the length and the width is impractical and unnecessarily burdensome in an item such as ours, which is made in 10 or 15 yard lenths and widths up to 54'', where the design itself may be repeated every inch. (c) Some method should be devised to speed up the processing of copyright applications for industries such as ours where the fashion trend may change very rapidly. The committee's careful consideration of the foregoing items would be greatly appreciated. DEAR SENATOR MCCLELLAN: Because we are frequently engaged in copyright litigation on behalf of numerous clients in the soft-goods field, we have been following the progress of S. 597 with great interest. In general, we have no objection to the changes in the copyright law proposed to be enacted by this bill. There is, however, one small point, extremely important to our clients, which we believe should be reconsidered by the Judiciary Committee. This is the question of requiring use of the year of first publication as part of the copyright notice. As you know, Section 19 of the existing copyright law requires that the notice of copyright include the year of first publication only "if the work be a printed literary, musical or dramatic work." Section 401(b) (2) of S. 597, however, makes the requirement of universal application. We assume that the Committee proposes this change for a persuasive reason, but we suggest that the argument against such change is of exceeding importance. The use of copyright protection in the textile and lace industries in recent years has been greatly effective in bringing order into a chaotic situation previously characterized by design piracy. Whereas prior to the use of copyright protection in these industries the prevalence of design piracy effectively re udced the incentive to spend money on original styling, today copyright protec tion has given impetus to creative styling and to development of new and original designs. The problem, however, is this. Assuming that a design is created in 1967, which has sufficient success to be carried over into 1968 and 1969, we have a highly desirable situation. But, if the copyright notice on goods being sold in 1969 must continue to carry the date 1967, customers will be persuaded that they are buying an out-moded style, and sales thereof will be automatically curtailed. This state of affairs may appear to be unusual, but we assure you that it is the inevitable reaction in the sale of high-style soft goods in the American market today. We, therefore, earnestly recommend that the provisions of Section 19 of the present law be carried over into Section 401(b) (2) of the proposed law. Respectfully yours, HELFAT & HELFAT, By BERNARD A. HELFAT. BROWNE, SCHUYLER & BEVERIDGE, Re S-597, Revision of Copyright Law. Chief Counsel, Subcommittee on Patents, Trademarks, and Copyrights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. BRENNAN: It is with pleasure that I add my personal endorsement to most provisions of the revision of the Copyright Law. It is certainly a credit to the cooperative effort of the Register of Copyrights and the Copyright Bar working over a period of many years to reconcile divergent views. However, I am personally concerned about Section 409(c) of S-597 which provides that a Certificate of Registration shall constitute prima facie evidence of the validity of the copyright. As we all know, Certificates of Registration are issued to all who apply to the Register of Copyrights and make statements satisfying conditions of the statute; there is no examination beyond the face of the application. Under the prior copyright statutes, a registration issued in such a fashion was prima facie evidence of the facts stated in the certificate, but no more. In many copyright cases, preliminary injunctions are sought and properly granted, but only on an adequate showing by the copyright proprietor. Because of a personal experience in Scandia House Enterprises, Inc., v. Dam Things Establishments, 243 F. Supp. 450, 146 USPQ 342 (D.C. 1965), I do not believe it either wise or necessary that a Certificate of Registration be prima facie evidence of the validity of a copyright. In that case, the copyright registrant sought a preliminary injunction on the basis of representations to Judge Jackson of the United States District Court for the District of Columbia that a Certificate of Registration was prima facie evidence of the validity of the copyright. It was only by referring to the present statute that a preliminary injunetion was avoided. Ultimately, the findings of the court established that the registrant did not have any proper copyright and that the registration was obtained on the basis of misrepresentations. It seems to me that S-597 provides adequate remedies for the true copyright proprietor without adding prima facie proof of validity to the already potent registration. According to the report of hearings before the subcommittee on S-1006 of the 89th Congress (pages 75, 80 and 117), the American Bar Association opposes recognition of a Certificate of Registration as constituting prima facie evidence of the validity of the copyright and recommends deletion of the words “of the validity of the copyright and" appearing in Section 409 (c) (page 41, line 22 of S-597). I sincerely hope that you will have an opportunity to remind the subcommittee of the position of the American Bar Association on this point and that its report of S-597 will rectify what could be a very inequitable provision of the bill. Sincerely, WILLIAM E. SCHUYLER, Jr. STATEMENT OF THEODORE R. SIZER, DEAN OF THE HARVARD GRADUATE SCHOOL OF EDUCATION While I am the Dean of the Harvard Graduate School of Education, I cannot speak for all educators, nor can I speak officially for Harvard University. Nor, for that matter, can I speak for all of the individuals on the Harvard Faculty of Education. But I can speak with an awareness of the several interests of these individuals and with a knowledge of their common concerns. We are affected by any copyright law directly as authors and consumers and indirectly by reason of the close relationship which our work bears to what happens in the public and private schools of the United States. A layman addressing himself to legislation, or proposed legislation, always finds himself in a difficult position. The difficulty is acute when the legislation is as complicated and specialized as the copyright law and involves an application of that law to the present and future products of a rapidly changing and little understood technology. But my diffidence cannot obscure the fact that any copyright law will have a profound effect upon education in the United States-and particularly upon education below the college level. Whether that effect is beneficial or harmful depends, of course, upon the general line taken in the legislation and the details by which that line is worked out. I am prompted to make this statement largely because of my concern that some of the provisions in the present bill may produce a harmful effect. Let me say first, in passing, that I am mindful of the important protection provided by copyright and assume, with others, that it plays a critical role in the development of creative work. I assume, too, that extending this protection to publishers is a necessary part of protecting and encouraging authors. It may be worth noting, though, that the Constitution of the United States does not require any particular pattern of protection-nor, for that matter, any protection at all. The Constitution merely recognizes the importance of promoting the "Progress of Science and Useful Arts" and leaves it to Congress to determine whether exclusive rights "to Authors" should be granted and, if so, to develop appropriate arrangements. Perhaps it is worth noting, also, that certain divisions of the federal government-most notably the United States Office of Education-now forbid the copyrighting of government-financed creative work. In any event, it seems quite clear that Congress cannot appropriately promote the "Progress of Science and Useful Arts" without giving careful consideration to the needs of education broadly defined. The central question is, what is a fair balance between the protection needed to encourage creativity, on the one hand, and the accessibility and cost of using the created work, on the other. Striking the right balance is inevitably an imperfect art, but it cannot be done without giving very close attention to the economics of all aspects of both production and consumption, including the important link between them. It seems at least doubtful that sufficiently thorough study has been given to these economic considerations insofar as the proposed law reaches and indeed appears to cover in detail--the effect of a mushrooming technology upon the distribution and utilization of created works. This brings me to the point of my major concern. The present Revision Bill, S. 597, seems likely to have the tendency of freezing the status quo in the American school. It would tend to discourage the adoption and utilization of the currently developing technology for the school child in elementary and secondary education. If there is one thing which is clear beyond doubt, it is that we need incentives for educational experimentation of all kinds-not added restrictions. The need for such experimentation is, of course, not limited to the potential uses of the new technology. But this is one important source of trying new directions in public education. And, if the public schools are influenced to hold to the old and "sure" methods in preference to the new and untried in this area, there is bound to be a stifling effect which will extend into other areas as well. Let me turn to some specifics. As presently written, the Revision Bill would except certain educational uses from the Bill's coverage. But the exceptions are narrowly drawn. And they are drawn in a way which is likely to encourage a continuation of present practices and to discourage experimentation with new devices and methods. One exception permits performance or display of a work "by instructors or pupils in the course of face-to-face teaching activities" of a non-profit educational institution "in a classroom or similar place devoted to instruction." The exception does not apply, however, "in the case of a motion picture or other audio-visual work, the performance [of which] is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made." Before looking at the principal difficulty posed by this exception, it should be noted that the exception raises a number of interpretive hurdles. For example: what limits are imposed by the "face-to-face" requirement: when will a "place" be considered to be "similar" to a classroom and “devoted to instruction"; and when does the person responsible for the performance have "reason to believe" a copy was unlawfully made 'though he has no actual knowledge of it? It must be remembered that it would ordinarily be the school teacher who might utilize this exception, and the teacher is hardly in a position to seek legal guidance before each usage-if, indeed, legal guidance would help. No doubt the teacher will often proceed unaware of the narrow channels he is navigating: or he may even decide to move ahead and take his risk. But it is clearly inappro priate to assume or to hope a teacher would act in either of these ways; that would not be responsive to the occasion which calls the statutory exception inte existence, nor a defense of the exception into existence, nor a defense of the exception as written. But the serious limitations of the exception go well beyond the practical difficulties of applying the statutory language. The fundamental problem is that the exception is restrictive. In fact, the main thrust of the exception is all too clear. The performance or display must take place "in a classroom or similar place." Yet we have seen in recent years the beginnings of a realization that "classrooms" may be too confining-literally and figurately-to do a great deal of the educating that schools must do; and there have, in consequence, been signs of breaking free of these confines. I would not suggest that this provision in the copyright Revision Bill, by itself, would prevent that change from taking place. There are many factors which tend to retard such a change in our deeply ingrained practices in education. I do say, though, that these other factors will be reinforced by a legal provision which provides an important incentive to continue doing things in the old tried and true ways. The "face-to-face" requirement surely looks in the same backward direction. It surely calls to mind something in the way of the conventional classroom setting, while what we need are new ways of grouping and organizing-broadly speaking, new ways of conceiving what goes on between teacher and student when education takes place. The model which evidently prompted much of what appears in this exception is the overhead projector. The overhead projector has served us well, but at the present time it serves best as a reminder of how much might be done by adapting ever-more capable and flexible devices to the purposes of education-whether or not in the "classroom" and whether or not used in the standard setting of a face-to-face pupil-teacher confrontation. The usefulness of this first exception is further limited, it appears, if the copyrighted work is performed or displayed through a “transmission"; that is, if images or sounds are received "beyond the place from which they are sent." Apparently, where such a transmission is involved, the conditions of a second exception must be satisfied. This exception encompasses what is commonly referred to as "educational television," but it is applicable as well to any instruction carried out by means of a transmission. Under this second exception we see. again, the evidence of a restrictive strain, forcing education back into its present practices. For example, there is in this exception too a "classroom" requirement. here buttressed by an additional requirement that the use must be a part of "systematic instructional activities." But what is most noteworthy about this second exception is that, in at least one respect, it seems to foster a reversal of the status quo. To an important degree, it may tend to reverse the significant educational advance represented by individualized self teaching which can be programed into a device sometimes called a "teaching machine." I am referring to the provision in the Revision Bill which makes this exception available only if the transmission is "controlled by the transmitting organization" and is not dependent "on a choice by individual recipients in activating transmission...." The so-called "teaching machine" cannot, at this date, be considered an especially novel idea, and the essence of this device is to encourage a student to teach himself by proceeding at his own pace. In doing so, he must have the power to activate the machine himself. One need not be a technician or a computer engineer to imagine what might be done with this conception through the |