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tering them with the Copyright Office, in which case the longer period of protection shall apply.
“This would make more readily available to scholars and others a vast amount of material that has little or no monetary value but which may be of vital concern for research in such fields as literature and history."
Some weeks after this resolution was adopted, Mr. Chairman, there was printed for the use of the House Committee on the Judiciary the Supplementary Report of the Register of Copyrights on the . . . 1965 Revision Bill. On pages 87–88 of this Report there appears a summary of arguments advanced in support of a copyright term based on the author's life plus fifty years. These arguments are said to reflect "the overwhelming (though not unanimous) sentiment” in favor of this period of duration. The office of the Register of Copyrights declares itself to be in general agreement with the views there summarized, the first of which includes the following statement: "The fact that less than 15 percent of copyrighted works are renewed is not illuminating, since the remaining 85 percent primarily represent ephemera which no one is interested in using in any case.” (Emphasis supplied.)
This is a singularly surprising and misleading statement with which I am obliged to disagree with the utmost possible emphasis. It reveals a gross misconception of the interests of the community of scholars and a complete disregard of the nature and function of historical research. There is no single item of the human record, ephemeral or otherwise, published or unpublished, important or trivial, that some scholar somewhere at some time may not need and indeed find indispensable as documentary evidence of the first importance for the subject on which he is engaged. Historians are interested not merely in the small number of copyrighted works deemed worthy of renewal. They are interested in and may have urgent need to explore the total body of the record. They accept the necessary limitations imposed upon the 15 percent because this is essential to achieve the great purpose of copyright legislation, but they urge with the greatest possible emphasis that the remaining 85 percent be made available to them at least to the extent of the modest compromise recommended by the Society of American Archivists and by other learned societies.
If no one is interested in this great body of the so-called ephemera save the archivists and the historians, what possible injury could result from granting the request they make for the sake of the public interest which they serve?
AMERICAN HOTEL & MOTEL ASSOCIATION,
New York, N.Y., August 18, 1965. Hon. JOHN L. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks and Copyrights, Committee
on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: The American Hotel & Motel Association wishes to express its views on S. 1006, a bill to revise the Copyright Law.
The Association's views, as contained in the enclosed statement, support the general thrust of S. 1006. You will note, however, we believe that Section 109, subsections (6) and (7), requires clarification for the stated reasons.
In addition, we ask the Subcommittee give due consideration to the Association's comments as they relate to Section 114 of S. 1006, the so-called "jukebox exemption."
A copy of the Association's statement has been submitted to the Subcommittee's Counsel, Mr. Thomas Brennan, for inclusion in the record of the hearings. Sincerely yours,
LEONARD K. DOWIAK.
STATEMENT OF THE AMERICAN HOTEL & MOTEL ASSOCIATION, WASHINGTON, D.C.
The American Hotel & Motel Association is a federation of State associations having a membership in excess of 6,000 hotels and motels located in all sections of the country. The Association maintains offices at 221 West 57th Street, New York City and at 777—14th Street, N.W., Washington, D.C. We appreciate having the opportunity to register, with this Subcommittee, A. H. & M. A.'s views on S. 1006, a bill to revise the Copyright Law.
Section 109 of S. 1006 states in part that, notwithstanding the language of the "exclusive rights in copyright works" section of the Bill (section 106), the following are not infringements of copyright:
“(6) the further transmitting of a transmission embodying a performance or exhibition of a work by relaying it to the private rooms of a hotel or other public establishment through a system of loudspeakers or other devices in such rooms, unless the person responsible for relaying the transmission or the operator of the establishment:
“(A) alters or adds to the content of the transmission; or
“(B) makes a separate charge to the occupants of the private rooms directly to see or hear the transmission ; “(7) communication of a transmission embodying a performance or exhibition of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless :
“(A) a direct charge is made to see or hear the transmissions; or
*(B) the transmission thus received is further transmitted to the public.” 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 such reception.” The American Hotel & Motel Association endorses this recommendation and agrees with the general thrust of Section 109 of S. 1006.
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."
Since the decision in Buck v. Jewell-LaSalle Realty Company, 232 U.S. 191 (1931), performing licenses are required for all copyrighted musical works where there is a reception of broadcasts in the public rooms of a hotel. In addition, the courts have gone even further. In the case of SESAC v. Statler, 19 F. Supp. 1 (D.C.N.Y., 1937), the court upheld the right to collect royalties when the radio broadcast was being received in the private rooms of a hotel. Since the Buck decision, all of the performing rights societies have demanded the payment of royalties for radio and television reception of copyrighted music in public rooms but to our knowledge only one of the societies has made claim for such reception in private rooms on the basis of the Statler case. 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.
Whatever the law may be as to these radio and television broadcasts, it is both impractical and inequitable as it applies to proprietors of hotels. The slightest intervention of copyrighted music, however incidental, in a news or dramatic program received by television or radio in a public room of a hotel makes the proprietor liable for infringement of a copyright unless he has a performing license. In addition, the confusion created by the Statler decision should be eliminated. This appears to be the general thrust of Section 109 of S. 1006 which appears to recognize that composers and publishers are amply compensated by "clearance at the source" for radio and television broadcasts of their music.
Section 109 does, however, leave one important consideration unanswered.
Subsection (6) begins with the phrase: “The further transmitting of a transmission." We interpret this phrase and the following remainder of the subsection as limiting the exemption to reception in the private rooms of a hotel or other public establishment where such reception is over a master system of some sort, e.g., a master transmitter with related multiple speaker outlets. We support the exemption to this point, but it is unclear as to whether the exemp tion is to further apply, as we feel should be the case, where there is reception of a transmission in private rooms of a hotel or other public establishment on the single receiving apparatus of a kind commonly used in private homes.
Subsection (7) of Section 109 does not answer the question in that it refers to "public" reception and seemingly does not extend its exemption to reception in "private" rooms.
If the bill is intended to exempt all radio and television reception in the private hotel room with the enumerated two exceptions—as we feel is the intent and as we suggest above—there then appears to be no necessity of Section 109 (6) referring to the “further transmitting, etc.* * *.” The construction and suggestion we advance do appear to convey the sections intent. Where the section exempts such reception in private rooms of a hotel where there is retransmission over a master system, i.e., Section 109 (6), it is difficult to foresee it not necessarily including an exemption for reception in private rooms on a single receiving apparatus.
In this regard it is suggested that Section 109(7) be amended to insert between the words "transmission” and “on” in lines 30 and 31 of page 8 of S. 1006 the following language: "or the reception in the private rooms of a hotel or other public establishment." Section 114:
Section 114 of S. 1006 proposes to repeal that portion of the present law known as the "jukebox exemption." Section 1(e) of the present law provides, in part:
“The reproduction or rendition of a musical composition by or upon coinoperated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs." In the effect, this section exempts, with certain exceptions, the operators of jukeboxes from any obligation to pay royalties for the performance of musical works on coin-operated machines.
It is the position of the American Hotel & Motel Association that the present “jukebox exemption” should not be repealed but should remain in the law unchanged.
In the aforementioned report of the Register of Copyrights repeal of the exemption is recommended, in part, because “the public pays for the performance." The statement implies that the performance is "public" within the letter of the statute. The implication is directly contrary to the present Section 1(e) which states, as a matter of law, that such a performance is not public "unless a fee is charged for admission to the place ***.” And as have the opponents of repeal cf the exemption so aptly argued in the past, the jukebox rendition of music is, in fact, a personal, private performance, not a public performance.
Repeal is sought by the performing rights societies, for the copyright owners, on the grounds that the exemption improperly withholds royalties due and owing the copyright owners. If the copyright owners are thought to be entitled to greater compensation for the use of their music, this should be accomplished through increased “mechanical” royalties. Such a solution is preferable to that proposed in that the rate of royalty would be fixed in the statute. In addition, the method of collection for such mechanical royalties is now already established in the copyright act. As was stated in the minority report accompanying H.R. 7194 (similar legislation introduced in the 88th Congress) :
“The mechanical fee is fairest to all concerned. The royalties thus generated are directly related the popularity of the particular composer's music, and the royalties paid by an operator likewise are directly proportional to the demand for that composer's record on the part of the operator's customers."
Section 114 as it is now written is also objectionable in that it would place undue pressure and responsibility on the "operators" of such machines. Subsection (2) of the aforementioned section permits each copyright owner to require of the owner of an establishment in which a coin-operated machine is located information as to the ownership of the machine. If the owner of the establishment does not answer promptly, he subjects himself to a multiplicity of lawsuits. Should a coin-operated machine contain 250 recordings, there could be instituted a lawsuit for each copyright owner regardless of the damages incurred.
In passing on the matter of the "jukebox exemption," the Subcommittee would be well advised to consider the possible impact of such a repeal. The exemption serves as a basis for an entire industry. Repeal of the exemption could seriously cripple or destroy an industry employing thousands of people.
Should the Subcommittee, however, in its wisdom recommend repeal of the jukebox exemption, there should be considered the fact that there are other types of coin-operated machines aside from jukeboxes. Coin-operated radio and television sets are used in many establishments. If Section 109 of S. 1006 is intended to exempt the reception of radio and television broadcasts in public rooms from the payment of copyright royalties, there is no reason why the exemption should be denied because the radio or television set is coin-operated. As presently writ. ten, Section 109 (7) is not broad enough to include coin-operated machines but is limited to a "single receiving apparatus of a kind commonly used in private homes.” We do not believe that coin-operated machines are commonly used in private homes. For that reason, if Congress wishes to repeal the “jukebox exemption," it should limit its action to “jukeboxes.” This can be accomplished by adding a third subdivision to Section 114, reading as follows:
“(3) and the machine is a device for the playing of recorded music originating in the establishments."
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION,
New York, N.Y., August 3, 1965. Hon. John L. MCCLELLAN, Chairman, Senate Judiciary Subcommittee on Patents, Trademarks and Copy
rights, Senate Office Building, Washington, D.C. DEAR MR. CHAIRMAN : The American Newspaper Publishers Association submits its views in this letter for the record of hearings to be held by your Subcommittee beginning August 4 on Bill S. 1006 providing for general revision of the Copyright Law of 1909.
The ANPA is a trade association of daily newspapers with more than 950 members having more than 90% of the total U.S. daily newspaper circulation. Inasmuch as our members are both users and creators of copyrighted materials, their interests would be affected by certain provisions of S. 1006. That Bill and its companion measure now in the House Judiciary Committee reflect changes made in response to comments and study of Bills as introduced in the second session of the 88th Congress. Our views deal with the provisions of the Bill relative to copyright in works of the United States Government and damages recoverable in the case of the unauthorized reproduction of copyrighted photographs by a newspaper.
Section 105 on this Bill continues the present law's general prohibition against securing copyright in any "work of the United States Government” which is defined in Section 105 as a "work prepared by an officer or employee of the United States Government within the scope of his official duties or employment."
While we are gratified to note that this Bill does not contain the provision set forth in a prior version which would have permitted copyright to be secured in a published work of the United States Government in appropriate cases as determined by heads of United States Government agencies, the present Bill still leaves much to be desired because the phrase "within the scope of his official duties or employment” may not afford adequate protection for the general public. If that phraseology is narrowly interpreted, it could be limited to the relatively small number of persons employed by the Government whose job descriptions specify duties involving the preparation of such Government works. The fact of the matter is that a great number of Government officers and employees, including administrative assistants, research workers, lawyers, economists and others on a professional level, devote substantial amounts of time and effort to the preparation of copyrightable material although such activities might not be held to be within the scope of their official duties or employment. Another concern is that the present Bill establishes 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.
This Association takes the position that no person should be permitted to copyright any material where a substantial part thereof is created by Govern. ment employees, or with Government funds. It is of vital importance that the laws of the United States insure that all such material is made available to the general public, without copyright restrictions, so as encourage the widest possible dissemination of Government information, documents or other writings.
NEWSPAPER REPRODUCTION OF COPYRIGHTED PHOTOGRAPHS
The damage provisions of Bill S. 1006 are also of special concern to newspapers. Section 101 of the present law provides that in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50, The Bill deletes that special damage limitation provision of the present law, and adds instead a so-called "innocent infringer" provision in Section 504(c) (2) which provides :
** . * In a case where the infringer sustains the burden of proving 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 dam. ages to a sum of not less than $100."
Bill S. 1006 would also change the present law in other respects. Under present law the court, in cases not involving special limitations, has the discretion to award statutory damages in lieu of actual damages and profits in an amount not less than $250 nor more than $5,000. Section 504(c) (1) of the Bill provides that the copyright owner may elect to receive statutory rather than actual damages and profits, and the limitation upon such damages has been increased to $10,000.
This Association is strongly opposed to the deletion of the special limitation applicable to newspaper reproduction of copyrighted photographs and asks that this provision be reinserted in Section 504 by striking the period in line 8, inserting a semi-colon and adding the following languege: "provided. however, that in a case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of $200 nor be less than the sum of $50."
The ANPA is convinced that the special considerations which promoted the enactment of this provision are still present today and that this provision should be retained in the law. In our opinion, the proposed “innocent infringer" provision is wholly inadequate and does not protect the legitimate interests of news. papers in cases of innocent infringement.
The Report of the House Committee on Patents on the 1909 Copyright Act (H. Rept. 2222, 60th Congress, 2nd Sess., 1909), at p. 15, stated that the special limitation of damages relating to the newspaper reproduction of copyrighted photographs was made "because such reproduction has 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 equally true today. In fact, where proper credit is given, the usual case involving the newspaper reproduction of copyrighted photograph would confer a benefit rather than inflict a legal injury upon the owner because of the promotion value of such a publication. In any event, it is extremely doubtful that the publication of any single photograph would result in profit to the newspaper which could be recovered by the copyright proprietor. Accordingly, the proprietor would be certain to elect statutory damages under the provisions of the Bill. At this point, the court before whom any such action is pending would be authorized to award not less than $100 nor more than $10,000 for the single photograph. No standards are provided for guidance of the court except its discretion in light of the circumstances of the case. In our opinion, the permissible damage liimtations are fictitious when applied to photographs. The situation thus created presents a legalized means of forcing a newspaper publisher who inadvertently uses a copyrighted photograph to pay up or face litigation with no reasonable means of predicting the amount which will be awarded by the court. This was the very thing the existing limitation was designed to prevent.
It is important to understand the circumstances under which photographs are used and handled by newspapers. While care is used in the handling of photographs submitted for publication, the pressures of time inherent in the newspaper business make it impossible for newspapers to make appropriate copyright searches before publishing each photograph submitted for publication. In view of the risk of such substantial financial penalties as could be imposed under provisions of the Bill, the deletion of the special damage limitation regarding photographs and the substitution of the innocent infringer provision could have farreaching consequences for daily newspapers. For the reasons we have stated, we believe it would be in the public interest to retain this special damage limitation in any revision of the Copyright Law of 1909.
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 would serve the laudable purpose of preventing the loss of copyright protection for any such contribution. However, we question the wisdom of the parenthetical language contained in Section 402(a) stating that this rule would not include "advertisements inserted on behalf of persons other than the