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(11) for any other special services requiring a substantial amount of time or expense, such fees as the Register of Copyrights may fix on the basis of the cost of providing the service. (b) The fees prescribed by or under this section are applicable to the United States Government and any of its agencies, employees, or officers, but the Register of Copyrights has discretion to waive the requirement of this subsection in occasional or isolated cases involving relatively small amounts.

TRANSITIONAL AND SUPPLEMENTARY PROVISIONS

SEC. 2. This act becomes effective on January 1, 1967, except as otherwise provided by section 304 (b) of title 17 as amended by this act.

SEC. 3. This act does not provide copyright protection for any work that goes into the public domain before January 1, 1967. The exclusive rights, as provided by section 106(a) of title 17 as amended by this act, to reproduce a work in phonorecords and to distribute phonorecords of the work, do not extend to any nondramatic musical work copyrighted before July 1, 1909.

SEC. 4. All proclamations issued by the President under sections 1(e) or 9(b) of title 17 as it existed on December 31, 1966 or under 21 previous copyright statutes of the United States shall continue in force until terminated, suspended, or revised by the President. SEC. 5. The last sentence of section 52 of the Printing Act, ap24 proved January 12, 1895 (28 Stat. 608; 44 U.S.C. 58) is hereby repealed.

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SEC. 6. In any case where, before January 1, 1967, a person has 27 lawfully made parts of instruments serving to reproduce mechani28 cally a copyrighted work under the compulsory license provisions of section 1(e) of title 17 as it existed on December 31, 1966, he may continue to make and distribute such parts embodying the same mechan31 ical reproduction without obtaining a new compulsory license under 32 the terms of section 113 of title 17 as amended by this act. However, 33 such parts made after January 1, 1967 constitute phonorecords and are otherwise subject to the provisions of said section 113.

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SEC. 7. In the case of any work in which an ad interim copyright

is subsisting or is capable of being secured on December 31, 1966, 37 under section 22 of title 17 as it existed on that date, copyright pro

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38 tection is hereby extended to endure for the term or terms provided 39 by section 304 of title 17 as amended by this act.

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SEC. 8. The notice provisions of sections 401 and 402 of title 17 as amended by this act apply to all copies or phonorecords publicly dis

3 tributed on or after January 1, 1967. However, in the case of a work

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published before January 1, 1967, compliance with the notice provisions of title 17 either as it existed on December 31, 1966, or as amended by this act, is adequate with respect to copies publicly distributed after December 31, 1966.

SEC. 9. The registration of claims to copyright for which the required deposit, application, and fee were received in the Copyright Office before January 1, 1967, and the recordation of assignments of copyright or other instruments received in the Copyright Office before January 1, 1967, shall be made in accordance with title 17 as it existed on December 31, 1966.

SEC. 10. The demand and penalty provisions of section 14 of title 17 as it existed on December 31, 1966, apply to any work in which copyright has been secured by publication with notice of copyright on or before that date, but any deposit and registration made after that date in response to a demand under that section shall be made in accordance with the provisions of title 17 as amended by this act.

SEC. 11. All causes of action that arose under title 17 before January 1, 1967, shall be governed by title 17 as it existed when the cause of action arose.

SEO. 12. If any provision of title 17, as amended by this act, is declared unconstitutional, the validity of the remainder of the title is not affected.

Mr. BRENNAN. May this be followed by reports received from the various executive departments and agencies?

Senator MCCLELLAN. They will be printed in the record.

(The reports referred to follow :)

Hon. JAMES O. EASTLAND,

FEDERAL COMMUNICATIONS COMMISSION,

Chairman, Committee on the Judiciary,

U.S. Senate, Washington, D.C.

Washington, D.C., July 23, 1965.

DEAR MR. CHAIRMAN: This is in reply to your letter of July 15 requesting the Commission's comments on S. 1006, a bill for the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes.

This bill is identical to H.R. 4347, on which the Commission adopted comments on April 21, 1965. These comments were submitted to the Bureau of the Budget for coordination and we were later advised that the Bureau of the Budget had no objection to their submission to the House Judiciary Committee.

Accordingly, we enclose six copies of such comments and request that they be considered as our report on S. 1006.

Yours sincerely,

[ENCLOSURES]

E. WILLIAM HENRY, Chairman.

COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON H.R. 4347, 89TH CONGRESS, 1ST SESSION, A BILL FOR THE GENERAL REVISION OF THE COPYRIGHT LAW, TITLE 17, UNITED STATES CODE, AND FOR OTHER PURPOSES

The Commission appreciates the opportunity to submit comments on these important proposals. While we are not directly concerned with the copyright laws, their operation may have a significant impact on our statutory duties. Congress has given the Commission the duty, under Section 303 (g) of the Communications Act of 1934, as amended (47 U.S.C. 303(g)), to “encourage the larger and more effective use of radio in the public interest." In implementing this duty, particularly with respect to broadcasting, we have always sought to foster the widest possible availabilty of program material for dissemination to the public. However, we also recognize the important public interest in protecting the rights of authors, artists and composers in the works which they produce. Accordingly, it is the Commission's view that the copyright law should strike a fair balance between the rights of authors, artists and composers to have appropriate control over the public dissemination of their works and the interest of the public in their widest dissemination.

We have reviewed the proposed legislation, and the following comments are intended to indicate the areas of concern to the Commission and to point out certain matters which we believe merit consideration.

Noncommercial educational radio and television

The primary concern to the Commission is the effect which this legislation may have on non-commercial educational television and radio broadcasting. We believe it essential that the Copyright laws give due recognition to educational broadcasting as a significant and integral part of our educational resources, and that no undue burdens-particularly of a financial nature-be imposed which would inhibit realizing the full potential of this important medium. In order to understand fully the Commission's concern in this regard, we believe it would be helpful to set forth certain background information concerning educational broadcasting.

Both the Congress and the Commission have long recognized the importance and value of educational broadcasting. Not only is educational broadcasting an invaluable tool for in-school instruction, but it also has great potential for bringing educational programming, both of an informal and formal nature, directly into millions of homes for the benefit of the entire population. Moreover, it is non-profit and non-commercial' in its operation. As a result, noncommercial educational broadcasting is dependent upon subscription donations, foundations and public funds for its operation. We firmly believe that educa

1 While commercial broadcast stations carry educational programming and some stations licensed to educational institutions operate on a commercial basis, our comments are limited to those stations which are exclusively noncommercial educational operations.

tional broadcasting should be considered an integral part of the modern educational system-in its broadest sense-and fundamentally different and distinct from our commercial broadcasting system.

The role of educational broadcasting and the deep rooted concern of the Congress and the Commission for its future can perhaps best be illustrated in the case of non-commercial educational television. In 1952, when the Commission issued its basic Sixth Report and Order on Television Allocations, it reserved 242 television channel asignments (both UHF and VHF) for exclusive noncommercial educational use. This action was based on the fundamental premise that non-commercial educational television was of such importance that the public interest dictated that sufficient channels be made available to establish a nationwide educational television system. It was necessary to "reserve" these channels because of the tremendous and immediate demand for them by commercial broadcasters, and the fact that educational broadcasters might not be in a position, either financially or administratively, to make immediate use of them.

Under the Commission's Rules, non-profit educational organizations are licensed to operate non-commercial educational television broadcast stations "upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a non-profit and non-commercial television broadcast service." 3 Eligible licensees are limited to public and private educational organizations, local governments without public educational bodies such as a board of education, and, in some cases, a joint authority, representing local public, private and other organizations interested in educational television.

Approximately one-third of the Commission's duly licensed ETV stations are operated by local groups formed to advance education, another third by local district or state school systems, and the remaining third by universities and colleges.

The Commission has taken a number of additional steps to foster educational television broadcasting stemming from a recognition of its importance and its unique problems-financial and otherwise. For example, ETV stations have been permitted to start operation with nominal technical facilities and limited hours of operation; no limitations are placed on the number of ETV stations that may be licensed to a single educational organization (thus permitting State bodies to institute State-wide educational broadcasting); and non-commercial educational broadcast stations are exempt from the payment of fees for filing applications.

Congress has also taken extraordinary measures to foster educational television broadcasting. Public Law 87-477, "The Educational Television Facilities Act of 1962", especially recognized the financial needs of educational television broadcast stations by authorizing thirty-two million dollars in matching Federal grants over a five-year period for the construction of non-commercial educational television broadcasting facilities. Significantly, Congress made clear that the funds were not intended solely to further in-school instruction, but rather to provide "educational television broadcasting facilities which will serve the greatest number of persons and serve them in as many areas as possible, and which are adaptable to the broadest educational uses." * Further, the House Committee report on this legislation stated:

"The purpose of this legislation is to speed up the process of getting additional educational television stations on the air so that the American people-children,

2 Today, a total of some 358 TV channel assignments (both UHF and VHF) have been reserved by the Commission for noncommercial educational use (See Table of television channel assignments, 47 CFR 73.606). Moreover, the Commission has outstanding a Further Notice of Proposed Rule Making (Docket No. 14229, FCC 63-975, October 28, 1963; 28 FR 11738, November 2, 1963), proposing that a total of about 703 television channel assignments be reserved for educational use. The Commission is also considering a study submitted by the National Association of Educational Broadcasters (NAEB) in this rulemaking proceeding on "The Needs of Education for Television Channel Allocations," which conclude that a total of 1,197 educational TV assignments will be required over the next decade. In addition, the Commission currently has pending before it over 32 individual petitions requesting the reservation of some 120 television channel assignments for noncommercial educational use. There are now 103 noncommercial educational television stations in operation. In the FM radio broadcast service, 20 out of the 100 FM frequencies have been reserved by the Commission for noncommercial educational use, and currently there are 259 noncommercial educational FM stations on the air. We expect many more such stations to develop on the reserved FM frequencies. 3 Section 73.621 of the Commission's Rules and Regulations (47 C.F.R. 73.621). Section 392 (c)(3) of the Communications Act of 1934, as amended (47 U.S.C. 392 (c) (3)).

as well as adults-in schools, colleges, and universities as well as in their homes-may have the benefits of this new and important educational medium." (Emphasis supplied.) 5

In 1962 Congress also passed Public Law 87-529, "The All-Channel Television Receiver Bill", which authorized the Commission to require that all television receivers shipped in interstate commerce be capable of receiving all channels (both VHF and UHF) allocated for television broadcasting. The legislative history emphasizes that a prime motivation for enactment of this bill was to foster fuller utilization of UHF television broadcast channels for noncommercial educational use (since more than two-thirds of the channels reserved by the Commission for such use are in the UHF frequency band.)

In sum, the consistent policy of the Federal Government has been to recognize the marked and basic distinctions between non-commercial educational and commercial broadcasting and to accord the former special treatment and substantial direct assistance. 7 We consider continuation of this policy to be fully justified and, indeed, to be essential if the public is to realize the benefits of educational broadcasting's potential both for in-school instruction and as a general educational medium. Thus, we are concerned lest the copyright law fail to recognize adequately the role of non-commercial educational broadcasting and impose burdens on it-in the form of copyright fees and administrative and legal complications—which might seriously impair its operation. This is of particular concern because of the great variety of educational programming, the fact that much of such programing is locally originated and the fact that a high proportion of educational programs deal with or present material which is likely to be subject to copyright. Thus, the problems of copyright infringement, clearance and royalty payments would confront the educational broadcaster with regard to much of his program schedule. Such problems may well result in educational broadcasters having to avoid use of much copyrighted material essential for effective fulfillment of their mission, and may even raise some question concerning the viability of educational broadcast stations with limited resources. We believe such results would be patently contrary to the public interest and established Government policy.

Turning to the specific provisions in the proposed legislation, we are concerned first with what appears to be a radical departure from existing law-insofar as important aspects of educational broadcasting are concerned.

Under the provisions of Section 1(c) and (e) of the present Copyright Law (17 U.S.C. 1(c) and (e)), the copyright owner's exclusive rights-in case of non-dramatic literary and musical works extends only to their public performance for profit. Today, anyone, including the educational broadcaster, may present copyrighted literary, poetical, historical or musical materials without payment of royalties and without the copyright owners consent so long as such performances are not "for profit" and are not dramatized. Under the proposed legislation there would still be a limited "for profit" exemption, but it would not apply to educational broadcasting.

Section 106 (a) (4) & (5) of the bill would grant to the Copyright owner exclusive rights to all public performances or exhibitions of his works. Section 109 of the bill sets forth certain limitations on those exclusive rights, including a limited exemption for certain non-profit performances, including educational, which meet the criteria set forth therein (Section 109 (4)). However, the latter exemption specifically does not apply to a "transmission to the public."

While not included in the "for profit" exemption, one aspect of educational broadcasting would be exempt under another provision of the proposed legislation. Section 109(2) would exempt "performance of a non-dramatic literary or musical work, or exhibition of a work, by or in the course of a transmission, if the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction and is a regular part of the systematic instructional activities of a nonprofit educational institution." This provision would exempt programs broadcast primarily for "in school" instruction, even though the programs could also be received on home receivers. In this respect, the bill marks a significant improvement over the bills introduced in the 88th Congress,

5 House Report No. 999, 87th Congress, 1st Session, p. 10.

House Report No. 1559, 87th Congress, 2d Session, pp. 2-4; Senate Report No. 1526, 87th Congress, 2d Session, pp. 2-3.

7 State and local governments are, of course, directly involved in educational broadcast ing on a wide scale, not only providing significant financial support, but also as the licensees (either directly or through their authorized instrumentalities) of educational broadcast stations.

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