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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 :)
FEDERAL COMMUNICATIONS COMMISSION,
Washington, D.C., July 23, 1965. Hon. JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.
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,
E. WILLIAM HENRY, Chairman.
[ENCLOSURES) 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 Commissi the duty, under Section 303(g) of the Communica tions 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 availabiilty 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 públic 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,
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.
* 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 homesmay 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. 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.
which would have subjected all educational broadcasting, including programs intended primarily for in-school instruction, to copyright coverage.S
Despite the exemption for in-school programming, the failure to include broadcasting in the "for profit" exemption would leave non-commercial educational broadcasting intended primarily for home audiences fully subject to the copyright laws. As indicated, both Congress and the Commission have consistently regarded educational broadcasting to home audiences (including programs for children, adult education and general cultural purposes) to be of equal, if not greater importance, as in-school instruction. Failure to exempt programming for home audiences would, we believe, unfairly discriminate against this valuable facet of non-commercial educational broadcasting, and would be contrary to the public interest.
As mentioned, our chief concern is exemption of noncommercial educational broadcasting operations from the very substantial direct and indirect burdens involved in obtaining copyright clearance, both with respect to "in-school" and more general educational and cultural material. We would like to point out that in one respect the bill goes further, in that it would appear to exempt transmissions "primarily for reception in classrooms”, etc., even whereas is sometimes the case—such material is presented by commercial stations. In our view, the exemption is warranted in this situation also.
In sum, therefore, we favor the present language of Section 109(2), with the addition of appropriate language exempting all transmissions (other than of dramatic works) by noncommercial educational broadcast stations.
The Commission notes that the proposed bill incorporates in Section 107 the judicially developed doctrine of "fair use".10. In our opinion, this statutory recognition of the doctrine could be helpful to educational broadcasters, particularly since the latter make extensive use of excerpts in their programming. However, we are also mindful that "fair use" is both a limited and an indefinite doctrine. Thus, it seems clear that it applies only to the use of brief portions or excerpts of copyrighted works. Further, there is no precise way of knowing how much of a copyrighted work can be used in a given situation under the doctrine of fair use. The prospective user would apparently need expert advice to judge each case individually under the provision set forth in Section 107, and, even so, there would be the risk of having to defend an infringement suit. These factors could present considerable problems for the non-commercial educational broadcasters, and we are therefore of the opinion that the doctrine of "fair use" would not, in and of itself, be an adequate answer for educational broadcasting purposes.
Copies.—Unlike the present copyright law, the proposed bills under Section 110 would give an organization lawfully entitled to transmit a copyrighted work the right to make one copy thereof, solely for its lawful transmissions and archival purposes, with the copy to be destroyed after six months or else retained only for archival purposes. (H.R. 4347 et al., Section 110). In general, the Commission supports this proposal, as an appropriate balancing of the interests involved. However, we believe that with respect to non-commercial educational broadcast material—where no profit element is involved—it is unduly restrictive with respect to the period during which further use is permitted. Many educational programs, particularly those designed for formal instruction, are re-used over a considerable period of time. We believe such re-use, if limited to non-commercial educational purposes, should be permitted without royalty payments for as long as the programs have educational value. Accordingly, we urge that with
8 The present bill, as well as those introduced in the 88th Congress, would also exempt programs transmitted to schools by means other than broadcasting, i.e., by wire or radio transmissions not intended to be received by the general public. This exemption would include the transmission of instructional programs by stations in the Instructional Television Service solely to selected receiving locations in various schools (Sections 74.901-984 of the Commission's Rules and Regulations, 47 CFR 74.901-984). This nonbroadcast service, which operates on nonbroadcast frequencies and which cannot be received on ordinary television receivers, was instituted pursuant to the Commission's Report and Order in Docket No. 14744, adopted July 25, 1963, FCC 63-722; 28 FR 8103 and 9258, August 8 and 22, 1963. The Commission strongly supports the exemption which Section 109 (2) would provide for material used in this service.
One of the Commission's objectives in setting up the instructional television service in the 2500 mc/s band was to provide frequencies for ETV facilities which propose only transmissions for "in-school" use, thus freeing the educational television broadcast chan. nels for use by facilities aimed at providing a more general educational and cultural service.
10 Proposed Section 107 simply refers to "fair use"; in this respect it differs from Section 6 of the 88th Congress bilis, which enumerated in some detail the criteria for determining what is "fair use."
respect to copies or recordings of those transmissions of an educational nature covered by Section 109(2), the right of further use should last indefinitely.
Duration.—The present initial term of copyright (17 U.S.C. 24) is 28 years from first publication or registration, renewable by certain persons for a second period of 28 years, for a maximum total of 56 years. Section 302 of the proposed bills provides for à term of the author's life plus 50 years. For anonymous works and works made for hire, the term would be 75 years from publication, with a maximum limit of 100 years from creation of the work. The life-plus 50 or the 100-year term would apply to unpublished works which are now protected under the common law without time limit. Section 304 further provides that a first term copyright subsisting on January 1, 1967, may be renewed for an additional 47 years after expiration of the first term, and that any copyright, the renewal term of which is subsisting on December 31, 1965, or which is renewed between December 31, 1965, and December 31, 1966, inclusive, shall be extended to endure for a term of 75 years from the date copyright was originally secured. Under the present law, the renewal copyright after the first term of 28 years reverts in certain situations to the author or other specified beneficiaries. Section 304(c) of the revised bill drops this renewal device, but permits the author or his widow and children to terminate a grant of his rights after 35 years (or up to 40 years in certain situations) by serving written notice on the grantee.
Not only would the duration of copyrights be substantially longer under these proposals, but it would apparently be considerably more difficult and complicated than at present to determine whether the copyright on a particular work had expired. This would likely impose additional burdens on all users of copyrighted works in terms of funds and the need for expert assistance. We would be concerned with the effect of such burdens on the limited resources of noncommercial educational broadcasters, if they were not granted a general exemption under the law. Television translator stations
The Commission supports the principle embodied in Section 109(5) of the proposed bills, which appears designed to grant a fairly wide exemption to television translator stations. The latter constitutes an important element in the Commission's scheme for providing television broadcast service to the public, particularly in those areas not served by regular television broadcast stations. They are low power facilities (up to 100 watts) which merely rebroadcast the signal of a regular TV station without change except as to frequency.11 They are relatively inexpensive to construct, operate generally automatically and unattended at minimal cost, and are designed to “provide a means whereby the signals of television broadcast stations may be retransmitted to areas in which direct reception of such television broadcast stations is unsatisfactory due to distance or intervening terrain barriers." Thus, they are in fact merely a mechanical link to bringing adequate TV service to areas which often might not otherwise have such service. The main station whose signals they rebroadcast must give prior consent for such use, under Section 325(a) of the Communications Act,13 and of course the main station must for its own broadcast obtain copyright clearance and pay such royalties as the copyright law requires.? The great majority of translators are licensed either to local public bodies or community groups in the communities served, or to regular TV station licensees seeking to improve their coverage.15 Many are nonprofit operations supported by tax funds or general subscriptions.
11 A television broadcast translator station is defined in Section 74.701 (a) of the Commission's Rules (47 CFR 74.7101 (a)) as “A station in the broadcasting service operated for the purpose of retransmitting the signals of a television broadcast station or another television broadcast translator station, by means of direct frequency conversion and amplification of the incoming signals without significantly altering any characteristic of the incoming signals other than its frequency and amplitude, for the purpose of providing television reception to the general public.” Approximately 1,696 television broadcast translator stations have been licensed by the Commission and some 308 construction permits are outstanding.
12 Section 74.731(a) (47 CFR 74.731(a)). 13 47 U.S.C. 325 (a).
14 In the cases where the translator is rebroadcasting an educational station we believe the principles set forth above, concerning educational broadcasting generally, should apply.
15 Under Section 74.732(a) of our Rules (47 CFR 74.732 (a)) translators may be licensed to "any qualified individual, organized group of individuals, broadcast station licensee, or local civil governmental body” meeting the other requirements of our Rules.