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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 exem ion 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 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.
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 în 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.
o 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 channels 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 bills, which enumerated in some detail the criteria for determining what is "fair use."
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.
While we favor the principle embodied in subsection 109 (5) we believe there are problems with two of the concepts contained in the latter portion of the proposed provision. Proposed subsection 109 (5) would exempt:
(5) the further transmitting to the public of a transmission embodying a performance or exhibition of a work, if the further transmission is made without altering or adding to the content of the original transmission, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the further transmission.
We are concerned with the phrases "without any purpose of direct or indirect commercial advantage” and “without charge to the recipients of the further transmission."
We believe that the phrase "without any purpose of direct or indirect commercial advantage” may prove to be troublesome. Where the translator is owned by or licensed to the commercial television station whose programs the translator is retransmitting, the purpose would clearly appear to include commercial advantage. However, where the translator licensee is an individual or organization in the community served by the translator, there would appear to be countless fact situations which could raise difficult questions as to whether the purpose of establishing a particular translator was direct or indirect commercial advantage.17 Inquiry would have to be made into the purpose or intent which led to the construction and operation of a particular translator. In our view, the matter could better be handled by excluding from the exemption two particular classes of translators: those which are operated for profit, and those which are under common ownership with regular commercial TV stations (which have built them in hopes of improving their coverage). We would therefore favor eliminating the language "without purpose of direct or indirect commercial advantage” and substituting language along the following lines : "where the further transmission is by a facility neither operated for profit nor under common ownership (wholly or partly) with the commercial broadcast station whose signal it is rebroadcasting.”
As to the second phrase, "without charge to the recipients of the further transmission”, the scope of this is obvious in some respects. However, we would like to point out that, read literally, it might affect numerous translators which are supported by general community subscription charges or by tax funds. This we believe to be an undesirable, and probably unintended, result. In our view this aspect of the matter can be covered, insofar as it is appropriate, by the “not for profit” limitation mentioned above. Accordingly we would favor elimination of the language mentioned concerning charges.
We wish to re-emphasize the importance which the Commission attaches to the development and operation of translator stations. Where these are non-profit and not owned by regular commercial TV stations, we are concerned lest their continued operation be jeopardized by the imposition of the possible costs and substantial administrative burdens involved in the copyright clearance process, which, by and large, the community and publicly licensed translators are not set up to handle.
Adopted: April 21, 1965. Commissioner Lee absent; Commissioner Cox abstained from voting.
GENERAL SERVICES ADMINISTRATION,
Washington, D.C., May 20, 1965. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Your letter of February 26, 1965, requested the views of the General Services Administration on S. 1006, 89th Congress, a bill “For the general revision of the Copyright Law, title 17, of the United States Code."
The bill has as its primary purpose the establishment of a single system of statutory copyright protection for all works whether published or unpublished instead of the present dual system of protecting works under the common law before they are published and under the current copyright statute after publication. Among other things the bill specifically amends the present term of copyright by providing for a term of the author's life plus 50 years in order to bring the statutory term into line with the copyright term in most countries, adds a provision to the current statute specifically recognizing the doctrine of fair use, but without any attempt to indicate the application or define the scope of the doctrine and clarifies the scope of the prohibition against copyright in "Government Publications."
16 Conceivably there could also be a question about the meaning of the phrase "without altering * * * the content of the original transmission. However, we assume that dele. tion of a particular program or programs from a translator's rebroadcast service sometimes required by Commission policy where a regular TV station in the area is presenting the same program-would not be construed as "altering the content. If this is not the case, we believe the language should be clarified so that such deletion would not affect the exemption.
17 For example, a translator might be established by a local television receiver dealer whose purpose includes stimulating the sale of receivers.
The interest of the General Services Administration in the proposed legislation is derived primarily from its statutory responsibilities under the “Federal Records Act of 1950,” Title V of the Federal Property and Administrative Seryices Act of 1949, as amended (44 U.S.C. 392 et seq.). In particular, section 503 of the Federal Property and Administrative Services Act creates the National Historical Publications Commission and provides that the Commission, among other things, shall cooperate with and encourage appropriate Federal, State and local agencies and non-governmental institutions, societies, and individuals in collecting and preserving and, when it deems such action to be desirable, in editing and publishing the papers of outstanding citizens of the United States and such other documents as may be important for an understanding and appreciation of the history of the United States.
The above statute also authorizes the Administrator of General Services, whenever he deems it to be in the public interest, to establish and maintain Presidential archival depositories for the preservation and making available to the public for historical research purposes papers and other historical material of any President or former President of the United States or of any other official or former official of the Government, and other papers relating to and contemporary with any President or former President of the United States. With respect to any papers, documents or other historical materials so deposited in any Presidential archival depository he is to exercise all the functions and responsibilities otherwise vested in him pertaining to Federal records or other documentary material in his custody or under his control and to cooperate with and assist any university, institution of higher learning, institute, foundation or other organization, or qualified individual in furthering or conducting study or research in any historical materials deposited in any Presidential archival depository.
In order that the authority of the Administrator of General Services under the Federal Records Act with respect to letters and other intellectual productions that come into his custody or possession, exclusive of material copyrighted or patented, will not be impaired by common law copyright or other analogous claim of literary property right, section 510 of the Federal Property and Administrative Services Act provides that “neither the United States n'or its agents shall be liable for any infringement of literary property rights or analogous rights
ising thereafter out of use of such materials for display, inspection, research, reproduction or other purposes." Therefore, to insure that the Administrator of General Services may continue to exercise this responsibility without restraint or possible infringement of copyright under Title 17 of the United States Code as it would be amended by S. 1006, it is recommended that the transitional and supplementary provisions of the bili, commencing on page 38 thereof, be amended by the addition of a new section 13 reading substantially as follows:
"Nothing in this act shall affect the authority and responsibilities of the Administrator of General Services under the provisions of Title V of the Federal Property and Administrative Services Act of 1949, as amended."
In addition to GSA's concern over the proposed bill because of the effect that it would have on its responsibilities under the Federal Records Act, it also has a broader concern over the effect that the measure might have on historical research in general. Specifically, the restrictions contained in the bill on the reproduction of manuscript material will be a real deterrent to the cause of historical scholarship in the nation. The bill would virtually preclude the microfilming by the custodian of manuscript collections of papers and other historical documents which are less than 100 years old for the purpose of depositing the copy in some other library or research institutions.
The microfilming of historical documentary sources to increase their availability for study and teaching in colleges and universities has been increasing on a limited scale in the past decade. The use of microfilming in the next generation is expected to increase greatly in order to meet the needs of expanding graduate schools. Manuscript collections of materials immediately predating World War I, or roughly those 50 years old, should not be excluded from this program, which could be the result under the terms of the bill. In very few instances are manuscript collections made up entirely of documents, the literary property rights to which are owned by the possessor of the physical items. Collections deposited in libraries and other depositories are normally mixed. For some of the papers the donor can transfer literary property rights to the depository; for others such rights will lie in numerous persons or their heirs, most of whom are beyond practical reach of the depository.
The addition of the fair use doctrine to the copyright law as is proposed by the bill offers little, if any, relief in this situation. The reference to fair use is vague and its exact meaning will depend upon court decisions. Unless section 107 of the bill is amended to clearly indicate that archivists and manuscript custodians are authorized under the concept of fair use to microfilm manuscript collections for research use of scholars elsewhere, it is believed that the practical effect of the bill in limiting the microcopying of manuscript collections to those which are over 100 years old will seriously hinder the use of documentary materials for research purposes.
For these reasons, therefore, it is further recommended that the bill,be amended by the addition of a new section 111 to chapter 1 of the bill and the renumbering of present sections 111, 112, 113 and 114 as 112, 113, 114 and 115, respectively. The new section 111 would provide for an additional limitation on exclusive rights in order to permit unrestricted reproduction of manuscript collections and other historical documentary sources for historical research purposes, reading gubstantially as follows:
"111. Limitations on Exclusive Rights : Manuscript Collections
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library, historical society, archives, manuscript repository or other educational or research institution having legal custody of manuscript collections of business, personal, and institutional papers and other documents which are of value to historical research to reproduce such collections, or parts thereof, in microfacsimile form.
(1) for purposes of preservation and se y, or
(2) for the deposit of copies in other such institutions in order to make the manuscript collections more widely available for research use, if the copies
are made without any purpose of financial gain. (b) The exclusive rights of the owners of the copyright in the manuscript collections shall extend to all copies thereof made under the provisions of this section.
(c) As used in this section the term "manuscript collections” shall include both "literary works" and "pictorial, graphic and sculptural works” as defined in section 101 of this act.
Subject to the foregoing suggested changes, GSA would have no objection to the enactment of S. 1006.
We are unable to estimate the cost to GSA which would be incurred as a result of enactment of the bill.
The Bureau of the Budget has advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report to your Committee. Sincerely yours,
LAWSON B. KNOTT, Jr.,
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
August 5, 1965. Hon, JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senatc, Washington, D.C.
DEAR MR. CHAIRMAN: This letter is in response to your request of July 15, 1965, for a report on S. 1006, a bill “For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."
Because of its responsibilities and mission, the Department of Health, Education, and Welfare is concerned with the possible impact of a revision of the Copyright Law on the promotion of education and public health, and upon the dissemination of information in health, education, science, and related fields. Of particular interest to us, are those provisions of S. 1006 which deal with