picture producer "X") that their respective contributions will be merged into inseparable or interdependent parts of a unitary whole such as a motion picture version, is the latter a "joint work" so as to make the various contributing authors co-owners of the copyright in the motion picture, within the meaning of Section 201(a) as now framed?

The situation would seem to fall within the above H.R. 4347 definition of "joint works," although it is obvious no such co-ownership consequence was intended, particularly where the prior authors intended a derivative utilization to be made of the work to which they granted motion picture rights. We think it would be important to clarify this situation and avoid any ambiguity that could raise claims of this type. C. Section 106-Definition of "perform" and "exhibit"

The use of the word "exhibit" or "exhibition" in H.R. 4347, is an unfortunate selection to convey what we very well understand is intended, for the purpose of this statute, to be a restrictive meaning not related to motion pictures. We have been told that a performing right for motion pictures is expressly provided in the definition of "to perform;" that "performances" of a motion picture are intentionally excluded from the definition "to exhibit" or "exhibitor." [sec. 106(a)(4)(5), and (b)(1)(2)].

We appreciate that what is intended by "to exhibit," is the display or exposure of the material object in which the copyrightable work is fixed or embodied, regardless of whether such display or exposure is accomplished by simply letting the public look at it, or by incidental projection from a motion picture film, lantern slides, television images, computer symbols, or any other device or process. By "perform❞ there is in effect intended the illusions created by acting out the work, reciting or rendering it, etc.

The unfortunate use of the word "exhibit" to express a meaning in this statute not supposed to comprehend a motion picture performance, is that it does violence to over fifty years of trade terminology. If there ever was a secondary meaning, motion picture exhibitions means performances. Motion picture theatre operators have always been known as exhibitors. Many millions of license transactions are made every year, and hundreds of millions over the last fifty years, pursuant to contracts which are known as motion picture exhibi

tion license agreements. The organizations of motion picture theatre operators are known as exhibitor organizations. The literature of the industry, and of litigation in the industry, is replete with the use of the word "exhibition" to mean performance of the motion picture, and "exhibitor" to mean the theatre operator who gives such performances.

We pointed out the foregoing to the Register and inquired if it might not be possible to use a phrase such as "to display" where H.R. 4347 now uses "to exhibit," (lines 36-38, page 6) and avoid the use of the word "exhibition," if its meaning is not intended to comprehend what the motion picture industry has always considered to be a performance of the motion picture. In other words, something along the following lines:

"To display a work means to show the material object in which the work or a copy of the work is embodied, either directly or by means of motion picture films, slides, television, images, or any other device of process."

We are pleased to note that the Register's 1965 Supplementary Report (p. 23) agrees that use of the word "exhibit" in H.R. 4347 contrary to its usage in the motion picture industry, may result in confusion and misunderstanding; accordingly, "display" is a better operative word than "exhibit" where the latter now appears in the bill.

We will now turn to certain serious substantive aspects of some of the provisions for exemptions from exclusive rights and remedies, to the extent they involve performances of motion pictures.

D. Section 106(b) (3) (A)—Definition of "public performance"

At a Copyright Office Panel meeting in Washington then considering draft language suggested by that office, it was agreed by the Register and many present that a proposed draft definition of "publicly," if not changed, would inadvertently succeed in entrenching the erroneous doctrine of Metro-Goldwyn-Mayer v. Wyatt and the Maryland Yacht Club (21 Copyright Office Bull. 203, D. Md. 1932) into law. It was generally agreed that this case made bad law in holding that performances before hundreds of people in a private club open to the families of members and guests of the families, and to which the gen

eral public could not obtain admission, were not public performances. On this theory, the court held the same were not infringing, and thus not subject to copyright licensing, if unauthorized by the copyright owner. As a result, the Copyright Office revised its tentative draft. In its first revision bill, H.R. 11947, introduced in the 88th Congress, it provided a generally satisfactory and appropriate definition of "publicly," as follows:

"(A) to perform or exhibit it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;" [sec. 5(b) (3) (A), lines 17-21, page 5]

It was clear that gatherings of multiple families, and their social acquaintances, as in membership and fraternal organizations, would not be exempted, but only showings for a single family and its friends.

Unfortunately, in the transition to the current bill, the article "a" preceding "family," and the possessive "its," preceding "social" were deleted, thereby inadvertently codifying the Maryland Yacht Club decision, of which the Register, our motion picture people, and many others are critical,

The article "a" should be re-inserted preceding the word "family"; similarly, the possessive "its" preceding the word "social," in sec. 106(b)(3)(A) of H.R. 4347. [lines 39-40 and 1-3 on pages 6 and 7]. Authors and publishers also so recommend.

This is very important for the motion picture industry. Its performing right under the 1909 Act has evolved as an aspect of copying under section 1(a) of Title 17, U. S. C., under the above mentioned Patterson v. Century Productions case. In other words, unauthorized projection of the copyrighted images of the film upon a screen, in the course of a motion picture performance or exhibition, is the making of intangible enlarged copies of the copyrighted images in violation of the exclusive right "to copy" under subsection (a) of section 1. There is no requirement in this subsection for copying to be "public." If H.R. 4347 is to give an express performing right to motion pictures, in substitution for the present such right as a form of "copying" under the Patterson case, and furthermore to limit the performing right to public performances only, we want to be sure that the definition of "publicly" is adequate.

In the 1965 Supplementary Report, the Register recognizes that the elimination in H.R. 4347 of the article "a" and the possessive "its" as it appeared in the definition of "publicly" in the 1964 bill, may have unintentionally broadened the concept too much, and concedes that the definition could probably stand some further revision. [p. 24]

E. Section 109(1)-Exemption of Performances in Face-to-face Teaching Activities

When this exemption appeared in the prior legislation, H.R. 11947, in the 88th Congress, it was expressly limited to the performances of a non-dramatic, literary, or musical work, or the exhibition of a pictorial, graphic, or sculptural work. It very clearly did not exempt motion picture performances. There was no necessity to indicate any objection or discuss the point.

We are exceedingly startled and troubled to note the now unexpected inclusion of motion picture performances in this exemption of the new bill, for so-called face-to-face teaching activities in a classroom or similar place normally devoted to instruction.

For many years motion pictures have been regularly subject to licensing for performances in schools, colleges, and educational institutions, for classroom or general purposes of instruction, education, as well as entertainment and recreation. There is a very substantial industry of motion picture producers who prepare and distribute copyrighted documentary and teaching films for classrooms and school teaching. Face-to-face teaching activities is a pretty elastic term. Many colleges and universities give so-called courses in the history, development, or appreciation of motion pictures, including at times. extension courses for members of the public who are not matriculated students. The lecturer, face-to-face with his motion picture class, which may at times approach many hundreds, gives a little introductory talk, and then a current or older feature picture licensed or rented from the local branch of the distributing company, is performed for the next few hours or so.

This is a very serious development for our producers and distributors. Unlike stage plays which need to be cast, rehearsed, costumed, set and directed for amateur performances in schools, which might actually encourage the audience to see a truly professional road or stock company, or even the original performance on Broadway, a motion

picture performance is always identical in quality. It is projected from a print (35 mm., 16mm., or 70mm.) struck from the only negative available in which millions of dollars may have been invested. The performance is the same whether in Radio City Music Hall, the local theatre, or the local school or college. Those who see it will rarely pay to see it again. If schools can perform with impunity, and without our license or control as to their timing of the showings, with appropriate consideration to our theatre customers' investments in serving the local public, serious injury will be done to us.

1. Teaching Film Custodians, Inc.

We are as ardent for the advancement of education as any other members of the U. S. public. Our producers and distributors do make films, or portions of their films available for teaching purposes, in fact gratis, in addition to normal renting. The Educational Services Department of the undersigned Association was merged in 1958 with Teaching Film Custodians, Inc., which we supported for many years prior thereto. Teaching Film Custodians is a social service project in the educational field. Our producers made available to Teaching Film Custodians, without charge, various of our short subjects, newsreels with foreign voice, and excerpts from feature pictures applicable for teaching purposes, from our theatrical film product, so that it may be in a position to serve schools and colleges. Teaching Film Custodians provides limited grants of funds to state and national teaching purpose groups, for study, research and consultant service in the application of motion pictures in prescribed courses of study, teaching processes and in portraying the national culture. It makes available sets of still photographs from theatrical motion pictures to illustrate significant details in the study of history, literature, drama, and motion picture appreciation. It makes available certain motion pictures for teaching methods, experimentation, and participates in many other educational activities. But we have reserved the right at all times to control the licensing and use of these films for performing purposes under their copyrights.

2. The Register's attempted justification

In his 1965 Supplementary Report, the Register seeks to justify this exemption. Let us examine it, in so far as it affects motion pictures.