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3 weeks from today, Thursday morning, October 30, at 10 in this room, where we will resume.

I yield to the gentleman from Massachusetts.

Mr. Drinan. I want to echo what the chairman said. I apologized to Ms. Ringer earlier. I had three other committee meetings to attend. But she is a delight as a witness, because she obviously knows infinitely more about this than I do.

Ms. Ringer, I am receiving letters from all types of famous people, like Richard Rodgers, and I may actually have to send them to you.

Mr. KASTENMEIER. Ms. Ringer, the full text of your statement and the materials will, of course, go in the record.

The committee stands adjourned until the 30th of October.

[Whereupon, at 12:30 p.m., the subcommittee recessed, to reconvene at 10 a.m. Thursday, October 30, 1975.]

COPYRIGHT LAW REVISION

THURSDAY, OCTOBER 30, 1975

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE On Courts, Civil LIBERTIES

AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:15 a.m. in room 20:26, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Pattison, Drinan, and Railsback.

Also present : Herbert Fuchs, counsel; and Thomas E. Mooney, associate counsel..

Mr. KASTEN MEIER. The hearing will come to order this morning.

We will hear the next-to-the-last installment of the closing testimony of Ms. Barbara Ringer in regard to copyrights. Hopefully, the next and last session will take place on Thursday, November 6.

We are fortunate, as some mornings we have not been. We have been preempted by floor business and other matters. Once again we greet you, Ms. Ringer, and if you perhapsmit might be well if you could very briefly recap what happened last time to put what we have had in context with where you shall proceed from. TESTIMONY OF BARBARA RINGER, REGISTER OF COPYRIGHTS, LI.

BRARY OF CONGRESS, ACCOMPANIED BY DOROTHY M. SCHRADER, COUNSEL

Ms. Ringer. I am Barbara Ringer, the Register of Copyrights. I am accompanied by Dorothy M. Schrader, the General Counsel of the Copyright Office.

Is I indicated in my testimony 3 weeks ago, the effort I will be making today and next Thursday is not to put forward my own suggestions with respect to the legislation, but to help you in identifying and reconciling the remaining issues in the bill.

I have prepared and am nearing completion of a second supplementary report of the Register of Copyrights on general revision of the copyright law. This report seeks to put the issues in some sort of historic perspective because, as we all know, the bill has been before the Congress for more than 10 years now.

I started last time with a very brief general summary of the entire bill. trying to show its origins and its structure I then began with the problem areas that are presented to you to resolve, more or less in the order in which they occur in the bill. Last time I dealt first with a range of problems involving subject matter of copyright; second, with the problem of fair use in reproduction for educational purposes; and third, of the problem of library and archival photocopying.

This is as far as we got. I do not see much point in reviewing the rather complicated testimony I gave. It is in the record. But I will be glad to answer any remaining questions you have on those three chapters of the report, those three big areas of subject matter. I think we covered them pretty thoroughly.

With your permission, I will go on to chapter 4 then.
Mr. KASTENMEIER. Please do.

Ms. RINGER. Chapter 4 of the supplementary report deals with limitations on performance rights, with the exception of those limitations dealing with nonprofit broadcasting, which I hope to get to before the day is over.

Let me start with a very general review of section 110, which is a key section in the bill. It lays out eight specific areas in which performing rights of various sorts are limited in one way or another. I will just run them down. They are on page 3 of the chapter.

First is face-to-face teaching activities.

The second, instructional broadcasting, I will cover under what is chapter 6 of the supplementary report.

The third is performances in the course of religious services.

Fourth is live performances without commercial advantage to anyone. This was a rather complicated and at one time controversial provision that has not attracted any attention for some years.

The fifth is an important section and is one of the things I will talk about today--the mere reception of broadcasts in a public place, such as a restaurant.

The sixth was added in the Senate after you had finished with the bill in 1967; annual agricultural and horticultural fairs.

The seventh is similarly in response to proposals put forward by very special interests, public performance in connection with the sales of sheet music and records. .

The eighth was added in the full Senate Judiciary Committee on October 7—for noncommercial broadcasting to the blind or deaf.

The two questions that were not raised during the hearings but are presented by this section I can I think characterize very generally as the Aiken case question, the subsection (5) question, and the ballroom question, which was presented directly to the Senate Judiciary Committee in its markup and voted upon. It was voted down. I will come to this in my explanation.

Let me talk first about subsection (5). I think it is short enough for me to read: “Communication of a transmission embodying a performance or display of work by the public reception of the transmission on a single receiving apparatus of the kind commonly used in private homes.” This is exempted unless, first, a direct charge is made, or second and this is crucial-the transmission thus received is further transmitted to the public.

You probably are unaware of this as an issue because it was not raised as such during the hearings. It has been a roiling issue in U.S. copyright law going back to the 1930's and the early days of radio. Actually, it was known for many years as the Jewell-LaSalle question after a Supreme Court decision. As it was interpreted, the doctrine of the so-called Jewell-LaSalle case was that a copyright owner had the right to collect for the retransmission of radio broadcasts taken off the air in public places such as in the Jewell-LaSalle case itself, the private rooms of a public hotel. This was considered settled law although the decision itself left some ambiguities.

But in any case, this had seemed to settle down as an issue until just after some of these performing rights questions were discussed during your hearings. The Supreme Court on June 17 handed down a decision which, I think, requires your attention to this subsection aran.

Let me skip over the discussion in my report of this issue up to the point of the Aiken decision and review, reading from page 7, what that decision held and what it seems to mean. The Aiken case involved a fast-food chicken shop in Pittsburgh. The defendant was the owner and operator of this shop. Quoting from the decision, he had “a radio with outlets to four speakers in the ceiling," which he apparently turned and left on throughout the business day. Lacking any performing license, he was sued for copyright infringement by to ASCAP members. He lost in the District Court, won a reversal in the Third Circuit Court of Appeals, and finally prevailed, by a margin of 7 to 2, in the Supreme Court. The majority opinion was delivered by Justice Stewart; Justice Blackmun wrote an opinion disagreeing with practically everything in the majority opinion, but concurring with the result; and Chief Justice Burger wrote a blistering dissent in which Justice Douglas joined.

The Aiken decision is based squarely on the two Supreme Court decisions dealing with cable television, in both of which Justice Stewart also wrote the majority opinions. In the Fortnightly case and again in the Teleprompter case, the Supreme Court had held that a CATV operator was not “performing," within the meaning of the 1909 statute, when it picked up broadcast signals off the air and retransmitted them to subscribers by cable. The Aiken decision extends this interpretation of the scope of the 1909 statute's right of “public performance for profit" to a situation outside the CATV context and, without expressly overruling Jewell-LaSalle case, effectively deprives it of much meaning.

For fore than 40 years, the Jewell-LaSalle rule was thought to require a business establishment to obtain copyright licenses before it could legally pick up any broadcasts off the air and retransmit them to its guests and patrons. As reinterpreted by the Aikrn decision, the rule of Jewell-LaSalle apparently applies only if the broadcast being retransmitted was itself unlicensed, which is a rare situation, as you can imagine.

Justice Burger's dissent is worth quoting, I think, not only in relation to this problem, but in relation to the task before you. He says:

There can be no really satisfactory solution to the problem presented here until Congress acts in response to longstanding proposals. My primary purpose

in writing is not merely to express disagreement with the Court but to underscore what has repeatedly been stated by others as to the need for legislative action. Radio today is certainly a more commonplace and universally understood technological innovation than CATV, for example, yet we are, basically, in essentially the same awkward situation as in the past when confronted with these problems.

We must attempt to apply a statute designed for another era to a situation in which Congress has never affirmatively manifested its view concerning the competing policy considerations involved.

Yet, the issue presented can only be resolved appropriately by the Congress : perhaps it will find the results which the Court reaches today a practical and equitable resolution, or perhaps it will find this "functional analysis" too simplistic an approach.

The reference there is to the interpretation of Justice Stewart in the Fortnightly and Teleprompter case which was carried over to Aiken. It said that, functionally, the CATV operator or the chicken shop operator was operating as a viewer rather than as a performer or broadcaster when it retransmitted the broadcast, which was licensed.

The immediate result of this was that several people got phone calls from the press asking what would be the result under the case if it were being decided under the revised law, and the answers were conflicting. It was apparent that this had not been really thought through in these terms. The legislative history I have laid out here implied that the result would be different depending on whether or not you read the House report from 1967 or the Senate report from 1974 or particularly the Senate report that will emerge shortly, and this is obviously not a satisfactory way to leave this problem, which is too important to just pass over.

I should say the bill as reported by the Senate did not change the wording of subsection (5) at all, but I am sure the language in the report will be changed, and my impression, based on what I have been told, is that it will probably indicate that subsection (5) should be interpreted in favor of the copyright owner in the Aiken factual situation.

Mr. KASTEN MEIER. May I say to members of the committee, you do not have to wait until the end of Ms. Ringer's presentation with urgent questions or points that you may want to make. Please feel free to ask it.

Mr. Drixan. Thank you, Mr. Chairman.

I just ask this question: How could they possibly expect to change the statutory language if they are going to keep (5) here, 110(5) (a) and (b)? How could they possibly change it by saying this does not apply in the Aiken situation? The language there gives the right to the gentleman with the restaurant it seems to me.

Ms. Ringer. It is arguable. I think the language of the report your subcommittee adopted in 1967 would probably have leaned in the way you are suggesting. I do not think anyone had really thought throngh what is a "receiving apparatus of the kind commonly used in private homes." I am not sure what Aiken had. He had four large speakers, but they were obviously placed for reception by his customers, not by himself.

I am assuming-I do not think we need to reargue the Aiken case. Let me read you my conclusion, and perhaps that might answer your question in some way.

Mr. Drivax. What page is this on?

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