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three main proposals of the library group in its testimony. The librarians recommended that it be deleted, along with all of section (g). And it does except from the exemption musical compositions, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works.

I went through the testimony fairly carefully, and I couldn't find much discussion beyond Dr. Low's original presentation of this subject, except in the context of music. And after the hearing, there was some correspondence on this point. Rather than go into this in great detail, I will read you the conclusions that we drew on page 43, which are as follows:

Although the librarians at the 1975 hearings sought the complete deletion of subsection (h), their proposal seemed to involve music more than the other categories covered by that provision. The Copyright Office recognizes the concern of music librarians, but we believe that—with respect not only to music but also to pictorial graphic, and, sculptural works, and motion pictures and other audiovisual worksthe needs of scholars can and should be met through fair use. It is especially important for the legislative report to make clear the relationship between sections 107 and 108(h).

I might say in this connection, I think there are cases where fair use would apply to photocopying of music and even motion pictures. The examples that were given in Dr. Low's testimony were excerpts and short passages and that sort of thing. And I could even see a situation where the motivation and the scholarly pursuit would justify, under fair use, one complete copy of, say, a drawing or a print, or something like that.

But the exemptions that are basically in subsections (d) and (e) and (f) of section 108 were drawn without these things in mind. I think that it would probably be a mistake to go that far. I think that the report should say something about music, and the fact that for a real scholarly purpose and not for a performance, but a scholarly purpose, photocopying music could be a fair use.

I also think, and this is the last paragraph of this section on page 43, that some attention should be directed at a point not raised at the hearing, but which is of real concern. This is the question of pictorial and graphic works reproduced as illustrations in books, periodicals, and other literary works. No one has really made this point, but it does seem to me there probably was no intention to make somebody making a photocopy legally of a journal or article or book under section 108 (d) or (e), blank out the pictures or the tables or what have you. And I think that clearly they should be exempted, along with the larger works in which they appear as an illustration. I think this probably should require an amendment to subsection (h).

There are other points under this, but I think this probably covers the main ones, Mr. Chairman,

Mr. KASTENMETER. Thank vou. Ms. Ringer. Having concluded the first three chapters today, I think we will take due note of the hour and terminate this very productive session. We are very grateful to von. I compliment vou on your presentation. You have been most helpful to this committee. I look forward to reconvening this committee 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.]

But she is a this than I do:cing letters from have to more a kinger, I amers, and I may, the full tex

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 2226, 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. KASTENMEIER. 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 perhaps it 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.

As 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. 1

. I? The eighth was added inithe 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 anú 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 again.

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 two 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 Aiken 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

Which Justic; and Chiens in the

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