ment into the early forties and are still going strong by the early fifties. After that teaching and writing replaces active play.

Preparation for each specific event can be extensive, with 6 months to 1 year of specialized training not being unusual for a world championship match. It consists of opening analysis and choice of style directed at a specific opponent or opponents, among other things.

In this sense the game of chess is more a science than a sport, although the visible execution of the game is also a mixture of an artistic and athletic performance-more artistic than athletic.

CHESS IN THE PUBLIC DOMAIN

A chess player's work can enter the public domain in two ways: his own play, as viewed by spectators on TV or other medium, including immediate presence: and publication in newspapers, magazines, and books. In publication, one should distinguish between the player's own analysis of his games, and other people collecting and analyzing them.

The use of the game by others also can thus be two-fold: spectator enjoyment: and playing as well as analyzing the published games later. In use of published games later, one should distinguish between playing and analyzing for aesthetic pleasure, and doing it to gain scientific knowledge to be applied in tournaments, perhaps against the creator of the game himself.

A point not fully appreciated, and most relevant when speaking of copyright protection, is that by far the greatest consumption of chess games comes from publications, not from immediate performance. I follow the game very closely and have played over all the games of Bobby Fischer and the great champions— and almost all from books. Even when I watch a tournament, I will buy books or magazines describing them, because the games require more thought to appreciate than one can apply at the time of performance.

This makes it paramount that the creator own his creation, as far as publication in newspapers, magazines and books goes, for given that this is where the real consumption takes place this is also where the profits lie. Tournament prizes and appearance fees are a mere pittance. Fischer can command big fees because of his uniqueness, but the state of professional chess is deplorable for others. The U.S. open championship offers $2000 for 2 weeks hard work, if you win! If not you get next to nothing, and there are over a hundred contestants!

Given that an active player is not apt to divulge his analysis, for fear of it being used against him in tournaments, the exploitation is complete. Others make far more from his efforts than he does, since they can publish his games at will with no recompense to him.

Some form of copyright protection would go a long way toward correcting this injustice and add dignity to the game of chess!

NOVEMBER 2, 1975.

Hon. ROBERT W. KASTEN MEIER,

Head-Committee on Copyright Laws,

Rayburn House Office Building,

Washington, D.C.

DEAR CONGRESSMAN KASTEN MEIER: I agree with the thrust of Mr. Kalme's letter. I feel quite strongly and have so for many years, that chessplayers should have copyright protection for their chessgames. I, too, would be glad to go to Washington, D.C. to give my testimony on this subject before the appropriate committee of congressmen and/or senators who are drawing up the new copyright laws.

Sincerely,

P.S. You can contact me on this subject through Mr. Kalme.

BOBBY FISCHER.

Hon. ROBERT W. KASTEN MEIER,

PUBLIC BROADCASTING SERVICE. Washington, D.C., October 28, 1975.

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN KASTEN MEIER: I am enclosing, for your consideration and assistance in the House Copyright Revision proceedings, a "Memorandum on

the Status of Public Broadcasting and Copyright Law" dated October 15, 1975, prepared for the Public Broadcasting Service and other public broadcasting organizations. As you will see, the memorandum outlines in some detail how public broadcasting is legally exempt from clearance and payment obligations under the present Copyright Law.

We will be very happy to answer any further questions you may have or provide any further help we can in this regard.

Sincerely,

CHALMERS H. MARQUIS,

Vice President.

MEMORANDUM ON THE STATUS OF PUBLIC BROADCASTING UNDER CURRENT

COPYRIGHT LAW

Important questions have been raised in recent Congressional hearings about the rights and liabilities of public broadcasting under the current United States Copyright Law (i.e. the Copyright Statute enacted in 1909, as amended to this date, 17 U.S.C.A. Sec. 1 et seq.).

This memorandum is intended to present a concise summary of the public broadcasting legal position on the pertinent provisions in the present copyright law. It does not purport to be a comprehensive brief but rather a short statement of the copyright basis upon which public broadcasting has developed its clearance practices and formulated its revision proposals.

BASIC CONCEPTS

Fundamental to the public broadcasting position are two well-established propositions—one of American copyright law, and the other of American communications law.

Copyright Law.-Under the American Copyright Law, the exclusive rights of copyright owners are those-and only those-specifically granted in the law itself. Thus, no copyright liability can devolve from any use or application of a copyrighted work which is not expressly reserved to the copyright proprietor in the Copyright Act. As the United States Supreme Court stated in its recent decision in Twentieth Century Music Corp. v. Aiken (June 1975), in ruling against an ASCAP claim of non-dramatic music performance rights infringement:

"The Copyright Act of 1909 ... gives to a copyright holder a monopoly limited to specified "exclusive rights" in his copyrighted works . . . accordingly, if an unlicensed use of a copyrighted work does not conflict within an "exclusive" right confirmed by statute, it is no infringement of the holder's rights." So also states Nimmer on Copyright, Sec. 100 at p. 374–376:

"A use of a copyrighted work is not an infringing act if such use does not fall within the scope of those rights expressly granted to the copyright proprietor. Thus privately reading a book or privately performing a dramatic work or even publicly performing a musical composition but not for profit all constitute uses of a copyrighted work which do not infringe the rights granted to the copyright proprietor. In this sense, the rights of a proprietor under the Copyright Act are rights of express enumeration..."

This statutory scheme has been continued in the successive versions of the current Copyright Revision Bill-with the copyright proprietors' protected rights detailed in Section 106, subject to the limitations and exemptions provided in succeeding sections.

Under existing copyright law, the copyright proprietor's broadcast rights in non-dramatic musical and literary works are limited to performance in public (or publicly) "for profit"; no performance rights at all are provided for nondramatic pictorial works. Nor are broadcast recordings anywhere specifically mentioned; whatever broadcast recording rights are claimed by copyright proprietors for published non-dramatic literary, musical and pictorial works must be sought either in the generic right to "print, reprint, publish, copy and vend" in Section 1(a), the particularized right to make a "transcription or record" of non-dramatic literary works in Section 1(c), or the compulsory license for "mechanical parts" with respect to musical works in Section 1(e). Whether or not so-called "synchronization" or "recording" rights come within these statutory categories, and to what extent the "for profit" restriction applies there as well, are clearly matters for judicial interpretation under the present law.

Communications Law.-Under the federal communications law, public broadcasting is by definition non-commercial and non-profit in character. As to publie television stations, Section 73.621 of the FCC Rules and Regulations provides as follows:

"S. 73.621 Non-commercial educational stations. In addition to the other provisions of this subpart, the following shall be applicable to non-commercial educational television and broadcasting stations:

"(a) Except as provided in paragraph (b) of this section, non-commercial educational broadcast stations will be licensed only to nonprofit educational organizations 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 nonprofit and noncommercial television broadcast service.

"(c) Noncommercial educational television broadcast stations may transmit educational, cultural and entertainment programs, and programs designed for use by schools and school systems in connection with regular school courses, as well as routine and administrative material pertaining thereto.”

With respect to public radio stations, Section 73.503 contains a similar but simpler provision to the effect that: "a noncommercial educational FM broadcast station will be licensed only to a nonprofit educational organization and upon showing that the station will be used for the advancement of an educational program";

Section 73.621 and 73.503 are set out in full in Appendix A hereto.

The provisions of the Public Broadcasting Act of 1967-the basic charter for American public broadcasting-also emphasize the non-commercial character of public broadcasting and provide for the establishment of a non-profit corporation, known as the Corporation for Public Broadcasting, with the express function of engaging in public interest activities necessary or desirable to assist noncommercial educational radio and television broadcasting. The pertinent sections of the Public Broadcasting Act are set out in Appendix B, including the specific authorization of national common carrier interconnection services for public broadcasting at free or reduced rates in Section 396 (h).

Under the aegis of the Corporation for Public Broadcasting, the Public Broadcasting Service and National Public Radio have also been organized as taxexempt non-profit corporations, the membership of which is limited to noncommercial, educational television and radio stations licensed as such by the Federal Communications Commission.

SPECIFIC TYPES OF WORKS

The public broadcasting amendments proposed to the Senate and House Subcommittees for the Copyright Revision bills are by their own terms limited to public radio and television broadcast only of non-dramatic musical, literary and pictorial works. This memorandum therefore does not deal with translations, dramatizations or adaptations under Section 1(b) nor the dramatic works covered in Section 1(d) of the existing Copyright Law. While the legal considerations with respect to music, books and photographs are to some extent interrelated, they can probably best be examined separately in order:

Musical Works.-Under Section 1(e), the copyright proprietor has had, since 1909, the exclusive right to perform copyrighted non-dramatic music only when "publicly for profit". From early times in broadcasting, federal court decisions have affirmed that an over-the-air broadcast constitutes a public performance, and that commercial broadcasting is "for profit" even though direct listening or viewing fees are not charged (e.g., Remick v. American Auto Accessories, 5 F. 2d 411 (6th Cir. (1925). No decision has, however, yet dealt directly with the application of the "for profit" restriction to public broadcasting.

Two cases have been cited by the music industry as persuasive toward nonexemption: Associated Music Publishers v. Debs Memorial Radio Fund, 141 F.2d 852 (2nd Circ. 1944) and Rohauer v. Killiam Shows Inc., 379 F. Supp. 723 (D.C.S.D., 1974). In the Debs Case, music licenses were required for sponsored and sustaining programs broadcast over a commercial radio station owned by a non-profit corporation as performed "publicly for profit". The decision itself has been seriously questioned as to reasoning; indeed, Professor Nimmer has even urged that the result in the Debs Case "goes beyond the proper place to draw the 'for profit' line" (Nimmer on Copyright, Sec. 107.32, p. 405, 406). The Debs

Case has therefore been widely regarded as clearly distinguishable from noncommercial, non-profit public broadcasting, which is supported primarily by public funds, active exclusively in educational and other public interest programing, and expressly forbidden from carrying advertising or selling air-time like commercial stations.

The Rohauer Case was principally concerned with the question of copyright infringement of a popular novel in its renewal term by a motion picture produced under license during its original term. It peripherally related to public broadcasting only in that the motion picture was later broadcast over an ETV station under license from the authorized film distributor, with financial assistance from a local banking institution. The New York court found that the bank. ing underwriter was not liable for infringement damages in the absence of programmatic control and supervision. Thus, the Rohauer Case has little, if any, direct bearing on what constitutes a "for profit" broadcast for the purposes of Section 1(e) of the Copyright Law.

There can be no question about the fundamental "nonprofit" character of public broadcasting, for the purposes of Section 1(a) of the Copyright Law or otherwise. Public broadcasting stations are all non-commercial educational broadcast stations, licensed under FCC Regulations only to accredited non-profit educational organizations to furnish non-profit and non-commercial television broadcast services. Provision is also made in the FCC Rules for outside contributions, tax-exempt or otherwise, towards public broadcasting programs subject to standard requirements for on-air identification of the donors, with the specific provision that "no commercials (visual or aural) promoting the sale of a product or service shall be broadcast in connection with any program" and with strict restrictions on donor references to enforce that prohibition.

Similarly, under the Public Broadcasting Act of 1967, amending Section 397 of the Federal Communications Act of 1934, all of the national public broadcasting funding and distributing organizations are tax-exempt nonprofit agencies servicing only non-commercial educational broadcast stations licensed by the Federal Communications Commission. To paraphrase Nimmer on Copyright at p. 406 about the Debs Case, it is difficult to see what could be not-for-profit if public broadcasting is not so considered.

ASCAP and others have argued that underwriting gifts from business corporations are equivalent to program sponsorship, and thus convert public television and radio programs into "for profit" broadcasts. This argument is not convincing, however, in the face of the FCC Act and Regulations which, as indicated above, specifically bar corporate advertising from public broadcasting and restrict corporate identification on public television and radio programs. It is difficult to see why corporate gifts-made without return consideration and without content control-should be considered for-profit in nature simply because the donor company is identified by name in direct connection with financial contribution. It would also seem clear that if "for profit", such underwriter identification would be barred as advertising by the F.C.C., and conversely, that the very fact of F.C.C. permissibility should preclude a "for profit" judgment for federal copyright purposes.

Nevertheless, ASCAP, in its recent House testimony, has gone much further, and argued that what it considers to be the "for profit" broadcasting of a few underwritten programs should be taken to contaminate the whole of public broadcasting, including all of the non-underwritten national, regional and even local programs, which form the vast bulk of public broadcasting. Support for this view is sought in the Debs Case finding of music copyright infringements on the commercial station's sustaining programs by virtue of its considerable commercially sponsored programing. But this type of contamination argument by copyright holders has been decisively dismissed by the federal courts involved in the recent CBS v. Teleprompter cable television litigation, holding that sponsored CATV-origination programs have absolutely no effect on the question of copyright infringements in CATV-relayed programs, whether sponsored or sustaining (Columbia Broadcasting System v. Teleprompter Corp., 355 F. Supp. 618 (D.C.N.Y. (1972)); 476 F. 2d 338 (2d Cir. (1973)); 94 Sup. Ct. 1129 (1974). Finally, a great deal of weight must be given to the fact that never before has the assertion that public television or radio broadcasts may be "for profit” for the purposes of Section 1(e) been publicly urged throughout all the copyright revision hearings over the past ten years. Nor has any legal suit ever been brought by music authors or publishers, or the performing rights societies, to

contest the widely known "not-for-profit" position consistently and publicly taken by public broadcasting representatives.

All of the above discussion primarily concerns so-called "performing" rights; there are additional issues regarding music "recording" rights for public broadcasting programs. Although there is no express music "transcription” or “recording" provision in Section 1(e), such a music proprietor's right has at times been argued from the other language in that section-although never decisively confirmed by judicial interpretation. The fact that music interests have seldom asserted, if at all, that radio sound recordings are prohibited by Sec. 1(e) would seem to limit their claim to the so-called "synchronization" right for recorded television programs.

But even if the trade practice of licensing such "synchronization" rights for television films is accepted, there is still considerable legal controversy over whether the Sec. 1(e) compulsory license is not also applicable by its very terms. (See Nimmer on Copyright in Section 109.14 at p. 442). It has been ably contended that the music compulsory license applies at the 2¢ rate for television and radio commercial advertisements. See Note, The Applicability of the Compulsory License Provision to Radio and Television Advertising, 18 UCLA Law Review 1126 (1971), which also points out that the so-called “arranging right" in Section 1(e) is limited to performances and mechanical reproductions "publicly for profit" and so may not be applicable to public broadcasting at all (at p. 1134).

Indeed, the UCLA Note comment on public broadcasting appears to be well justified. From the statutory language, all Section 1(e) rights appear to be subject to the same "profit" limitations as the performance rights themselves. Accordingly, public broadcasting's performance rights exemption would easily seem to carry over to program recordings for public broadcast as well, and this specific provision should take precedence over general interpretation of the copying right under Section 1(a) to exclude the "for profit" restriction.

Literary works.-Under Section 1 (c), the exclusive rights pertaining to nondramatic television works include the same "for profit" conditions as are applicable to music under Section 1(e). Hence, all of the above considerations applicable to public broadcast of non-dramatic music would seem equally relevant for non-dramatic literary works-especially since Section 1(c) was amended to include "performing" rights only as late as 1952, and the section itself refers to broadcasting as so amended.

It is clear from the legislative history of the Section 1(c) amendment that, at the request of the Copyright Office, the addition of performance rights for nondramatic literary works was intentionally made subject to imposition of the "for profit" limitation as a quid pro quo at a time when non-commercial radio, if not non-commercial television, had long been in existence. Consequently, there can be little doubt but that public broadcasting of non-dramatic literary works are exempt from copyright clearance or payment requirements.

Not so clear, however, is the wording of Section 1(c) on program recordings. For Section 1(c) reads as follows: "(c) To . . . present the copyrighted work in public for profit if it be a . . . non-dramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce or reproduce, it in any manner or by any method whatsoever."

The phraseology is not only redundant; the punctuation is also quite illogical. As a result, it must be admitted that whether or not program recordings for non-profit performances are within the copyright holder's rights is open to some doubt on the basis of the statutory language alone. Again, from its Congressional history, however, there is good reason to believe that the twin "for profit" restrictions in the first and third clauses should apply to the radio and television recordings which fall within the second clause. As commented in Note, Legal Publishers of Educational Television, 67 Yale Law Journal 663 at Footnote 107 (1958):

"The 'for profit' limitation is also missing from the recording provision of 1(c), which relates to non-dramatic literary property. But the committee report on this section nevertheless expresses the intention that the limitation apply. H.P. Rep. No. 1160, 82nd Cong., 2nd Sess. 2(1951)".

Certainly, only this interpretation would be sensible in the case of public broadcasting, where the vast majority of radio and television programs are either prerecorded or re-recorded for broadcast.