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Unfortunately, past practice has not been so consistent as to be of additional interpretative assistance; public broadcasting can point out that no legal claim has ever been made by any author or publisher because of an unauthorized program recording; authors and publishers have testified that licenses have at times been sought and obtained by public broadcasting for non-dramatic literary works included in recorded programs. With the immense number of publishers and large number of public broadcasting agencies, there has obviously been no real body of experience indicating substantial consensus on either side, let alone agreement between both sides.

But a better guideline does perhaps exist in an allied field of copyright lawnamely, non-profit educational reprography. There, faced by a similar dilemma, the U.S. Court of Claims in Williams and Wilkins v. U.S., 487 F.2d 1345 (1973) held multiple duplication of scientific magazine articles to be within the doctrine of "fair use" pending further Congressional clarification in the Copyright Revision Act. Since the Court of Claims decision was affirmed by a divided Supreme Court last June, its ruling must be taken as the controlling law today. It is thus reasonable to believe that a similar position would be taken by the federal courts on the effect of Section 1(c) on public broadcasting program recording rightsnamely, in view of the legislative uncertainty, to hold against strict interpretation of copyright liability until Congress clarifies the law.

Pictorial works.-The only provision applicable to non-dramatic pictorial works-i.e. excluding motion pictures, television programs etc.-is the general right granted in Section 1(a) "to print, reprint, publish, copy and record the copyrighted work". Consequently, it would appear that no performance rights apply to photographs, pictures etc., and this has been confirmed by Nimmer on Copyright in Section 107.1 at p. 399.

There is also serious doubt about the right of the copyright holder of a photograph or drawing to prevent television recordings for broadcast purposeswhether or not "for profit". The federal courts have in the past drawn distinctions between "transcriptions and records" under Sections 1(c) and (d) and "copies" under Section 1(a). And since there is no express "right to record" applicable to photographs and other pictorial works, it may well be that television recordings would not be held to be "copies" under Section 1(a)-especially in view of the historical definition of a "copy" as a perceptible representation since the U.S. Supreme Court decision in White-Smith Music Publishing Co. v. Apollo, 209 U.S. 1 (1908). This was undoubtedly what impelled the 1952 amendment of Section 1(c) to expressly include recordings and transcription rights for nondramatic literary works-and in the absence of a similar amendment for pictorial works, would point toward a finding of non-infringement in public broadcast pre-recordings.

As was stated in Mura v. Columbia Broadcasting System, 245 F. Supp. 587 (D.C.N.Y. 1956): "The evanescent reproduction of a hand puppet on a television series or on the projected kinescope recording of it is so different in nature from the copyrighted hand puppet that I conclude it is not a copy." (emphasis supplied).

And, as the Mura Case also pointed out, it can well be argued that the brief flashing of a photograph on a television screen, whether the program is "live" or pre-recorded, constitutes "fair use", since of minimal exposure, not interfering with other sales nor substituting otherwise for the original work. This would seem to be especially true when the picture is used for an exemplary, analytical or informational purpose in a non-commercial public television program.

CONCLUSION

In view of the restricted nature of the statutory copyright monopoly and the non-profit character of the public broadcasting system, the inclusion of nondramatic music, literary or pictorial works on public television and radio programs would not appear to be copyright infringements under present law as currently interpreted in the federal courts.

As the United States Supreme Court said in Twentieth Century Music Corp. v. Aiken this last June: "The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest. Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to

stimulate the artistic creativity for the general public good. "The sole interest of the United States and the primary object in conferring the monopoly," this Court has said, "lie in the general benefits derived by the public from the labors of authors." Fox Film Corp. v. Doyal, 286 U.S. 123, 127. See Kendall v. Winsor, 21 How. 322, 327-328; Grant v. Raymond, 6 Pet. 218, 241-242. When technological changes has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose."

It would seem that this judicial construction in the public interest must, in the case of public broadcasting, predominantly come out on the side of non-protection for the copyright proprietors and of non-liability for the public broadcasters.

APPENDIX A

PERTINENT RULES OF THE FEDERAL COMMUNICATIONS COMMISSION

SECTION 73.621

§ 73.621 Noncommercial educational stations.

In addition to the other provisions of this subpart, the following shall be applicable to noncommercial educational television broadcast stations :

(a) Except as provided in paragraph (b) of this section, noncommercial 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.

(1) In determining the eligibility of publicly supported educational organizations, the accreditation of their respective state departments of education shall be taken into consideration.

(2) In determining the eligibility of privately controlled educational organizations, the accreditation of state departments of education or recognized regional and national educational accrediting organizations shall be taken into consideration.

(b) Where a municipality or other political subdivision has no independently constituted educational organization such as, for example, a board of education having autonomy with respect to carrying out the municipality's educational program, such municipality shall be eligible for a noncommercial educational television broadcast station. In such circumstances, a full and detailed showing must be made that a grant of the application will be consistent with the intent and purpose of the Commission's rules and regulations relating to such stations. (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.

(d) A noncommercial educational television station may broadcast programs produced by or at the expense of, or furnished by persons other than the licensee, if no other consideration than the furnishing of the program and the costs incidental to its production and broadcast are received by the licensee. The payment of line charges by another station, network, or someone other than the licensee of a noncommercial educational television station, or general contributions to the operating costs of a station, shall not be considered as being prohibited by this paragraph.

(e) Each station shall furnish a nonprofit and noncommercial broadcast service. However, noncommercial educational television stations shall be subject to the provisions of § 73.654 to the extent that they are applicable to the broadcast of programs produced by, or at the expense of, or furnished by others, except that no announcements (visual or aural) promoting the sale of a product or service shall be broadcast in connection with any program: Provided, however. That where a sponsor's name or product appears on the visual image during the course of a simultaneous or rebroadcast program either on the backdrop or in similar form, the portions of the program showing such information need not be deleted.

NOTE 1: Announcements of the producing or furnishing of programs, or the provision of funds for their production, may be no more than twice, at the opening and at the close of any program, except that where a program lasts longer than 1 hour an announcement may

be made at hourly intervals during the program if the last such announcement occurs at least 15 minutes before the announcement at the close of the program. The person or organization furnishing or producing the program or providing funds for its production, shall be identified by name only, except that in the case of a commercial company having bona fide operating divisions or subsidiaries one of which has furnished the program or funds. the division or subsidiary may be mentioned in addition to or instead of the commercial company. No material beyond the company (or division or subsidiary) name shall be included. Upon request for waiver of this provision, the Commission may authorize the inclusion of brief additional descriptive material only when deemed necessary to avoid confusion with another company having the same or a similar name. No mention shall be made of any product or service with which a commercial enterprise being identified has a connection, except to the extent the name of the product or service is the same as that of the enterprise (or division or subsidiary) and is so included. A repeat broadcast of a particular program is considered a separate program for the purpose of this note.

NOTE 2: Announcements may be made of general contributions of a substantial nature which make possible the broadcast of programs for part, or all, of the day's schedule. Such announcements may be made at the opening and closing of the day or segment, including all of those persons or organizations whose substantial contributions are making possible the broadcast day or segment. In addition, one such general contributor may be identified once during each hour of the day or segment. The provisions of Note 1 of this section as to permissible contents apply to announcements under this note.

NOTE 3: The limitations on credit announcements imposed by Notes 1 and 2 of this section shall not apply to program material, the production of which was completed before January 1, 1971, or to other announcements broadcast before January 1, 1971, pursuant to underwriting agreements entered into before November 30, 1970.

NOTE 4: The provisions of Notes 1 and 2 of this section shall not apply during the broadcast times in which "auctions" are held to finance station operation. Credit announcements during "auction" broadcasts may identify particular products or services, but shall not include promotion of such products or services beyond that necessary for the specific auction purpose. Visual exposure may be given to a display in the auction area including the underwriter's name and trademark, and product or service or a representation thereof.

NOTE 5: The numerical limitations on permissible announcements contained in Notes 1 and 2 of this section do not apply to announcements on behalf of noncommercial, nonprofit entities, such as the Corporation for Public Broadcasting, State or regional entities, or charitable foundations.

[§ 73.621(d) amended & (c) added eff. 6-17-70 & eff. date postponed to 11-30-70; Notes 1 & 2 amended and Notes 3, 4 & 5 added eff. 11-30-70; III (68)–11]

SECTION 73.503

$73.503 Licensing requirements and service.

The operation of, and the service furnished by noncommercial educational FM broadcast stations shall be governed by the following:

(a) 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.

(1) In determining the eligibility of publicly supported educational organizations, the accreditation of their respective state departments of education shall be taken into consideration.

(2) In determining the eligibility of privately controlled educational organizations, the accreditation of state departments of education and/or recognized regional and national educational accrediting organizations shall be taken into consideration.

(b) Each station may transmit programs directed to specific schools in a system or systems for use in connection with the regular courses as well as routine and administrative material pertaining thereto and may transmit educational, cultural, and entertainment programs to the public.

(c) A noncommercial educational FM broadcast station may broadcast programs produced by, or at the expense of, or furnished by persons other than the licensee, if no other consideration than the furnishing of the program and the costs incidental to its production and broadcast are received by the licensee. The payment of line charges by another station, network, or someone other than the licensee of a noncommercial educational FM broadcast station, or general contributions to the operating costs of a station, shall not be considered as being prohibited by this paragraph.

(d) Each station shall furnish a nonprofit and noncommercial broadcast service. Noncommercial educational FM broadcast stations are subject to the provisions of § 73.289 to the extent that they are applicable to the broadcast of programs produced by, or at the expense of, or furnished by others: however, no announcements promoting the sale of a product or service shall be broadcast in connection with any program.

NOTE 1: Announcements of the producing or furnishing of programs, or the provision of funds for their production, may be made no more than twice, at the opening and at the close of any program, except that where a program lasts longer than 1 hour an announcement may be made at hourly intervals during the program if the last such announcement

57-786-76-pt. 3- 48

occurs at least 15 minutes before the announcement at the close of the program. The person or organization furnishing or producing the program, or providing funds for its produetion, shall be identified by name only, except that in the case of a commercial company having bona fide operating divisions or subsidiaries one of which has furnished the program or funds, the division or subsidiary may be mentioned in addition to or instead of the commercial company. No material beyond the company (or division or subsidiary) name shall be included. Upon request for waiver of this provision, the Commission may authorize the inclusion of brief additional descriptive material only when deemed necessary to avoid confusion with another company having the same or a similar name. No mention shall be made of any product or service with which a commercial enterprise being identified has a connection, except to the extent the name of the product or service is the same as that of the enterprise (or division or subsidiary) and is so included. A repeat broadcast of a particular program is considered a separate program for the pupose of this note.

NOTE 2: Announcements may be made of general contributions of a substantial nature which make possible the broadcast of programs for part, or all, of the day's schedule. Such announcements may be made at the opening and closing of the day or segment, including all of those persons or organizations whose substantial contributions are making possible the broadcast day or segment. In addition, one such general contributor may be identified once during each hour of the day or segment. The provisions of Note 1 of this section as to permissible contents apply to announcements under this note.

NOTE 3: The limitations on credit announcements imposed by Notes 1 and 2 of this section shall not apply to program material, the production of which was completed before January 1, 1971, or to other announcements broadcast before January 1, 1971, pursuant to underwriting agreements entered into before November 30, 1970.

NOTE 4: The provisions of Notes 1 and 2 of this section shall not apply during the broadcast times in which "auctions" are held to finance station operations. Credit announcements during "auction" broadcasts may identify particular products or services, but shall not include promotion of such products or services beyond that necessary for the specific auction

purpose.

NOTE 5: The numerical limitations on permissible announcements contained in Notes 1 and 2 of this section do not apply to announcements on behalf of noncommercial, nonprofit entities, such as the Corporation for Public Broadcasting, State or regional entities, or charitable foundations.

[$ 73.503 (c) amended & (d) added eff. 6-17-70 & eff. date postponed to 11-30-70; Notes 1 & 2 amended and Notes 3, 4 & 5 added eff. 11-30-70; III (68)–11]

APPENDIX B

PERTINENT PROVISIONS OF THE PUBLIC BROADCASTING ACT OF 1967

"SUBPART B-CORPORATION FOR PUBLIC BROADCASTING

"Congressional declaration of policy

"Sec. 396. (a) The Congress hereby finds and declares

"(1) that it is in the public interest to encourage the growth and development of noncommercial educational radio and television broadcasting, including the use of such media for instructional purposes;

"(2) that expansion and development of noncommercial educational radio and television broadcasting and of diversity of its programing depend on freedom, imagination, and initiative on both the local and national levels;

"(3) that the encouragement and support of noncommercial educational radio and television broadcasting, while matters of importance for private and local development, are also of appropriate and important concern to the Federal Government;

"(4) that it furthers the general welfare to encourage noncommercial educational radio and television broadcast programing which will be responsive to the interests of people both in particular localities and throughout the United States, and which will constitute an expression of diversity and excellence;

"(5) that it is necessary and appropriate for the Federal Government to complement, assist, and support a national policy that will most effectively make noncommercial educational radio and television service available to all the citizens of the United States;

"(6) that a private corporation should be created to facilitate the development of educational radio and television broadcasting and to afford maximum protection to such broadcasting from extraneous interference and control. "Corporation established

"(b) There is authorized to be established a nonprofit corporation, to be known as the Corporation for Public Broadcasting, which will not be an agency or establishment of the United States Government. The Corporation shall be subject to the provisions of this section, and, to the extent consistent with this section, to the District of Columbia Nonprofit Corporation Act.

"Board of Directors

"(c) (1) The Corporation shall have a Board of Directors (hereinafter in this section referred to as the 'Board'), consisting of fifteen members appointed by the President, by and with the advice and consent of the Senate. Not more than eight members of the Board may be members of the same political party.

"(2) The members of the Board (A) shall be selected from among citizens of the United States (not regular fulltime employees of the United States) who are eminent in such fields as education, cultural and civic affairs, or the arts, including radio and television; (B) shall be selected so as to provide as nearly as practicable a broad representation of various regions of the country, various professions and occupations, and various kinds of talent and experience appropriate to the functions and responsibilities of the Corporation.

*

"Nonprofit and nonpolitical nature of the corporation

"(f) (1) The Corporation shall have no power to issue any shares of stock, or to declare or pay any dividends.

"(2) No part of the income or assets of the Corporation shall inure to the benefit of any director, officer, employee, or any other individual except as salary or reasonable compensation for services.

"(3) The Corporation may not contribute to or otherwise support any political party or candidate for elective public office.

"Purposes and activities of the corporation

"(g) (1) In order to achieve the objectives and to carry out the purposes of this subpart, as set out in subsection (a), the Corporation is authorized to

"(A) facilitate the full development of educational broadcasting in which programs of high quality, obtained from diverse sources, will be made available to noncommercial educational television or radio broadcast stations, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature;

"(B) assist in the establishment and development of one or more systems of interconnection to be used for the distribution of educational television or radio programs so that all noncommercial educational television or radio broadcast stations that wish to may broadcast the programs at times chosen by the stations;

"(C) assist in the establishment and development of one or more systems of noncommercial educational television or radio broadcast stations throughout the United States;

"(D) carry out its purposes and functions and engage in its activities in ways that will most effectively assure the maximum freedom of the noncommercial educational television or radio broadcast systems and local stations from interference with or control of program content or other activities. "(2) Included in the activities of the Corporation authorized for accomplishment of the purposes set forth in subsection (a) of this section, are, among others not specifically named

"(A) to obtain grants from and to make contracts with individuals and with private, State, and Federal agencies, organizations, and institutions; "(B) to contract with or make grants to program production entities, individuals, and selected non-commercial educational broadcast stations for the production of, and otherwise to procure, educational television or radio programs for national or regional distribution to noncommercial educational broadcast stations;

"(C) to make payments to existing and new non-commercial educational broadcast stations to aid in financing local educational television or radio programing costs of such stations, particularly innovative approaches thereto, and other costs of operation of such stations;

"(D) to establish and maintain a library and archives of noncommercial educational television or radio programs and related materials and develop public awareness of and disseminate information about noncommercial educational television or radio broadcasting by various means, including the publication of a journal;

“(E) to arrange, by grant or contract with appropriate public or private agencies, organizations, or institutions, for interconnection facilities suit

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