1 Also attached is a copy of the omitted page which, according to Tom Brennan, will be inserted in the Congressional Record when the Senate considers S. 22. Sincerely, DEAR MR. KORMAN: I have your letter of December 9 concerning the absence from Senate Report No. 94-473 of any discussion of clauses (5) through (8) of Section 110 of S. 22. Discussion of these clauses does appear in the official original copy of the report filed in the Senate by Senator McClellan. Because of ar error in the Government Printing Office, one page of copy was not included in the printed report. I am enclosing a xerox copy of the omitted page, showing the printer's marks. This commentary represents the interpretation of the Senate Committee on the Judiciary of clauses (5) through (8) of Section 110, and is part of the official report on S. 22. In order that the commentary on these clauses may be generally available, I anticipate that Senator McClellan will insert the omitted page in the Congressional Record at the time of Senate consideration of S. 22. I trust that this information is responsive to your inquiry. Sincerely, Enclosure. THOMAS C. BRENNAN, Chief Counsel. The provision also provides that if there is an admission charge the copyright owner may prevent a public performance of his work under this provision by serving a notice stating his objections at least seven days in advance. Mere reception in public Unlike the first four clauses of section 110, clause (5) is not to any extent a counterpart of the "for profit" limitation of the present statute. It applies to performances and displays of all types of works, and its purpose is to exempt from copyright liability anyone who merely turns on, in a public place, an ordinary radio or television receiving apparatus of a kind commonly sold to members of the public for private use. The basic rationale of this clause is that the secondary use of the transmission by turning on an ordinary receiver in public is so remote and minimal that no further liability should be imposed. In the vast majority of these cases no royalties are collected today, and the exemption should be made explicit in the statute. While this legislation has been under consideration in the Congress, the Federal courts have considered several issues relevant to this exemption in the context of the Copyright Act of 1909. This clause has nothing to do with cable television systems and is not intended to generally exempt performances or displays in commercial establishments for the benefit of customers or employees. Thus, this exemption would not apply where broadcasts are transmitted by means of loudspeakers or similar devices in such establishments as bus terminals, supermarkets, factories, and commercial offices, department and clothing stores, hotels, restaurants and quick-service food shops of the type involved in Twentieth Century Music Corp. v. Aiken. The exemption would also be denied in any case where the audience is charged directly to see or hear the transmission. Agricultural fairs Clause (6) provides that the performance of a nondramatic musical work or of a sound recording in the course of an annual agricultural or horticultural fair or exhibition conducted by a Government body or a nonprofit organization is not an infringement of copyright. This exemption extends to all activities on the premises of such fairs or exhibitions. Retail sale of phonorecords Clause (7) provides that the performance of a nondramatic musical work or of a sound recording by a retail establishment open to the public at large without any direct or indirect admission charge where the sole purpose of the performance is to promote the retail sale of the work is not an infringement of copyright. This exemption applies only if the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring. Handicapped audience Clause (8) was not included in the bill passed by the Senate in 1974. It has been added to facilitate the special services provided by various noncommercial radio and television stations to a print or aural handicapped audience. It provides that it is not an infringement of copyright to perform a literary work in the course of broadcasts "specifically designed" for a print or aural handicapped audience. UNITED STATES POSTAL SERVICE, LAW DEPARTMENT, Washington, D.C., November 11, 1975. Hon. PETER W. RODINO, Jr., Chairman, Committee on the Judiciary, House of Representatives, DEAR MR. CHAIRMAN: This refers to H.R. 2223, the proposed general revision of the Copyright Law, now pending before your Committee. Section 8 of present title 17, United States Code, provides (in part) as follows: "No copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to July 1, 1909, and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof, except that the United States Postal Service may secure copyright on behalf of the United States in the whole or any part of the publications authorized by section 405 of title 39." Section 105 of the proposed revision would replace present section 8 with the following: "Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." It may be seen that proposed section 105 would not reenact the postal proviso now contained in section 8. We understand that the intent of this omission is to repeal the postal clause. Our records indicate that the clause in the present statute relating to postal authority with respect to publications under 39 U.S.C. § 405 was first omitted from the successive copyright revision bills after a representative of the former Post Office Department indicated informally in December, 1964, that he did not believe it was of further use. The Postal Service has reconsidered this question in the light of present needs and has concluded that the postal proviso is of value to us and to the public. Accordingly, we are writing to recommend that this postal statute not be repealed, but be returned to its original place in 39 U.S.C. $405, from whose predecessor it was transferred when placed in its present position in 17 U.S.C. § 8. This provision of law was first drafted and included in legislation devoted only to postage stamp designs. It was proposed by the Administration in 1937; was considered and approved without substantial revision by the postal committees of the Congress; and was enacted together with present 39 U.S.C. § 405 in the first section of the Act of January 27, 1938 (hereinafter the "1938 Act"), c. 10, 52 Stat. 6.1 The remainder of the 1938 Act amended the criminal statutes 1 Section 1 of the 1938 Act states: "That the Postmaster General shall prepare, in such form and at such times as he shall deem advisable, and, upon his request, the Public Printer shall print as a public document to be sold by the Superintendent of Documents, illustrations in black and white of postage stamps of the United States, together with such descriptive historical, and philatelic infor mation with regard to such stamps as the Postmaster General may deem suitable: Provided, That notwithstanding the provisions of section 52 of the Act of January 12, 1895 (U.S.C., dealing with reproduction of postage stamp designs," including the limited exemptions from those statutes, now contained, as further amended, in 18 U.S.C. § 504 (1970). Section 1 of the Act originally was placed in its entirety in 39 U.S.C. § 371 (1934 ed., Supp. V, 1939) by the editors of the United States Code, and remained there until the final proviso was transferred to 17 U.S.C. § 8, when title 17 was enacted as positive law in 1947. Act of July 30, 1947, c. 391, 61 Stat. 669. Neither that nor subsequent changes in the statute have been intended to accomplish substantive changes. H.R. Rep. No. 254, 80th Cong., 1st Sess. 1 (1947); Pub. L. No. 87-646, § 21, 76 Stat. 446 (1962); S. Rept. No. 1875, 87th Cong., 2d Sess. 2 (1962); Postal Reorganization Act, § 6(i), 84 Stat. 777 (1970); H.R. Rep. No. 1104, 91st Cong., 2d Sess. 49 (1970). In conferring with representatives of the Copyright Office with respect to this matter, we have delayed our presentation to the Committee in deference to their consideration of our recommendation, but have now been told that they prefer not to change the decision which was made in 1964 to recommend deletion of this provision from the copyright law revision bill. As we understand their view, it rests on the belief that the provision would be duplicative of the copyright authority which the Postal Service has exercised under the general provisions of title 17 since the Postal Service and the Copyright Office concluded that the provisions of the Postal Reorganization Act make the clause in 17 U.S.C. § 8 which prohibits copyright in works of the U.S. Government inapplicable to the reorganized Postal Service. Their belief rests on the opinion that although the meaning of the 1938 Act is unclear, it should be read as providing the former Post Office Department and the Postal Service a simple exemption from 17 U.S.C. § 8 for stamp catalogs published under 39 U.S.C. § 405, an exemption which would have been necessary to permit title 17 copyright in the catalogs for the Post Office Department but not for the Postal Service. This apparently was also the interpretation of the draftsmen of the original codification of title 17, although, as already stated, their action in removing the clause from title 39 has no legal effect on the provision's meaning. Although we agree with the Copyright Office that the precise intention of the 1938 Act is not as clearly expressed as might be desired, we believe that the most sensible interpretation of the provision is that this postal statute did not intend to provide a title 17 copyright at all. It is illuminating that no Government agency had been permitted to obtain copyright under the Copyright Act before 1938, nor was any agency so authorized for the succeeding 29 years. Moreover, section 1 of the 1938 Act was part of an integrated plan enacted by Congress, on the advice of its postal committees, to regulate the use of postage stamp designs, which did not amend the Copyright Act of 1909, and indeed which states that the authority it confers may be exercised notwithstanding anything to the contrary in the Copyright Act or any other law. In our opinion, the 1938 Act assigned authority to the Post Office Department in the nature of a general proprietary right in its stamp designs in order to enable the Department administratively to issue licenses to permit controlled private uses of the designs, to the extent found appropriate, beyond the limited statutory authorization for certain general philatelic uses permitted by the 1938 Act's amendments to the otherwise prohibitive criminal statutes. The postage stamp designs to which this authority would extend, without reference to the Copyright Act, would be those illustrated in a publication to be issued by the Superintendent of Documents, at the request of the Postmaster General, officially cataloguing the postage stamps of the United States. In so acting, we believe that Congress, on the advice of the postal committees, relied on the authority of the postal power of the Constitution, art. I, § 8, cl. 7, which had long been understood to authorize federal postal monopolies, and the property power, art. IV, § 3, cl. 2. The use of the term "copyright" in the 1938 Act in the sense of a general literary property prerogative rather than in the limited title 17 sense is not surprising, as the governmental prerogative it defines-which subsists in the whole or any part of a catalog of illustrations of previously sold postage stampsis more analogous in many respects to common law "copyright" than to title 17 1934 edition, title 34, sec. 58), stereotype or electrotype plates, or duplicates thereof, used in the publications authorized to be printed by this section shall not be sold or otherwise disposed of but shall remain the property of the United States: And provided further, That notwithstanding the provisions of section 7 of the Copyright Act of March 4, 1909 (U.S.C., 1934 edition, title 17, sec. 7), or any other provision of law, copyright may be secured by the Postmaster General on behalf of the United States in the whole or any part of the publication authorized by this section." 218 U.S.C. §§ 8, 474 et seq., 501. copyright, since the prior "publication" of the stamps had been limited-never dedicatory-because of the general prohibition of private use contained in the criminal laws. In reaching the foregoing conclusion, we were influenced by the fact that accepting the alternative interpretation that a title 17 copyright was intended would mean that section 1 of the 1938 Act was completely trivial from the moment it was enacted. It is clear that under the latter interpretation no authority of any prac tical use would have been conferred with respect to the postage stamp designs illustrated in the catalog. Applying the principles of the Copyright Act would have meant that the prior sale of the postage stamps themselves (which had been issued and sold for nearly a century without notice of copyright) would already have irretrievably dedicated to the public all rights in their design prior to each publication of the stamp catalog. It is equally clear that section 1 of the 1938 Act-like the rest of that Act-was intended to apply to postage stamp designs, not just to the supplementary textual matter printed in the catalog. The Government long had shown-and the other provisions of the 1938 Act had reaffirmed—a compelling governmental interest in controlling the private use of the designs on postage stamps, which have properties involving the credit and authority of the sovereign and are not simply art works. Prior to the 1938 Act the most that had been permitted for any private purpose was the copying of portions of stamp borders in philatelic publications in order to illustrate the distinctive margins; the pictorial designs could not be copied at all. Act of March 3, 1923, c. 218, 42 Stat. 1437. However, unlike the illustrations, the textual matter had appeared in the stamp catalog regularly since 1927 and was not distinctive in any way that could have justified an unprecedented exception from the rule against title 17 copyright in Government agency works. See U.S. Post Office Department, A Description of United States Postage Stamps and Postal Cards (1927) (variously titled thereafter). We cannot believe, nor do we think that a court could easily conclude, that the Post Office Department in proposing, the postal committees in approving, and the Congress in enacting this statute were so frivolous as to estab lish a unique departure from this time-honored principle for no intelligible legis lative purpose whatsoever. Interpreted in the manner we have suggested, section 1 of the 1938 Act is of present value to the Postal Service and the public and should not be deleted as superfluous. The Postal Service has received a number of requests from the public for authorization to make use of the designs of past postage stamp issues, including offers to pay reasonable royalties in accordance with general commercial practices. We have begun to accept these requests, and royalties which will be useful in paying part of the cost of producing these items (a cost otherwise assumed by purchasers of postage) are now being set aside for the Postal Service. Under the criminal statutes, stamp designs may be used only for certain limited purposes or as otherwise authorized in accordance with law. 18 U.S.C. § § 474, 504. Accordingly, the 1938 Act, as we read it, permits us to expand private access to the use of stamp designs under reasonable terms and conditions; it cannot be exer cised to make private access any narrower.3 In short, the Postal Service proviso of 17 U.S.C. § 8 is a postal law which was proposed for postal reasons by the Post Office Department and enacted by the Congress on the recommendation of the postal committees. None of the changes that have been made in this statute since its enactment in 1938-including its codification in title 17-have changed its substantive effect. The Postal Service considers this provision to be of present use to the Government and has received indication that members of the public wish to have the benefits it can provide. It would not seem reasonable for a general revision of title 17 simply to repeal this postal statute. While its precise meaning is not finally established, it would appear that any needed clarification is beyond the scope of the copyright revision and should come either from the courts or from further legislation arising in the postal committees which first adapted it. Accordingly, we recommend that H.R. 2223 neither repeal nor attempt to perfect the interpretation of this part of section 1 of the 1938 Act. Rather, we believe that the supplemental provisions of the bill should preserve the status quo by rejoining the provision, in substantially its original form and without substantive effect, with the rest of section 1 as pres Of course, it provides a useful civil remedy, in place of criminal prosecution, against illegal uses of stamp designs. ently codified in title 39. Treating the provision in this manner can do no harm even if it is eventually held to be superfluous. However, deleting it would foreclose what we believe will be shown to be a beneficial provision of law. Sincerely, W. ALLEN SANDERS, Assistant General Counsel. THE COMMONWEALTH OF MASSACHUSETTS, COMMUNITY ANTENNA TELEVISION COMMISSION, Boston, November 6, 1975. Hon. ROBERT W. KASTEN MEIER, DEAR REPRESENTATIVE KASTEN MEIER: Enclosed please find a copy of the statement of the Massachusetts Community Antenna Television Commission on copyright liability for cable systems. This statement sets forth the principles unanimously adopted by the Massachusetts Community Antenna Television Commission on October 2, 1975. It was presented to Senator Edward M. Kennedy for inclusion in the record of the hearings before the Senate Judiciary Committee which is considering new copyright legislation. Very truly yours, Enclosure. ANTHONY G. OETTINGER, Chairman. STATEMENT OF THE MASSACHUSETTS COMMUNITY ANTENNA TELEVISION COMMISSION The Massachusetts Community Antenna Television Commission believes that the question of copyright liability for cable systems must be considered in conjunction with the current regulations of the Federal Communications Commission which govern cable television. An approach should be taken which does not burden cable subscribers and cable operators with additional charges for the carriage and viewing of signals of local broadcast stations, but which recognizes the fairness of additional payments if greater viewing opportunities are provided through relaxed federal regulation. If, however, the current stringent FCC cable rules remain in force, and greater viewing opportunities are not realized, then no copyright liability should be imposed. The cable subscriber should not pay additional fees if no additional benefits are derived. To these ends, the Massachusetts CATV Commission proposes that the following principles be adopted in the enactment of copyright legislation. No copyright fee should be required for the carriage of FCC mandatory local signals. If the cable operator must carry the signals of a broadcast station, the operator should not also be required to pay for carriage of the signals. Any copyright fee which is paid by a cable system operator would become a cost of operating the business which would be reflected in the rates charged to subscribers. A copyright fee for local signals levied on the cable operator would penalize and discriminate against the cable subscriber who, by necessity or choice, receives his or her local broadcast signals by means of a cable rather than by "rabbit ears," a rooftop antenna or even through a cable attached to a master antenna system serving an apartment complex. The nonpayment of a copyright fee for loca Isignals would not be unfair to either broadcasters or copyright holders. The copyright holder whose work appears on a local UHF or VHF television station has been paid a fee based on the local distribution of the work. This fee is then reflected in the advertising 4 We suggest that section 105 of the supplementary provisions of the bill be amended by renumbering subsections (e) and (f) as (f) and (g), respectively, and inserting the following new subsection: "(e) Section 405 of title 39 of the United States Code is amended to include the following new subsection: (c) Notwithstanding the provisions of any other law, copyright may be secured by the Postal Service on behalf of the United States in the whole or any part of the publication authorized by this section." " |