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('ommunications Lair. Under the federal communications la w porzioni casting is by definition non-commercial and non-profit in character. As !, , television stations, Section 73.621 of the FCC Rules and Regulations pr 1.3 follows:
“S. 73.621 Non-commercial educational stations. In addition to the nipinto it visions of this subpart, the following shall be applicable to non-vt. C. cational television and broadcasting stations:
"(a) Except as provided in paragraph (b) of this section, 2013-copa educational broadcast stations will be licensed only to nonprout 1.1 organizations upon a showing that the proposed stations will be used pr ** to serve the educational needs of the community; for the adran -*;? pq@">3 tional programs; and to furnish a nonprofit and noncommercial teleinden cast service.
i Noncommercial educational television broadcast stations mat traen educational, cultural and entertainment programs, and programs de ! use by schools and school systems in connection with regular som vil well as routine aud administrative material purtaining thereto"
With respect to public radio stations, Section 73.303 contains & .*: simpler provision to the effect that: "a noncommercial educational F ormat cast station will be licensed only to a nonprotit educational or u n showing that the station will be used for the advancement of an edon me program";
Section 73.621 and 73.303 are set out in full in Appendix A hereto.
The provisions of the Public Broadcasting Act of 1:withe bossic cars,'' American pubiic broadcasting-also emphasize the non-commential chararepta public broadcasting and provide for the establishment of a tear print tion, known as the Corporation for Public Broadcasting. With the Iberpes! Y tion of engaging in public interest activities nevysary or desirable to akm: commercial educational radio and television broadcasting. Tbe pertinentur of the Public Broadcasting Act are set out in Apundis B, including the ser authorization of national common carrier interessertion prve ! Du broadcasting at free or reduced rates in Section 3!(!).
Under the aegis of the Corporation for Public Bruideasting, the Pin Broadcasting Service and National Public Radio have als been crusta 49 exempt non-profit corp rations, the membership of which is limited to: cominercial. educational television and radio stations licensed as sua ! Federal Communications Commission.
therefore been widely regarded as clearly distingu
..21 put-protit public broadcasting, which is suppor
at of a popular novel in its renewal term by a m
the of the Copyright law.
a na be De question about the fundamental "nonprofit" *•.782. for the purposes of Section 1(a) of the Copyr
Pui um broadcasting stations are all nou-commercial edu f.
under FCC Regulations only to accredited # 4318ts to furnish non-profit and non-commercia ym Provision is also made in the FCC Rules for ou
**') of bein, towards public broadcasting program . ..Dette for on-air identification of the donors, with • 1 * ta merrials (visual or aural) promoting the s
be broadcast in connection with any prograr
Ibt .berrial educational broadcast stations lice
1991-98 commission. To paraphrase Ximmer on ( generatori de l'ave, it is difficult to see what could be not mu i Dot so considered.
In and obers have argued that underwriting gifts 5. Os are equivalent to program sponsorship, and thus
1994 Prietat» into "for profit" broadcasts. Th E rrer, in the face of the FCC Act and Res
d'ane, qelbiralls bar corporate advertising from *** t run rute identification on public television a .. to we wts corporate gifts-made without retur Internet controlhould be considered for-profit in na mp any is identified by name in direct connection
1: 3.d also seem clear that if "for profit", sue 7. Ale tarted as adrertising by the F.C.C., and om ent r e permisibility should preclude a "for ,
SPECIFIC TYPES OF WORKS The public broadcasting amendments proposed to the Senate and !!! : ) committees for the Copyright Revision bills are buy their own tertue publie radio and television broadcast only of non-dramatic museal, intrapr 2013 pictorial works. This memorandum therefore does not deal with travel". CA dramatizations or adaptations under Section 1b) nor the dream #* covered in Section 1(d) of the existing (opyright Law. While the less siderations with reset to music, frels and photogrupils are to urri interrelated they can probably best he examine kararly in ander
11ical Work-Under Section l(e), the copyright proprietor luas . 1901, the exclusive right to perform copy richte Dutdralattje" I'M AR FAD ! *publicly for profit". From early times in broadcasting, federal curt sfere , have a thirmed that an over-the-air broadcast constitute 4 punte : P and that commercial brondea ting is "for profit" eienthuch din tid viewing fips are not charged (eg., Remark ..American interrap!*• .! 411 16th Cir. (1920). So decision has, hower, Jet drall din tay with loved, cation of the "for profit" restriction to public broadcasting
Two (H have been cited by the music industry as perenaise towar! :: premption: A*muriatid / usic Publishers F. Elex Memorial Radu F. 2072 (2nd ('ire 1911) and Rohauer F. Killiam Sharma Inr,33 FN:s is (D.C.S.D., 1974). In the Deb Case, music lifINX were ruired fox - ** and sustaining programs bradcast over a cuathercial madlo to www bala non-proflt corporation as performed 'policly for profly". The dais
. ***u merlouwly questioned as to tesnius: indend. Profesor Vinn er las rra urked that the result in the Debe (okre "goes beyond the priser parte full !*** tbe for profit' linie" (Simmer on Copyright, Sec. lv., p. 41, 46). The do "
ely 1.** bat yarp
ANCAP, in its recent House testimony, has 17 lat what it rewiders to be the "for profit" br
e natus should be taken to contaminate not 515€ lisiling all of the non-underwritten nationa s
i te for the past bulk of public broad ' n we in the Debs Case finding of music con ' trial station* sustaining programs by virti the issued programing. But this type of cont **** est has been derisirely dismissed by the te
(BX8. Teleprompter cable television litigatio
Peripatiria prigrams bave absolutely no effec **** r berita in CATV-relayed programs, wheth og F ra Bradronting System v, Teleprompter 4
Trioli 476 F. 24 335 120 Cir, (1973)): 94 S
9. pet doel of weight must be given to the fa San Ban that publie television or radio broadcasts Supp
o rtion liel been publicly urged thro E s imover the past ten years. Sor has an B u ate authors or publishers, or the performin
(ane has therefore been widely regarded as clearly distingulshable from non. futurreal. Don-profit public broadcasting, which is supported primarily by pubic funds, active exclusively in educational and other public interest pro gratning, and expressly forbidden from carrying advertising or selling air time Her rommercial stations.
'Ile kushaurr Came was principally concerned with the question of mpyright Infringement of a popular norel in its renewal term by a motion picture pro durel under license during its original term. It peripherally related to publie bruadcasting only in that the motion picture was later broadcast over an ETV station under license from the autisorized film distributor, with oinancial anxiet. ar from a lokal banking institution. The New York court found that the bank ing underwriter was not liable for infringement damage in the absence of programmatic control and supervision. Thus, the Rohauer (as has little, if any, ditut bearing on what constitutes a "for profit" brondoost for the purposes of Nertion lie) of the Copyright law
1 lpre can be no question about the fundamental "nonprofits character of polle brudemmtans for the rim of Sextion lin) of the Copyright Law or other wine. l'ubic broadcasting stations are all non-commercial educational brondonut stations, loense under Fr Regulations only to accredited pon-profit M . tional organizations to furnish that profit and main cotanerrial television broadCart sprit. Provision is also made in the Fl Rules for outside a tributionis, tai riempt or others , towanix pubile broadcasting prikranin subject to standand muirrenents for on-air Identificution of the donors, with the specific prosto in that "to motherrials (sisual or nural) promoting the sale of a product or here shall be broadest in connection with any program and with strict estrictions on donor rrfernors to enfone that prohibition
nilarly, under the l'oblie Broadcasting Act of 1657, a mending Sectinn of t1.b.deral (ommunications Act of 11634, all of the national public broda ting
a) and distributin ornniajons ar tai mat tronfruft irrtie hink only non cometrin luontjonni hrundunt wtations tiernohy the Horn! Cettuineations ('otmisjoni lo paraphrase immer on pyright at p 100 alat the Deba (ae, it is diffault to me what could be not for profit if publie
ANA and others have ark that underwritine kilts from business or
tatom are ejuivalent to program tonship, and thus nert pullie te 1. n and radio printats into fur prutat" broadcasts '1his argument is not Yuvinink. however, in the face of the Art and Regulations with 24 1 stol alwe vinally bar (Torate t ertising from lille bound fin aful metrlit runmırate Identification on public telerinken an madio programe It in dl ult to me why ourfate ft tundle without noturu antideration anal witharut rutrat control whould be cuteidered for prufit in nature wimply benne
fr.laan It watid als) mert clear that If **for print, hunderwriter ben til. itu mund te barred an advertising by the loc, mind hierry, that the
ity fart at gif' mrmimit.dity buid portude asfor pront' judgment for feletal right priwwe
\sertl.lr A 11, in Its ment ferfer testimony A gone morh fartfort. aml argued that what it (ndrra to te the far fro" brandesting of a frtaturtwritten programas suuld te takrn trentaminate the whole of poblir brodrasting. It 11. 118. all of the hot 110.derwritten natural prona! Avrirt1 1- il pria , wiat ferin tliet byter of peole taking 11 mirt femt the twin sight in the Debe (a finding of transki vj1git inft.simnet.is ut the rommurrial mat. stat.sining programs by virt'ie of its run life pitala
Mont. 19 practice has not been so co ons te 2-salee: public broadcasting car
**** 11.10e by any author or publisher be
band banned by public broadcasting f
publi broadcasting agencies, the
'* ** ** Klucational reprography. There
3).* 's ruling must he taken as the ce up*, viirre that a similar position would F"** of N orlic) on public broadcasti O
legislatire uncertainty, to ha ** Viels until Congress clarifies the
W it-Tlie only provision applica I p in Lotion pictures, television
• 6 -1 15 sation 11a) "to print, reprint. *** ** ftruently, it would apoeg
'' ;',.i; pictures etc., and this has I'm in a 101.1 at p. 399.
to s doubt about the right of t
contest the widely known "not-for-profit" position consistently and the taken by public broadcasting representatives.
All of the above discussion primarily concerns so-called "perfora. " there are additional issues regarding music "recording" rights for
. casting programs. Although there is no express music "transcription cording" provision in Section 1(e), such a music proprietor's rizko ba.'*", been argued from the other language in that section-although met de confirmed by judicial interpretation. The fact that music interests hare asserted, if at all, that radio sound recordings are prohibited by IP would seem to limit their claim to the so-called “wynchruumala" rer recorded television programs.
But even if the trade practice of licensing such "synchronintion" na* television films is accepted, there is still considerable legal contrutensi , whether the Sec. 1(e) compulsory license is not also applicable hr # 18* terms. (See Nimmer on Copyright in Section 103.14 at p. 412). Itse ably contended that the music compulsory license applies at the 2e rate ftp vision and radio commercial advertisements. See More, The Applicability ** Compulsory License Provision to Radio and Tclerinion Aduertising, 1*: Law Review 1126 (1971), which also points out that the so called at right" in Section 1(e) is limited to performances and mechanical reforma **publicly for profit" and so may not be applicable to public broadca * . (at p. 1134).
Indeed, the T'CLA Yote comment on public broadcasting appears to try. justified. From the statutory language, all Section liel rights arx-31 !.* rubject to the same profit" limitations as the performance right ther" Accordingly, public broadcasting's performance rights exemption *17*, " seem to carry over to program recordings for public broadest as tre 1: this specific provision should take precedence over general interpretati. " copying right under Section 1(a) to exclude the "for profit" restriction.
Litcrary work. Under Section 1(c), the exclusive rights pertainin! > dramatic television works include the same for profit" condition* A* ate ;) ble to music under Section 1(e). Hence, all of the abore cogudenatua: ble to public broadcast of non-iramatic music would semn equally r11' ** non-dramatic literary works-especially since Section lic) * #1 = "hover " include performing" rights only as late as 1932, and the section it in to broadcasting as so amended.
It is clear from the legislative history of the Section 11c) a menur-atta : the request of the copyright Office, the addition of performance rich fes dramatic literary works was intentionally made subject to in.
" *for profit" limitation as & quid pro quo at a time when non-cuttituen . if not non-commercial television, had long bn in erstence, coa quently, 17* can be little doubt but that public brondcasting of non-dramatic literary su are exempt from copyright clearance or payment trquirements
Not so clear, however, is the wording of Sertion lic) on program them! For Section 1(c) reads as follows: "ic) To... present the o rigine " in public for proñt if it be a ... non-dramatic literary work: to make it procure the making of any transcription or nyord then by or frym w whole or in part, it may in any manner or by ans wethod ela.bited. de'," presented. proxucrd or reproduxed; and to play or perform it in mtk forja and to exhibit. represibt, produce or reproduce, it in any slanart of t. method whatsoever."
The phraseology is not only redundant: the punctuation is all**** As a result, it must be admitted that whether or not programa tram'? non-profit performanc*** are within the copyright holder's nights of fo 17 doubt on the basis of the statutory language alone. Again, from its ( TN. history, however, there is good t o to believe that the twin for 1 ** rotrictions in the first and third cla un should arply to the radio and teet. recordinis Mhich fall within the mound clause. As commented in * ! alle Publishers of Educaiional Telerumm, 07 Yale Law Journal (cs at **te
dh ' to prevent television record
irption lial, and since there is
wil l definition of a "copy" as a
v rot decision in White-Smith
in ppresly include recordings an
in the absence of a
tip faderent reproduction
Cabald puport that I conclude it
Wang Cap also pointed out, it ake on a television screen,
ales fair use", ince of !
Twinstituting otherwise fo ilt trip when the picture is friends in a non-cmiuercial
The for protit limitation is also missing from the reporting powe which relates to non-trainatie literary property. But be cutter
No. 10, xnd Cong. 2nd Sr2wl)".
(ertainly, only this interpretation #uld wareholes in the count Chit where the ta** m.).Ti of rad..) 4. tuits porgrad rerurdrd or r-ricorded for broadeant.
1 raction has not eno con intent av to be of additional 1. frrin taite a vanti public bro.dunting in mint out that no legal claim puern mide by any author or publisher
of an unauthorized pro *TI. Dwa . autors and publilier baie trifid that lietim have at time 1-4 ta with it and donated by public loreadating for pondratie literary works **tu frei in rain programs. With the immense dumber of pubiishers and War 1.mer of public broadcastinkantelex, there las obously en no real
of 4141 nicati sultansial cuvenus on either side, let alone
Bet a lkties udelitie de** Jeruths ist in an allinfeld of copyright law 1.11.11, n profit luntional reprekrnjahy 'llere, fnvy lov nimalar dilemma, " Infort o' ('1 111* in Williams and in pl 4 7 F 13'5 (1973) W!!inulled dupluation of mieblatte magazine articles to be within the doctrine of fair tiefending further tongresjonal claritation in the tourisht Reis *! Dit in the fourt of (lums darilon was atirt':«by a dividel Surrer (surt last line ita rulare that taken as the ultrolling In w today. It is thus T able to tvliese that a similar inition would be taken by the feel outs (nr:
P art of mon lir) on publir brandnetin program meriling right 1. i 11.11*** of the linistide Unirinintitoldalakalist structu r ation ef () Pialt liabuilt antal Congres clarifies the law
Portal work The only prostjon applicable to non-drainatle pictorial Wat i elluvillation poletures, tales p m ete' is the gheral T ! e in
11a) "to print, refifint, public, and nexure the (* .tel work' (
o uently, it wu'd amar that no pirformance rights 211 toplotnepietur* ple, and thus bas ( tirted by immer un ( **** *1911 in Wation 071 nt p m 1)Ir n ow
chelat alat the right of the copyright holder of a photo 1.8, or drawing to promont teletion online for bradost purt * ther or not for print. The fjernleurts have in the fut drawn din tr. 1 turn tri p tions and neur" under ons lie) And (d) and
** utjerajot liai, Atut there is frijit right to nun" R!", boilie to pobo. 73) Bu larr pa****71. nar. It is writte that trie *
l Wulil 1. ut be held to be "piens under Nation lin- quetially
1.1.1 te urt des imion in White math Vuir publishing (or ello, 4 IN 1 N ihin va undantri what tried the li' amendment of ..", n 111 to ripfruit Imlule nwnrdan and transcription right for non,' or laterar
intlo al fue fa l'Islar ailment for tu tetal * k #: 91d J»» toward a finding of non infringement in jublie brown l.fr pour .l.* 1.
in lurar (alum. Hre .qating Nyelm, 21.5 F Nort* 647 ! ! 1:*)) 11. pianewrist reiction of a lanel
p et on a te'rtan P antan thr prrjestem m frarding of 1 i. Nýifferent in nature front 1* nutral la'.ed put that I woulude it is not a gy'* .
The Association of American Publishers, the Authors Leame, and its organizations are doing everything they can. But it is vital that ( bago from you. Enclosed is a list of members of the House Judiriary yol **** conducting the hearings, as well as a list of members of the full Jod: ay! mittee, to whom they will report. I urge you to scrite the members of the nat committee immediately, and send a copy of the letter to your oirne and your Scnators, and a copy, if possible, to me. I'm sure you realise the portance of your action. Sincerely yours,
Trovas IL GOTY.
We hope it came is erer a double payment as a result of
portante sa: balloons, restaurants, night clubs or similar
ANUNTISING TYPOGRAPHERS AssociaTION OF AYE
Vero York City, X.)
mmittee om rourte. Ciril Liberties and Adminis
LAW OTTITS OF
Washington, D.C., One 1, ***
DEAR ITERB: Enclosed for your consideration is the proposed a ** * ILR. 2923 to place jukebox royalty rates under review and adjustmeat asir ity of the Copyright Royalty Tribunal.
For the purpose of the amendment, a brief explanation is appended T. note that the explanation assumes that the full Senate Judiciary EE will approre action earlier taken by the Senate Copyright Subu le reinstated this jurisdiction in the Tribunal. If there is further information you may require, please call up toe Sincerely,
BESJAMIS L 211111: Enclosure.
HARMAT: I did not hare an opportunity at the 1950 Virpwd to your question as to whether all - sirritt for type face designs were satisfied
******d with the provisions of Title I as writt sd * * tuisons continue existing law which doe
AVENDUEST TO II.R. 2003 (COPYRIGHT REVISION) TO PLACE JI KIMI RTU**
31 Amond H.R. 2223 as follors:
On page 58 line 33 and on page 50, line 14, delete the phrase "and 119 191 insert in lieu thereof, “, 113 and 116".
Erplanation: The purpose of the amendment is to confor nyt! artt me! Copyright Royalty Tribunal to reriew and adjust jukel ruralty rate : ally. The bill as drafted authorizes the Tribunal to undertaker pels ! adjustment of rates with respect to cable television systems 1!11 ! mechanical royalties for phono-records (MY. 115). The amendment prx* ** action taken by the Senate Copyright Subcommittee and by the Senate (ommittee.
• #rotarat any expansion of the coverage of Title
ep, we two amendments to Title II.
t universal licensing provision with
" ment of Section 220(a) of Title II to elimi
r ingement in the absence of actual certific
Washington, D.C., Nocer 6, !**
DEAR HERR: Enclosed for your information is a copy of a letter daim of her 3 to the Register of Copyrights from Bernard Korman of ASAP The *** concerns a question put to the Register by (hairman Knep*** whether there was ever a "doulile payment" as a result of ANO.IP 1924 Sincerely,
BENJAMIN I. 201758 Enclosure.
THE AUTHORS LEAGUE OF
New York, 1.8.,
* Nos of the opinion within the next few da
sa are Trievant to the pending Revision
op diwin them brietly. W
m-ar nk of the term “posthumous work
immer w ins firestrile the persons entitled to
4* T aj be right to renew. In the case of a
Motul by the proprietor of the ori
o ur Orchestra was completed du
*** interwal years Blad Boosey & Hawke i '
ite Bartok's death, there could
AMI KICAN HOTY OF (ou poena. ATTIC AND P *t*T*Y**
Yere York, N.Y., Norrmhet . 1993
Imam VS. RIN,58: I write to confirm our talephone conferentia t ** in whix fou add me of the question put to jouly (Chairmuan Ka..****