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('ommunications Lau.--Under the federal communications law, foriher med casting is by definition non-commercial and non-profit in character. As. . television stations, Section 73.621 of the FCC Rules and Regulations prajur 23 follows:
"S. 73.621 Non-commercial educational stations. In addition to the through visions of tbis subpart, the following shall be applicable to non-comfitria. *. cational television and broadcasting stations :
*(a) Except as provided in paragraph (b) of this section, non vere | educational broadcast stations will be licensed only to nonprofit 1.' organizations upon a showing that the proposed stations will be und prar to serve the educational needs of the community; for the advancement of D tional programs; and to furnish a nonprofit and noncommercial television cast service.
"(c) Noncommercial educational television broadcast stations may tra". educational, cultural and entertainment programs, and programs del use by schools and school systems in connection with regular mbi vui well as routine and administrative material pertaining thereto,"
With respect to public radio stations, Section 73.513 contains a su simpler provision to the effect that: "a noncommercial educational N! cast station will be licensed only to a nonprofit educational orxanim...! uon showing that the station will be used for the advantment of an ruusal maa program";
Section 73.621 and 73.303 are set out in full in Appendix A bereta,
The provisions of the Public Broadcasting Act of 17 - the ha sir !! American public broadcasting-also emphasize the non-untulberrial hanip public broadcasting and provide for the establishment of a non-pruut autot tion, known as the Corporation for Public Broadcasting with the expre! tion of engaging in public interest activities ne a ry or desirable to ***!. commercial educational radio and television broadcasting. The pertineat , of the Public Broadcasting Act are set out in Appwindex B. inciuding the ever authorization of national common carrier interionnection series (per broadcasting at free or reduced rates in Section 3W1h).
Under the aegis of the Corporation for Public Broadcasting, the pa Broadcasting Service and National Public Radio late also been organi di 28 31 exempt non profit corporations, the membership of which is limited to be commercial, educational television and radio stations littiined as lo has the Federal Communications Commission.
224 berelore been widely regarded as clearly distinguishable
1-2 expressly forbidden from carrying advertising or sell
of a popular novel in its renewal term by a motion
el.albanking institution. The New York court found th
Priler was not liable for infringement damages in the m zik aatrol and supervision. Thus, the Rohauer Case bas
amsun what constitutes a “for profit" broadcast for the
nas be no question about the fundamental "nonprofit" chara
Protisjon is also made in the FCC Rules for outside 1
e towards public broadcasting programs sub
om op t
be broadıut in connection with any program" an
and 0.nbuting organizations are tas-exempt nonprofit :
e rial educational broadcast stations licensed
Dot so considered.
N 21 priprats into for profit" broadcasts. This ar
'ne, saribeally bar corporate advertising from publie an exquitate identification on public television and ra
*toi we why corporate giftsamade without return con
v el controlhould be considered for-profit in nature
n s is identified by name in direct connection wit
Nie, the larred as advertising by the F.C.C., and conse
s i r, termiscibility should preclude a "for profit'
** AMAP, in its mpcent House testimony, has gone
.ne all of the non-underwritten national, reg
Word forin the vast bulk of public broadcastin
! In the Debs Case finding of music copyrighi
SPECIFIC TYPES OF WORKS
The public broadcasting amendments proposed to the Senate and Ilse committees for the Copyright Revision bills are luy their own feriis publie radio and television broadcast only of non-rumatic tuncal, liberary 14 pictorial works. This memorandurn therefore do not deal with tiamii. 24 dramatizations or adaptation under Section lib) nor the drinks. covered in Section lid) of the existing ('ourisht Law Wante ter vi siderations with respect to music, books and pineagrajlis are to escape, interrelated, they can probably best be etamiriad parately in order
/1x1cal Work..--'nder Section 1(e), the copyright proprietor bas bied . 1909, the exclusive right to perform cops richte non dramatic 11.1: IT row the meaning "publicls for profit". From early times in broadcastikk, federal vr-ur! have affirmed that an over-the-air broadcast constituite a whir * . . and that commercial broadcasting is "for protit" espn though dire 1.: ! viewing fees are not charged tem, Remick v. American into Arris.
. 411 (6th ('ir. (1820). Vo decimon has, boneyor, yet deelt dirert'wohl mit der cution of the "for profit"rowtriction to public broadcasting.
Two (uso bate ****n cited by the music industry as fruta tre tonarpremption: A idied Juste Publishers r. De die Vemorial Rodion : FPS (2nd Cine, 1911) and Rohauet v. Killiam Shours Ime, 379 T ** UD CSD, 1971). In the Debe (ase, music liqen Nere rom for * : ** and wintaining programu brdast over & f lirnial radio) ptal... (*** ! non-profit (0rikiration as performed publicly fur firotit". Tie de t ! ! * un mirioumly questioned as to reasoning; inderd, I'murnar Sirns er bare ured that the result in the Debs Case "goes beyond the proper piace ther for profit' line' (Vimmer on Copyright, Sec. 107, n. 4. Mj. Tur
y kind programing. But this type of contamin
* !** T. Teleprompter cable television litigation, ho
r omet.is In CATV-relayed programs, whether sy
st e dertion lie) been publicly urged througho
S tr*** the past ten years. Sor has any lega ***ng
s of publishers, or the performing rig
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 assist. ance 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 broadenet 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 Ximmer on ('opyright at p. 406 about the Debs Case, it is dificult 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 withont return consideration and without content controlhould 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" brondcasting of a few underwritten programs should be taken to contaminate the whole of public broadcasting, including all of the non-underwritten national, regional and eren 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 (B8v. Teleprompter cable television litigation, holding that apon. sored ('ATV-origination programs have absolutely no effect on the question of copyright infringements in CATV-relayed programs, whether sponsored or $114. taining (Columbia Broadcasting System v. Teleprompter Corp., 3.75 F. Supp. 618 (D.O.N.Y. (1972)); 476 F. 2d 338 (2d Cir. (1973)) : 94 Sup. (t. 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
Omnes.jat practice has not been so consiste
*. Ir sale; public broadcasting can poin
Jarlic broadcasting agencies, there ha . ' indicating substantial consensus (
redpise dots perhaps exist in an allied . ..good! Rrational reprography. There, fac vrcho! (lims in Williams and Wilkins r. (
diselin'jot of scientific inagazine articles • ° . diaz further Congressional clarificatio • F e thup court of Claims decision was affirn
'1 '* ruling must be taken as the contro
fatuliere that a similar position would be ta .'.po
n jun lie) on public broadcasting pi · ** of the ligeratire uncertainty, to hold as * " 'iity mutil Congress clarifies the law. Doch words - The only provision applicable t
i nk Lotion pictures, television prog *****rd is Nation 1(a) "to print, reprint, pub * ***. ( uently, it would appear th
* Tuis pictures etc., and this has been V
i s debt about the right of the co
contest the widely known "not-for-profit" position consistent y and .. taken by public broadcasting representatives.
All of the above discussion primarily concerns so-called "perform is ." there are additional issues regarding music "recording" rights for patient#: casting programs. Although there is no express inusic "transcrip t cording" provision in Section 1(e), such a music proprietor's right a!! been argued from the other language in that section--although tret de confirmed by judicial interpretation. The fact that music internet lave asserted, if at all, that radio sound recordings are prohibited by N would seem to liinit their claim to the so-called "synchronization rights recorded television programs.
But even if the trade practice of licensing such "*snchronizativt" rich * television films is accepted, there is still considerable legal contruien whether the Sec. 1(e) compulsory license is not also applicable by step terms. (See Nimmer on Copyright in Section 103.14 at p. 442). It has ably contended that the music compulsory license applies at the 2e rar ? vision and radio cominercial advertisements. See Note. The Applicably 'LE Compulsory License Provision to Radio and Tclerixion Adrertising. I Law Review 1126 (1971), which also points out that the so called "2714 right" in Section 1(e) is limited to performances and mechanical Tria! "publicly for profit" and so may not be applicable to public broadca616 *13. (at p. 1134).
Indeed, the UCLA Note comment on public broadcasting appears to be . justified. From the statutory language, all Section lie) rights are subject to the same "profit" limitatiops as the performance rights tb : Accordingly, public broadcasting's performance rights exemption wood est seem to carry over to program recordings for public bradat as well 1". this specifie provision should take precedence over general interpretatib copying right under Section 1(a) to exclude the "for profit" restrictiva,
Literary works.- nder Section 1(c), the exclusive nights pertaining to > dramatic television works include the same "for profit* conditionen an " ble to music under Section 1(e). Hence, all of the above coural , ble to public broadcast of non-dramatic music would seem fqually tries" ! non-dramatic literary works-especially since Section 1(c) was are !" include “performing” rights only as late as 1932, and the sectiva italt rin to broadcasting as so amended.
It is clear from the legislative history of the Section 1(c) Apendrat 1! the request of the Copyright Othce, the addition of performanre mugh! dramatic literary works was intentionally made subject to inport): * *for profit" limitation as a quid pro quo at a time when non content! n. if not non-commercial television, had long been in elitenre. ('efi**163!), 1x** can be little doubt but that public broadcasting of non-dramatic htetary are exempt from copyright clearance or payment requirements
Not so clear, however, is the wording of Section lici on pn3m !* For Section lic) reads as follows: "(c) To... present the copri in public for profit if it be a... non-dramatic literary work to Lile se procure the making of any transcription or nord thereof br or fruto wa whole or in part, it may in any manner or by any method te ilahi det Orwented producid or reproduced, and to play or trurin it in rules" from G and to exhibit, ftpresent, produce or reproduce, it in any wet w ba." method whatsoever."
The phraseology is not only redundant; the punctuation is alw quite ! ! As a result, it must be admitted that whether or not protein Ni.. ! non-profit performance are within the copyright holder's riches letter & doubt on the basis of the statutory language alone. Amnin, from it kere history, however there is kood tranda to believe that the twin fin restrictions in the tirst and third cla un abonid apply to the radio and test.. merdings which fall within the Arcond clause. As commented in Ifr. 12,38 Publishers of Educational 7 le ti&um, 67 Yale Law Journal du at fri
** Satta 147.1 at p. 399.
i n 15 to prevent television recordings 1 * 10 probit". The federal courts have I *** Taniw taptions and records" under Se
a decija ltal. And since there is no
'n kapites and other pictorial works,
aldriuition of a “copy" as a pere
. This was undoubtedly what impell
n d in the absence of a simi
Ulogerd in Vure r. Columbia Brondcasting
!: The praneseot reproduction of a me the projected kinescope recording of it is
8,40'lata puppet that I conclude it is :
28Vam Care also pointed out, it can ** ab on a television screen, whe **P l ease tair use", ince of minir so It wtylistituting otherwise for the
dis Inile when the picture is use ***
in a non-commercial publ
the for profit limitation is also mising from the o rdine puro.. which relat*** to non-dramatir literary property. But the #..tap ipt ! wwwsion meterhele exp**** the intention that ile dumniatica! 111 No. 116), nd (ong . nd Sm u l)" C'ertainly, only mlaerpretation wind ben e in the case of: fing.
We the 13** fiorit of rido antes dun nalamat rewrded or re-recorded for bradat.
r etricted nature of the statutos de p e site of the public broadcasting
. letary or paletarial works on 1 *** * ar to be right infringe
w e weral counts
! *** Suireme Court said in
m ine claims upon the
!! **lad public evallal
l iate effent of our contris •: .-:: ite Inloor But the ultis
Infortunately, 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 bevause of an unauthorized proKran recording; authors and publishers have testified that licenses have at times bien sought and obtained by public broadcasting for non-dramatic literary works included in recorded programs. With the immense number of publishers and larke number of public broadcasting agencies, there has obviously been no real
mudy 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 1.8. ('ourt of (laims in Williams and Wilkins r. '.8., 487 F.2d 1315 (1973) 14ld multiple duplication of scientific magazine articles to be within the doctrine of "fair use" pending further Congressional claritication in the Copyright Revision Act. Since the fourt of (laims decision was affirmed by a divided Supreme (surt 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 unul Congress clarities the law.
Pictorial work 8.-- The only provision applicable to non-drainatic pictorial works -e, ercluding motion pictures, television programs etc.- is the general right granted in Section 1(a) “to print, reprint, publish, copy and record the copyrighted work". ('onsequently, it would appear that no performance rights apply to photographs, picture etc., and this has been confined by Vimmer un Copyright in Section 107.1 at p. 399.
There is also serious doubt al out the right of the copyright holder of a photoKraph or drawing to prevent television recordings for broadcast purjuse whether or not "for protit". The federal courts have in the past drawli distine tions 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 telerision 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 .S. Supreme Court decision in White-smith luxic Publishing (o. 1, Apollo, 209 C.S. 1 (1905). 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 Jura r'. Columbia Broadcasting System, 245 F. Supp. 587 (D.C.XY. 1930): "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 sup plied).
And, as the Jura 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.
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 Tuentieth 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 ('onstitution, reflects a balance of competing claims upon the public interest. Creative work is to be encouraged and rewarded, but private motivation must ultimately serie the cause of promoting broad public availability of literature, inusie, and the other arts, The immediate effect of our copyright law is to secure a fair return for an "author'creative labor. But the ultimate aim is, by this incentive, to
stimulate the artistic creativity for the general public good. "The ". ** of the United States and the primary object in conferring the mot Court has said, "lie in the general benefits derived by the public fritt of authors." For Film Corp. v. Dojal, 286 C°.S. 123, 127, Sep herdor 21 How. 322, 327-328: Grant v. Raymond, 6 Pet. 215 241 242. W4411 logical changes has rendered its literal terms ambiguous, the C : must be construed in light of this basic purpose."
It would seem that this judicial construction in the public interest N !" case of public broadcasting. predominantly come out on the side of 6* tion for the copyright proprietors and of non-liability for the public bra att
PERTINENT RULES OF THE FEDERAL ComuuXICATIONS COMMI441 Y
11: 1779 intervals during the program 1f the last su
reibe Announcement at the close of the pro M .18 of producing the program or providing funds ! 0015, except tbat in the case of a commercia on as of subsidiaries one of which has furnished
lary may be mirationed in addition to or inst s e bood the company for division or subsidi.
m! maiser of this provision, the Commission ma .
tiptive material only when deemed necess: " baring the saine or a similar name, No me WC Wib which a commercial enterprise being
!!!he Dade of the product or service is the sa . *
ary) and is so included. A repeat broado " disparate program for the purpose of this note. 1.
E ' may be made of general contribut th e broadcast of programs for part, or all
ay be m:de at the opening and closing of th
0 $ or organizations whose substantial contr. >> aor segment. In addition, one sucb general
of the day or segment. The provisions o
!!: pily to announcements under this note. 51. is ons on credit announcements imposed * Adres to program material, the production of - 1"!'91. ! aber absouncements broadcast before
10 roto entered into before Xovember 30, 1970
1635 of Notes 1 and 2 of this section shal 1 2 >
V a tions" are held to finance station ope **2. beigasts may identify particular produc i **
products or services beyond that nec T o ute may be given to a display in the auct
1913 1. nabark, and product or service or a rep It! To r ical limitations on permissible announ &.
Dot apply to announcements on behal B o te Corporation for Public Broadcasting, 1 hun tos dativas • *18!! : amended !c) added ef. 6-17-70 & eff. date
as of Santo before Novadcast before. Buttons" are held 2 of this sectio: 1976
$ 73.621 Noncommercial educational stations.
In addition to the other provisions of this subpart, the following L.. applicable to noncommercial educational television broadcast stations ;
(a) Except as provided in paragraph (b) of this section, DODO R cational broadcast stations will be licensed only to nonprofit educational 2012 tions upon a showing that the proposed stations will be used primarily foute educational needs of the community, for the advancement of een **** grams; and to furnish a nonprofit and noncommercial Irlesisin brui: service.
(1) In determining the eligibility of publicly supported educational 71 zations, the accreditation of their respective state departments of shall be taken into consideration,
(2) In determining the eligibility of prirately controlled educational (ta » tions, the accreditation of state departments of education or recouted to and national educational accrediting organizations shall be trade consideration.
(b) Where a municipality or other political subdirixion has no inili: constituted educational organization such as, for example, a tant e s tion having autonomy with respect to carrying out the municpality n...? program, such municipality shall be eligible for a noncommercial 1):* television broadcast station. In such circumstances, a full and detallı must be made that a grant of the application will be consistent with the *** and purpose of the Commission's rules and regulations relating to **
Noncommercial educational television broadcast Stations m educational, cultural and entertainment programs, and program den !. use by schools and school systems in connection with regular school or well as routine and administrative material pertaining thereto.
(d) A noncommercial educational telerision station may brad1. p . produced by or at the expense of, or furnished by prons other than that, *** if no other consideration than the furnishing of the program and the y dental to its production and broadinut are received by the licener Tri" ment of line charges by another station, network, or sinne olivat tt. licensee of a noncominercial educational television station, or priberalni *** tions to the operating costs of a station, shall not be col widerd alw.!" hibited by this paragraph.
(e) Each station wball furnish a nonprofit and noncomercial lurused: fre lowever. noncommercial educational television stations will top do the provisions of $ 73,04 to the prient that they are a leabie to the lines 11 of program prawneed he, or at the
" no announcements (Vual or nural) promoting the wie of a pnat #91." shall be broadenst in monation with any pri kra : Pruded,
! where a monsor'name or product appear on t1.* visual 1
&' course of a simultaneous or rebreidest program e her on the la
" similar forn, the mortions of the proxran show such informatat : bor deleted.
.41* 40 cm dotea , di added ef. 11-30-70; III (68.
SECTION 73.503 ****41 Lorning requirements and serrice. e n n of, and the service furnished by ponce pati staidots ball be governed by the following
IA .Lercial educational FM broadcast sta
ili dift. LIg the riigibility of publicly suppe
Besmitation of state departments of ed
she' *" the
El the station may tranștrit programs directe
r atire material pertaining there
A vor trial educational FXI broadcast : mi
ts, or at the empiense of, or furnis
e les consideration than the furn
a ti bevitt herrial educational FM or
*** hail furnish a nonprofit and nor V i vill! enrational FM broadcast stati * **
to the extent that they are app ** day by, or at the expense of, or furni
"****"* pipiliting the sale of a product or
** trte tbe predoming out furnishini
A Y he made no more than tv
tat where a program lasts