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Communications Law.-Under the federal communications law, public broadcasting is by definition non-commercial and non-profit in character. As to pubiie television stations, Section 73.621 of the FCC Rules and Regulations provides as follows:
*S. 73.621 Non-commercial educational stations. In addition to the other pro visions of this subpart, the following shall be applicable to non-commercial educational television and broadcasting stations :
“(a) Except as provided in paragraph (b) of this section, non-commercial educational broadcast stations will be licensed only to nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community, for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service.
"(c) Noncommercial educational television broadcast stations may transinit educational, cultural and entertainment programs, and programs designed for use by schools and school systems in connection with regular school courses, as well as routine and administrative material pertaining thereto."
With respect to public radio stations, Section 73.503 contains a similar but simpler provision to the effect that: "a noncommercial educational FM broadcast station will be licensed only to a nonprofit educational organization and upon showing that the station will be used for the advancement of an educational program";
Section 73.621 and 73.503 are set out in full in Appendix A hereto.
The provisions of the Public Broadcasting Act of 1967—the basic charter for American public broadcasting-also emphasize the non-commercial character of public broadcasting and provide for the establishment of a non-profit corporation, known as the Corporation for Public Broadcasting, with the express function of engaging in public interest activities necessary or desirable to assist noncommercial educational radio and television broadcasting. The pertinent sections of the Public Broadcasting Act are set out in Appendix B, including the specific authorization of national common carrier interconnection services for publie broadcasting at free or reduced rates in Section 396(h).
Under the aegis of the Corporation for Public Broadcasting, the Public Broadcasting Service and National Public Radio have also been organized as taxexempt non-profit corporations, the membership of which is limited to noncommercial, educational television and radio stations licensed as such by the Federal Communications Commission.
SPECIFIC TYPES OF WORKS The public broadcasting amendments proposed to the Senate and House Subcommittees for the Copyright Revision bills are by their own terms limited to public radio and television broadcast only of non-dramatic musical, literary and pictorial works. This memorandum therefore does not deal with translations, dramatizations or adaptations under Section 1(b) nor the dramatic works covered in Section 1(d) of the existing Copyright Law. While the legal con. siderations with respect to music, books and photographs are to some extent interrelated, they can probably best be examined separately in order:
Musical Work8.–Under Section 1(e), the copyright proprietor has had, since 1905, the exclusive right to perform copyrighted non-dramatic music only when “publicly for profit". From early times in broadcasting, federal court decisions have affirmed that an over-the-air broadcast constitutes a public performance, and that commercial broadcasting is "for profit" even though direct listening or viewing fees are not charged (e.g., Remick v. American Auto Accessoriex, 5 F. 2d 411 (6th Cir. (1925). No decision has, however, yet dealt directly with the application of the "for profit” restriction to public broadcasting.
Two cases have been cited by the music industry as persuasive toward nonexemption : Associated Music Publishers v. Debs Memorial Radio Fund, 141 F. 2d 852 (2nd Circ. 1944) and Rohauer v. Killiam Shows Inc., 379 F. Supp. 723 (D.C.S.D., 1974). In the Debs Case, music licenses were required for sponsored and sustaining programs broadcast over a commercial radio station owned by a non-profit corporation as performed "publicly for profit". The decision itself has been seriously questioned as to reasoning; indeed, Professor Nimmer has even urged that the result in the Debs Case "goes beyond the proper place to draw the 'for profit' line" (Nimmer on Copyright, Sec. 107.32, p. 405, 406). The Debs
Case has therefore been widely regarded as clearly distinguishable from noncommercial, non-profit public broadcasting, which is supported primarily by public funds, active exclusively in educational and other public interest programing, and expressly forbidden from carrying advertising or selling air-time like commercial stations.
The Rohauer Case was principally concerned with the question of copyright infringement of a popular novel in its renewal term by a motion picture produced under license during its original term. It peripherally related to public broadcasting only in that the motion picture was later broadcast over an ETV station under license from the authorized film distributor, with financial 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
contest the widely known "not-for-profit” position consistently and publicly taken by public broadcasting representatives.
All of the above discussion primarily concerns so-called "performing" rights: there are additional issues regarding music "recording” rights for public broadcasting programs. Although there is no express music "transcription" or *recording” provision in Section 1(e), such a music proprietor's right has at times been argued from the other language in that section-although never decixirely confirmed by judicial interpretation. The fact that music interests have seldom asserted, if at all, that radio sound recordings are prohibited by Sec. liei would seem to limit their claim to the so-called "synchronization" right for recorded television programs.
But even if the trade practice of licensing such "synchronization" rights for television films is accepted, there is still considerable legal controversy over whether the Sec. 1(e) compulsory license is not also applicable by its very terms. (See Nimmer on Copyright in Section 109.14 at p. 442). It has been ably contended that the music compulsory license applies at the 2e rate for tel vision and radio commercial advertisements. See Note, The Applicability of the Compulsory License Provision to Radio and Television Advertising, 18 UCLA Law Review 1126 (1971), which also points out that the so-called "arranging right" in Section 1(e) is limited to performances and mechanical reproductions "publicly for profit" and so may not be applicable to public broadcasting at all (at p. 1134).
Indeed, the UCLA Note comment on public broadcasting appears to be well justified. From the statutory language, all Section 1(e) rights appear to be subject to the same "profit" limitations as the performance rights themselves Accordingly, public broadcasting's performance rights exemption would easily seem to carry over to program recordings for public broadcast as well, and this specific provision should take precedence over general interpretation of the copying right under Section 1(a) to exclude the "for profit" restriction.
Literary works.-Under Section 1(c), the exclusive rights pertaining to nondramatic television works include the same "for profit" conditions as are applicable to music under Section 1(e). Hence, all of the above considerations applicable to public broadcast of non-dramatic music would seem equally relevant for non-dramatic literary works-especially since Section 1(c) was amended to include "performing” rights only as late as 1952, and the section itself refers to broadcasting as so amended.
It is clear from the legislative history of the Section 1(c) amendment that, at the request of the Copyright Office, the addition of performance rights for nondramatic literary works was intentionally made subject to imposition of the “for profit" limitation as a quid pro quo at a time when non-commercial radio, if not non-commercial television, had long been in existence. Consequently, there can be little doubt but that public broadcasting of non-dramatic literary works are exempt from copyright clearance or payment requirements.
Not so clear, however, is the wording of Section 1(c) on program recordings For Section 1(c) reads as follows: "(c) To... present the copyrighted work in public for profit if it be a ... non-dramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced or reproduced ; and to play or perform it in public for profit, and to exhibit, represent, produce or reproduce, it in any manner or by any method whatsoever."
The phraseology is not only redundant; the punctuation is also quite illogical. As a result, it must be admitted that whether or not program recordings for non-profit performances are within the copyright holder's rights is open to some doubt on the basis of the statutory language alone. Again, from its Congressional history, however, there is good reason to believe that the twin "for profit" restrictions in the first and third clauses should apply to the radio and television recordings which fall within the second clause. As commented in Note, Legal Publishers of Educational Television, 67 Yale Law Journal 663 at Footnote 107 (1958):
"The 'for profit' limitation is also missing from the recording provision of 1(c). which relates to non-dramatic literary property. But the committee report on this section nevertheless expresses the intention that the limitation apply. H.P. Rep. No. 1160, 82nd Cong., 2nd Sess, 2(1951)".
Certainly, only this interpretation would be sensible in the case of public broadcasting, where the vast majority of radio and television programs are either prerecorded or re-recorded for broadcast.
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 sole internet 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. l'inrur, 21 How. 322, 327-328; Grant v. Raymond, 6 Pet. 218, 241-242. When the logical changes has rendered its literal terms ambiguous, the Copyright dit 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-proter. tion for the copyright proprietors and of non-liability for the public broadcaster
PERTINENT RULES OF THE FEDERAL COMMUNICATIONS COMMISSION
SECTION 73.621 8 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 licenspe, 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 serr. ice. However, noncommercial educational television stations shall be subject to the provisions of 8 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, houeror, 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 propiston 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