dealing with reproduction of postage stamp designs," including the limited exemptions from those statutes, now contained, as further amended, in 18 U.8 C. 1704 (1960), Section 1 of the Act originally was placed in its entirety in 39 Use, 4371 (1964 ed. Supp. V, 1939) by the editors of the United States Code, and remained there until the final proviso was transferred to 17 USC § 8, when title 17 was eracted as positive law in 1947. Act of July 30, 1947, e. 391, 61 Stat. 662 Neither that nor subsequent changes in the statute have been intended to accomplish substantive changes, HR. Rep. No. 254, 80th Cong., 1st Sess, 1 (1947); Pub. L. No. 87 646, 21, 76 Stat. 446 (1962); 8. Rept. No 1875, 87th Cong, 2d Sess. 2 (1982); Postal Reorganization Act, §601), 4 Stat 777 (170), HR 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 Con.mittee in deference to their consideration of our recommendation, but have now been told that they prefer not to crange 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 dupli ative of the copyright authority which the Postal Service has exercised under the general provasjones of the 17 matice tue Postal Service and the Copyright Other concinded that the provisions of the Postal Reorgar..zation Act make the elapse In 17 USC ES which protulits copyright in works of the US Government injjel sable to ta reor, shized Postal Service Their belief rests on the opinion that although the mauit of the 1968 Act is unclear, it should be read as providing the former Pat Office Department and the Postal Service a sin ple exemption free, 17 Use is for stamp catalogs published under 39 Use JPG an exe" ("jon w!.ea wou'd have been necessary to prm it tir'e 17 copyright in the cutsces for the Post Office Departuent but not for the Postal Service. This apparently "14 aw the interpretation of the draft en of the origi acope tion of the 17. a."hot,h, as nirendy stated their action in removi: g the clause from tite 59 lats no legal effect on, the provision's resting A faough we agree with the Copyright Office that the precise intention of the 16 Act is not as e cariy expressed as na't be desired, we believe that the mout Bertin," je interpretation of the provision is that this postal statute did not intend to provide a tit e 17 copyright at all It is fluum frat ng that no Government Máy tiny ln i been permitted to obtain copyright under the Copyright Act before 1s nor was any agency so authorized for the mevreditig 3 years. Moreover, section 1 of the 1948 Act was part of an integrated plan enacted by Congress on the advice of its postal coni taffees to regiate the pe of postere statt p designs, wh did not amend the Copyright Act of 195 and indeed whichy at plecat the authority it confers may be exercised notwithstanding anything to the con trary in the Copyright A t or any other law 15, our opinion, the 168 Act, assi, hed gothority to the Post Offen Detajet potat in the nature of a general proprietary right in its stan p des,, his P's order to etos? e the Department administratively to issue Boenses to pernit controred private tines of the des gas to the extent four d apor »priate levord the wh fed at stutory mutuorization for certain gen, ral prate je mies persuitted by the 168 A ta auer diuenus to the otherwise prohit five criminal Patufen. The postage stat p desialis to which this nuthority wond ex'itad without reftret, e to the CopyFight Act, woud be 11 me lo strated in a patiention to be listed by Phần s Monroe at of Documents, at the request of the Posti, safer bekend cala ogning the postage stam m of the Utated States. În in setg that Congress of the advice of the non? „k evoltat team Puped of the whi མཉ《『* -』«ད! ↓ [r- teལ་ o! 。、《u『,uའི་ན་ཟླའིaxས』 1 Jan 21e use of the tera ༄ ཙྩེས་ P།sxa ་ Referal literary pro «rty pronegative rater fan in the 1 copyright, since the prior “publication" of the stamps had been limited - art dedicatory-because of the general prohibition of private use contained a 'at criminal laws. In reaching the foregoing conclusion, we were influenced by the fat that an cepting the alternative interpretation that a title 17 copyright was intended w od mean that section 1 of the 1938 Act was completely trivial from the monet enacted. It is clear that under the latter interpretation no authority of a P tical use would have been conferred with respect to the postage stall, shak illustrated in the catalog. Applying the principles of the Copyright Act war meant that the prior sale of the postage stamps themselves (which had seen issued and sold for nearly a century without notice of copyright) would zu ko have irretrievably dedicated to the public all rights in their design prior to tas publication of the stamp catalog. It is equally clear that section 1 of 'se Act-like the rest of that Act-was intended to apply to postage stamp de- cis not just to the supplementary textual matter printed in the catalog. Tie 6 st ment long had shown-and the other provisions of the 1938. Act had teatre compelling governmental interest in controlling the private use of the de ce a postage stamps, which have properties involving the credit and authority of the sovereign and are not simply art works. Prior to the 1968 Act the most ↑ been permitted for any private purpose was the copying of portions of vira borders in philatelic publications in order to illustrate the distinctive ETI the pictorial designs could not be copied at all. Act of March 3, 1ean. Stat. 1437. However, unlike the illustrations, the textual matter had appeared a the stamp catalog regularly since 1927 and was not distinctive in any way Gat could have justified an unprecedented exception from the rule aga ettel copyright in Government agency works. See U.S. Post Office Department & Description of United States Postage stamps and Postal Cards (1927) (tar titled thereafter). We cannot believe, nor do we think that a court endent conclude, that the Post Office Department in proposing, the postal con rotten 1 approving, and the Congress in enacting this statute were so frivolous asters > lish a unique departure from this time-honored principle for no inteliigive «g* lative purpose whatsoever. Interpreted in the manner we have suggested, section 1 of the 193% As present value to the Postal Service and the public and should not be deleted 48 superfluous. The Postal Service has received a number of requests from the portat for authorization to make use of the designs of past postage stamp istes, „Iing offers to pay reasonable royalties in accordance with general conseradi practices. We have begun to accept these requests, and royalties which Wuseful in paying part of the cost of producing these items (a cost otherwise as sumed 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 a purposes or as otherwise authorized in accordance with law, 18 USC 41474 **** Accordingly, the 1938 Act, as we read it, permits us to expand private access to t use of stamp designs under reasonable terms and conditions; it cannot be ext cised to make private access any narrower * 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 that have been made in this statute since its enactment in 1968 in-ndren codification in title 17 have changed its substantive effect. The Patil Sey considers this provision to be of present use to the Government and Las revered indication that members of the public wish to have the benefits it can prov, te It would not seem reasonable for a general revision of title 17 simply to retea ". postal statute. While its precise meaning is not finally established it won Aernet? that any needed clarification is beyond the scope of the copyright revs * should come either from the courts or from further legislation arising in the pe**** committees which first adapted it. Accordingly, we recommend thựt HR 221 neither repeal nor attempt to perfect the interpretation of this part of se of the 1935 Act. Rather, we believe that the supplemental provisions of *** should preserve the status quo by rejoining the provision, in substantial * -** original form and without substantive effect, with the rest of section 1 as ¡rve For cure de proton a useful civil remedy, in place of criminal prosecutors. 859 186 Ille tai uimen of stamp de -igns, 1 ently codified in title 39. Treating the provision in this manner can do no harm even if it is even'ually 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 THEVISION COMMISSION, Boston, November 6, 1975, Hon. RomERT W. KASTEN MEIER, Dear Representative KastyNMETER: Enclosed please find a copy of the statement of the Massachusetts Community Antenna Television Commassa on on copyright lability for cable systems. This statement sets forth the principles urantiously adopted by the Massachypetts Community Antenna Television Colamission on October 2, 1975 It was presented to Senator Edward M Kennedy for inclusion in the record of the heatal gs before the Senate Judiciary ComnatLee which is considering new copyright legislation. The Massachusetts Community Antenna Television Commission belleves that the question of copyright liability for cable systems must be considered in conjunction with the current regulations of the Federal Communications Commisston which govern cable television An approach should be taken which does not burden cable subscribers and rable operators with additional charges for the carriage and viewing of signals of local broadcast stations, but which recognizes the fairness of addition a? parvments if greater viewing opportunities are provided through relaxed federal lation If, however, the current stringent FCC en'le rules remain in force, and greater viewing opportunities are not realized then no copyright liability should be it posed. The cabse subscriber should not pay additional fees if no additional bereits are derived To these ends, the Massachusetts CATV Commission proposes that the following principles be adopted in the enactment of copyrig it legislation No copyright fee should be required for the carriage of FCC mandatory local Bignals. If the cable operator must carry the » guam of a breytast station, the operator should not also be required to pay for carringe of the signals Any ergs right fee which is fund by a colle system operator wand der real est of operating the business which would be refected in the rates claryod to wigila A copo right fee for Imal egals jevied on the catge operator wond jetualize and d wriuitate nga fist the ca' e aglimozier who, by hevvelty or rhoice, receives his or her 1cal brond- ant migt -ls by means of a cable rather than by 'ra bit ears a rooftop a afer na oří cable attached to a interntifetita system serving an a vart ne Then invent of a copyright fre for boca as grain Won'd not be unfair to either brood esters or expanzn bera yright holder whine wh ས་ ོམསཔ་ །་འིafw་ ot for low al distrit-nti- n of the work. This for is then reflected in the advertising rates of the television station and ultimately paid by the consumer up the cable subscriber) as part of the price paid for an advertised prod, ta rather than a detriment, is a benefit to both the broadcaster and the c; holder. By providing clearer reception and in many instances greater 1x M distribution, the cable operator enhances the value of advertising on the ven television station and, in turn, the value of the copyrighted work. Cable systems choosing to retransmit other than local signals should par a copyright fee for distant programming imported. An exception should be 7′′vided, however, for a cable system operating in an area which has 5.7% local signals and where all the signals carried are thus distant sigas A copyright holder should receive a fee for the carriage of the copyrighted #K on a distant cable system. It is not unfair for the cable subscriber to pay a 'm for the reception of additional and more diverse programming; but if a few a the subscriber's viewing opportunities should not be limited by federa. me, a tions. FCC rules currently restrict the distant signals which may be by a cable system. These limitations on distant signal importation slremoved. Copyright payments should be related to the number of imported signals example, cable systems retransmitting four or less distant signals shot id be the for minimal payments. Systems importing more than four signals ** charged a higher level of copyright payments. Such a scheme of paymentsN encourage the importation of distant signals to a point, and then encourag tional programming other than distant signals. It would also afford a mes protection for existing national broadcast patterns. If distant signal importation restrictions are removed, however, a fun lige of protection should be afforded broadcast stations, who pay full copyraz A modified exclusivity should be adopted which would be limited to ser first showing of any program which the station has purchased or w receives from a network. After the first showing, a cable system sh permitted to retransmit the program without further restriction. When a cable operator pays full copyright fees for programming, the oțe usage of this programing should not be restricted by FCC rules, other the s exceptional circumstances. For example, all federal restrictions on juỹ ca showing of motion pictures should be immediately removed. The premise underlying the principles set forth is that the cable stimm should pay copyright fees only in exchange for greater viewing oppa ** brought about by diminished federal regulation of cable television If :federal regulations are not significantly relaxed, the Massachusetts CAA Commission urges that no copyright liability be imposed on cable televis a [Memorandum submitted by the Register of Copyrights] THE EFFECT OF THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWIES THE COPYRIGHT REVISION BILL (By Kent Dunlap, Attorney, Copyright Office) I. THE CONCEPT OF THE SEPARATION OF POWERS A. General theoretical basis The theory of separation of powers, on which the Federal Constituti based, is designed to divide the total power of government among a DE organs, each one serving as a check on the powers of the others. Alth_2" theory generally seeks to distinguish between law making, inw et fri law interpreting, there was purposely established an interrelations? p be me? the legislative, executive, and judicial branches in order to augment the e'wat and balances theory of government. The Congress received the power to estat inferior courts, to scrutinize appropriations, and to approve certain P*** appointments including nominations to the Suprerae Court. The Preside!! #1* granted the power to veto legislation passed by Cor gress and apreint le the Supreme Court. The Judici ory secured the power to pass og C matter questions although i nch of this authority was derived after the ad pa Constitution through case law Due to this intermingling of the functions of the three branches of giremnant it is clear that the principle of separation of powers was not meant to be đà inexorable table of organization which would strangle the process of government, but rather, a practical demarcation of powers which would prevent any one department from acquiring absolute authority. Professors Jaffe and Nathanson probably expressed this point best when they wrote: “dit has always been recognized that each of the three organs of government ahares its function in some degree with the others, the exact adruxture differing widely from age to age The Constitution itself mixes powers, The President participates in the formal legislative process. Madison wrote a classic paper in the Federalist defending the Constitution from the charge of in pure mixtures of jowers. He pointed to the English Constitution, which never knew a time when there was an al solute separation of powers, Beyond the formal constitutional arrangements our system has always involved each of the agencies in the work for which the others were typically responsible, the distribution of functions varying from era to era. A fow examples illustrate the point. For many years the legislature and only the legiature granted divorces, a task now regarded as inherently judicial; the executive establishment made and still makes regulations for the er forcement of the tax system, adjudicated the inciden se of tax and levied je pardy assess ment; the judiciary boted price regulations and licet sed liquor dispensers, a task how performed by executive or administrative agencies. And finally, the busie judicial process either by application of the common law or interpretation of at stutes is, perhaps, as important an engine of law creation as guy rá Along similar lines Chief Justice Howard Taft characterized the doctrine of separation of powers in the following manner : “Federal Constitution and State Constitutions of this country divide the governmental power into three branches, din eurrving out that constituti in al ₫ vision....... it is a breach of the National fundamental law if Congress gives np ite legistative power and transfers it to the President, or to the Judici il branch, or if by law it attempts to invest itself or its members with either executive power or bad cial power. This is not to say that the tl ree branches are not en ord rate jarts of one government and that each in the feid of its duties may not invoke the action of the other branches in so far as the netion invoked shall not be an Asstt. tion of the cor stitutional field of netion of another bratch. In deteri. Ving what it may do in seeking aos stance from my ther branch, the extent at 1 cap. a fer of that assistance nonst be fixed according to comtastisense and the inherent hecessities of the governmental co ordination B The constitutional hame of legislative power Establishing the majority of the legislative powers of Congress is Article 1. Meet ot, N of the Federal Constitution Clanse k of this section eapowers Con,, renom to eust copy right je, maiton in the following m titer To promote the Progress of Science and time fal Arts by securing for United Tales to Authors and Inventors the exclusive Right to their respective Writings In order to carry out the enumerated powers of Congress the 1-xt clause of Next on Mauthorized Congress to minke al laws why not all be nevoiary and proper for the exrrying Info execution the foreg ng powers 1et!ས་མ 11.m me vipe of 1! by close Chief Justice Marsh (Ew dronjengus on In Mer with a Maryland' he'd that it was within the dieret བསླ་ས ི་རྫས * . Is to meet ma das reasonally adapted to e^uctuate t ́eir lea. ative d5bes. At the hejrt of fl að of lion he wrote t e following langin ge of the estist ↑ Pion must al ow to the national le, «nt je flist dim ret te wet to the Beats by which the powers it e xt ངོpppt faeluss ༩” དུསཙྪ་ནཔའི་སྨྲོས་ན་ སྙ!,?w། ༈ !, wt! ¥ {«a{v དཱི་དཱིn f P Pels her most gencfici 1 to the pec If he wil in the se pe of the copoet fijf, in are plannin nearted to "st end w .et |