Communications Law.-Under the federal communications law, public he casting is by definition non-commercial and non-profit in character. As to E 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-commercLL, POU cational television and broadcasting stations:

**(a) Except as provided in paragraph (b) of this section, non-commer. educational broadcast stations will be licensed only to nonprofit edua, ta organizations upon a showing that the proposed stations will be used primar to serve the educational needs of the community; for the advancement of ed an tional programs; and to furnish a nonprofit and noncommercial television in as cast service.

"(c) Noncommercial educational television broadcast stations may tra educational, cultural and entertainment programs, and programs desiz!* use by schools and school systems in connection with regular school co«I»% AF well as routine and administrative material pertaining thereto "

With respect to public radio stations, Section 73.503 contains a smar simpler provision to the effect that: "a noncommercial educational FM :roi cast station will be licensed only to a nonprofit educational organiz. t. e. als upon showing that the station will be used for the advancement of an educat 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 cham* *? American public broadcasting-also emphasize the non-commercial character ? public broadcasting and provide for the establishment of a non profit c tion, known as the Corporation for Public Broadcasting, with the express 2190 tion of engaging in public interest activities necessary or desirable to asca" "commercial educational radio and television broadcasting. The pertinent sec 238 of the Public Broadcasting Act are set out in Appendix B, including the sper. “ authorization of national common carrier interconnection services for Johar broadcasting at free or reduced rates in Section 396(h).

Under the aegis of the Corporation for Public Broadcasting, the P-2 Broadcasting Service and National Public Radio have also been organized as tat exempt non-profit corporations, the membership of which is limited to 2 commercial, educational television and radio stations licensed as sử h by the Federal Communications Commission.

SPECIFIC TYPES OF WORKS

The public broadcasting amendments proposed to the Senate and II-se N committees for the Copyright Revision bilis are by their own terms im, et te public radio and television broadcast only of non-dramatic musical, literary and pictorial works. This memorandum therefore does not deal with translates dramatizations or adaptations under Section 1(b) nor the dramate Wrat covered in Section 1(d) of the existing Copyright Law. While the leas siderations with respect to music, books and photographs are to setur rå emi interrelated, they can probably best be examined separately in order

Musical Works-Under Section 1(e), the copyright proprietor has had so 1909, the exclusive right to perform copyrighted non dramatic muse of VW "publicly for profit". From early times in broadcasting, federal court de have affirmed that an over-the-air broadcast constitutes a publie perf r., a 19 and that commercial broadcasting is "for profit” even though direct listit 4 viewing fees are not charged (eg., Remick v. American Auto Accrarter SPA 411 (6th Cir. (1925). No decision has, however, yet dealt directly with lat 4, an cation of the "for profit” restriction to public broadcasting

Two cases have been cited by the music indu try as persuasive toward 12 exemption: Associated Music Publishers v. Deba Memorial Radio Fund 14 F.2d 852 (2nd Circ. 1944) and Rohauer v. Killiam Showa Inc, 379 F 81; 13 (D.C.S.D., 1974). In the Debs Case, music licenses were required for sptured and sustaining programs broadcast over a commercial radio station owned sta non-profit corporation as performed “publicly for profit". The devision l'un flas been seriously questioned as to reasoning; indeed, Professor Nimmer Las tra urged that the result in the Deba Case "goes beyond the proper place to 3′′** the for profit' line" (Nimmer on Copyright, Sec. 107.22, p. 405, 406). The int

Case has therefore been widely regarded as clearly distinguishable from noncommercial, non-profit publie 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 publie broadcasting only in that the motion picture was later broadcast over an ETV station under license from the authorized film distributor, with financial assistatre 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 lie) of the Copyright Law.

Ihere can be no question about the fundamental “nonprofit” character of publie broadcasting, for the purposes of Section 1(a) of the Copyright Law or otherwise. Publie broadcasting stations are all non-commercial educational broadenst 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 pubile broadcasting programs subject to standard requirements for on-air identification of the donors, with the specific provimon 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 strictions on donor references to enforce that prohibition.

tailarly, under the Public Broadcasting Act of 1967, amending Section 397 of the Federal Communications Act of 1934, all of the national publie broadcasting fiding and distributing organizations are tax-exempt nonprofit agencies, serv» keng only non commercial educational broadcast stations licensed by the Federal Communications Commission. To paraphrase Aimmer on & opyright at p. 406 about the Debs Case, it is difficult to see what could be not for profit if publie broadcasting is not so considered

ASCAP and others have argued that underwriting gifts from business corporations are equivalent to program sponsorship, and thus eonvert publie tele vison and radio programs into "for profit" broadcasts This argument is not convincing, however, in the face of the FCC Act and Regulations which, as inde ated above, specifically bar corporate advertising from publie broadcasting and restrict corporate identification on public television and radio programs It is difficult to see why corporate gift» made without return consideration and without content control should be considered for profit in nature simply because the donor company is identified by name in direct connection with financial contra ution. It would also seem clear that if "for proft, such underwriter identiteation would be barred as advertising by the FCC, and conversely, that the very fact of } CC permissibility should preclude a "for proft' judgment for federal copy right purposes.

Neverthelem ASCAP, in its recent House testimony, has gone minch further, and argued that what it evtsiders to be the "for profit" brosidensting of a few underwritten programs should be taken to contaminate the whole of pubar broadcasting, ineiuding all of the non underwritten national, regional and even docil programs, which form the vast buck of pubile broadcasting Nut port for this view is nought in the Deba Case finding of musje copyright infringemer ta on the commercial stations wust dining programs by virte of its considerable commercially sponsored programing. But this type of cot tamination argument by copyright holders has been decisively dismissed by the federal courts involved in the recvat CHSx Teleprompter cable television 1 tigation, holding that spen Bored CATV origination programs have absolute'y to effect on the question of mopyright infringements in CAIV relayed prograrus, whether spots-red or aris faining (Columbia Brondigating system V. Telepruajter förp (DONY (1972) 476 P 24 % (4€r (19755) 14 Nup Ct 1129 (1974) Hesliy, a great deal of weight must be given to the fat that never before has the assertion that public televison or radio broadcasts may be for proges for the purposes of Section Ice) been publicly urged throughout all the purs racht revision bestings over the past ten years. Nor him any legal sult ever been bring it by music authors or pun ishers, or the performing rigids nocieties to

contest the widely known "not-for-profit" position consistently and
taken by public broadcasting representatives.

All of the above discussion primarily concerns so-called “performing" rel= there are additional issues regarding music "recording" rights for path. casting programs. Although there is no express music "transcription cording" provision in Section 1(e), such a music proprietor's right has atte been argued from the other language in that section-although never d confirmed by judicial interpretation. The fact that music interests have » asserted, if at all, that radio sound recordings are prohibited by ver ¦would seem to limit their claim to the so-called "synchronization" right tr recorded television programs.

But even if the trade practice of licensing such "synchronization” ngth** television films is accepted, there is still considerable legal controversy whether the Sec. 1(e) compulsory license is not also applicable by its tom terms. (See Nimmer on Copyright in Section 109.14 at p. 442). It has bee ably contended that the music compulsory license applies at the 2e rate form vision and radio commercial advertisements. See Note, The Applicability W Compulsory License Provision to Radio and Television Advertising. 1× DOLA Law Review 1126 (1971), which also points out that the so-called "arrant 4 right" in Section 1(e) is limited to performances and mechanical reproda" de "publicly for profit" and so may not be applicable to public broadcasting at a (at p. 1134).

Indeed, the UCLA Note comment on public broadcasting appears to be we justified. From the statutory language, all Section 1(e) rights appear to be subject to the same "profit" limitations as the performance rights them." Accordingly, public broadcasting's performance rights exemption word ent seem to carry over to program recordings for public broadcast as wed a this specific provision should take precedence over general interpretation (%e copying right under Section 1(a) to exclude the "for profit" restriction. Literary works.-Under Section 1(c), the exclusive rights pertaining dramatic television works include the same "for profit" conditions as are 4;7579 ble to music under Section 1(e). Hence, all of the above consideratiors 2;; ble to public broadcast of non-dramatic music would seem equally relevant fe non-dramatic literary works-especially since Section 1(e) was Brended include "performing" rights only as late as 1952, and the section itself refer to broadcasting as so amended.

It is clear from the legislative history of the Section 1(c) amendment that si the request of the Copyright Office, the addition of performance rights for sit dramatic literary works was intentionally made subject to imposition of "* "for profit" limitation as a quid pro quo at a time when non-commercial rivi if not non-commercial television, had long been in existence, Consequently, ties can be little doubt but that public broadcasting of non-dramatic literary w tha are exempt from copyright clearance or payment requirements.

Not so clear, however, is the wording of Section 1(e) on program rveos! -gi For Section 1(c) reads as follows: "(c) To . . . present the copyrighted # ** in public for profit if it be a... non-dramatic literary work; to make procure the making of any transcription or record thereof by or from w: 13 whole or in part, it may in any manner or by any method be exibited, de vend presented, produced or reproduced; and to play or perform it in publie for 1"6" and to exhibit, represent, produce or reproduce, it in any maker or by ast method whatsoever."

The phraseology is not only redundant; the punctuation is also quite fixes) As a result, it must be admitted that whether or not program recordings non-profit performances are within the copyright holder's rights is open to a me doubt on the basis of the statutory language alone. Again, from its Congress, ca history, however, there is good reason to believe that the twin "for ;*** restrictions in the first and third clauses should apply to the radio and text a ↑ recordings which fall within the second clause. As commented in 3 fr. Le%, Publishers of Educational Television, 67 Yale Law Journal 663 at Fox?%, to si (1958):

"The 'for profit' limitation is also missing from the recording prov‚st m of die which relates to non-dramatic literary property. But the committee reps rt de 11-9 section nevertheless expresses the intention that the limitation app HP KT. No. 1160, 82nd Cong, 2nd Sess, 2(1851)".

Certainly, only this Interpretation would be sensible in the eve of ; *** head casting, where the vast majority of radio and television programas atr recorded or re-recorded for broadcast,

Unfortunates, past practice has not been so consistent as to be of additional interpretative assistance; public broadcasting can point out that no legal claim Las ever been made by any author or publisher because of an unauthorized prograin recording, authors and publishers have testified that licenses have at times heen sought and obtained by public broadcasting for non dramatic literary works mcinded in recorded programs. With the immense number of publishers and large number of public broadcasting agencies, there has obviously been no real besy of experience indicating substantial consensus on either side, let alone agreement between both sides,

But a better gå ideline does perhaps exist in an allied field of copyright law mely, non-profit educational reprography There, faced by a similar dilemma, eUS Court of Clims in Williams and Wilkins e U8, 487 F2d 1345 (1973) !«!! . lt.ple duplication of scientific magazine articles to be within the doctrine of fair use' pending further Congressional clarification in the Copyright Reviwig Act. Since the Court of Claims decision was affirmed by a divided Suprete Court 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 con, ts or the elvet of Section 1(e) on publie broadensting program recording rights – 1.kat is, in view of the legislative uncertainty, to hold against strict interpretation of cops right liability until Congress clarities the law.

Picto al works The only provision applicable to non-dramatic pictorial le exclusing motion pictures, television programs etc. is the general night granted in section 1(a) "to print, reprint, publish, copy and record the opyrigated work'. Consequently, it would appear that no performance rights apply to photographs, pictures etc, and this has been confirmed by Nimmer on Copyright in Section 107 1 at p 399

Diere is also serious doubt about the right of the copyright holder of a photograh or drawing to prevent televison recordings for broadenst purposes wether or not for pront". The federal courts have in the past drawn distines fotos between transcriptions and records" under Sections 1(e) and (d) and egas" under Section 1(a). And since there is no express "right to record" nj, i- ble to phot graphs and other pictorial works, it may well be that televisou recordings would not be held to be "copies” under Section 1(8)—especially In view of the historical definition of a "copy as a perceptible representation sites Bel S Supreme Court decision in White smith Mume Pchijshing Co. v. Apollo, 2018 1 (1908) Ilaw was undoubtedly what impelled the 19802 amendment of Noer, n lies to expressly. Include recordings and transcription rights for nondran alle hterary woTAR anel in the alme tice of a similar aandment for pictorial works wonid point toward a finding of non infringement in public bron-deunt 』ngsfew rafrakata;a

As was stated in Mura e Columbia Broadonating System, 245 F. Supp. 587 (DCNY 1965) **The evanescetit reproduction of a hand poppet on a television kett s or on the projected kinescope recording of it is so different in nature from free pyrighted hand puppet that I conclude it is not a copy temptaman mij

༦

as the Vuru Ca e also pointed out it can well be argued it at the br of gua jàm graph on a television mereen whether the program is live or te recorded atsatalow "fair use", since of minimal exposure not interfering with other ma om zoor mijlmfit alitig olur twine for the original work. This wond menni fa be e pesadis true when the picture is used for a a exemplary analytical or if .mation d ¡ irpose in a non ex miaereal pratnje television program

In view of the restricted tat ire of the statutory copyright mon quoy and the hos, profit character of the phar broad ali g syntes, toe du cast of in dran alle mense literary or på terial works on jurne tervision and radio pro

The Association of American Publishers, the Authors League, and other organizations are doing everything they can. But it is vital that Congress hear from you. Enclosed is a list of members of the House Judiciary subcommittee conducting the hearings, as well as a list of members of the full Judiciary Committee, to whom they will report. I urge you to write the members of the subcommittee immediately, and send a copy of the letter to your own Congressman and your Senators, and a copy, if possible, to me. I'm sure you realize the importance of your action.

Sincerely yours,

THOMAS H. GUINZBURG,

President.

LAW OFFICES OF

Hon. HERBERT FUCHS,

WEISMAN, CELLER, SPETT, MODLIN & WERTHEIMER,
Washington, D.C., October 1, 1975.

Counsel, House Committee on the Judiciary,
Washington, D.C.

DEAR HERB: Enclosed for your consideration is the proposed amendment to H.R. 2223 to place jukebox royalty rates under review and adjustment authority of the Copyright Royalty Tribunal.

For the purpose of the amendment, a brief explanation is appended. You will note that the explanation assumes that the full Senate Judiciary Committee will approve action earlier taken by the Senate Copyright Subcommittee which reinstated this jurisdiction in the Tribunal.

If there is further information you may require, please call upon me.

Sincerely,

Enclosure.

BENJAMIN L. ZELENKO.

AMENDMENT TO H.R. 2223 (COPYRIGHT REVISION) TO PLACE JUKEBOX ROYALTY RATES UNDER REVIEW AND ADJUSTMENT BY THE COPYRIGHT ROYALTY TRIBUNAL Amend H.R. 2223 as follows:

On page 58 line 33 and on page 59, line 14, delete the phrase "and 115" and insert in lieu thereof, ", 115 and 116".

Explanation: The purpose of the amendment is to confer authority on the Copyright Royalty Tribunal to review and adjust jukebox royalty rates periodically. The bill as drafted authorizes the Tribunal to undertake such review and adjustment of rates with respect to cable television systems (sec. 111) and mechanical royalties for phono-records (sec. 115). The amendment reflects the action taken by the Senate Copyright Subcommittee and by the Senate Judiciary Committee.

LAW OFFICES OF

WEISMAN, CELLER, SPETT, MODLIN & WERTHEIMER,
Washington, D.C., November 6, 1975.

Hon. HERBERT FUCHS,
Counsel, Committee on the Judiciary,
Washington, D.C.

DEAR HERB: Enclosed for your information is a copy of a letter dated Novemher 3 to the Register of Copyrights from Bernard Korman of ASCAP. The letter concerns a question put to the Register by Chairman Kastenmeier asking whether there was ever a "double payment" as a result of ASCAP licensing. Sincerely,

Enclosure.

BENJAMIN L. ZELENKO.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, New York, N.Y., November 3, 1975. Hon. BARBARA A. RINGER, Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. DEAR MS. RINGER: I write to confirm our telephone conversation this morning in which you advised me of the question put to you by Chairman Kastenmeier