US Copyright Office: ar-1979

8/14/2019 US Copyright Office: ar-1979

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A N N U A L R E P O R T O F T H EREGISTER OF COPYRIGHTS

For the fiscal year ending September 30

LIBRARY OF CONGRESS / W A S H I N G T O N / 1980


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Library of Congress Catalog Card Number 10-35017ISSN 0090-2845Key title: Annual report of the Register of Coprights

Thisreport is reprinted from theAnnual Report of th e Librarian of Congressfor the fiscal year ending September SO, 1979


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ContentsTh e Copyright Office 1Administration, Personnel, Fiscal Activity, Space 2Production and Services 3

Processing Activities 3Acquisitions and Compliance 3Examining 4Cataloging 5Information and Reference Services 6Records Management 6Licensing 7Automation 8

Cooperation with Other Departments of the Library 9Copyright Deposit Collection 9Other Cooperative Activities 9

Copyright Office Regulations 10Special Projects 11Committee to Negotiate Guidelines for Off-the-Air Videotaping for Educational

Uses 11Section 108(i) Advisory Committee 11

Legislative Developments 11Performance Royalty for Sound Recordings 11Protection of Ornamental Designs of Useful Articles 12Rights of Artists 12Protection for Imprinted Design Patterns on Semiconductor Chips 12Exemptions of Certain Performances and Displays 13Other Legislative Activities 13

International Activities 15The 1979Joint Meeting of the Intergovernmental Copyright Committee and the Executive

Committee of the Berne Union 15Th e Berne Question 15Developing Nations and Copyright 16International Training Programs 17Cable Television 17Satellite Convention 17Computer Uses of Copyrighted Works 18Translators 18Other International Activities 18Distinguished Foreign Visitors to the Copyright Office 19Judicial Developments 19Subject Matter and Scope of Copyright 19Public Performance Rights and Related Topics 20Infringement and Defenses 23Related Rights 27


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Tables :International Copyright Relations of the United States as of September 30. 1979 31Number of Registrations by Subject Matter of Copyright, Fiscal Year 1979 35Disposition of Copyright Deposits, Fiscal Year 1979 36Summary of Copyright Business 37Financial Statement of Royalty Fees for Compulsory Licenses for Secondary Transmissions by

Cable Systems for Calendar Year 1978 98Financial Statement of Royalty Fees for Compulsory Licenses for Coin-Operated Players forCalendar Year 1979 38


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"To promote the Progress of Science and useful Arts . . . . 9


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Report to the Librarian of Congressby the Register of Copyrights

THE COPYRIGHTOFFICE

The accomplishments of the Copyright Off~ce orthe past fiscal year can perhaps best be measuredin the context of the copyright revision program,extending back at least to the enactment on Oc-tober 19, 1976, of Public Law 94-553, the Act forthe General Revision of the Copyright Law (title 17of the United States Code), and the intensepreparations through 1977 for its full initial im-plementation beginning January 1, 1978. This en-tire period has been one of concentrated attentionto the myriad complex issues concerned with thenew law, a period marked by almost total dedica-tion within the Cop yright Office to a common pur-pose, the results of which can be fairly assessed asmajor achievements. While implementation of thisnew statute, the first general revision of thecopyright law since 1909, brought temporary pro-duction obstacles th at in turn led to arrearages andinevitable frustration, these have been faroutweighed by the basic gains realized in theAmerican copy right system.The new law has preempted virtually all statecommon law and statutory law equivalent tocopyright and has substituted a single federalsystem of copyright protection, attach ing from th ecreation of a work, with a term in most instanceslasting for the life of the au tho r plus fifty yearsafter the author's death. All works thus now receivefederal statutory copyright from the moment oftheir creation, without regard to when or whetherthey are ever published. And the author is clearlyidentified in the statute as the first owner of the

copyright.Along with these gains in the recognition andprotection of the rights of the individual author,there have been added provisions that limit theseexclusive rights in the public interest, as well asoth er limitations resulting from the inevitable com-promises accompanying most legislation. The lat-ter include the statutory recognition of "fair use,"a provision under which certain uses are not in-fringements of copyright; limitations on the ex-clusive rights to perform or display certain worksarising ou t of th e nonprofit natu re of a given activi-ty; and compulsory licenses applying to certaincable television retransmissions of primary broad-cast transmissions, to public performances ofmusical works on coin-operated phonorecordplayers, to the use of certain copyrighted m aterialsby noncommercial broadcasting entities, and to themaking and distribution of phonorecords ofmusical works.The trend, both domestic and international,toward increased reliance upon compulsory licens-ing in particular controversial areas of copyrightbecomes each day more obvious and poses criticalproblems for the future of the fund amental conceptthat the auth or should have the right to control theuse of the copyrighted work. Indeed, as modemsociety moves toward that phase of economic lifecalled "post-industrial," where livelihoods areearned predominantly through th e sale of informa-tion, expertise, and rielated personal services, theextent to which copyrightable creations are pro-


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REPORT OF THE REGISTER OF COPYRIGHTS. 1979tected as exclusive property interests can becomecentral to national growth.The unsettled areas that remain in copyright lawseem also to reflect the movement to post-industrialmodels. These areas include educational uses ofcopyrighted works, the. changing roles played bylibraries and information networks, the specialtreatment of the growing not-for-profit sectors ofthe economy, and a host of issues involving the in-creasing complexity of mass communications.

All these forces, engendered by the new law andthe dynamics of passing time, affect in some degreethe Copyright Office. And it should thus be no sur-prise that fiscal 1979, like its predecessor, hasbeen a momentous period for the office. Theworkload again was staggering: applications forcopyright registration were received at a rate ofabout 10,000 per week; more than 429,000 regis-trations were made. a sizable increase over theprevious year; a substantial number of cases con-tinued to require correspondence, although therewas some reduction here as registrants becamemore experienced in completing the applicationforms called for by the new law; the drafting of in-formation circulars continued to have priority at-tention; and the servicing of the backlog of un-completed claims carried over from the previousyear remained a heavy burden. Indeed, the officehas come to believe that there is to be no such thingas a slow season in this specialized but importantarea of the law.

The staff responded to these challenges with zealand efficiency. Despite the continuing crush ofwork before them, -they displayed a remarkablystrong and positive commitment to making fiscal1979 a year of solid achievement.

ADMINISTRATION, PERSONNEL, FISCALACTMTY, SPACEThe administrative structure of the Copyright Of-fice stabilized in fiscal 1979. The new divisionsadded earlier in the reorganization that accom-panied implementation of the new law-RecordsManagement and Licensing-became fully opera-tional. Several divisions made internal alterationsin the interest of speeding the processing of ap-plications, and staff realignments were madethroughout the office as needed to redistribute per-

sonnel in accordance with shifts in the workload.In order to free time for legal and internationalmatters requiring the personal attention of theRegister of Copyrights, responsibilities for ad-ministration of the Copyright Office were realignedin June 1979. Full responsibility for matters con-cerned with workflow, currency, fiscal activities,and personnel was delegated to the assistantregister for automation and records. The assistantregister for registration and the special legalassistants to the Register participated in a varietyof legal and international studies in collaborationwith the Register.Jon A. Baumgarten, general counsel of theCopyright Office since January 1976, resigned onJune 8, 1979, to enter the private practice of law.Mr. Baumgarten's contributions to the solution oflegal and administrative problems created by thenew copyright statute were invaluable. On July 16,1979, Dorothy M. Schrader was appointed generalcounsel. Recognized as a leading expert in UnitedStates and international copyright law, Ms.Schrader has had fourteen years of varied legal andadministrative experience in the Copyright Office,including two years as general counsel, from 1974to 1976. The Register's staff was furtherstrengthened with the appointment of Michael S.Keplinger as special legal assistant. Susan B.Aramayo, chief of the Licensing Division, was pro-moted to the position of assistant chief of theCataloging Division on August 13, 1979. Ann L.Hallstein, formerly planning assistant to theLibrarian of Congress, was named chief of theRecords Management Division on July 30, 1979.The, Copyright Office lost several career staffmembers through retirement, among them Ed- 'mund C. Bowie, attorney-adviser; RoseV. Lembo,senior administrative officer; and Melvin R. Peter-son, assistant chief of the Cataloging Division.In fscal 1979 the many Copyright Office staffmembers honored through the Library of Congressincentive awards program stood as representativeof the effort and dedication of the entire officestaff of some six hundred people. Thirty staffmembers received individual cash awards for in-novative ideas and suggestions for various im-provements, and the special contributions ofanother twenty-seven staff members were recog-nized by group cash awards. Certificates inrecognition of meritorious service were given toseventeen employees, including one group award.


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REPORT OF THE REGISTER OF COPYRIGHIS. 1979A total of 232 employees enrolled at some timeduring the year in work-related courses conductedby the Library of Congress or in workshops or

courses held outside the Library. Supervisory staffattended training courses in a number of ad-ministrative areas, including instruction in labor-management relations.Indeed, a sizable fraction of administrative timeat various staff levels was allocated for labor-management matters in this first year of operationunder the Library's negotiated contracts with labororganizations. Library-wide changes in staff selec-tion procedures, including the use of selectionpanels, involved administrative planning at thedepartmental level as well as participation of addi-tional staff. Staff turnover was heavy, particularlyin some clerical areas, and recruitment of clericalworkers was a critical problem at various juncturesduring the year.Readjustments in the allocation of work space,together with planning for future space re-quirements for staff and copyright deposits, tookconsiderable administrative time. Projectedassignments to the Copyright Oflice of space in thenew James Madison Memorial Building werebrought up to date in order to accord with the cur-rent organization of the office. A complete inven-tory of office property was completed for use inconnection with the move back to Capitol Hill, andgroup tours of the Madison Building were con-ducted for the entire Copyright Office staff.

Following a survey by the staff of the LegislativeSubcommittee of the Appropriations Committee ofthe House of Representatives, and in accordancewith its recommendations, the Copyright OfficeLibrary was discontinued on September 30, 1979.Research materials necessary for the administra-tion of the copyright law were transferred to thecustody of the ofice of the general counsel. Asubsequent review by the Library of CongressAudit and Planning Offices was in process as thefucal year ended.PRODUCTION AND SERVICESAlmost every phase of copyright activity showedsubstantial production gains during fiscal 1979.Registrations numbered 429,004 for the fiscal year,and Copyright Ofice fees during fiscal 1979totaled $4,456,453, a part of which was credited,pursuant to law, to the appropriation for theCopyright Mice.

The Acquisitions and Processing Division stabil-ized most parts of its operations, moving towardcurrency in the handling of both incoming andoutgoing mail. The Mail Unit processed 695,095pieces of incoming mail, an increase of 6 percent,and 867,571 pieces of outgoing mail, an increase of12 percent.The backlog of unfinished business and opencorrespondence cases camed over from theprevious year has continued to be of central con-cern and to have a dominant influence on workpriorities and production schedules. The MaterialsControl and Fiscal Control Sections felt particular-ly the impact that came from the large volume ofsearches for pending applications and the process-ing of extraordinarily large numbers of refunds.AcquhMom and Compll.accThroughout the year the Deposits and AcquisitionsSection vigorously enforced the requirements of thenew copyright law for the mandatory deposit ofcopies and phonorecords for the enrichment of thecollections of the Library of Congress. Indeed,fiscal 1979 saw the Copyright Mi ce become amore active acquisitions s o u m for the Library ofCongress at a time when decreasing library acquisi-tions budgets are a national fact of life. Through itsestablished mechanism for selecting works fromdeposits sent to the Copyright Office for registra-tion, other departments of the Library acquired396,118 items for addition to the collections. TheCopyright Mice's zealous compliance effort en-abled the Library to continue to receive many serialpublications when subscriptions had to be canceledbecause of budget cutbacks. The value to theLibrary of the office's aggressive compliance activ-ity for all forms of material-motion pictures,sound recordings, and maps and atlases, as well asmonographs and serials-has been substantial.For motion pictures alone, the count for the firstsix months of fiscal 1979 showed the acquisition ofsome two hundred works in response to the de-mand effort, at a total value of more than$100,000.In effect, the new copyright law makes registra-tion voluntary but includes a provision (section407) which requires owners of copyright to depositcopies of "works published with notice of copyrighte'


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REPORT OF THE REGISTER OF COPYRIGHTS, 1979in the United States," if they have not registeredsuch published works. This section includespenalties for failure to comply with these depositrequirements. Receipts under section 407 tripled infiscal 1979, reaching a total of seventy-five thou -sand items. Some 85 percent of these materialswere newspapers and magazines that were proc-essed and forwarded to the Library's acquisitionsdivisions within a week of their receipt in theCopyright OfEce.Procedures have been worked out with acquisi-tions specialists in other departments of theLibrary to ensure that the Copyright OWce'sDeposits and Acquisitions Section is promptlynotified of undeposited works desired for theLibrary's collections, so that the section can pro-ceed with its requests for deposit. Experience hasshown that some 80 percent of these cases areresolved within sixty days after the initial requestand an additional 15 percent or more within thenext thirty days. Most of the remainder are re-solved after the final warning, which is issued ifthere is no resolution within ninety days of the de-mand. Failure to comply after the final warninghas been rare-only fifteen delin quent cases havehad to be referred to the Department of Justice forprosecution or other action.

The avalanche of changes in regulations and pro-cedures that accompanied implementation of thenew copyright law in 1978 continued to have itsprincipal impact upon the Examining Division.Some half million items, including books, pam-phlets, serial publications, d ram as, m usical works,works of art, maps, filmstrips, motion pictures,sound recordings, and other materials submittedfor copyright registration, were examined in fiscal1979. As the public becam e m ore experienced withthe new law and the new ap plication forms, claimsrequiring correspondence fell to an average ofabout 30 percent, as contrasted with 80 percentduring the ti n t m onths of the preceding year. Th ecorrespondence rate was still double th at under theprevious law, however, and various measures weretherefore undertaken to reduce the load still fur-ther. Perhaps the most important of these expe-dients was the decision to return to th e applicant,at the beginning of the in-process cycle, incomplete

submissions for registration (those in which a re-quired element such as app lication, fee, or copy ismissing), with a form letter. This has relieved ex-aminers of the need to review incomplete cases. Aspecial project, staffed with personnel from thePlanning and Technical and the ExaminingDivision, was able to make substantial reductionsin the num ber of cases held for correspondence bydealing at this initial processing point with thoseinvolving use of obsolete forms and insufficientfees, as well as with incomplete submissions.The intricacy of the examining process, whoseprincipal pu rpose is to d etermine the registrabilityof claims to copyright und er th e law, was evident inthe many conferences and working sessions heldthrough out th e year for the purpose of reevaluatingthe interim practices adopted in 1978 for use by theExamining Division under the new statute. Withthe continuing analysis of legal questions arising asa result of the implementation of the new law, ex-amining practices were obviously subject to con-stant review and refinement. In all instances theCopyright Oftice followed the basic policy ofsimplifying examining procedures to the fullestdegree possible without violating the integrity ofthe registration process, th e ultim ate goal of whichmust always be the creation of a truly meaningfuland reliable public record, particularly in light ofthe provision of the law making the certificate ofregistration "prim a facie evidence of the validity ofthe copyright and of the facts stated in the cer-tificate." At year's e nd th e drafting of some sec-tions of the revised collection of practices wasunder way, as the Examining Division learnedfrom experience what practices were proving mosteffective in m eeting the stan dard s of the Co pyrightOWce and the requirements of the new law.A special problem created by the new law is thesharp peak in the workload of the staff that ex-amines applications for copyright renewal. Thenew statute retains the old system for computingthe duration of protection for works that securedstatutory copyright before 1978 in that it providesfor a first term of twenty-eight years, measuredfrom th e d ate protection was originally secured bypublication or registration, along with the right toa renewal term, which is forty-seven years underthe new law. Thus, such copyrights in their firstterm must still be renewed in the twenty-eighthyear in ord er to receive the full new m aximu m te rmof seventy-five years for such w orks. B ut the newlaw provides that all terms of copyright are to run


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REPORT OF THE REGISTER OF COPYRIGHTS. 1979

to the end of the calendar year in which they wouldotherwise expire, and this in turn means that allperiods for renewal registration run from De-cember 31 of the twenty-seventh year to December31 of the twenty-eighth year. The result is that,since many renewal claimants desire to file at theearliest date, an unprecedented eighty-fivehundredrenewal claims were received in January, 1979,almost one-third of those received during the entirefiscal year. However, by adjusting personnel alloca-tions, renewal certificates were forthcoming with aminimum of delay.It is also interesting to note that in fiscal 1979 theRenewals and Documents Section of the Examin-ing Division processed for recordation 1,871notifications of filing and determination of courtactions under the copyright law, which the clerks ofthe courts of the United States are to send to theCopyright Oftice to be made a part of its publicrecords pursuant to section 508 of the new statute,a provision not found in the previous copyright law.Historically, copyright deposits have reflectedthe interests and concerns of the period in whichthey are submitted, and 1979 was no exception.~ m o n ~usical works examined were those en-titled "Gas Guzzler's Lament," "Daydreams of aNight Jogger," and "Nuclear Power Plants."Posters continued to be high among submissions ofpictorial materials. Receipts tended to indicate atrend away from prints applied to textiles and acurrent emphasis on woven patterns. The numberof fine art prints submitted rose as more artistssought registration for their works under the newlaw. Also of special interest was the registration ofclaims to original and renewal copyright in a 1950work entitled Ha-Mered by Israeli Prime MinisterMenachem Begin.

The accelerated production of the Examining Divi-sion in its effort to reduce the backlog has placedunusually heavy pressure upon the CatalogingDivision. Despite computer problems that slowedoutput in the first part of the year, the divisioncataloged more than 450,000 items, an increase of28 percent over the 351,000 items cataloged thepreceding year. Refinements in cataloging rulesand practices were introduced, improvements weremade in the Copyright Off~cePublication and In-

5teractive Cataloging System (COPICS), and ad-justments were made in personnel assignments toaccommodate changes in workload. Changes incomputer programs brought improvements inresponse time and prevented the data losses thathad previously required the recataloging or rekey-ing of large amounts of cataloging information.In an effort to give section heads a broaderunderstanding of the Cataloging Division's opera-tions, problems, and .relationships within thedepartment and with other parts of the Library, anadministrative internship program was conductedby the division. Each of the five section heads andthe head of the Technical Support Unit spent twoweeks working with the division chief and assistantchief. The program not only gave participants abroader perspective of the work of the division butalso increased their understanding of the respon-sibilities of the department and facilitated theirrapport with the division office and with fellow sec-tion heads, all of whom share a. commonality ofproblems.The alignment of personnel during the 1978reorganization of the Cataloging Division had beenbased on projections of the amount of work to bereceived in various classes under the new law.Following an initial period when incoming workwas transferred from overburdened sections tothose with smaller workloads, statistics wereavailable on which to base reassignments of per-sonnel. The size of the Audiovisual Section wasdecreased with a concomitant increase in the size ofthe Serials Section. Workload and personnelassignments are now in reasonable balance, and itseems likely that any future changes will occurgradually over a longer period of time.The technical support staff completed theediting and preparation for the printer of the lastvolume in the third series of the Catalog ofCopyright Entee s (volume 31, part 1, no. 2, July-December 1977) and all parts of the catalog for thefirst half of calendar year 1978. The interval be-tween registration and completion of copy forprinting has now been reduced to twelve monthsmaximum and is much shorter for many parts ofthe catalog.The completion of cataloged entries appears tohave stabilized. The year-end backlog of fortythousand registrations exceeded the division's goalof ten thousand on hand by the equivalent ofroughly a month's work. The volume of documentsreceived, a category not represented in the figurn


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REPORT OF THE REGISTER OF COPYWm, 1979for total registrations, app ears to be increasing at agrowing rate. Most of the documents contain in-formation about transfer or termination of literaryproperty rights, and there is a need for users of theCopyright Card Ca talog to have access to this infor-mation as rapidly as possible. Documents weretherefore cataloged on a priority basis, and by theend of the year the division had processed all butthe most recent handful of the twenty-six thousanddocum ents received during the year. T his currencyin cataloging of documents was possible only bythe transfer of staff from othe r sections.Informationand Reference Senlca

Activity in all sections of the Information andReference Division was intense throu ghout the yearas the volume of work increased.The Information and Publications Section againhad a record-breaking year. More than sixty-fourhundred visitors came to the Public InformationOffice for information or assistanc e, an increase ofmore tha n one thousan d over fiscal 1978. Incomingtelephone inquiries totaled over ninety-two thou-sand, a rise of thirty thousand over last year'sfigure. Some fifty-four thousand individual letterswere written to explain various sections of the newlaw or to advise the public on Copyright Officepolicies and procedures. Congressional inquirieshandled by the division numbered nearly a thou-sand.Interest in the new copyright law remained high,as evidenced by the continuing pressure of requestsfor speakers from the Copyright Office to addressprofessional conferences and seminars, especiallyon sub jects relating to the activities of the office. Asmany engagemen ts as possible were sch eduled, withspeakers from the office of the Register, theof ice of the general counsel, the Examining Divi-sion, and especially the lnform atioc an d ReferenceDivision. Requests to the Certifications andDocuments Section for additional certificates andfor copies of copyright deposits were also heavy.

Reorganization of the Reference Search Sectioninto the Copyright Reference and BibliographySection, resulting from a long and comprehensivestudy, was finished by the end of the fiscal year,and completion of a new organizational manualwas a welcome result of this challenging and ar-duous task. In addition to responding to writtenseuch requests involving more th an 125,000 titles,

the section conducted some twenty-two hundredsearches requested by telephone, assisted over ninehundred visitors, an d responded t o a wide varietyof telephone inquiries not requiring searches.

Fiscal 1979 was a constructive yea r for the RecordsMan agem ent D ivision. Toward the end of the year,currency was achieved in the production of cer-tificates an d in th e filing of the numbered applica-tions an d d ep osi ts, as well as in the filing of catalogcards.The establishment of the Certificate ProductionUnit in the Rec ords Storage S ection facilitated theissuance of certifica tes, a nd a total of 459,420 wereissued durin g th e year. Staff of the Records Main -tenance Unit of this section filed 482,620 applica-tions, and the Deposit Copies Storage Unit filed385,157 new it em s deposited for registration. Some530 cubic feet of records were transferred to theWashington National Records Center in Suitland,Marylan d, leaving 5 0,910 cu bic feet of deposits inthe storage facility at the Library's Pickett StnetAnnex in Alexandria, Virginia. Installation of aterminal for electronic posting of storage dataspeeded this process, and introduction of a newsystem for calling out and returning deposits madethe procedure more orderly and provided more ac-curate records of deposits charged out or trans-ferred.The Card Catalog Section experienced an es-pecially heavy incre ase durin g the latter part of theyear in the nu m be r of car ds received for filing. TheFiling and Revising U nit filed 1,755,769 cards, in-cluding 1,680.01 1 filed in the 1978-to-d ate catalogan d 43,395 in t h e 1971-77 file. Th e increased flowof cards necessitated an expansion of both of thetwo segments of the Copyright Card Catalog, andby the end of th e year 1.1 10 hours had been ex-pended in revising and expanding the catalog. Thesubscriber program, which provides cards toorganizations such as the performing rightssocieties, was able to remain current; a total of2,136,449 cards were processed for this program.In the Preservation Section, work continued onthe filming of early drama deposits, Patent Officeprints an d labels transferred to the Copyright Of-fice in 1940, a n d oth er records. During the year,214 reels of dramas deposited from 1901 to 1944were microfilmed, as were 48 reels of materialstransferred from the Pa tent Ofice .


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REPORT OF THE REGISTER OF COPYRIGHTS, 1979A particularly significant event occurring nearthe e nd of the fiscal year was the final processing of

microfilm records covering the last m aterial und erthe original microfilm project begun in 1968. TheCopyright Office now has a record on microfilm ofall copyright registrations from 1790 through 1975:The total microfilm record, on 16- and 35-millimeter film, comprises approximately twentymillion fram es an d is stored at the Federal R ecordsCenter in D enver, Colorado. Now th at this filmingfor security purposes is completed, the Preserva-tion Section is developing a long-range preserva-tion plan th at will set priorities for the next decade.Emphasis will be on preserving deposits, filmingother related records, and determining newpossibilities for space conservation.

The new Licensing Division, established in 1978,gained practical experience in this first full year ofdealing w ith th e two compulsory licenses for whichit has substantial responsibility under the newcopyright statu te: secondary transmissions by cabletelevision and public performances on coin-operated phonorecord players (popularly termed"jukeboxes"). Th e experience th at developed asthe year progressed enabled the division to con-clude the year with the entire elimination of thebacklog of jukebox applications awaiting action atthe end of fiscal 1978. With the addition of a fewindefinite and part-time staff members, the divi-sion was able to process almost all incomingjukebox applications for calen dar year 1979 withinthe twenty-day statutory limitation, to examine forlegal acceptability all of the documents necessaryfor cable systems to maintain their compulsorylicenses, and to deposit and authorize investmentof approximately one million dollars in jukebox

I receipts and over twelve million dollars receivedfrom cable television operators.Jukebo x licensing has decreased slightly. By th eend of fiscal 19 78 a to tal of 138,458 machines ha dbeen licensed, com pared to 129,677 having currentlicenses at the end of fiscal 1979. Indeed, licensedmachines represent only about one-third of thejukeboxes estimated t o be operating in the U nitedStates and subject to the compulsory liceqsing pro-visions. In view of this situation, the LicensingDivision launched a program to inform thosejukebox operators who may not be aware of the

new law. Notification was carried out by seekingfrom the governments of some five hundredAmerican cities copies of public listings of jukeboxoperators doing business in those cities and send-ing appropriate forms to operators on these listswho had not previously filed for licenses. It isbelieved that this campaign will considerably in-crease the number of licensed boxes.In conjunction with the Library's AutomatedSystems Oftice and Cataloging Distribution Serv-ice, the Licensing Division announced the publica-tion a nd availability, on a fee basis, of the JukeboxLicensing File for 1978 and 1979. This com puterprintout provides a list of over three thousandjukebox operators who have boxes for which com-pulsory licenses were ob taine d.

Jukebox a pplications for 1979 were again proc-essed by the automated batch method. Work onthe conversion of the batch system to an on-linesystem using cathode ray tube terminals has pro-gressed during the year, an d the technique isscheduled to be operational in 1980. A financialstatem ent of jukebox royalty fees for cale nda r year1979 is included in the tables at the end of thisreport.Cable activity also brought new pressures infiscal 1979. The 7,552 statem ents of accountreceived for 1978 had t o be examined in depth. Bythe end of the year, this had been com pleted exceptfor approximately 500 tha t presented special prob-lems. The examination process revealed issues thatrequired correspondence with over on e-third of the3,787 cable operators.Under the statute, after the fust day of Augusteach year the Copyright Royalty Tribunal, whichhas responsibility for the distribution of theseroyalties under the copyright law, determineswhether a controversy exists concerning the dis-tribution of th e cable royalty fees. O n the basis ofhearings held on September 6, 1979, the tribunaldeclared that a controversy existed. The LicensingDivision, in anticipation of such a declaration, hadalready ar ranged for the reinves tment of$13,108,621.06 on September 1, 1979, so thatroyalties could continue to earn interest for thecopytight ownen without interruption until finaldistribution by the tribunal. A financial statementof cable television royalty fees for the first an d sec-ond accounting periods in calen dar 1978 app earsin the tables at th e end of this report.During the year the chief of the L icensing Divi-sion spoke at th e annual convention of the A muse-


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REPORT OF THE REGISTER OF COPYRIGHTS, 1979ment and Music Operators Association and at theconvention of the National Cable TelevisionAssociation. As necessary, meetings on cable mat-ters were held with officials of the Federal Com-munications Commission and with representativesof performing rights societies and other interestedgroups. Staff members of the division attended allhearings called by the Copyright Royalty Tribunaland worked closely with the chairman of thetribunal in reinvesting the cable royalty fees.Among the documents developed by the divisionduring the year were the new Form JB/R for renew-ing jukebox compulsory licenses, a circulardescribing the functions of the Licensing Division,and a circular on the subject of corrected cer-tificates for jukeboxes. All statements of accountwere photocopied as they were received in the divi-sion and filed in the Public Access File for im-mediate use by copyright owners and otheimembers of the public. A separate file of the firstpage of the statements was also established to aidin determining whether or not a cable system hasfiled its statement of account.Since salaries and operating expenses for theLicensing Division are required by law to be paidfrom the compulsory license royalty fees receivedfrom jukebox and cable television operators,meticulous records were maintained to indicate theprecise amount of time involved in performance ofthese functions.

Application of automated techniques to copyrightprocesses continued to bring economies and ac-celerated production in several areas. Mention hasalready been made in this report of the automatedcataloging system (COPICS) and automated pro-cedures for processing jukebox applications in theLicensing Division. Earlier annual reports havedescribed the comprehensive Copyright Office In-Process System (COINS). Phase 1 of COINS involvedautomation of deposit accounts and was completedin fiscal year 1978. This year phase 2 becameoperational-a correspondence management sys-tem (C M S) that completely tracks all cor-respondence throughout the time the cases arepending. Using carefully developed procedures,the Planning and Technical Office introduced CM Sto the individual sections of the Examining Divi-sion, and as fiscal 1979 ended, every new corre-spondence case in the Examining Division was be-

ing entered in the CM S system. Cases are enteredwhen a letter to the applicant has been drafted inthe Examining Division and are then trackedthroughout the remainder of the process by the useof bar-code labels and wand readers. The status ofany correspondence case can be immediately deter-mined through the use of video terminals. Throughuse of the system, efficiency in searching and proc-essing claims involving correspondence has greatlyimproved. During the year the Planning andTechnical Office trained more than two hundredstaff members in the operation of the new system.In addition to providing immediate information onthe status of individual cases pending in the office,the CMS system has proved to be helpful in alertingstaff to workflow problems.

Equipment was added as the automated systemdeveloped. Fiscal 1979 began with five COINS ter-minals accessing to dedicated minicomputers; theyear closed with fifteen terminals in use throughoutthe Copyright Office. As CM S expands to includecorrespondence cases beyond the Examining Divi-sion, more terminals will be installed.At the conclusion of the fiscal year, the Planningand Technical -ce was preparing specificationsfor phase 3 of COINS-the phase that will give fullautomated control over all in-process and fiscal ac-tivities of the Copyright Office. This phase will in-volve the placing of bar-code labels on every ap-plication shortly after it is received in the office,

together with input of all accounting data.Improvements in the COPIC S 11 system were alsoundertaken during the year, with the objective ofspeeding cataloging production. During the firsthalf of the fiscal year, problems with existing pro-grams were causing slow response time, excessivecomputer down time, and a loss of informationwhich affected all cataloging operations. The losswas most troublesome in serial recording, in-asmuch as computer system failures obliterated notonly the data for the periodical issue in process atthe time of the failure but all other issue linesentered for a particular title during the current six-month period. As an initial expedient, copies ofregistrations for newspaper issues were made andretained as a safeguard for possible computerlosses. Later, it was decided to record newspaperissues manually on check-in sheets and input thesedata into the computer on weekends when the com-puter system would be under less pressure. Lossesof data also occurred in multiple-title documents,some of which contain as many as four thousand


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REPORT OF THE RJi(;ISTER OF COPYRIGHTS, 1979 9titles. The correction of computer program prob-lems by midyear was reflected in increases incataloging production during the second half offiscal 19'79. At year's end the Cataloging Divisionhad begun to experiment with an automated log-insystem designed to replace the present manualsystem, thereby freeing clerical time for applicationto a variety of other pressing tasks.Working in cooperation with the AutomatedSystems Office, the Planning and Technical Officealso outlined the first operational phase of a com-puter system to provide automated retrieval fromthe copyright catalog data base. This system,scheduled to become operational in 1980, will allowcomputer access by video terminals to all copyrightcatalog entries made after January 1, 1978. Even-tually the system will completely replace theCopyright Card Catalog for new-law registrations.The initial retrieval system will provide access byauthor, title, claimant, parties to a document, andregistration and document number, together withinternational standard serial and book numbers.In addition, a user will be able to refine amonograph search by limiting records to categoriesby copyright class, publication status, retrievalcode, physical description, and dates of creation,publication, or registration. The system will have abrowse function, direct term retrieval, Booleanlogic capability, and various other conveniencefeatures.

COOPERATION WlTH OTHER DEPARTMENTSOF THE LIBRARY

In recognition of the rich source of AmericanaI represented by the Copyright Office's collection ofcopyright deposit copies, the Library of Congressestablished, on June 1, 1979, an Advisory Commit-tee on the Expanded Use of the Copyright DepositCollection. This body, which reports to theLibrarian and Deputy Librarian, is studying thefeasibility and desirability of making the copyrightcollection an integral and more accessible part ofthe Library's holdings. The committee isestablishing goals and guidelines for review of theCopyright Deposit Collection, considering suchfactors as types of materials, selection, cataloging,

storage, access, and preservation and, when ap-propriate, is expected to recommend an implemen-tation plan. Mary Lyle, program analyst in thePlanning and Technical Office, and Ann Hallstein,chief of the Records Management Division, werenamed to represent the Copyright Office on thiscommittee.The Copyright Office has welcomed this interestin the Copyright Deposit Collection, since preser-vation of such deposits for future use is an impor-tant means "to promote the Progress of Scienceand useful Arts," the ultimate constitutional objec-tive of the copyright system. The office has longrecognized that preservation of the deposit collec-tion promotes the purposes of the copyright sys-tem, since availability of registered works assiststhe orderly resolution of potential controversies andproduction of certified copies of these works pro-motes justice in copyright litigation by providingcertainty and precision in the identification of theworks in controversy. But beyond these con-siderations is the important fact that the depositsrepresent an enormous wealth of untapped re-sources for serious research and study of Americanpopular culture and, after copyright has expired, apublic domain of material free for any and all touse for the enrichment of the intellectual life of thenation.

In the interest of achieving new economiesthroughout the Library, the Copyright Office col-laborated with other units of the Library of Con-gress in the search for new avenues of approach toold problems and new or modified formulas fordealing with the inevitable growth of researchmaterials and the increasing service demands ac-companying this growth. For example, the Libraryhas increased its dependence upon the copyrightdeposits in order to relieve part of the deficienciescaused by rising prices of serial subscriptions andreduced acquisitions allotments.Sensitive to this situation, the Copyright Officehas looked critically at its own programs, examin-ing them from the point of view of how they mightincrease their contributions to the goals and func-tions of the Library of Congress and how both theLibrary and the Copyright Office might benefitfrom closer cooperation or the merging of somerelated activities.


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REPORT OF THE REGISTER OF COPYRIGHTS, 1979At the request of the Offlce of the Librarian, acooperative study was unde rtaken to discover waysin which the processing of serial publications in theLibrary and the treatment of serial deposits in theCopyright Offlce might be merged. On e segment ofthis study was concern ed w ith the feasibility of cen-tralizing the processing; registration, and catalog-ing of serial publications received in the CopyrightOf f~ ce nd the possibility of the COPICS data baseserving as a record for serial receipts in the L ibrary.The Copyright Office Planning and Technical Of-fice assigned staff to work with the Library'sPlanning Office on a detailed examination of themyriad problems involved in a prospective coor-dinated serials activity.Cooperative endeavors. in a utom ated controlsover the Library's and the Copyright Office'scata logs have a lready been ment ioned. ACopyright-Processing work group was organizedearly in 1979 to define requirements for accessfrom COPICS 11 to certain catalog records in theLibrary's processing apparatus. Copyright staffhave also been active in the Library's planning forfuture retrieval systems and the eventual closing ofthe Library's principal card catalog.

COPYRIGHT OFFICE REGULATIONSTh e copyright law expressly requires or a uthorizesthe Register of Copyrights to implement generalstatutory provisions with detailed regulations onspecific points. Section 702 of the law affords theRegister general autho rity with respect to "the ad-ministration of the functions and duties made theresponsibility of the'Register u nder th is title." Sec-tion 701(d) makes all actions taken by the Register(except those involving reproduction of copyrightdeposit copies) subject to the Administrative Pro-cedure Act.A considerable portion of the regulatory activityduring fiscal 1979 was devoted to the regulationimplementing section 115, which provides for acompulsory license for making and distributingphonorecords of nondramatic musical works. Thislicense permits the use of such works without thepermission of the copyright owner thereof if certainconditions are met and the statutory royaltiespaid. Section 115 directs the Register to issueregulations governing the content an d filing of cer-tain notices and statements of account requiredunder the section. Interim regulations were issuedin fiscal 1978. After considering public comments

received in respo nse to the interim regulations, theRegister a do pte d am endments to those regulationsat the beginning of fiscal 1979 and announced apublic hearing to be held on November 28 and 29,1978, t o ta ke testimony on the interim regulationsas am en de d. After extensive consideration of thetestimony and public comments, tentative conclu-sions we re rea che d on the principal points in issue.These conclusions are described and discussed insome detail in a background paper that will formthe basis for informal discussions to be held earlyin fiscal 1980. Although the proposed regulationsdeal with a number of matters under section 115,the m ain poi nt of contention between the copyrightowners of the musical works recorded and therecor ding inte res ts is the interpretation of the worddistributed a s used in the clause specifying that thestatutory royalty shall be payable "for everyphonorecord made and distributed in accordancewith th e lice nse," particu larly in connection withthe practice in the record industry of providingphonorecords to wholesalers and retailers with theprivilege of retu rnin g unsold stock for credit or ex-change.Section 302 of the new law provides, as thegeneral rule, that the term of copyright protectionshall b e "the life of the author and 50 years afterthe au tho r's death" but specifies in the case ofanon ymo us o r pseudonymous works that the termshall be 75 yea rs fr om th e year of first publicationor 100 ye ar s f rom the year of creation of the work,whichever expires first. This section also estab-lishes a procedure for revealing in the records ofthe Copyright Office the identity of the author ofan a non ym ous or pseudonymous work, so that theperiod o f p rote ctio n for such a work will be the life-plus30 term. At the end of the fiscal year theCopyright Office had requested public commentson a pr op os ed regulation implementing thisstatutory provision.T he new law provides, in section 410, that theRegister sha ll determ ine whether or not thematerial dep osit ed for registration constitutes"copyrightable subject matter" and, if it does not,shall refuse registration. Near the end of the fiscalyear the Regis ter announced th at a public hearingwould b e h eld o n October 10,1979, for the purposeof eliciting comments, views, and information toassist in d ra ft in g reg ulations governing policies andpractices relating to the registration of the graphicelements involv ed in the design of books and otherprinted publications.


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REPORT OF THE REGISTER OF COPYRIGHTS. 1979 11SPEC IAL PROJEXX3

Committee to NegotlaleGl~ldelhn r or Off-tbeA lrVldeotsplng for E d u ~ ~r nThe prickly problem of defining guidelines for theuse of copyrighted materials in the classroomthrough off-the-air taping by educational institu-tions continued to be the subject of special atten-tion. O n M arch 2, 1979, a conference on off-the-airta pin g for educational purposes was held und er theau spic es of the House Judiciary Subcommittee onCo urts , Civil Liberties, and the Administration ofJustice. T o help resolve the differences among th evario us interests, Robert W . Kastenmeier, the sub-committee chairman, invited eighteen represen-tatives of concerned groups to serve as an ad hoccommittee to propose guidelines on fair use forbroadcast audiovisual works. Bruce A. Lehman,the subcommittee counsel, and Ivan Bender, con-su lta nt to th e Copyright Office, were designated asmo nito rs for the work of the ad hoc group.T h e comm ittee met on April 27, May 23, uly 18,and September 12; and monthly sessions arescheduled for the remainder of calendar 1979.While the complexity of the issues prevents anyeasy solution to some of the differences in view, aspirit of cooperation and desire to find reasonablecompromises have been evident in the delibera-tions . Th e committee will report to the subcomm it-tee early in 1980.

the responsibility assigned t o the Register in sec-tion 108(i). The committee, whose mem bership isrepresentative of all the inte rest s involved, met o nDecember 19, 1978, and April 5, 1979, and is tomeet again on October 25 a n d 26, 1979. An inter-nal Copyright Office planning group has met fre-quently throughout the year, un de r the guidance ofMr. Bender.Attention has been directed toward defining themost pervasive and controversial problems ex-perienced in the application of the new law to thereproduc tion of copyrighted mater ials. A survey ofexisting literature on earlier photocopying studieswas undertaken in order to avo id duplication of ef-fort.As the year ended, plans were being made tohold a series of regional hearings, the first sched-uled for January 1980 in conjunction with theAmerican Library Association's midwinter m eetingin Chicago.LEGISLATIVE DEVELOPM ENTSDespite enactment of omnibus copyright nvisionlegislation in 1976, substantial congressional ac-tivity in the copyright field con tinue d durin gfisca l1979. While several proposals involved mattersthat might be considered part of the unfmishedbusiness of copyright revision, others reflect newconcerns.

P e r f o l ~ ~ l c eoydty for S m d R e c o d l a pSection 108(1)A d d m y CommlLtscSection 108(i) of the new law provides that "Fiveyears from the effective date of this Act, and atfive-year intervals thereafter, the Register ofCo py righ ts, after consulting with representatives ofau th or s, book and periodical publishers, and ot he rowners of copyrighted materials, and with repre-sen tati ve s of library users and librarians, shall sub-mit to t h e Congress a report setting forth the extentto which this section has achieved the intendedstatutory balancing of the rights of creators, andthe nee ds of users." Th e Register began this con-sultation in 1978, first in separate meetings withrepresentatives of the library an d user com munitiesand representatives of copyright proprietors andauthors. Subsequently an advisory committee wasfo rm ed to assist the Copyright in fulfilling

Th e scope of rights in sound recordings was a ma -jor topic of consideration in both houses of Con-gress during th e last phase o f the gen eral revisioneffort. Attention focused on proposals establishinga limited performance right i n the form of a com -pulsory license, with p aym ents to performers andproducers of copyrighted sound recordings. Con-gress decided, however, that the problem requiredfurther study, and section 114(d) of the revisedstatute directed the Register o f Copyrights to sub-mit a report to Congress. T h e Copyright Officesubmitted its basic "Report o n Perform ance Rightsin Sound Recordings" to Congress on January 3,1978, followed by several add en da to th e rep ort, in-cluding a draft bill to create a public performanceright for copyrighted sound recordings. Th e HouseJudiciary Subcommittee on Courts, Civil Liberties,


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REPORT OF THE REGISTER OF COPYRIGHTS, 1979and the Administration of Justice then held publichearings in March and May of 1978.Congressional momentum toward performancerights legislation for sound recordings continued inthe first session of the 96th Congress. Rep. GeorgeE. Danielson introduced two bills, H.R. 237 (1979)and H.R. 997 (1979). to amend the copyright lawto create a public performance right with respect tosound recordings. H.R. 237, which is identical toH.R. 6063 (1977), introduced by RepresentativeDanielson in the first session of the 95th Congress,would amend section 114 of the law to provide for acompulsory license for the performance of soundrecordings and a schedule of royalty payments tobe made by radio stations, background music serv-ices, operators of jukeboxes, and other commercialusers of sound recordings. These nonassignableroyalties would be distributed annually by theRegister of Copyrights. Controversies over distribu-tion would be resolved by the Copyright RoyaltyTribunal. Following-with some changes-thedraft bill submitted by the Register to the HouseJudiciary Subcommittee in March 1978, H.R. 997would amend section 101 of the copyright law bydeleting the definition of perform and inserting, inpart, ". . . in the case of a sound recording, to'perform' the work means to make audible thesounds of which it consists." This bill also providesa compulsory license for the public performance ofsound recordings. Unlike H.R. 237, however, thenonassignable royalties collected under this billwould be distributed annually by the CopyrightRoyalty Tribunal rather than by the Register ofCopyrights. An identical bill, S. 1552, 96th Con-gress, 1st Session (1979). introduced by Sens. Har-rison A. Williams, Jr., Howard H. Baker, Jr., Bill. Bradley, Alan Cranston, Jacob K. Javits, HowardM. Metzenbaum, and Paul S. Sarbanes, has beenreferred to the Senate Committee on the Judiciary.

Another aspect of unfinished copyright revisionbusiness concerns proposed legislation for the pro-tection of onamental designs of useful articles,based largely on copyright principles. The currenteffort to enact such a bill began with the introduc-tion of a design protection measure in 1957. Designbills have been introduced regularly since thattime.

A design bill was reported as title I1of thegeneralcopyright revision bill, S. 22, 94th Congress, 1stSession, and passed by the Senate in 1975. Ulti-mately, ,however, the design provisions weredeleted before passage of the final conference ver-sion of the revision bill, since the unresolved issuesthey raised might have caused further delay in ac-ceptance of basic copyright reform.Congressional interest in design legislation hasbeen rekindled with the introduction of two bills,H.R. 2706, 96th Congress, 1st Session (1979), andH.R. 4530, 96th Congress, 1st Session (1979), byRep. Tom Railsback.

A bill to create an American version of the Euro-pean concept of the "droit moral," H.R. 288,96thCongress, 1st Session (1979). was introduced byRep. Robert F. Drinan. This bill, which is identicalto Representative Drinan's earlier proposal, H.R.8261, 95th Congress, 1st Session (1977), reflectsthe growing concern among artists and theirrepresentatives over the protection of the moralrights in their works. The purpose of the bill is tosecure the rights of artists to claim authorship of awork of fine art and to prevent its distortion,mutilation, alteration, or destruction. The legisla-tion also seeks to protect the honor and reputationof the artist in relation to his works.Concern for the rights of artists has also beenevidenced in state legislatures. The Senate of theState of Washington is considering Senate Bill No.3012 (1979), which is similar to H.R. 288, men-tioned above. Also, the Iowa legislature is consider-ing a proposal, H.F. 340 (1979), to afford greaterrights to artists, based on the concept of the "droitde suite." Under the proposal, whenever a work ofvisual art is sold in Iowa, or is sold by an Iowa resi-dent. for more than five hundred dollars and theselling price exceeds the seller's earlier purchaseprice, a royalty of 5 percent of the selling pricewould be paid to the artist.

Ro t edon for Imprln&dD a l g ~ ~attenuon Semicond~etor b l pEfforts to combat copying in the burgeoningsemiconductor chip industry led to the introduc-tion of H.R. 14293, 95th Congress, 2d Session


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REPORT OF THE REGISTER OF COPYRIGHIS, 1979(1978), by Reps. Don Edw ards, Norman Y.Min eta, an d Pau l N. McCloskey, Jr. Th e bill wouldamen d section 101 of the cop yright law by expand -ing the definition of "pictorial, graphic, andsculptural works" to include:. . . the photographic masks used to imprint patterns on in-tegrated circuit chips and include the imprinted patternsthemselves even though they are used in connection with themanufacture of, or incorporated in ii useful article.The bill was reintroduced in the first session of the96th C ongress as H.R. 1007 (1979). Th e %useJudiciary Subcom mittee on Co urts, Civil Liberties,and the Administration of Justice conducted apublic hearing on the sub ject on April 16, 1979, inSan Jose, California. Jon A. Baumgarten, generalcounsel of the Copyright Offlce at the time,testified on behalf of the Register of Copyrightsthat "Congress may well conclude that the'photographic masks' and 'imprinted patterns'covered by H .R. 1007 are 'writings of an autho r' inthe constitutional sense, and 'original works ofauthorship' that it may choose to protect under thecopyright act." However, Mr. Baum garten askedthe subcommittee to consider a number of ques-tions concerning the degree of authofshiprepresented by the designer's labors, the relation-ship among the schematic drawings, imprintedchip patterns, and computer programs eitherstored in or generated by the chip, and possiblelimitations that may be placed on the scope andduration of protection. The fiscal year closedwithout further activity on the bill.

Several bills were introduced in the House seekingto broaden two exemptions found in section 110 ofthe copyright law. Introduced by Rep. William H.Harsh a, H.R. 2487, 96th Co ngress, 1st Session(19791, would am end section 11 0 by a dd ing a newsubsection which would exempt non profit veteransorganizations from performance royalties for theperformance of musical works in the course of theiractivities. Expansion of the educational ex emptionfound in section 110(1) of the law was the subje ct ofH.R. 4264, 96th Congress, 1st Session (19791, in-troduced by Rep. Brian J. Donnelly. This proposalwould exempt profit-making educational institu-tions, in addition to currently exempted nonprofit

educational institutions, from copyright liabilityfor certain p erformances or displays of copyrightedworks by instructors or pupils in the course of face-to-face teaching activities. Another bill, H.R.5183, 96th Congress, 1st Session (1979). intro-duced by Rep. David R. Bowen, also wouldprovide that certain performances and displays byprofit-making educational institutions are not in-fringements of the exclusive rights of copyrightowners.

Th e q uestion of copyright liability of cable systemsfor the retransmission of copyrighted programmingproved to be the single most difficult issue in thegeneral revision of the copyright law. T he solutionsreached in section 111 of the new statute werebased on a number of underlying assumptionsderiving from existing regulations of the FederalCommunications Commission.Section 111 of the copyright law 'created a com-pulsory license under which cable systems maymake certain secondary transmissions authorizedby the commission without the copyright owners'consent, so long as notices of identity andstatements of account are filed with and statutoryroyalties are paid to the Copyright Office. Duringthe year the effective opera tion of section 111 wasthrown into doubt by the introduction of a bill forthe o mn ibus revision of the C omm unications Act of1934, H.R. 3333, 96th Congress, 1st Session(1979), by Reps. Lionel Van Deerlin. James M.Collins, and James T. Broyhill. In addition toabolishing the Federal C ommunications Commis-sion, the bill would also prohibit, in title IVthereof, all federal regulation of cable television,including signal carriage an d pay services. Furthe r-more, section 453(a) of the bill would prohibit theretransmission or rebroadcast of a program with-ou t the express authority of the originating stationor the person who owns or controls the exclusiverights to the program involved. Barbara Ringer,the Register of Copyrights, focused on this con-troversial provision in her testimony before theHouse Interstate an d Foreign Commerce Subcom-mittee on Communications on June 28, 1979. Sheopposed the "retransmission or program consent"proposal for four fundamental and interrelatedreasons:o The provision would not work as it is intend ed towork.


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REPORT .OF THE REGISTER OF COPYRIGHTS, 1979o The need for the provision has not been shown.o Even if some change is needed, the provisiongoes too far.o If enacted, the provisions would undermine theexisting copyright law. .During the mark-up sessions, Rep. Van Deerlindecided to abandon his efforts to secure passage ofH.R. 3333. Two bills have also been introduced inthe Senate to amend the Communications Act of1934: S. 61 1.96th Congress, 1st Session (1979), in-troduced by Sen. Ernest F. Hollings, and S. 622,96th Congress, 1st Session (1979), introduced bySen. Barry Goldwater. Neither bill includes a pro-vision requiring cable systems to obtain retransmis-sion or program consent for their secondary trans-mission activity.In related regulatory developments, the obtain-ing of retransmission or program consent by cablesystems was also suggested by the NationalTelecommunications and Information Administra-tion (NTIA) f the Department of Commerce in apetition before the Federal Communications Com-mission. Despite their denial of the NTIA proposal,the commission is inviting comments on "allaspects of retransmission consent including detailsof how it might work," as well as comments "onpretransmission notification and any other way toallow the market process to work with the leastamount of intervention." Furthermore, the com-mission is proposing the deletion from its regula-tions of all restrictions placed on cable systemswhich either limit the number of distant signalswhich may be secondarily transmitted or requirethe blacking out of certain syndicated programscamed on distant signals.The House Communications Subcommittee alsoconsidered H.R. 3179, 96th Congress, 1st Session(1979), introduced by Rep. Tom Corcoran. Thisproposal would add a new section 331(a) to part 1of title I11 of the Communications Act of 1934, so asto establish certain requirements for the televisingof professional sports clubs' games. Under this"antiblackout" proposal, if any game of a profes-sional sports club is to be broadcast by means oftelevision pursuant to a league television contract,no agreement which would prevent the broadcast-ing by means of television of that game, at the sametime, in the area in which the game is being playedwould be valid or have any force or effect.

Several bills were introduced in Congress pro-posing tax incentives for the arts and humanities.Among these, H.R. 1847, 96th Congress, 1st Ses-sion (1979), introduced by Rep. Jack Edwards,modifies the restrictions contained in 170(e) of theInternal Revenue Code by adding a new paragraphto make "any literary, musical, or artistic composi-tions, or similar property created by the personalefforts of the taxpayer (free from reduction) by theamount of appreciation of such property, and thewhole amount of such charitable contributions shallbe taken into account and be treated as if the prop-erty had been sold at its fair market value." TheArts and Humanities Tax Reform Act of 1979,H.R. 2113, 96th Congress, 1st Session (1979),introduced by Rep. S. William Green, wouldamend the Internal Revenue Code to disregard, inthe valuation for estate tax purposes of certainitems created by the decedent during his or her life,any amount which would have been ordinary in-come if the item had been sold by the decedent atits fair market value. The proposal would alsoallow a charitable deduction based on the fairmarket value of the item. Similarly, H.R. 2498,96th Congress, 1st Session (1979), introduced byReps. Abner 1. Mikva and William M. Brodhead,would add a special rule to the Internal RevenueCode for certain charitable contributions ofliterary, musical, or artistic compositions, or sim-ilar property created by the personal efforts of thetaxpayer. These contributions would be subject tothe fair market value at the time of contribution,and no reduction in this amount would be made.However, certain contributions by public officialsthat were written, prepared, or produced by or forthem during the performance of their duties whileofficers or employees of the United States wouldnot be included. A bill introduced by Sens. JacobK. Javits and Hamson A. Williams, Jr., S. 1078,96th Congress, 1st Session (1979), has componentsdealing with estate taxes, charitable contributions,the "hobby loss" rule, and the elimination of aproblem created by the cany-over basis provisionsof the Tax Reform Act of 1976. This proposalwould, among other things, restore the earliercapital gains treatment for copyrights. Finally, abill introduced by Sen. Daniel P. Moynihan, S.397, 96th Congress, 1st Session (1979), wouldamend the Internal Revenue Code to recognize anddefine theatrical production organizations, to allowcost recovery accounting for such organizations, topermit the investment tax credit for theatrical pro-


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REPORT OF THE REGISTER OF COPYRIGHTS. 1979duction costs, to provide for capital gains treat-ment upon sale of certain theatrical productionrights, to allow for a limited nonrecognition of gainrealized or income derived by a theatrical produc-tion organization, and to provide for capital gainstreatment for sales by authors of first theatricalproduction rights and the initial subsequent sale ofancillary rights.The administration of public printing servicesand the distribution of public documents were thesubjects of H.R. 4572, 96th Congress, 1st Session(1979). This bill, introduced by Rep. FrankThompson, Jr., and seventeen others, would revisetitle 44 of the United States Code. The stated pur-pose of the bill is to enact amendments necessitatedby the technological advances which are changingthe way government information is generated, pro-duced, and disseminated and by a growing demandfor improved and increased access to this informa-tion. In the Senate a similar bill, S. 1436, 96thCongress, 1st Session (1979), was introduced bySen. Claiborne Pell. In a letter from the Librarianof Congress to Representative Thompson, atten-tion was directed to certain copyright concerns thatwere implicit in the bill. It was suggested that thedefinition of "public documents" in the bill neededclarification to avoid inconsistencies with copyrightprinciples embodied in the Copyright Act of 1976and that there is also a need to clarify the status,under the bill, of the reorganized GovernmentPrinting with respect to its authority (or lackof authority) to claim copyright in works preparedby its employees within the scope of their officialduties.

MTERNATIONALACTIVITIESFiscal year 1979 was a very lively one in interna-tional copyright, both in domestic actions concern-ing international matters and with respect to theactivities of international organizations that dealwith copyright.

The 1979 Joht Meetlag of the 1ntergorcmment.lCopyrlgbt Commltbe .ad tbt Executlre Commltbeof tbe Berue UnknThe first part of the biennial joint meeting of thegoverning bodies of the Universal Copyright Con-vention (the Intergovernmental Copyright Commit-

tee) and the Berne Convention for the Protection ofLiterary and Artistic Works (the Beme ExecutiveCommittee) was held February 5-9, 1979. The twocommittees coordinated their agenda and heldjoint sessions as appropriate. The United Stateswas represented at this meeting by Barbara Ringer,the Register of Copyrights, and Jon A. Baum-garten, the Copyright Ofice general counsel.Numerous topics were discussed, one of the mostimportant being the issue of United Statesadherence to the Berne Convention.

The Berne Convention for the Protection ofLiterary and Artistic Works was the world's firstmajor multilateral treaty on copyright, its earliestversion being the convention signed at Berne,Switzerland, in 1886. The convention, which pro-vides, in effect, that the countries to which it ap-plies shall constitute the Berne Union, has been thesubject of a number of revisions, the latest beingthat signed at Paris in 1971. While this conventionhas, since its inception, fostered the establishmentand maintenance of a high level of internationalcopyright protection among the developed coun-tries of the world, the United States has neveradhered to it.Although the reasons for the failure of theUnited States to adhere to the Berne Conventionare numerous and complex, the most importantfactors have been the failure of the United States,despite a number of efforts over the years, toamend its law in such a way as to eliminate or suffi-ciently alter certain formal conditions of protec-tion, particularly the copyright notice and registra-tion.However, the fundamental changes reflected inthe new U.S. copyright law, coupled with the ever-growing importance of international trade and theincreased transborder flow of copyrighted works,have led to a renewed .and revitalized interest inU.S. membership in the Berne Union. The majorpractical questions appear to be: (1) how close doesthe new U.S. law come to meeting the minimalstandards for eligibility to accede to the conven-tion; and (2) how can any gap be bridged?At the February 1979 meeting of the Berne Ex-ecutive Committee, these questions were addressedin detail. The first proposed solution was put for-ward by the Secretariat of the World Intellectual


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Property Organization (WIPO) , th2 organizationresponsible for administration of the convention.The proposal would involve adding to the wnven-tion a protocol which would permit the UnitedStates, or any other country that has never been aBerne member, to accede to the convention for alimited period of time while work went forward toamend its domestic law in such a way as to permitfull membership. This proposal, intended to belimited to the issue of formalities only, did not meetwith the approval of several members of the Ex-ecutive Committee. The Register of Copyrights, asthe U.S. observer at the meeting, expressed the in-terest and concern of the American copyright com-munity, summarized the nation's internationalcopyright history, and suggested that the questionof how to enable the United States to accede to theBerne Convention be given further serious con-sideration by the Secretariat and by the membersof the Berne Union. Following this statement, theproposal for a protocol was put aside, and theSecretariat agreed to seek authorization toestablish a working group to study the U.S.copyright law and identify its points of incom-patibility with the Berne Convention. This ap-proach was approved by the members of the Ex-ecutive Committee and will be presented at theforthcoming Triennial Meeting of the Assembly ofthe Berne Union.In May 1979 Dr. Arpad Bogsch, director generalof w lw , visited the United States to ascertain theattitude of the various interest groups toward U.S.adherence to the Beme Convention. On the EastCoast Dr. Bogsch met with the International Copy-right Advisory Panel of the U.S. Department ofState, and on the West Coast he discussed the issuewith prominent copyright attorneys and industryrepresentatives. Both discussions iridicated astrong measure of support for Berne membership.

As in other areas of legal, economic, and socialpolicy, developing countries have particular needsand interests with regard to domestic and interna-tional copyright law. They need to establishcopyright laws, as well as the infrastructure fortheir enforcement and administration, and theyneed access to the works of developed countries.Moreover, they have legitimate concerns about theforeign copying of their folklore and the works of

REPORT OF THE REGISTER OF COPYRIGHTS. 1979their own authors. The Copyright Off~ces involvedin these matten in several important ways, in-cluding participation in the activities of the w rwPermanent Committee on Cooperation and De-velopment and in various WIPO-UNESCO joint pro-grams concerned with copyright problems of &-~eloping ations.The Copyright Office was represented byMichael S. Keplinger, special legal assistant to theRegister, at the Seminar on Copyright andNeighboring Rights for Asian and Pacific States,held December 19-23. 1978, in New Delhi. Thepurpose of the meeting was twofold: to enable therepresentatives of the developing nations of theregion to identify common problems, and to makeit possible for those nations, together with interna-tional organizations and other observer states, tosuggest possible solutions. The fundamental themeof the conference was to determine ways that thecopyright laws of the region could be strengthenedto curb piracy of books and sound recordings whilestill ensuring that developing countries have accessto educational and scientific material.The fourth meeting of the w I P o PermanentCommittee on Cooperation and Development, heldin Dakar from March 12 to 16, 1979, was also at-tended by Mr. Keplinger. Half the program wasdevoted to patent law questions arising under theParis Convention for the Protection of IndustrialProperty and the other half to copyright. Majorthemes of the meeting included the need for betterprograms to train copyright personnel from thedeveloping countries and the desire that such pro-grams be particularly directed toward familiarizingthe trainees with the ways in which licenses forreproduction or translation can be negotiated withthe publishers of developed countries.Another joint W I P O / U N E S C O project ofsignificance for developing nations stemmed fromearlier joint meetings of the Berne Executive Com-mittee and the lntergovernmental Copyright Com-mittee at which several developing nations hadquestioned the efficacy of the compulsory licensingsystems established in the 1971 Paris revisions tothe Berne and Universal Copyright Conventions.The extent of this concern, among both developedand developing nations, prompted the joint secre-tariats to undertake a study aimed at answeringquestions as to how the 1971 compulsory licensingprovisions of the two conventions had worked inpractice. To gather background information on theways in which developed and developing nations


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REPORT OF TtU HEGISWPdealt with one an( .,, i~i,t~lrtingranslation andreproduction t ~ghts, an extensive questionnairewas submitted to the member states. Responsesfrom the United States and twenty-three othermembers were analyzed and summarized in areport circulated by the secretariats. The culmina-tion of this project was the Meeting of Experts onDeveloping Country Access to Protected Works,held in Paris, July 2-6, 1979. The Copyright Officewas represented at the meeting by Lewis I. Flacksand Michael S. Keplinger, special legal assistantsto the Register. After a discussion of the responsesto the questionnaire and the issues raised from thefloor, the meeting adopted recommendations forpresentation to the joint meeting of the Berne Ex-ecutive Committee and the IntergovernmentalCopyright Committee in October 1979. Reflectingthe fact that most of the problems faced bydeveloping nations in gaining effective access to theeducational, scientific, and technical literature ofdeveloped nations are not strictly copyright prob-lems but rather arise from the lack in manydeveloping nations of the publishing infrastructureand economic base needed to support a broad pro-gram, the recommendations emphasized practicalsolutions that would enable the internationalorganizations and the developed nations to aid thethird world in building its own internal copyrightand publishing systems.

During the fiscal year the United States continuedto cooperate with both WlPO and UNESCO in pro-viding training for copyright officials of developingnations. The WIPO deputy director general,Madame K. Liguer-Laubhouet, visited the Copy-right Mi c e to seek increased United States sup-port for WIPO's training efforts and to explain herviews on the need for a more structured programthat would provide better training for those comingto developed countries on fellowships. As a resultof the meeting, and in realization of the impor-tance of training in furthering internationalcopyright cooperation, the Copyright Office agreedto seek support for a more extensive educationalprogram in both copyright law and in the ways inwhich copyrighted works are licensed in a marketeconomy.Officials from several foreign copyright depart-ments or offices received training in the U.S.

Copyright Office during the year, including MajidBhuiyan of the Copyright Office of Bangladesh,G.K. Abankwah of the Ministry of Education ofGhana, S.L. Takkar of the Ministry of SocialEducation and Welfare in India, and three at-torneys from Iran -Manigheh Joorabchian, LalehMahjoby, and Abdollah Aghaie.Cabb TdcrbloaThe copyright questions associated with theretransmission o f television broadcast program-ming by cable systems was one of the most intract-able problems in the recent U.S. copyright revisioneffort. This same .problem, complicated by ques-tions of national sovereignty and internationaleconomics, continued to elude solution in interna-tional copyright circles this past year.During 1979, problems arising from the trans-mission by cable of television programs remainedon the agenda of the joint sessions of the In-tergovernmental Cppyright Committee and the .Berne Executive Conimittee while the report of theWorking Group on Television by Cable was cir-culated for comment. The United States suppliedinformation on the U.S. experience in dealing withcable television under the new copyright law andsuggested that the problems concerned with theregulation of cable be left to domestic legislation,consistent with the provisions of the internationalconventions.

The Brussels Convention Relating to the Distribu-tion of Programme Carrying Signals Transmittedby Satellite (the Brussels Satellite Convention),signed in 1975, represents an attempt to control atthe international level the phenomenon of "signalpiracy," which is the misappropriation of program-carrying signals by terrestrial distributors. Becausethe Satellite Convention does little more thanobligate its signatories to adopt measures, at thenational level, necessary to suppress signal piracy,great interest in exploring the means of implement-ing the convention has been expressed both in theUnited States and abroad.The Committee of Governmental Experts on theImplementation of the Satellite Convention, whichmet in Paris on June 11-14, 1979, with Mr. Flacks


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REPORT OF THE REGISTER OF C O P Y R I G m , 1979representing the Copyright Office, adopted modelprovisions for the guidance of national legislaturesin implementing the convention. Two sets of provi-sions were agreed upon, the first creating a privateright in the organization originating the satellitetransmission and the'second establishing a publicsystem of protection with criminal sanctions. Theconvention itself leaves member states virtuallycomplete discretion in choosing a system of protec-tion for satellite transmissions.

In May 1979 wrpo and UNESCO convened a work-ing group of nongovernmental experts to studyproblems relating to computer use of copyrightedworks. Arthur J. Levine, former executive directorof the National Commission on New TechnologicalUses of Copyrighted Works (CONTO),was invitedby the wrpo Secretariat to attend in his privatecapacity. The working group focused its attentionon determining whether copyright liability attachesto the computer use of a work at input or output,how copyright would apply to computer data bases,and what the copyright status of works created bycomputer application should be. . .The working group, chaired by Dr. Eugen Ulmer,director emeritus of the Max Planck Institute forForeign Patent, Trademark, and Unfair Competi-tion Law in Munich, took the view that input of acopyrighted work into a computer should be con-sidered a reprodudion of the work for which theauthorization of the copyright owner would be re-quired. With respect' to output, the working groupsuggested that a printout would be a reproductionand that the projection of the work on a cathoderay tube unit would constitute a display or per-formance of the work. On the basis of extensivediscussions of the use of computers in the creationof works, the working group expressed the opinionthat both the creator of the program and the per-son who used the program may have rights, in vary-ing degrees, in the work created.The Copyright Wl ce circulated UNESCO'S"Recom-mendation on the Legal Protection of Translatorsand Translations and the Practical Means to Im-prove the Status of Translators" both to thegeneral public (through publication in the FederalRegister) and to translators (by mailings to the

members of the American Translators Associationand the American Literary Translators Associa-tion) for comment. While the UNESCO materialshows that generally translations are afforded thesame protection as other derivative works, for prac-tical purposes this protection may be illusory owingto certain complex factors. The UNESCO recom-mendation is aimed at alleviating those conditionsthat tend to place translators at a disadvantage inbusiness dealings with those using their services, byrecognizing the professional status and cultural im-portance of translators in facilitating the interna-tional flow of information.The responses thus far received by the Copyrightmce from American publishers and other usersof translations, as well as from individualtranslators, seem to indicate that this is an area ofsignificant concern to both parties. The CopyrightOffice will use this information in formulating theU.S. response to the UNESCO recommendation.Other Interruthd AcChltlerBarbara Ringer, the Register of Copyrights, wasinvited to give the Fiftieth Jubilee Lecture to theRoyal Swedish Copyright Society on April 27,1979, in Stockholm. As Ms. Ringer was unable toattend, the lecture was delivered by Mr. Keplinger.The topic was "The United States and Interna-tional Copyright."

The Copyright Office was also invited to par-ticipate in a Workshop on Transpacific Informa-tion Flow, sponsored by the International Com-munications Agency and the Center for the Book inthe LiBrary of Congress. The workshop was part ofan integrated program designed to exposelibrarians from the Asian states to the oppor-tunities for establishing two-way exchanges of in-formation through the printed word. Mr. Kep-linger represented the office, delivering a paper en-titled "The Role of Copyright in the InternationalFlow of ~nformation."Michael R. Pew, assistant register of copyrightsfor automation and records, represented the officeat the 1979 Annual Conference of the InternationalInstitute of Communications in London. At theconference a wide range of subjects of significantinfluence on the future development of interna-tional copyright were discussed, including theissues of national sovereignty and individualprivacy involved in cable television and satellitebroadcasting services.


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REPORT OF THE REGISTER OF COPYRIGHTS, 979

The Copyright Office received a number of impor-tant foreign visitors during the year, two of whomdelivered lectures to members of the staff. Dr.Robert Dittrich, honorary professor at the Ministryof Justice of Austria and a noted expert on therights of performers, gave an address on October11, 1978, entitled "The Practical Application ofthe Rome Convention of 1961 for the Protection ofPerformers, Producers of Phonograms, and Broad-casting Organizations." A. A. Keyes, special ad-viser to the Government of Canada and a leadingauthority on the copyright law of that country,spoke on the principal issues in the Canadiancopyright revision program on October 24, 1978.JUDICIAL DEVELOPMENTSIn fiscal 1979 courts had their first real oppor-tunities to construe the Copyright Act of 1976 (title17, U.S.C.), most of the provisions of which didnot take effect until January 1, 1978. To be sure,many of the cases reported concerned the earliercopyright law, but even there the courts often refer-red to the present law and its legislative history inreaching their decisions. In economic terms, themost important cases were probably BroadcastMusic, Inc. v. Columbia Broadcasting System.Inc.. 47 U.S.L.W. 4359 (1979), in which theUnited States Supreme Court held that blanketlicenses for the public performance of musicalworks were not per se violations of the antitrustlaws, and Universal City Studios, Inc. v. SonyCorp. of America. 448 P.T.C.J. D-1 (1979), inwhich the U.S. District Court for the CentralDistrict of California held that off-the-air videotap-ing of television in the home was not a copyright in-fringement. But many other cases raised and de-cided issues of importance not only to theirlitigants but to scholars, the bar, and the CopyrightOffice as well.

However great the changes made by the generalrevision of the copyright law, the subject mat-ter/scope cases for fiscal 1979 appear comfortinglyfamiliar to followers of past judicial developments-typeface, blank forms, an allegation that a work

is in the public domain because of the relationshipof the U.S. government to its creation, an in-dustrial design, and the expiration of statutorycopyright in a motion picture film based on a pro-tected underlying work-have all been the subjectof decisions before fiscal 1979. Do this year's casesyield the same results as their predecessors? Theanswer is the lawyer's stock in trade: it depends.After failing to obtain copyright protectionthrough the legislative and judicial processes, atypeface proprietor nonetheless found a courtreceptive to his unfair competition and misap-propriation claims in Leonard Storch Enterprises,Inc. v. Mergenthaler Linotype Co.. Copyright L.Rep. (CCH) '(25,092 (E.D.N.Y. April 5, 1979).Storch manufactured and sold film fonts for use inMergenthaler's phototypesetting machine and wascharged with misappropriating Mergenthaler'sfonts, notwithstanding the fact that the characterscomprising the fonts were in the public domain.The court accepted Mergenthaler's argument thatstate law protection against machine reproductionof public domain type fonts was not preempted bythe Copyright Act of 1909. (The parties stipulatedthat the 1976 act did not apply to the copying atissue). Citing Kewanee Oil Co. v. Bicron Corp.,416 U.S. 470 (1974), Goldstein v. California, 412U.S. 546 (1973), and International News Service v.Associated Press, 248 U.S. 215 (1918), the courtconcluded that such federal objectives as encourag-ing originality and promoting the disclosure of in-formation did not conflict with Mergenthaler'sclaim, which therefore survived Storch's motion todismiss. The court expressed no opinion aboutwhether Mergenthaler might prevail on the meritsor, of equal importance, what result would obtainunder the preemption provisions of the 1976 act, 17U.S.C. $301. A case in the same Circuit which doesdiscuss those provisions, Ortho-0-Vision, Inc. v.Home Box Ofice, Inc., Copyright L. Rep. (CCH)125,093 (S.D.N.Y. June 27, 1979), suggests thatthis type of misappropriation action might nolonger be available.In many cases involving form contracts and thelike, courts have stated that copyrightable works ofminimal originality can be infringed only by vir-tually exact copying, but all such cases have in-volved either uncopyrightable works or less than in-culpatory copying and, thus, no infringement. Thefirst finding of inf

US Copyright Office: ar-1979

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