REPORT OF THE LIBRARIAN OF CONGRESS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, .C-.

LIBRARY OF CONGRESS WASH1 NGTON 1979 COPYRIGHT SERVICES

Throughout its century-long history the Copyright the effects of the new law's first year upon the Office has survived some difficult years, but never Copyright Office ai a whole and upon its individ- one comparable to fiscal 1978. ual organizational units. A broader and more The new copyright law of the United States, detailed report of the year's copyright develop- which came into effect on January 1, 1978, ments will be found in the Annual Report of the shifted the philosophical basis for protection of Register of Copyrights for Fiscal Yem 1978, pub- authorss rights in this country and changed the lished separately in accordance with section 701(c) entire legal framework through which that protec- of the new statute. tion is achieved. One of the many effects of the new law was to transform the work of the Copy- right Office. Everything the offxe had been doing OPERATIONS AND SERWCES had to be changed. Old responsibilities were sub- stantially enlarged, and many new duties and services were created. The new law presented the Copyright Office The Copyright Office was reorganized in January with an enormous challenge, and in meeting it the 1978 to provide for the additional responsibilities entire staff of the office demonstrated a truly brought by revision of the copyright law and to remarkable devotion to duty. One can hope that the enable it to deal as effectively as possible with its Copyright Office never again has to face the increased workload. The sectional structures of the transitional problems and growing pains it met and Cataloging Division and the Examining Division surmounted in 1978, but if it ever does, the were realigned to correspond with the classifica- achievements of that year will be an inspiring tion system adopted for registering claims under example to follow. the new law. The Information and Reference One decision resulting from the new law has Division, replacing the former Reference Division, been to publish the annual report of the Copyright, enlarged its functions to meet the expanded infa- Office in two versions aimed at somewhat dif- mational and training needs of the offie. The ferent groups of readers. In this chapter of the Acquisitions and Processing Division continued the Librarian's annual report we shall concentrate on functions of the former Service Division with REPORT OF THE LIBRARUN OF CONGRESS, 1978

greatly expanded acquisitions responsibilities could be acted upon without correspondence. The assigned to the Copyright Office by the new law. complexities of the new law, particularly the pro- The new Licensing Division was established to visions concerning copyright registration, altered implement sections of the law pertaining to this situation dramatically: for at least the first compulsory licenses-those dealing with the half of 1978 less than 20 percent of the applica- secondary transmissions of radio and television tions and deposits received could be passed with- programs, making and distributing phonorecords of out first writing to the applicant to correct errors nondramatic musical works, public performance by or elicit missing information. This exploding work- means of coin-operated phonorecord players, and load required temporary details throughout the the use of published nondramatic musical, picto- Copyright Office. rial, graphic, and sculptural works, and nondra- Frequent meetings of division chiefs, section matic literary works, in connection with noncom- and unit heads, and other officers involved in the mercial broadcasting. A second new division, the registration process were called to explore new Records Management Division, was created to possibilities for work simplification and accelera- bring together under one administrative head the tion. Procedures were streamlined and less-essential Copyright Office's historic responsibilities for steps postponed in an effort to speed the registra- maintenance, service, and preservation of records tion process and the issuance of certificates. The related to the copyright registration process and to public proved remarkably understanding through- recognize these records as an important manage- out this difficult period, and by the end of the ment concern. fiscal year the backlog had begun to diminish. The administrative structure of the office was also revised to provide for two assistant registers of copyrights, rather than a single deputy register, Acquisitions and Recessing D~hn both assistants reporting to the register of copy- rights. The office was fortunate to have able, One of the principal effects of the reorganization experienced executives to fill these posts. Waldo of the Copyright Office in fiscal 1978 was the H. Moore, assistant register of copyrights for regis- demise of the Service Division and its rebirth as tration, oversees the divisions primarily involved in the Acquisitions and Recessing Division. There the registration process and acts as the register's were those in the division who regretted losing the deputy as required. Michael R Pew, assistant familiar name of "Service," an apt description for register of copyrights for automation and records, an operation dedicated to assisting and benefiting has jurisdiction over divisions concerned with auto- others. However, like the characters in the tele- mation applications, licensing activities, and vision commercials for its more famous namesake, records administration. Mr. Pew has continued also the office's new "A&P" might be said to deal with to carry the principal responsibilities of executive "Rice" (the accounting and fiscal control activities officer of the department. of the office) and "Pride" (the efficient processing and control of the entire registration workflow). And the A&P Division had special reasons for Workload and Problems Encountered pride in 1978. There was, first, the huge influx of work in While the Copyright Office anticipated and plan- December 1977, resulting from the public's rush ned for an influx of claims under the old law near to get registrations under the old law and at the the conclusion of calendar year 1977, it could not old fee. Then there was the deluge of requests for have foreseen the extraordinary crush of work that application forms and information concerning the immediately confronted its staff from the begin- new law. Next, after January 1, 1978, came the ning of revision implementation in January 1978. flood of new-law applications, most of which The unfamiliarity of the public with the new law required correspondence. For a time the volume of and the new application forms combined to create work going into the processing pipeline remained a backlog of cases requiring correspondence or quite heavy while completed output fell off to a awaiting replies. Before the 1976 law, an estimated dribble, and this meant the buildup of a tremen- 85 percent of copyright applications and deposits dous backlog of cases awaiting final resolution. COPYRIGHT SERVICES

Physical contrd of the office's workload became Records, which records the works submitted in increasingly difficult, and searching for cases in compliance with the mandatory deposit provisions process became a nightmare. of section 407 of the law and provides administra- Throughout this period the staff of the Acquisi- tive support to the entire section, and Identifica- tions and Recessing Division managed not only to tion and Search, which issues demands for deposit cope with a crushing workload but, by massive of works identified by its own staff or recorn- infusions of ingenuity, dedication, and stamina, mending officers elsewhere in the Library, pur- they began to restore the day-to-day processing suing each case until it is resolved. The section's activities of the division to currency. This was by expanded horizons were reflected in its new name: far the division's greatest accomplishment during Deposits and Acquisitions. the year. The response to compliance demands issued There were other bright spots in the A@ under the new law has been excellent, with nearly picture. The many promises of automated in- all cases being resalved within the statutory three- process control began to be realized as the deposit month period, which begins with the demand. At account subsystem of the Copyright Off~eIn- year's end there were fewer than ten outstanding Rocess System (COINS)became operational. This demand cases that had passed the statutory limit; system, which is described in more detail in this these were being evaluated, with the expectation chapter in connection with the office's automation that some would be referred to the Department of activities, was an unqualified success and a tribute Justice for prosecution. to the dedication and competence of the staff of the Fiscal Contrd Section and its Accounting Unit. Examining Division Another important accounting change was made necessary by the new statutory requirement that Although the coming of the new law affected the first $3 million of Copyright Office fees be every operation in the Copyright Offxe, perhaps credited to the Library of Congress appropriation no single organizational unit felt its impact more to be used for Copyright Office salaries and ex- directly, broadly, and fundamentally than the penses. For this purpose the Library of Congress Examining Division. Tens of thousands of policies, sought and obtained General Accounting Office practices, and procedures-some going back to approval for the Copyright Office to take credit passage of the 1909 act or even further-had to be for fees as they are received, rather than waiting pulled up by the roots and, after thorough analysis until after a certificate has finally been issued. and reevaluation, either replaced or changed. It This new procedure was implemented in August was only through the efforts of a dedicated and 1978, and the $3 million target was achieved. In flexible staff that the Examining Division was able addition, virtually all of an additional $500,000 to meet this unprecedented challenge. needed to cover a supplemental appropriation for Even before the new law took effect the Exam- the Copyright Office was credited to the Library's ining Division was undergoing major structural appropriation. While obviously more realistic from changes to align itself with an entirely new system a budget standpoint, the new reporting procedure for classifying works. In registering a claim to is also consistent with the long-range automation copyright under the old law, an applicant had to plans of the office. select the proper ,class for the work fiom some The new copyright law has greatly strengthened eighteen overlapping classes. Under authority dele- the provisions for the mandatory deposit of copies gated to the Copyright Office under the new law, and recordings for the collections of the Library the administrative categories were redud to a of Congress. The stiffened requirements and basic four-nondramatic literary works (class TX), stronger penalties for failure to comply, combined works of the performing arts (class PA), works of with the Copyright Office's resolve to expand its the visual arts (class VA), and sound recordings support to the Library, resulted in a complete (class SR). This simplification in turn called for a overhaul of the old Compliance Section. Moved substantial organizational realignment in the Exam- from the Reference Division only last year, the ining Division. The old Book Section became the section was split into two units: Compliance Literary Section, with responsibility for processing REPORT OF THE LIBRARIAN OF CONGRESS, 1978

all claims on nondramatic textual material, includ- In addition to informing the remitters of the ing periodicals and unpublished literary works. The new law's requirements, the Examining Division's Arts Section became the Visual Arts Section, with own staff had to be thoroughly trained in order to responsibility for photographs, sculpture, paintings, ensure knowledgeable, efficient service. Among prints, reproductions of works of art, maps, and other things, this meant that for a time all corre- technical drawings. The Music Section became the spondence and claims had to be reviewed before Performing Arts Section, with responsibility not final action was taken; while this review process only for music claims but also for dramatic works, was necessary, it was costly in diverting super- choreographic works, pantomimes, sound record- visory personnel from the normal processing of ings, motion pictures, and other audiovisual works. claims. The Renewals and Assignments Section was re- As the mountain of correspondence and un- named Renewals and Documents Section but finished business continued to grow -during the otherwise remained substantially intact. The Multi- early months of 1978, it became obvious that media Section, on the other hand, was absorbed emergency measures would have to be taken. In into other sections of the Examining Division. It February staff members from elsewhere in the had been formed under the old law primarily to office began to assist the Examining Division di- eliminate workflow and correspondence problems rectly, and in the summer months the interim when materials comprising two or more different practices were reevaluated in a series of allday classes had to be moved from section to section meetings with a view toward expediting the exami- for examination; with the reduction of these nation and recordation process. classes of works, the original purpose for establish- The issues discussed during these meetings were ing the Multimedia Section no longer existed. difficult. While the office was clearly obligated to The second major undertaking in late 1977 was maintain a legally sufficient record, the size of the the establishment of a set of Examining Division workload facing the Examining Division impelled practices involving the application of the new law. it to cut backi on anything other than essential In a series of allday meetings chaired by the correspondence and paperwork. The interim prac- register, issues which could arise in the examina- tices were revised to take account of this emer- tion of claims were discussed, and from these gency, and a manual was prepared and made meetings a set of preliminary practices was devel- available to the staff in mid-August. By the end of oped. Another major task in preparing for the the fiscal year there was evidence that the emer- transition was clearing up as many pending claims gency measures were taking effect and that the as possible before the new law went into effect. backlog of material was beginning to shrink. Written guidelines were prepared for transitional cases, new guide letters were developed, no-reply case procedures were altered, and the division Cataloging Division undertook a special project to process "old fee" items. The changes that had to be absorbed and imple- Almost as soon as the first applications were mented by the Copyright Cataloging Division in received under the new law, the Examining Divi- fiscal 1978 were by far the greatest the division sion began to recognize the immensity of the had encountered since its organization' in the problems facing it. Most of the claims received 1940s. There were two fundamental reasons for during the first weeks were submitted on the old the changes. First, of course, there was the new forms with fees at the old rate and therefore copyright law. But of equal importance was a required correspondence. Many remitters knew management decision to make the division's cata- nothing about the new law, and those that did loging product compatible with the cataloging often had trouble completing the new forms. practices of the Library of Congress Processing Correspondence rates soared. This problem became Services. This decision, which in some ways particularly acute in registering periodical claims, may prove even more significant than the new as the correspondence rate jumped seven to eight copyright law for the future of copyright catalog- times what it had been under the former law. ing, paves the way for eventually adding hundreds COPYRIGm SERVICES

of thousands of copyright entries to national and The need, deriving from the new copyright law, international data bases. to incorporate additional copyright facts in the Whatever form they took, the changes in the cataloging records was seen as an opportunity to division and its work were all radical. The whde review all elements of the cataloging record. A division was completely reorganized. The division's major policy decision was made to adopt the cataloging rules were completely revised. The Anglo-American Cataloging Rules (AA CR ) and to organization and pattern of publication of the follow International Standard Book Description Catalog of Copyright Entnks was altered substan- practices for all types of material. Beginning with tially. The automated cataloging system, COPICS, all materials registered after January 1, 1978, the was completely redesigned and supplanted by a descriptive portion of copyright cataloging entries new system, COPICS 11. And, as a result of the includes bibliographic data based essentially on the new law, a substantial amount of cataloging infor- work itself, in the same order and format and with mation was added to all copyright entries. the standardized punctuation required by the rules Problems abounded at every step of the way, for International Standard Book Description and not the least of which were derived from uneven chapter 6 of the AACR. workflow, balky computers, inadequate space, and For some nonprint materials not covered in understaffing. The staff met and surmounted each AACR, the division has examined the drafts of problem as it arose; in the words of Robert D. AACR 2 and consulted specialists elsewhere in the Stevens, the division chief: "To state that the Library in the formulation of the necessary rules. response of the division staff to the challenges posed As a consequence, in such areas as the cataloging by the multiplicity of changes and problems was of motion pictures and multimedia sets the divi- outstanding is, it should be understood, meiosis not sion has pioneered in the framing and application braggadocio." of special cataloging rules. New data-such as date The changes in copyright registration classes of creation, information about the relationship of resulting from the law of 1976 caused major the work in hand to previously registered works, changes in the flow of work to the Cataloging statements showing the employee for hire relation- Division, which in turn required an internal re- ship to the work, the need for providing for group organization geared to work flow. This provided a registrations and for correction of registration valuable opportunity to make some additional data-also required the writing of cataloging rules changes designed to bring the organization into and the integration of these rules with the rules better correspondence with parallel units in the for bibliographic description. Library of Congress proper. A Serials Unit was A reexamination of the pattern of publication created to catalog and record all serially published and frequency of issue of the parts of the Catalog materials, thereby improving the flow of publica- of Copynght Entries (CCE) suggested the desirabil- tions to the Ubraryss Serial Record Division, and ity of eliminating some of the smaller parts as an Audiovisual Section was created to catalog separate publications. At the same time, it became motion pictures, sound recordings, and mixed- obvious that the largest parts should be issued media works. A major aim in both cases was to more frequently because these parts had grown so establish cores of specialized cataloging expertise large as to make the semiannual issuances clumsy in the Copyright Office and to establish better to handle and difficult to edit. Institution of a workflow and relationships with parallel special- separate catalog of renewal registrations was also ized units elsewhere in the Library. called for. The changes will occur with the pub- With one exception, the reorganization of the lication of calendar year 1978 catalogs. The 1977 Cataloging Division to correspond to workflow has catalogs of Dramas and Works Prepared for Ord been highly successful in reducing sorting and Delivery and Prints and Labels are the final issues routing operations. As it turned out, the task of of these titles. Henceforth, dramas will be included breaking receipts of "literary works" into separate in the Performing Arts Catalog and prints and catagories of serials and monographs has proved to labels in the Visual Arts Catalog. From January be more burdensome and time consuming than 1978 on, the eight parts of the CCE will be: was anticipated and will need further study and changes in procedure during the coming year. Non-Dramatic Literary Works REPORT OF THE LIBRARIAN OF CONGRESS, 1978

Serids and Periodicals period that was confused and difficult for everyone Performing Arts concerned with copyright law. Motion Pictures The officewide reorganization left the old and Visual Arts much-honored Reference Division with a new Maps name-Information and Reference Division-that Sound Recordings better identifies the broad range of functions it Renewals performs. The newly reorganized division is divided into three sections: Information and Pub- The Non-Dramatic Literary Works and Performing lications, Reference Search, and Certifications and Arts catalogs will be published quarterly. All other Documents. parts of the CCE will be published semiannually. The Information and Publications Section (I&P) One of the major achievements of the Copy- was substantially reorganized and expanded to right Office in recent years has been the develop- meet the voracious demands of the public for ment and implementation of a complete auto- information, answers to questions, and printed mated on-line cataloging system known as matter. The figures for the year speak for them- COPICS. The new law and the need for radical selves. Some fifty-four hundred people came in changes in the catalog entries for copyright regis- person to Crystal City to seek assistance from I&P, trations required such major changes in COPlCS including many writers, composers, performers, that the system had to be redesigned and repro- publishers, producers, figures from the entertain- grammed almost from scratch. The new system, ment industries, librarians, educators, scholars and which was named COPICS 11 to distinguish it from researchers, government officials and foreign repn- its progenitor, became operational in fiscal 1978. sentatives. The section answered a total of nearly Introducing a new automated system is never sixty-four thousand telephone inquiries and, by easy, and COPICS 11 was no exception to this rule. coincidence, a total of almost exactly sixty-four However, despite the multitude of problems, thousand letters. In an effort to improve informa- cOPICS 11 can be called a genuine success. Not tion telephone assistance, hours were increased from only was the scope of the automated system 8 A.M. to 7 P.M. Monday through Friday (except greatly expanded to accoqmodate new entries and legal holidays), and a telephone recorder was new data elements, but, in addition, a number of installed so forms and circulars could be ordered new features were added to the system to make after hours. the work of cataloging easier and to provide As a part of the reorganization of the Informa- additional controls and data. tion and Publications Section, a Publications Unit was created to assist in the preparation of all Copyright Office publications. The responsibilities of this unit include graphics design, exhibits, Information and Reference Division writing, editing, printing, and control. During the fiscal year the new unit was responsible for getting The staff members of the Information and Refer- the millions of application forms, circulars,-an- ence Division are the front-line troops of the nouncements, and other publications redesigned, Copyright Office, and it was they who felt the printed, and distributed to the public. One telling first shock waves from the impact of the new law. statistic: solely as a result of individual requests, It seemed for a time that everyone in the country the office's mailing list more than doubled in size, wanted application forms and information about from eight thousand to eighteen thousand. the new statute, and that all their requests arrived in At the heart of the Information and Reference I&R at the same time. In the face of an enormous Division's responsibilities is the Reference Search influx of letters, personal visitors, and telephone Section, which is charged with searching the vast calls, the division did more than merely maintain its public records of the Copyright Office and provid- reputation for courteous and knowledgeable service ing search reports and answers to reference to the public. The staffs energy, enthusiasm, and inquiries to the public on request. Nearly informed intelligence permitted the office to meet twelve thousand searches were completed during an unprecedented challenge; they also provided the the year, and these ranged in size from simple public with exceptional personal service during a searcher requiring one hour or less to long, COPYRK;HT SERVICES complex searches-such as the one completed in registration, catalog cards, and deposit copies 1978 for all the works of a famous composer, under Copyright Office jurisdiction. requiring 285 hours and covering roughly seven- In addition to carrying on its regular preserva- teen hundred separate items. Various provisions of tion and maintenance work, the new division the new law have combined to increase the com- devoted its first few months of operation to plexity of searching and the legal importance of appraisal of existing resources and planning for the search reports; these factors, combined with severe future under the new statute's expanded emphasis dislocations in workflow and card production dur- on copyright records. Existing responsibilities of ing the year, had a direct impact on the work of the Preservation Section in the microform or other the Reference Search Section in 1978. Despite the reproduction of various records, notably deposit problems, however, the section maintained its copies, will be expanded. One of the two units of work on a current basis, and generously assisted the Records Storage Section, the Deposit Copies other organizational units in the Copyright Ofice Storage Unit, increased its collections of copyright in coping with the revision backlog. Most note- deposits by more than 277,000 items during the worthy of all, the entire staff collaborated in a year and substantially reorganized its holdings and remarkable achievement: a thirty-chapter pro- its records pertaining to them; among other things, cedural manual describing the work of the section it installed a computer terminal for the electronic in organized detail and providing the groundwork posting of storage data. The other unit of the for the section's future development. Records Storage Section, the Records Maintenance Little-known but crucial public services of the Unit, took the brunt of one of the major paper- Copyright Office are to provide certified documents work requirements of the new law-the obligation made from the office's records and to comply with to issue certificates of registration as facsimiles of requests for inspection of copies of works deposited the applications filed. The Filing and Revising Unit for copyright registration and retained in the of the Card Catalog Section filed some 1,231,000 office's collections. These services are provided by cards during the year while absorbing a new filing the third of I&R's sections, the Certifications and procedure and new filing rules. Documents Section (C&D). The new law had a direct impact on C&D's work, and nearly every aspect of it increased; the section responded to the Licensing DMsion requests of more than fifteen hundred visitors, answered nearly four thousand telephone inquiries, The Licensing Division is a completely new organ- replied to thirty eight hundred letters, and sent out izational unit within the Copyright Oflice, estab- some eightyeeven hundred copies of documents of lished to handle the four compulsory licenses in various kinds. the copyright law, which are for secondary transmissions by cable systems, for making and distributing phonorecords, for public performanoes Recads Management Division on coin-operated phonorecord players (commonly known as "jukeboxes"), and for the use of certain The second of two new divisions created as part of works in connection with noncommercial broad- the reorganization of the Copyright Office and casting. implementation of the new copyright law, the The first three months of fiscal 1978 were Records Management Division, began to function devoted to intensive preparatory work. During this in May 1978. The new division consists of three period most of the staff members of the division sectionsthe Preservation Section, the Records were hired and trained, detailed workflow pro- Storage Section, and the Card Catalog Section- cedures were developed, and a complex accounting and more than fifty employees brought together system was established. from the records management operations of the Under the statutory provisions governing cable former Service and Reference Divisions. It is and jukebox performances (sections 11 1 and 116 responsible for planning a comprehensive program of Title 17), cable and jukebox operators must for maintaining, preserving, and making available submit royalty fees to the Copyright Omce. The for use the enormous body of records of copyright office is directed to account for the fees and, after REPORT OF THE LIBRARIAN OF CONGRESS, 1978 deducting its "reasonable costs," to deposit the February and continued throughout the year. balance in an interest-bearing account with the Their processing was accomplished through the use Treasury of the United States for later distribution of an automated "batch" system. After being exam- by the Copyright Royalty Tribunal. In November ined in the Licensing Division, the applications 1977 a conference was held with the Office of were batched and keypunched, and a first report Management and Budget, followed by several was issued, using the computer at the Computer meetings with the staff of the Library's Financial Service Center. This report was proofread in the Management Office, and in March 1978 accounts division and, if all of the players, names, and were formally established in the U.S. Treasury for addresses of the operators listed were correct when jukebox and cable operations. compared with the original application, the com- In order to be able to deduct the appropriate puter tapes were run again and certificates were operating expenses from each of the two cate- produced for each player listed in the report. A gories of royalties collected, the division estimated certificate is a tw~partthree-by-five-inch printout that, throughout the calendar year, approximately of the name and address of the operator and the 56 percent of staff time would be spent on cable specific information for one player and is designed activities and approximately 39 percent on juke- to fit into the title strips of licensed jukeboxes. A box licensing. The remaining 5 percent was allo- certificate for each licensed jukebox was sent to cated to certain recording functions under the the operator at the end of this process. other two compulsory licensing provisions in the This off-line system got us through the year, statute (sections 115 and 118). Applying these but it left a great deal to be desired. With the percentages to the $387,000 budget of the Licens- assistance of the Automated Systems Office of the ing Division for calendar year 1978, $150,746 was Library, the Licensing Division is in the procesj of deducted from the receipts from jukebox licenses converting the batch system to an on-line system, and $215,311 from the amount deposited by cable using cathode ray tube (CRT) terminals which will systems. be located in the division and attached to the Under section 116, jukebox operators are Copyright Office minicomputers. Certificates will be required to apply for their compulsory licenses printed on a daily basis, as applications are ac- during January of each year, and on or before cepted, using printers attached to the CRTS. March 1 of the year they must place certificates The number of jukebox certificates issued dur- issued by the Copyright Office on their players. ing the fiscal year totaled 137,222. This amounted The Licensing Division must issue certificates with- to about one-third of the 400,000 figure which in twenty calendar days of receipt of an accept- had been estimated by representatives of the able application and remittance. The fust problem industry as the total number of jukeboxes in the the division faced was getting the printed applic- United States, To increase voluntary compliance ation forms and instructions (form JB) into the from those operators unaware of the new law's hands of jukebox operators throughout the coun- requirements, the Licensing Division issued an try so that they could meet the statutory dead- information circular and an additional press release lines. Through the Amusement and Music Oper- during the year, However, as time went on, it was ators Association, the national trade association of hard to escape the conclusion that there was a vending machine operators, and also through the certain amount of noncompliance with the statu- help of various state trade associations and several tory requirements, that at least some of it was of the major jukebox distributors, the division was deliberate. able to distribute approximately thirty-six thousand Even though section 11 1, the statutory pro- applications and forty-nine thousand continuation vision establishing the compulsory license for re- sheets to operators during the fust part of 1978. At transmissions of copyrighted works by cable the same time the division issued a press release, systems, is extraordinarily complex and detailed, it ' directed especially to trade journals, informing the leaves a great deal to be fleshed out in regulations operators of their potential liability under the and administrative practice by the Copyright copyright law. Office and the Copyright Royalty Tribunal. As a Receipts of jukebox applications, though never result of rulemaking proceedings during fiscal as heavy as expected, peaked around the middle of 1977, proposed regulations on cable were issued COPYRIGHT SERVICES on December 1, 1977, and were later issued in broadened in scope; its purpose should be to serve final form. not only the legal staff of the Copyright Ofice Under the statute, cable systems in the United but also the office's entire staff and, moreover, the States are required semiannually to fde detailed research needs of the copyright bar and public. statements of account and to pay into the Copy- Accordingly, the library was shifted from the right Office royalty fees computed under compli- General Counsel's Office and placed under the cated statutoty formulas. Although not expressly direction of the assistant .register of copyrights for required to do so by the statute, the Copyright automation and records. At the same time, the Office decided to provide forms for use in fding word "Law" was dropped from the library's name statements of account. This decision was encour- and it was renamed the Copyright Office Library. aged by both cable operators and copyright As reorganized, the Copyright Office Library owners, to ensure ease and consistency in report- now provides all types of reference services to the ing. Nearly two months of concentrated effort was Copyright Offxe staff and copyright-related refer- needed to design the forms, draft the accompany- ence services to the public. In addition, the library ing instructions, and prepare corresponding revi- is the center of extensive bibliographic and re- sions in the regulations. The results, forms CSISA- search activities. Every two years the Copyright 1, CSISA-2, and CSISA-3, were mailed to cable Office Library compiles and publishes the operators during the fust week of July. The first Decisions of the United States Courts Involving accounting period closed June 30, 1978, and the Copyright (Copyright Offie Bulletin). Volume 40 statements of account were due in the Licensing of the Bulletin, covering cases decided in 1975-76, Division no later than August 29, 1978. Between was published in 1978. During fiscal 1978 the August 21 and August 29 most of the 3,667 library prepared cases appearing in 1977 and 1978 statements of account were received by the divi- for publication in volume 41 of the Bulletin and sion. The month of September was spent deposit- also neared completion of the monumental task of ing these cable receipts, and at the beginning of preparing for publication all U.S. copyright cases October, examination in depth was begun. reported between 1789 and 1908. A comprehen- sive legislative history of the new copyright law was also nearing completion as the fiscal year ended. A new and extremely valuable development The Copyright Office has, in its library, one of the during the fiscal year was the regular biweekly most complete collections of copyright reference publication of the Copyright Office Bibliographic materials in the world. In addition to monographs, Bulletin, a collection of abstracts summarizing treatises, texts, law reports, articles, and bibli- recent cases, legislative matters, articles, books, ographies-including historical as well as current news stories, and foreign-language publications materials, published and unpublished materials, involving copyright. The Bulletin, which is a rich standard and rare materials, and English-language source of contemporaneous information and legal and f oreign-language materials-the Copyright scholarship, is distributed in the Copyright Offxe, Office Library's collections include much docu- and most of the abstracts are later published in mentary and archival material bearing on copyright the Bulletin of the Cbpyright Society of the and related subjects: studies, reports, memoranda, U.S.A. As part of this expanded program, clippings, briefs, transcripts, documentation for members of the Copyright Office staff with international meetings, legislative materials, and so foreign-language skills have read books and period- on. icals in foreign languages and prepared abstracts In its origins the library was intended primarily for publication in both bulletins. to serve the immediate legal research needs of the During the year the Copyright Ofice Library Register's and General Counsel's Offices and staffs. received two substantial gifts. The fust consists of The present and potential functions of the library a collection of all of the studies on copyright law were. thoroughly reassessed during the rb- prepared by law students for the Nathan Burkan organization of the office as a whole. It was agreed Competition from 1939 to 1977 and submitted to that the role of the library should be substantially the American Society of Composers, Authors, and REPORT OF THE LIBRARIAN OF CONGRESS, 1978

Publishers (ASCAP)by law schools throughout the control over all monies deposited in connection country for entry in the national competition. The with that material from the date of receipt. twelve hundred papers, which were all prize- winners at the law schools where they were writ- To track the path of the material through the ten, cover nearly every copyright subject imagin- office, so that the whereabouts of a particular case able. Donated by ASCAP and by Herman Finkel- can be located immediately and without manually stein, ASCAP'S general counsel before his retire- searching through piles of applications and corre- ment, the collection is in the process of being spondence envelopes. indexed and will be an invaluable research tool for copyright scholars for generations to come. To generate a variety of statistical and account- The second important gift consists of the refer- ing reports showing production and backlogs ence and documentary materials formerly in the throughout the office. collections of the National Commission on Tech- nological Uses of Copyrighted Works (CONTU). To pinpoint disruptions and bottlenecks in This body of materials, which was donated to the production and workflow. Copyright Office Library after the commission made its final report to Congress, consists pri- The framework of this plan was formulated in marily of studies, reports, and periodicals and 1976, with the expectation that it would become should serve as an important reference for scholars fully operational by the end of fiscal 1982. The studying photocopying and computer uses. accomplishments in fiscal 1978 represented a giant step toward the ultimate goal. Phase 1 of the COINS system involved the Automation: The COINS System automation of the office's deposit accounts, the arrangement under which applicants are able to Of the three major automation efforts in the make advance deposits and draw against their Copyright Office in fiscal 1978, two have already balance for registrations and other services. In been discussed in some detail: the complete revi- order to validate the new system, the old manual sion of the automated cataloging system and its procedure functioned in parallel with the new rebirth as COPICS 11 and the automated system automated procedure for seven weeks, from Hallo- for processing jukebox certificates developed in ween to Christmas, 1977. This parallel testing not the Licensing Division. The third is a massive, only allowed confidence in the new system to five-year project aimed at providing automated grow but also provided an opportunity to reeval- control over the entire registration workflow and uate and revise existing procedures. When it accounting operations of the Copyright Office. became fully operational on December 23, 1977, Phase 1 of this new system, which was given the phase 1 of COINS marked the first entry of the acronym COINS (Copyright Office In-Process Library of Congress into so-called "distributed System), became fully operational, and substantial processing" using minicomputers dedicated to a progress was made in planning, programming, and particular purpose. In operation, the automated testing the second phase during the year. deposit account system has proved highly reliable The ultimate goal of the COINS System is and flawlessly accurate. fourfold: In August 1978 phase 2 of COINS began pilot operation in the Renewals and Documents Section To record, upon receipt, all material received of the Examining Division. Phase 2 is a corre- in the Copyright Office in connection with any spondence management system enabling the office service requiring a fee, including registrations, to track all cases requiring correspondence recordation of transfers and other documents, and throughout the entire time they remain pending. searches, but not including cable and jukebox By means of bar-code labels and wand readers, the licensing and requests for general information or progress of every case requiring correspondence is application forms; the system will ensure that the recorded as it works its way toward final disposi- office has a record controlling the workflow of the tion, and the entire office can determine immedi- great bulk of material it receives and accounting ately, through video terminals, where the case ts and the actions taken with respect to it. Reports The Copyright Office lost a deeply revered of production statistics showing problems and colleague in the death, on September 10, 1977, of delays in correspondence are an immediate by- Abraham L. Kaminstein, register of copyrights product of the new system. As the year ended from 1960 to 1971. A program in his memory was phase 2 of COINS was being expanded in other given by the Emerson String Quartet on December sections of the Examining Division and work on 16, 1977, in the Coolidge Auditorium of the phase 3, aimed at initial automated control over library of Congress. Alan Latman of the New all in-process and fiscal activities of the office, was York University Law Center, executive director of under way. the Copyright Society of the U.S.A., opened the program with a eulogy to Mr. Kaminstein and a review of his enormous and invaluable contribu- Copyright Office Staff: tions to the development and adoption of the Activities, Recognition, Transition 1976 revision of the U.S. copyright law. In paying tribute also to his substantial contributions in the , At the close of fiscal 1978 the staff of the international copyright arena, Mr. - Latman re- Copyright Office totaled 573 members, and not marked upon "his perceptiveness and thorough one of them had been untouched by the various understanding of the practical and theoretical cataclysms that hit the office during the year. problems" that could separate nations. "His good Most made contributions far beyond their normal humor, his patience, his gentleness, and his duties and responsibilities, and the office's humanity helped accomplish the impossible." accomplishments in 1978 are a tribute to the Another former colleague and career officer, flexibility and dedication of the entire staff. William P. Siegfried, died on February 9, 1978. Mr. As might be expected in a year when the entire Siegfried, assistant register of copyrights from Copyright Offxe was reorganized, there were a 1946 until 1965, participated in the reorganization number of changes in management positions. and modernization of the Copyright Offie during Among the key appointments: Michael Pew was that period and received many special commenda- appointed assistant register of copyrights for aute tions for his excellence in directing the general mation and records; Marybeth Peters was ap operations of the office. pointed chief of the Information and Reference Special mention should also be ma& of the Division; John Heard was named chief of the retirement during the year of Wilma S. Davis, Records Management Division; and Catherine attorneyadviser in charge of the Copyright Off= LaTour was appointed Copyright Office librarian. Law library. During her twenty-four years of The Copyright Offxe was also an integral part of service to the Library of Congress, Ms. Davis was the reorganization of the Library of Congress as a often asked to undertake special projects, includ- whole. The national copyright system was ex- ing the establishment of the Copyright Offie Law pressly recognized as one of the four great mis- library in 1952. Responsible for many of the sions of the Library: "to serve the Congress, to publications issued by the Copyright Office, Ms. serve the nation's libraries, to serve as the national Davis will be missed by the Copyright Office and registrar to protect the rights of the creative- the copyright community at large. artistic community, and to serve the whole com- munity of learning." As part of this reorganization plan, the Librarian announced on April 13, 1978, COPYRIGHT OFFICE REGULATIONS that in addition to her present title as register of copyrights, Barbara Ringer would also hold the Throughout the new copyright law there are tide of Assistant Librarian for Copyright Services. clauses expressly requiring or authorizing the On September 25, 1978, Ms. Ringer was presented register of copyrights to flesh out general statutory the Gold Medal of the Confederation Interna- provisions with detailed regulations on particular tionale des Societes D'Auteurs et Compsiteurs in points. Section 702 gives the register general regu- recognition of her "numerous and eminent latory authority with respect to "the administra- servicer . . . for the cause of copyright.. . ." tion of the functions and duties made the REPORT OF THE LIBRARIAN OF CONGRESS, 1978

responsl%ility of the Register under this title." unfinished business of omnibus copyright revision: Section 701(d) makes all actions taken by the the scope of performance rights in sound record- register (except those involving reproduction of ings. copyright deposit copies) subject to the Adminis- Efforts to create a legal performance right for trative Procedure Act. sound recordings date back to the 1920s, even Fiscal 1978 was by far the most active regu- before recorded music became the staple of radio latory year in the history of the Copyright Office. broadcast programming. In recent years, during the Proposals were published, written comments were last phases of the general revision effort, serious elicited, hearings were held, interim and final consideration was given in both houses of Congress regulations were adopted, and a constant review to proposals for establishing a limited performance and revision process was carried on in the light of right in the form of compulsory license, with actual experience. The groundwork was laid for payments to performers and producers of copy- detailed regulations governing every aspect of the righted sound recordings. Ultimately it was office's work. As the year ended, it had become decided that the problem required further study, apparent that the adoption of Copyright Office and section 114(d) of the revision statute directed regulations is not a single act but a continuing the register of copyrights to submit a report to responsibility of massive proportions. Congress The general categories of subject matter covered by proposed, interim, or final regulations issued in setting forth recommendations as to whether [section fiscal 1978 include applications for registration 1141 should be amended to provide for performers and copyright ownen.. . any performance righta in [their and registration procedures, mandatory deposit c opyrighted mund recording]. The report should requirements, deposit requirements for registration, describe the status of such rights in foreign countries, the deposit requirements for motion pictures, renewal views of major interested parties, and specific legislation of copyright, corrections and amplifications of a recommendations, if any. copyright registrations, import statements, recorda- tion of transfers and other documents, methods of To fulfill this obligation, the register named a affwation and position of copyright notice, volun- staff of Copyright Office attorneys, under the tary license to permit reproduction for use of the direction of Hamet L. Oler, to organize and blind and physically handicapped, warning of execute a comprehensive, objective study of the copyright for use by libraries and archives, notices problem, aimed at providing Congress with a body of objection to certain noncommercial perform- of reliable information that would help it to ances, implementation of the Freedom of Informa- legislate intelligently and effectively on the tion and Privacy Acts, cable television transrnis- subject. The office requested public comments on sions, performances on coin-operated machines, the question in May 1977. Nearly two hundred and the compulsory license for recording musical written responses were received from interested compositions These regulatory actions will be parties, including broadcasters, jukebox operators, summarized in detail in the separately published record manufacturers and performers throughout Annual Report of the Register of Copyrights for the United States. The office held public hearings Fiscal Year 19 78. in Arlington, Virginia, on July 6 and 7, 1977, and in Beverly Hills, California, on July 26, 27, and 28, 1977. Some twenty-fwe interested parties LEGISLATIVE DEVELOPMENTS testified at these hearings to offer their views on the principle of performance rights protection and Pexfamance Royalty for Sound Recordings on the specific provisions of the pending Danielson bill for performance rights, H.R. 6063, 95th Congressional activity in the copyright field, which Cong., 1st Sess. (1977). had reached a fever pitch between 1974 and 1976, The Washington firm of Ruttenberg, Friedman, fell back to less than normal in 1977 and 1978. Kilgallon, Gutchess and Associates was commis- The only legislative proposal given active consider- sioned to prepare an independent analysis of the ation by Congress in fiscal 1978 involved some potential domestic economic effect of enacting thing that might be considered part of the performance rights legislation following the com- COPYRIGHT SERVICES pulsory licensing scheme embodied in H.R. 6063. Judiciary Subcommittee on Courts, Civil Liberties, These findings were announced and made available and the Administration of Justice as a committee to the public in early November 1977. Public print. comments and reply comments to the economic The House Subcommittee held public hearings findings were invited through December 1977, and on the subject in Beverly Hills, California, on nineteen responses were received. Thereafter, the March 29 and 30, 1978, and in Washington on Ruttenberg firm was asked to respond to the May 24 and 25, 1978. At the Washington hearings comments. the register of copyrights, Barbara Ringer, testif~d The Copyright Office also commissioned Prof. to the offie's conclusion, based on the report, Robert Gorman of the University of Pennsylvania that the principle of copyright protection for the Law School to prepare an exhaustive independent public performance of copyrighted sound record- study of labor union involvement with the per- ings is desirable and that no legal barriers impede formance rights question during the past thirty its enactment. The register affirmed that "argu- years. ments to the contrary can no longer be justified in The Copyright Office staff prepared a thorough the face of extensive commercial use of recordings, legal study of domestic case law from the 19309 with resulting profits to users and harm to to the present, considering constitutional, statu- creators." She summarized the office's efforts to tory, and common law issues raised by broad- study the question as thoroughly and objectively casters and other opponents of performance rights: as possible and concluded by reviewing the Copy- The report additionally reviewed the long legis- right Office's draft legislation, which followed the lative history of efforts in the United States to earlier Danielson bill with several clarifying provi- enact performance rights legislation and included a sions and other amendments. bibliography of domestic and foreign materials on performance in sound recordings. With respect to performance rights in sound recordings under for- eign and international laws, Copyright Office staff members visited Canada, Denmark, Austria, United Of the bills introduced in the first session of the Kingdom, the Federal Republic of Germany, 95th Congress, only one-H.R. 8098 (1977), France, and Switzerland and interviewed forty-five sponsored by Reps. Gladys Spellman and Don& government and industry representatives to learn Fraser-would have amended the new copyright their practical experiences with performance rights statute before it actually came into effect. The and to study various foreign systems of collecting Spellman bill was aimed at amending section and distributing royalty payments from the public 110(9) of the new law to expand the exemptions performance of sound recordings. These findings, provided in that clause for certain broadcasts along with profiles of performance rights in eight intended for reception by blind people and others other foreign countries, were incorporated in the with physical handicap impairing their reading register's report. The report also included an ability. No action was taken on this measure analysis of international protection for perform- during the 95th Congress. ance rights under the 1961 International Conven- Retransmission of copyrighted programming by tion for the Protection of Performers, Producers of cable television systems was the most diffiult Phonograms, and Broadcasting Organizations (the issue in the general revision of the copyright law, Rome Convention). and the solutions reached in the new statute were The Copyright Office submitted its basic based on a number of underlying assumptions "Report on Performance Rights in Sound Record- deriving from existing regulations of the Federal ings" to Congress on January 3, 1978. Several Communications Commission. These assumptions addenda to the report, including a draft bill to were thrown into some doubt by the introduction create a public performance right for copyrighted of a bill for the omnibus revision of the Com- sound recordings, were submitted in March 1978. munications Act, H.R. 13015, 95th Cong., 2d The basic report, together with all of the addenda Sess. (1978). Introduced by Rep. Lionel Van and transcripts of the office's hearings on the Deedin and huh Fey, the bill propoes a corn- subject, have been published by the House plete restructuring of federal regulation through REPORT OF THE LIBRARIAN OF CONGRESS, 1978

replacement of the Federal Communications Com- than $1,000, a royalty of 5 percent of the selling mission with a new agency, the Communications price would be paid into a new organization, the Regulatory Commission. The bill also provides for National Commission on the Visual Arts, which in deregulation, at the federal level, of the activities turn would distribute the royalty to the artist. of cable companies. Progress of this legislation will This bill, like Representative Drinan's earlier pro- be closely watched by the Copyright Office, since posal for legislation recognizing the moral rights of passage of a general revision of the U.S. cornmuni- visual artists, H.R. 8261, 95th Cong., 1st Sess. cations law is certain to affect the compulsory (1977), reflects the growing concern among artists licensing system established by section 1 11 of the and their representatives over the protection of copyright law. rights in their works. A narrower cable issue was raised by S. 3324, 95th Cong., 2d Sess. (1978). Introduced by Sen. Mike Gravel, the bill would exempt from liability INTERNATIONAL DEVELOPMENTS translator services operating on a delayed- basis in areas outside of the continental United States. The United States and the Berne Convention Translators are low-power broadcasting stations that receive incoming signals of a television station While fiscal 1978 was a busy year on a number of off the air and simultaneously amplify and "trans- international copyright fronts, the most important late" them to a different frequency for retrans- events might be grouped under the heading of mission to the service area. The present law "Berne overtures." It seems likely that future exempts nonprofit translators under section copyright historians will mark 1978 as the year in 11 l(a)(4) where the secondary transmissions are which concerted efforts to achieve U.S. adherence simultaneous. Under Senator Gravel's proposal, to the International Convention for the Protection the concept of a limited exemption for delayed of Literary and Artistic Property (the Berne Con- retransmissions as embodied in section lll(e) vention) began anew. would be recognized for translator services oper- The Berne Convention, oldest, most prestigious, ating on a delayed basis. and most comprehensive of international copyright Several bills were introduced proposing tax agreements, has grown enormously since its incep incentives for donations in the fields of the arts tion in 1886. Its influence has been incalculable: it and humanities. H.R 10445, 95th Cong., 2d Sess. has not only established a massive network of (1978), introduced by Rep. Frederick Richmond, international relations underlying dealings in copy- would allow a tax credit for charitable contribu- righted material across borders but has also deter- tions of literary, musical, or artistic property mined the substantive provisions of the domestic under certain circumstances. Similarly, H.R. copyright laws of the countries adhering to it. 10429, 95th Cong., 2d Sess. (1978), introduced by Those countries, known collectively as the "Berne Rep. Manuel Lujan, would establish more favor- Union," have never included the United States. able provisions for determining the amount of a Earlier attempts at general revision of the U.S. charitable deduction of literary, musical, or artistic copyright law, dating as far back as 1924, have property. Finally, a bill introduced by Representa- almost always been tied directly to the efforts to tive Richmond and twenty-four others, H.R. bring the United States into a worldwide multi- 12346, 95th Cong., 2d Ses. (1978), would revise lateral copyright treaty. Until 1955 there was only the federal income tax form to encourage financial one treaty of this sort: the Berne Convention. As contributions to the National Endowment for the long as our law remained unrevised, the Berne Arts and the National Endowment for the Human- Union remained closed to us, and we had to rely ities for our international copyright relations on an A bill to create an American version of the unsatisfactory patchwork of presidential proclama- European concept of le droit de suite, H.R. tions, bilateral arrangements, and regional treaties. 11403, 95th Cong., 2d Sess. (1978), was intre The coming into force in 1955 of the Universal duced by Reps. Henry Waxrnan, Frederick Rich- Copyright Convention (UCC), with the United mond, and Robert Drinan. Under the proposal, States as one of its original members, changed the when- a work of visual art is sold for more situation. The immediate god for copyright COPYRIGHT SERVICES reformers in this country became general revision roughly nil, and that the chances for substantive for its own sake and not for the sake of enabling revision of the Rome Convention to accommodate us to adhere to Berne. Berne Union membership the U.S. law are even less. Even more signifmt, remained for many a highly desirable ultimate goal the meeting produced an intriguing proposal. The but a less urgent one. With the final achievement suggestion, which originated with the director of a new U.S. copyright act, greatly modernizing general of WIPO, was that consideration be given our copyright law and fulfdling many of the to adopting a protocol to the Berne Convention, requirements of the Berne Convention, the ques- binding only on those states that accept it. The tion of U.S. adherence to Berne has been squarely protocol would permit a country (such as the raised at the public level. United States) that had never belonged to the On June 5-7, 1978, Register of Copyrights Berne Union to adhere to the Berne Convention; Barbara Ringer and Copyright Office General for a stated period of years that country could Counsel Jon A. Baumgarten attended a meeting in apply the provisions on formalities of the Uni- Geneva to study the new U.S. copyright law and versal Copyright Convention rather than those of its compatibility \with the Berne Convention. This the Berne Convention. At the end of the period, meeting, the fust of its kind, consisted of copy- the country would either have to resile from the right experts from various countries, invited in convention or drop its requirements for notice and their private capacities. The meeting was called at registration as conditions for copyright protection the initiative of the World Intellectual Property under any circumstances. This proposal, around Organization (wIPO), the secretariat of the Berne which douds of controversy have already begun to Union. gather, will be the subject of further meetings in The examination of the US. Copyright Act of 1979. 1976 in this context was highly instructive. In general the experts agreed that the level of copy- right protection undex the US. law had been Joint Meeting8 of the Governing Bodb raised substantially and is now at roughly the same of the Universsl Copyri%tConventbn level as that required by the Berne Convention. and the Beme Convention However, questions were raised as to whether the United States could be considered in compliance Between November 26 and December 6, 1977, the with the specific requirements of Berne on several Intergovernmental Copyright Committee (IGCC) of points, including the scope of performing rights the Universal Copyright Convention held its (notably the jukebox provisions of the new law), regular biennial session in Paris. As has been the the length of term and scope of protection for custom, the biennial meeting of the Beme Conven- works made for hire, the lack of express protec- tion's Executive Committee (BEC) was held tion for the moral rights of authors in the US. simultaneously with that of the rccc. In a signill- statute, the problem of possible retroactive protec- cant and productive session, the committees tion for works now in the public domain in the worked through a diverse agenda, anticipating United States, and-most serious-the existence of much of the work in international copyrigh.t of "formalities" (notably copyright notice and regis- 1978. tration) as conditions for U.S. copyright protec- Among the subjects of discussion during this tion in certain cases. session were the slow but steady growth of the The June WIPO meeting was primarily devoted Rome Convention for the Protection of Per- to a technical examination, by experts speaking in formers, Producers of Phonograms and Broad- a personal capacity and not for their governmenb, casting Organizations, the proposal of wrPo and of two extremely complex legal instruments, one UNESCO to prepare guidelines for implementing international and one national in scope. However, the provisions of the 1976 Brussels Convention to limited as it was, the meeting did seem to bespeak prevent the "poaching" of signals received from a general recognition of two important considera- communications satell&es, the Model Law on tions: that the chances for further revision of the Copyright for Developing Countries (197 l), the U.S. copyright statute to remove any question as extent to which the special provisions in favor of to compatiblity with the Berne Conventioa azc developing ,countries writden into the 1971 REPORT OF THE LIBRARIAN OF CONGRESS, 1978 revisions of the.Berne and Universal Conventions meeting in Tunis in the summer of 1977. It was have been successfully implemented (including the agreed that, with the Tunis meeting as a starting cre ati on o f national copyright information point, further interdisciplinary studies of the centers), a review of ongoing studies of computer problem would be undertaken. usages or computer-assisted creation of works Third, the committees recommended that the protected by copyright, discussion of problems World Council for the Welfare of the Blind, in arising out of the emergence of audiovisual conjunction with other similar organizations cassettes and discs and cable television, and the serving people with reading and hearing disabilities, legal protection of folklore. carry out a study of the interrelationship between Debate and exchange of views over the thorny copyright protection and the need for access to issue of copyright treatment of audiovisual copyrighted works by the handicapped. cassettes and discs reached the conclusion that the The most difficult and time-consuming item on special problem of off-the-air videotaping of tele the IGCC'S agenda was the election held to renew vision programming was sufficiently urgent to war- the membership of the committee itself. The terms rant the convening of a special subcommittee to of six countries, including the United States, were consider the issue. Similarly, the work done in the expiring, and of these the following four were area of cable television was sufficiently advanced reelected: Japan. Senegal, the United Kingdom, that the committees determined that special sub- and the United States. The Soviet Union was committees could profitably meet during 1978 to elected to the committee by acclamation and, as complete and close this phase of identifying the result of further balloting, the Netherlands was problems and solutions in the area of cable for the elected to fill the sixth slot. Following the elec- guidance of national legislators. As noted below, tion, several delegations observed that the new both the cable and videocassette subcommittees IGCC did not preserve the balance of geographic met during 1978. and economic diversity required by the convention Of the other issues considered on the com- and asked that amendment of the rules procedure mittees' agenda, three deserve special attention. of the IGCC to deal with this problem be con- First, there were extended discussions of several sidered at the committee's 1979 meeting. related topics: the degree of success of the 1971 UCC and Berne concessions in favor of developing countries, the recognition that much more needs Off-the& Video Recmding to be done in the establishment of national copy. right information centers, and the Tunis Model The entire question of how copyright law treats, Law. AU of the debates on these matters indicate reacts to, or fails to account for the special that the copyright aspects of the so-called "North- problems arising out of the socalled bbvideocassette South Dialog" are still matters of active concern. revolution" has been under active study in the The secretariats agreed to circulate a detailed international arena since 1975. The issue of copy- questionnaire to all states in order to develop right and off-the-air taping of television programs information on steps taken to facilitate copyright is a particularly acute problem in the United licensing between developed and developing states States, where video technology is rapidly gaining and to convene a working group to consider the ground for home entertainment and public instruc- realities of the problem and to recommend tional use, and was the topic for a meeting held in sol utiong Paris in September 1978. The United States was Second, the assumption commonly held that represented by Barbara Ringer, the register of developing states do not share with developed copyrights, who was elected to chair the meeting, nations a need for effective international copyright and Lewis I. Flacks, attorney in the Copyright and copyright-type protection for their creative Office. works was strongly contradicted by the discussion As in the case of cable television, the subcom- over the protection of folklore. Within the context mittees recognized quite early in the meeting that of international copyright, the interests of devel- the two international copyright conventions do oping states in effective protection of their fdk- not need revision to deal with the special problem8 lore was examined by a committee of experts raised by cassette and disc technology. To carry out their mandate-to explore problems and sdu- whole phenomenon, the various interests affected tions offered at the national level for the guidance (performers, record producers, composers, lyricists, of domestic legislators-the subcommittees, meeting and publishers) are beginning to come forward in Paris in September 1978, cataloged yet another with allegations of serious economic injury. inventory of problems. Perhaps the most signifiiant result of the September meeting was the greatly increased Cable Television consciousness on the part of all of the participants of how serioys a copyright problem is posed by The most diff~ultissue encountered throughout widespread off-the-air video recording. In view of the efforts to obtain general revision of the U.S. the relative novelty of videocassettes in the copyright law was the status of retransmissions, by marketplace, the subcommittees were anxious to commercial cable systems, of broadcasts containing provide some intellectual tools to cope with an copyrighted material. The act of 1976 adopted a emerging issue at the national level. rather complicated compulsory licensing system as In the area of home off-the-air recording, the solution to this problem, and the efforts to recognizing the difficulties of enforcement of implement this system both by the Copyright rights, the subcommittees expressed great interest Offze and by the Copyright Royalty Tribunal are in the present approach of the Federal Republic of stitl going on. Germany and proposed legislation in Austria, With the global growth of cable as a major which impose a levy or surcharge upon the retail communications medium, other countries are price of either the videotape hardware or blank encountering the same kinds of practical problems, recording cassettes and cartridges, or both. The legal issues, and controversies that rocked the US. money collected would go into a fund from which copyright revision boat for more than a decade. all rightholders would be entitled to some compen- This makes international meetings on the subject a sation, but how the distribution would be made fascinating, if poignant, experience for American remains somewhat vague. representatives. The thorny issue of off-the-air taping by educa- On July 3-7, 1978, subcommittees of the KCC tional institutions for classoom use has so far and the BEC (the governing bodies of the two attracted more attention in the United States than conventions) met in Geneva to exchange informa- that of home taping. The subcommittees expressed tion and explore domestic solutions for national the view that domestic legislation should specify a legislatures to consider in connection with balanc- carefully chosen area of fair use requiring neither ing the copyright needs and interests of all the prior permission nor remuneration. Beyond this groups affected by cable television. The United area of fair use, however, it would be necessary States was represented by Barbara Ringer, the and desirable to establish public, private, or register of copyrights, and by Patrice A. Lyons, semipublic clearance mechanisms for the collective attorneyadviser in the Copyright Office. This was administration of other, more extensive or signifi- the second international meeting devoted to the cant economic uses. copyright problems raised by cable television but Perhaps the most intriguing development at the the first hdd at an intergovernmental level. The September meeting was the recognition by the documentation of the 1978 meeting consisted subcommittees that the impact of home audio primarily of the report of a working group which recording of copyrighted works, principally music, met in Paris in June of 1977. cannot continue to be ignored, and that solutions The task of the July 1978 meeting was to reached in the video field may be usefully applied consider in detail whether existing international to that of audio recordings. Although the home copyright conventions are adequate to cope with taping of sounds from radio and other sources has legal issues arising out of cable transmissions and been going on on a massive scale for nearly thirty retransmissiom. Quite early in the proceedings it years, the practical problems of enforcement have was agreed that the Universal and Berne Conven- seemed so stupendous that little complaint has tions do not require revision for this purpose; the been raised by copyright owners. Now that home conventions give a great deal of latitude to video recording has thrown a spotlight on the national legislation in this fsld, and it was REPORT OF THE LIBRARIAN OF CONGRESS. 1978 therefore felt that the focus of the meeting should without any protection against, or remuneration for, be to provide an inventory and analysis of retransmission by cable within the country. Following tho& arguments would lead to discrimination not problems raised by cable distribution for the use compatible with the principle of national treatment con of member states. The task of adopting particular tamed in the multilateral copyright conventions. legislative solutions would be left to the member states and they could take into account the partic- The subject of how retransmission rights in ular circumstances of size, economic development, broadcasting can and should be administered was and the nature of broadcasting and cable activities also examined. The actual and potential growth of within the country. nonvoluntary ("c~mpulsory") licensing throughout The comprehensive inventory of problems the world, including the United States as part of developed by the subcommittees was focused the new copyright statute, has been observed; the primarily upon the Berne Convention, which estab- practical working of these systems have raised lishes a more elaborate regime for broadcasting many questions of fairness, universality of rights than does the UCC. Threshold problems coverage, and rate-making standards. The subcom- included those arising out of transmissions origi- mittees noted that nated by cable systems and by broadcasters through cable systems. Transmissions originated by cable systems transmitting whole programs needed authorization of all rights holders involved, and therefore, cable systems were seen as fully subject to the as a general ~le,in the car of simultaneous retranb exclusive rights of the program author; transrnio missions of whole programs only collective administration dons originated by broadcasters but transmitted to made cable distribution feasible since the exercise of the viewers through cable systems were viewed as exclusive right on an individual basis would paralyze or being subject to national discretion in determining impede it. whether broadcast authorization should constitute authorization for cable transmission. But by "collective administration" the sub- The most serious problems involve retrano committees did not mean statutory or compulsory missions by cable systems. The subcommittees licensing. Collective forms of voluntary licensing, explored the distinction between simultaneous and quite normal and well-understood in the area of non simultaneous retransmissions, giving some music, are different from either "statutory guidance as to the applicability of the Berne licensess9 (where a given use is permitted upon Convention in a variety of circumstances. Refer- payment of a statutorily fmed fee, which is pooled ring to the Universal Convention (and texts of and distributed by a public authority to rights Berne before 1948), the subcommittees observed holders) or "compulsory licenses" (statutory or that, although states party to these instruments judicial requirements that a copyright owner had more flexibility in how they solved the copy- authorize given uses, but having rates set by public right problem, this flexibility would not go so far authorities only in the event individual agreement as to allow unauthorized taping and retransmission on terms is not reached between the parties). of taped programs. The report states: Lnter-American Copyright [A] ccording to the general principles of copyright, ths ' nonsirnultaneous retransmission of ca~turedtransmisdons was a new activity distinct from b;oadcasting and one Inter-American cooperation in intellectual property that required the authorization of the author. matters received strong support with the forma- tion, in 1975-76, of the Inter-American Copyright Of special interest was the subcommittees9 Institute, dedicated to an exchange of views discussion of the distinctions to be drawn between among copyright policy makers and practitioners retransmissions of national as opposed to foreign throughout the Americas. On December 15, 1977, programs. In this context, the delegate of the the Executive Council of the ICI held its annual United States noted "with great concern" meeting in Washington, D.C. The Copyright Office was honored to host this meeting, during the arguments put forward that would protect national pro- gramming in some manner (as by payment of equitable course of which plans were elaborated to address remuneration from a fund of royalties paid by cable the growing problems of sound recording and systems in the country) but would leave foreign signal8 motion picture piracy in the Western Hemisphere. COPYRKiHT SERVICES

Double Tartioll of Copyright Roydtbr producing countries such as the United States. These training programs, which are also conducted On June 19-30, 1978, Patrice A. Lyons repre- on a large scale by UNESCO, require substantial sented the Copyright Office as a member of the cooperation and support from member countries U.S. delegation to a meeting of governmental of WIPO and UNESCO. Upon his return from the representatives, held in Paris to finish preparation meeting Mr. Baumgarten reported on the serious of the draft International Convention for the concerns felt in developing countries that the Avoidance of Double Taxation of Copyright United States, both at the governmental and Royalties. The draft convention that emerged from private levels, has not been giving adequate this meeting is the product of much compromise, support to these programs. Beginning this year the resulting from efforts to accommodate sharply Copyright Office has begun formulating propods divergent views of developed and developing states for an expanded international training program, as to the proper jurisdictional nexus justifying ultimately seeking some affiliation with educa- taxation of income generally. tional institutions concerned with copyright and For the United States, the issue was com- international trade and supported generously from plicated by our long-standing preference for private and public funds. double taxation to be avoided through a compre- hensive network of individually negotiated bilateral agreements rather than a multilateral instrument. JUDICIAL DEVELOPMENTS This policy reflects the belief that the fairest and most beneficial tax consideration for U.S. htyear saw a number of interesting and signifi- nationals can be obtained through bilateral negoti- cant court decisions in the field of copyright, and ations. It is also justified by the great variety and we have singled out four of these as being of technicality of tax legislation throughout the special relevance to readers of this chapter of the world and the difficulty of accommodating a Librarian's annual report. Three of the cases variety of laws within a single multilateral instru- concern the registration practices of the Copyright ment. Offi, and a fourth raises a question that has The draft convention prepared at the Paris consumed the attention of many in the library and meeting is a fairly straightforward instrument, educational communities: the legality of off-theair establishing only a basic obligation to avoid double taping of television programs for use in schools. taxation of copyright royalties by domestic legisla- These four important decisions will be reviewed tion, blateral agreements, or otherwise, and with a here in some detail; the separately published set of "guidelines." The draft convention will be Annual Report of the Register of Copyrights will considered at a diplomatic conference to be held contain a summary analysis of all copyright and in 1979. related cases decided in the United States during fiscal 1978.

Regishablity of Design Applied to Induslrial Use: International cooperation in the copyright area The Esquire Cmm emerged as an issue at the second seoion of the Permanent Committee for Development Coopera- The decisions of the Federal District Court and tion Related to Copyright and Neighboring Rights, the V.S. Court of Appeds in Esquire, Znc. v. held in Geneva in March 1978. Copyright Office Ringer, 414 F. Supp. 939 (D.D.C. 1976), rev'd, General Counsel Jon A. Baumgarten represented 199 USPQ 1 (C.A.DE. 1978), deal with one of the United States at the meeting. Major topics of the most complex and controversial questions discussion at the meeting were the educational affecting copyright policy in the United States copyright programs of the World Intellectual today: the extent to which the copyright law Property Organization intended to bridge the gap protects works of industrial design, often of a very of knowledge and experience which separate high aesthetic quality, when the designs are developing states from major publishing and integrated into utilitarian objects. The issue hrs REPORT OF THE LIBRARIAN OF CONGRESS. 1978

never been whether works of industrial design are entitled to the same recognition afforded more must have "creativity" or possess "artistic" or traditional sculpture." "aesthetic" qualities to be copyrightable. Under Judge Gesell's decision, which aroused great the law in effect before 1978, the question was interest in copyright and design circles, was whether these admittedly creative industrial recently reversed by the U.S. Court of Appeals for products come within the concept of "works of the District of Columbia, Ringer v. Esquire, Inc., art," the te'im used in the 1909 statute and the 199 USPQ 1 (C.A.D.C. 1978). A petition for cases decided under it. In the new law, the Supreme Court review is currently pending. applicable term has been changed to "pictorial, To Judge Bazelon, writing for the court of graphic, and sculptural works," and this phrase is appeals, the issues separating plaintiffs reading of now defined in section 101 of the statute, but the the Copyright Office's regulations from that of the Copyright Office and the courts are still faced office itself were subtle: with the problem of drawing a line between copyrightable and uncopyrightable designs. The Register interprets 5202,lO(c) to bar copyright registration of the overall shape or configuration of a The landmark case of Mazer v. Stein, 347 U.S. utilitarian article, no matter how aesthetically pleasing 201 (1954), settled the threshold question: that shape or confiiuration may bc whether a copyrightable work of art ceases to be Esquire, on the other hand, interprets 5202.lO(c) to protected by copyright when it is embodied in or allow copyright registration for the overall shape or design applied to a utilitarian article. In holding that of utilitarian articles, as long as the shape or design satisties the requirements appurtenant to works of art- representational statuettes depicting dancers did originality and c~eativity. not lose their copyright protection because they were intended to be (and were in fact) embodied in industrially produced bases for table lamps, the Judge Bazelon's opinion began with the central Supreme Court opened the door to copyright concept that "industrial designs are not eligible for registration for a great many works of two- copyright." Noting that the Congress had rejected dimensional and three-dimensional applied design. specific legislation for the protection of industrial However, in section 202.1qc) of its regulations, products a number of times over the last sixty the Copyright Office construed the Mazer case to years, Judge Bazelon observed that the recent rule out the registrability of three-dimensional enactment of the 1976 Copyright Act, without its designs of useful articles where the only design proposed Title I1 for the protection of ornamental elements were the shape of the article itself and designs, lent special support to the register's nothing in the design could be identified sep- interpretation of the regulation. arately as a work of art. This distinction has not In addition to giving weight to past and recent been embodied in the now copyright statute. congressional rejection of design legislation, the The 1976 case of Esquire, Inc. v. Ringer, 414 court concluded that the long6tanding administrm- F. Supp. 939 (D.D.C. 1976) challenged the regis- tive interpretation given the regulation by the ter's refusal to register the design for an outdoor Copyright Omce was persuasive. In so concluding, lighting fucture under the pre-1978 law and regula- the court confronted the question, raised in the tion. The plaintiffs basic argument was that its district court opinion, as to whether the register's design for street lighting equipment was not application of section 202.10(c) in the present distinguishable fof copyright purposes from the instance could be squared with various registra- lamp designs involved in the Mazer case, and that tions for lighting designs that had, in fact, been Copyright Office regulations discriminated against made over the years, and whether these registra- modem art, which is often nonrepresentational tions constituted an "interpretive precedent" and hence not susceptible of passing the test of requiring registration in the present case. separability of utilitarian and artistic forms. Judge The question of administrative consistency in Gesell agreed that the Register had been wrong in the face of applications for registrations of claims refusing registration, concluding that "there should to copyright in a wide variety of works is a not be any national standard of what constitutes sensitive but judicially novel one. Judge Bazelon art, and the pleasing forms of the Esquire futtures obaemd that: COPYRIGm SERVICES

Ths Reglrter's teat requires the application of sub~ttve properly applied, with correct results in both judgment, d given the lup volum of copyrkht situations. applications that must be processed there may be some Finally, Judge Bazelon disagreed with the results that are difficult to square with the denial of registration here. But this does not mean that the Register district court's finding of discrimination in the has employed different standards in reaching these application of section 202.10(c) against "modern decisions. The available evidence oints to a uniform and art." To Judge Cesell, application of the test of long-standing interpretation of f202.1O(c), and .car& separability put a premium upon traditional ingly this interpretation is entitled to great weight. realistic or ornate designs, whose distinct identity can be more readily perceived as art than the In holding that the register's refusal to register abstract considerations of form, shape, and line claims to copyright in the Esquire lighting fixtures that often characterize modern visual arts and was proper, the court took cognizance of congres- infuse contemporary industrial design. The applica- sional policy against protection of purely industrial tion of the test of section 202.10(c) by the designs, reflected in the exclusion of special design register was perceived by Judge Gesell as violating protection under the 1976 Copyright Act. The the principle of Bleistein v. Domldson Lithogmph- court examined the legislative history of the new ing Co., 188 U.S. 239 (1903). Under that copyright law's treatment of "pictorial, graphic, principle, the merit or lack of merit of a work of and sculptural works," stressing that, while the art, as evidenced by the commercialism of the use new law did not control the case, the treatment of to which it is put, was regarded by Justice Holmes design protection reflected "Congressional under- as irrelevant to the existence of copyright protec- standing of the scope of protection for utilitarian tion. To the court of appeals, however, W dis- articles under the old regulation!' This understand- crimination, to the extent it exists at all, flowed ing was perceived as supporting the distinction not from the register's alleged abuse of discretion between copyrightable applied art and uncopy- but from the congressional pdicy which has rightable industrial designs reflected in section traditionally excluded industrial designs from the 202.1qc). That history was read to represent special statutory definition of "works of art" (now "unequivocally that the overall design or con- "pictorial, graphic and sculptural works") in the figuration of a utilitarian object, even if it is copyright laws. determined by aesthetic as well as functional con- In a brief concurring opinion, Judge Leventhal siderations, is not eligible for copyright." confined his separate conclusions to a procedural The court of appeals also disagreed with the issue raised in the course of the court's opinion: district court's reading of the Supreme Court's the propriety of an action in the nature of decision in Mazer v. Stein, the leading case in the mandamus where the register's actions admittedly field. In finding that the register's construction of involve an exercise of administrative discretion. the rule in section 202.10(c) did not conflict with The opinion of the Court did not reach the Mazer v. Stein the court stressed that, under question of the nature of the abuse of discretion section 202.1qc) the figurines in Mazer were necessary to maintain a mandamus action because registrable; indeed, the Maze court had noted and "under any standard the Register's application of approved the long-standing practice of the office $202.10(c) did not constitute an abuse of in accepting such statuettes as "works of art." discretion." Mazer, to Judge Bazelon, was simply not in point; there the issue was whether admitted "works of art" could still be copyrightable when Regiatrability of Designs of Typefaced: embodied in utilitarian articles. The Supreme The Uka€ue Court concluded that, under the copyright statute, the intended use of a work of art had no signifi- The legal issues that arose in the Esquire case were cance to the validity of the copyright. In Esquire, echoed, in part, in Eltra Corp. v. Ringer, 194 however, the question was whether the overall USPQ 198 (E.D.Va., 1976), affii, 579 F.2d. 294, shape of an article is copyrightable. The sep- 198 USFQ 321 (4th Cir. 1978), petition for arability test approved in Mazer was seen to be rehearing denied (4th Cir., Aug. 1, 1978). Few REPORT OF THE LIBRARIAN OF CONGRESS, 1978

works could seem more dissimilar than the street question was then whether this work of artistic I lighting fuctures in Esquire and the designs for craftmanship was within the statutory phrase of typefaces (the shape of the various letters, "work of art" or whether it had been excluded numbers, and symbols in a particular font of type) from the scope of that term by Congress, the involved in Eltra, but the identity of issues courts, and the long-standing practice of the Copy- involved in the registrability of both types of right Office. works is instructive. Both cases concerned section Judge Bryan was not persuaded by arguments 202.1 0(c) of the Copyright Office regulations. that copyright protection for typeface, by the very Both works, though obviously involving creative "alphabetical" nature of the work, could inhibit effort of different sorts, were characterized as the free dissemination of ideas through print "industrial designs!' media. He considered that section 202.10(c) of the In October 1974, largely in response to a office's regulations, insofar as it denied that type- reawakening of interest in copyright within the face was a "work of art," was in error, and he typographical industry and a reexamination of the then turned to the issue of the office's practice of legal issue within the Copyright Office, the register rejecting these claims. On this point Judge Bryan, announced that a hearing would be held on the despite his assumption that typeface designs are registrablity of typeface designs. The hearing-the copyrightable subject matter and his opinion that first such proceeding in office history-was held on they should be registrable, was unwilling to over- November 6, 1974, and included an inquiry into turn the office's regulation and direct that it the office's regulations under which registration reverse a long-standing practice. He therefore sus- for designs of typefaces had been refused under tained the refusal to register plaintiffs designs. the 1909 statute. The opinion of the district court raised many On June 6, 1975, prompted by testimony at questions, centering on how to reconcile the fmal the hearing which suggested the subject should be holding in the case with the court's flat statement considered in the context of copyright revision, that section 202.10(c) of the regulations, as the register of copyrights wrote Rep. Robert applied by the office to typeface designs, was not Kastenmeier urging the House Judiciary Subcom- in harmony with the legislation from which it mittee to hear testimony on typeface design pro- derived. The case was sure to be appealed, and on tection as part of its inquiry into the bill for June 14, 1978, the Fourth Circuit Court of general copyright revision. The subcommittee held Appeals affirmed the decision of the district court a day of hearings on designs protection on July in favor of the Copyright Office's refusal to make 17, 1975, and the testimony included a discussion registration. The opinion of the court of appeals of typeface protection. differs substantially from the views expressed by In 1976 the Copyright Office concluded that, Judge Bryan in the lower court. in the face of its long-standing refusal to register Addressing the central issue first, the court of claims to copyright in typeface designs, and in appeals concluded that, while the district court view of the fact that the question was under active was correct in upholding the register's rejection of consideration by Congress, it was not in a position the copyright claim, it had erred in fmding that to amend its regulations to permit the registration typeface is a "work of art." The court of appeals of "variations of typographic ornamentation." examined the history of section 202.10(c) of the Shortly thereafter, on the basis of the office's office's regulations in light of the Supreme Court's refusal to register claims to copyright in one of its decision Mazer v. Stein (discussed above in connec- typeface designs, the Eltra Corporation sought a tion with the Esqube decision). The appellate writ of mandamus to compel registration. The court in EItra observed: issue had shifted to the judicial branch. This amended Regulation spelt out a plain distinction and On October 26, 1976, District Court Judge sought to draw a prech line between copyrightable works of applied art and uncopyrightable works of indub Bryan decided cross-motions for summary judg- trial design, as declared in Mazer. And the distinction, aa ment against the plaintiffs. The court declined to expressed in the Regulation, clearly accorded with Con- rule on the broad question of whether typeface gressional intent and understanding, which, after all, is the controlling factor in statutory construction, as demon- designs in general are works of art and assumed skated by the long acquiescence of Congress in the that the designs at issue were worka of art. ne Regulation. Noting the long history of unsuccessful efforts Qause of the U.S. Constitution. The court of either to amend the copyright laws to provide appeds concluded, however, that protection for typeface or to enact special design legislation under which typeface would be pro- [u] dike the Federal Election Commission .. . tht Mice of the Register d Copyrights is not open to any charge tected, the court said: that it is violative of the Appointments Clause. The Register is appointed by the Librarian of Congress, who Under Regulation 202.1qc) it is patent that typeface is m turn is appointed by the President with the advice and an industrial design in which the design cannot exist consent of the Senate. By the nature of his appointment independently and separately as a work of art. Because of the Librarian is an "Officer of the United States, with the this, typeface has never been considered entitled to usual power of such officer to appoint such inferior copyright under the provision of §5(g). And the appellant officers [le., the Register], as lhe or she] thinkIs] has recognized this because over the years it, along with proper." others in the trade, has sought repeatedly to induce Congress to amend the law in order to provide copyright protection to typeface. Plaintiff's attempt to rely upon some language in Buckley, to the effect that the activities of the register, an officer of the legidative branch, were Having resolved the question of the copyright- by nature "executive" and hence constituted a ability of typeface designs, the court turned to violation of the separation of powers doctrine, was consideration of what has been characterized as also rebuffed. Observing that the Librarian per- "the Constitutional issue." As a part of the formed both "legislative" and "executive" func- Library of Congress, the Copyright Office is in the tions, as Buckley characterized those powers, the legislative branch of the federal government. Piain- court discounted the significance of the adminis- tiff argued that the register's authority with trative placing of the offix in the legislative respect to registrations is purely ministerial-that branch: as long as certain basic formalities, expressly pro- vided for in the copyright statute, had been It is no more permissible to argue.. . that the mare complied with, the register could not refuse regis- codification of the Library of Congress and the Copyright Office under the legislative branch placed the Copyright tration. Out of plaintiffs argument flowed the Office 'within the constitutional confines of a legislative corollary notion that, if the register's authority agency' than it would be to contend that the Federal indeed does go much further, involving "execu- Election Commission, despite the 1974 amendment of the tive" discretion in exercise of his or her statutory Act with reference to the appointment of its members, in a legislative agency unconstitutionally exercising executive functions, then the location of the Copyright administrative authority. Office in the legidative branch of government violated the principle of separation of powers The Supreme -Court has properly assumed over the underlying the Federal Constitution. In advancing decades smce 1909 that the Copyright oflice in an this argument, the plaintiff placed some reliance executive office, operating under the direction of an offk of the United States and as such is operating in on the Supreme Court's recent decision in Buckiey conformity with the Appointments Clause. v. Valeo, 424 U.S. 1 (19761, in which the legisla- tion creating the Federal Election Commission had been hdd unconstitutional. Renewal Registration: The Cadence Cue The court of appeals observed: Cadence Industries Corp. v. Ringer, 450 F. Supp. it seems incrediMe that, if there were a constitutional 59 (S.D.N.Y., 19781, was, in the words of the infiumity in the 1909 Act, it would have so long escaped of notice by either the Supreme Court or the bar or that the District Court, "the cumulation a ten-year Supreme Court would have given implicit authorization struggle." Although the case dedt with renewal in .. . three decisions .. . for the exercise by the Re* registrations (registrations of claims to a second of the power to issue rules and regulations, as provided in term of copyright, made at the end of the first the Act. twentyei&t year term), the point at issue did not involve the right to claim renewal or the scope of The precise nature of plaintiffs reliance upon rights during the renewal period of copyright. The Buckley v. Valeo centered on the Appointments questions presented related to the nature, clarity, REPORT OF THE LIBRARIAN OF CONGRESS. 1978 and reliablity of the Copyright Office's public Southern District of New York rejected the records and the evidentiary effect of renewal attorney general's opinion and ruled against the certificates register. Judge Conner acknowledged that the The works involved were various issues of ownership of rights in individual contributions to comic books which had been published in the periodicals, distinguished from copyright owner- 1930s and 1940s and registered for copyright-in ship of copyright in the periodical issue as a the names of the publishers. The renewal section whole, differed when a proprietor claimed owner- of the copyright statute permits the "proprietor" ship of a "composite work," as opposed to claim- (that is, the present owner of a copyright) to ing ownership of a "work made for hire." None- apply for renewal in four distinct situations, theless, he questioned whether the categories were including "composite works" and "works made for mutually exclusive. Speaking practically, Judge hire." It also gives individual authors who were Conner observed: not employees for hire the right to claim renewal in their separate contributions to "periodical, On their face, the terms 'composite work' and 'work cyclopedic, or other composite works." made for hire' would not appear to be mutually exclusive. A publication may obviously be a 'composite work' in the The successors in title of the original copyright ordinary sense that it consists of the distinguishable owners sought to renew the copyrights as "pro- contributions of several authors, and at the same time a prietors of copyright in a composite work made aork made for hire' in the ordinary sense that all of ach for hire." The Copyright Office was willing to contributors were employees of the publisher. accept separate renewal applications for each issue as "proprietor of copyright in a composite work" After examining the holding in Shapiro, and as "proprietor of copyright in a work made Bemstein and Co. v. Bryan, 123 F.2d 697 (2d. for hire." However, it refused to register the Cir., 194l), and the definitional practices reflected applications as submitted, taking the view that the in the Compendium of Copyright Office Practices, basis of the proffered claim as stated was an the court concluded that the "ordinary sense" of amalgam of two discrete categories of claimant the two terms was, in effect, the statutory and, as such, was inherently contradictory. meaning of the terms. The court stressed that Ultimately, the issues reduced themselves down overlaps were sure to occur: to practical questions. The applicant wanted to put the two bases of renewal claim on record Defendanb have cited no court decision or authority on without paying two renewal registration fees. The copyright law, and we are aware of none, which has concluded or even aggested that the term "composite Copyright Office wanted to ensure that a certifi- work" should or might be interpreted narrowly to cate carrying some prima facie effect be consistent exclude publications in which some or all of the con- on its face. tributions were made for hire. In an effort to resolve the impasse, which involved a large number of applications, the Li- Indeed, the court was struck by the legislative brarian of Congress, on behalf of the register, history of the 1909 copyright. law, which referred requested that the President seek an attorney to "composite or cyclopedic works, to which a general's opinion on the subject. On June 10, great many authors contribute for hire" [emphasis 1974, the attorney general rendered an opinion added], as evidencing the possibility that the sustaining the central position of the office: terms were not mutually exclusive. "composite works" and "works made for hire" The court reflected: were, the attorney general concluded, "mutually exclusive," and "the Register of Copyrights had when the terms are accorded their ordinary meaning, a 'composite work' can be a 'work made for hire' provided the authority to decline registration of a renewal all of the distinguishable contributions were made by claim asserting these inconsistent bases." employees of the publishex. In that case the proprietor The renewal claimant refused to accept this would have all the renewal rights and the authors (in the opinion and brought suit against the register to colloquial sense) and their successors would have none. On the other hand, if the 'composite work' includes the compel registration of the claims as filed. In contributions of both employees and non-employees the Gzdence Indrrstries Corp. v. Ringer, 450 F. Supp. proprietor would have renewal rights to an portions of 59 (S.D.N.Y. 1978), the District Court for the the whole except the identifiibk contributions of COPYRKim SERVICES non-cmployesr, u to which the author8 or thek me copies for dassroom performance in unintended cessors would have the renewal rights, at lead if the and troubling ways. copyright thereon had been separately registered. Them b The Board of Cooperative Educational Services no apparent inconsistency in this construction. S (BOCES) of Erie County, New York, was created to provide educational services to over one Under the copyright statutes in effect before hundred schools in twenty-one school districts. and after 1978, certificates of copyright registra- One of those services included making available to tion are entitled to consideration as prima facie schools educational audiovisual programs, and evidence of the facts they state and of the validity included among these programs were videotapes of of the copyright in question. It was the position copyrighted television materials made by the Erie of the Copyright Office that renewal certificates County BOCES. The choice of programs by are also entitled to prima facie weight, and that BOCES was fairly straightforward: the office was hence precluded from issuing renewal certificates that were contradictory on When a pmgram of educational value ia broahst on their face. However, the court, after ruling that television, BOCES makes a master videotape of the entire fdm. The vast majority of fhsit tape8 are broadcast by the alleged contradiction did not exist, went the local public broadcasting channel, WNEDl7, but further. Citing the authority Epoch Producing some also are broadcast by commercial station& Corp. v. KilIiam Shows, 522 F.2d 737 (2d Cir., 1975), it took the view that renewal certificates, Individual schools followed a standard pro- unlike original term registration certificates, are cedure in requesting tapes. Consulting a catalog of not entitled to prima facie evidentiary effect. master recordings held in the BOCES tape library, schools submitted written requests for particular titles, including sufficient blank tape for BOCES Off-&Air Vitapine: to use in ftxing acopy for the requester. With the The Erie County BOCES Caw exception of one year, BOCES records disclmed the number of copies made for schools but never The hotly debated issue of off-theair videotaping showed the number of performances or ciscum- produced a reported decision in 1978. While only stances of the performances. In the words of the a first salvo in what promises to be a long war, the court: decision in Encyclopaedia Britannica Educational Corp. v. Crooks. 197 USPQ 280 (N.D.N.Y., 1978). The copies are viewed by the students in the classroom, reflects the strong undercurrent of professional and in most instances then are returned to BOCES for erasure and reuse in videotaping other programs. Aowsvaa, examination and public debate now going on over BOCES doe8 not require the schools to return the tapes. the subject. A few of the school districts keep the copiea for thek The range of legal issues arising out of the mass own videotape libraries. BOCES alao doe8 not monitor the marketing of videotape equipment, to individuals use of the tape8 by the schools, but presumes they arc used solely for educational purposes, . .. Copies are for home use or to educators for classroom supplied to the schools at cost, and no admiasion ia applications, has been the subject of much com- charged to the students. ment in scholarly and professional journals and in domestic and international meetings. The implica- This program of activities was justifid by the tions of the "videocassette revolution" seem stag- defendants on the ground that it is gering. The ease of reproducing and distributing cassettes has already created difficult enforcement a significant component of the instructional support service8 provided by BOCES.. . relied upon by the , problems in the area of motion picture piracy. teachers in planning thek school curricula. Simany of Widespread home recording of television programs the programs are televised when classes are not in seasion can change distribution practices between tele- or at times that do not coincide with coverage of the vision fdm producers and broadcasters. Educa- subject in a particular course. of study, it is claimed that tional media producers find that licensing or the students cannot view the= programs unless video- are available.. .. The defendants ckim that if the selling their products for educational broadcasting program is discontinued, public education would be can shape the available market for the sale of greatly dimaptad. REPORT OF THE LfBRARIAN OF CONGRESS, 1978

Plaintiffs, three audiovisual producers and copy- {tlhek delay in raidng the infringement question in the right owers, considered their income from sale and courts, caused at least in part by their attempts to reach licensing of their works both to educational broad- an out-of-court compromise solution to a difficult and complex problem, should be commended rathea than casters and schools to be threatened by the condemned. board's videotaping activities, and on October 19, 1977, they brought suit against BOCES alleging Turning to defendant's assertion of the defense infringement of their rights of reproduction, of fair use (argued by defendant as diminishing distribution, and public performance under the the probability of plaintiffs success at trial and, copyright law of 1909. thus, their right to a preliminary injunction), the The action sought both actual and statutory court admitted that: damages as well as costs and the surrender or destruction of infringing copies. An opportunity The question of probable success on the merits poees a for judicial observation on the merits of the case more troublesome issue. Educational institutions have been videotaping television broadcasts for strictly educa- arose in the context of the plaintiffs' motion for a tional purposes for some time. The legality of such preliminary injunction seeking to prevent BOCES copying has never been determined, either by the courts from further videotaping, recopying, distributing, or by the legislature. The problem of accommodating the and performance in classrooms. Plaintiffs argued, competing interests of both educators and film producers raises major policy questions which the legislature ia in support of their motion, that the requirement better equipped to resolve. However, Congress has not as of a showing of irreparable harm necessary for the yet provided a legislative solution to the problem, but has granting of a preliminary injunction is presumed in left the issue to the courts. copyright cases where, as here, a prima facie case of infringement had been established. The court listed the four factors used to determine Defendant opposed the motion on a variety of whether a given use was "fair" or infringing under grounds: (1) that the existence of a clear measure section 107 of the new copyright law. It justified of damages, in the event of plaintiff's success at its reference to the new statute in a case arising trial, exists in plaintiffs licensing agreement, com- out of the old 1909 law as proper, since pared against BOCES records of copying; (2) that "[s] ection 107 is intended to restate and not plaintiffs are barred from seeking preliminary change the existing doctrine of fair use." Plaintiff's injunctive relief because of their allegedly excessive arguments that the legislative history of the new delay in bringing the copyright action, given their law demonstrates that the activities of BOCES fall awareness of the activities complained of since outside of "fair use" were discounted by the 1972; and (3) that no infringement was com- court, relying on language in the House Report mitted, since noncommercial videotaping of tele- which vision programs for delayed viewing in classrooms, without charge, is a "fair use." carefully disclaimed any intent to influence the present The first two issues were disposed of sum- judicial doctrine of fair use as it relates to off-theair taping for noncommercial classroom use, and made it marily. Citing the recent case of Wainwright clear that it was leaving open the question of the legality Securities, Inc. v. Wall Street Transcript Corp., 558 of such a use. F.2d 91 (2d Cir., 1977),cert. den., 434 U.S. 1014 (1978), the court agreed with plaintiff that: Defendant's elaboration of fair use appar- ently relied heavily upon the celebrated library Because injury normally can be presumed, the plaintiff in photocopying case, Williams and Wilkins Co. v. a copyright case is entitled to a preliminary injunction United States, 487 F.2d 1345 (Ct. C1. 1973), even without a detailed showing of irreparable harm if the - plaintiff demonstrates probable success on the merits or a affined by an equally divided court, 420 US. prima facie case of infringement. 376 (1975), and the court took the opportunity to reexamine Willhms and Wilkins. Noting that the Further, as to the alleged delay in seeking purpose and character of the uses in Williams and judicial redress, the court concluded that, "on the Wilkins was similar to that of BOCES and that present record," knowledge of the activities of educational purposes were as socially significant as BOCES did not exist before December 1976, and the scientif~ research purposes in Williruns and Wilkins, the court turned to the remaining areas of being decided, that defendan$ would have the fair use inquiry: substantiality of copying and opportuni€y to develop its defense at trial, and impact of the defendant's use upon the market for that the absence of economic harm "would require plaintiffs copyrighted works. On these issues the a reassessment of the fair use defense." court found the present case clearly distinguishable In its closing paragraphs, howew, the court from Williams md Wilkins. expressed itself on the limited issue of distinguish- Although copying of complete articles in copy- ing between the impact of an injunction in the righted medical journals constituted reproduction Williams and Wkins and BOCES cases, in language of an "entire" work, the court stressed that the that has aroused concern in educational circles. copying by BOCES was different: "the potentid Finding that the possibility of disruption of educa- impact on the copyright owner's market is much tional services due to the injunction could be met greater because the reproduction is interchangeable by entering into licensing arrangements with with the original. The substantiality and extent of plaintiffs, the court said: BOCES' copying clearly exceeds that of the medical libraries." The scope of BOCES' activities is diffimlt to rcconcle The court's examination of the impact of the with its claim of fair use. This case does not involve an isolated instam of a teacher copying mpyrighted BOCES activities upon the copyright owners' material for classroom use but concerns a highly market must be approached in the context of the organized and systematic prwam for reproducing motion before the court and the criteria for its videotapes on a massive scale. BOCES had acquired granting or denial. The court noted that in videotape equipment worth one-half million doilars, uses five to eight full-time personnel to carry out its program, Williams and Wilkins the holding that plaintiffs and makes as many as ten thousand tapes per year. For faded to demonstrate convincing proof of eco- the last twelve years, these tapes have kndistributed nomic injury flowing from plaintiffs photocopying throughout Erie County to over one hundred separate activities followed a full trial on the merits; in the schoola BOCES motion the standard was different. The court stated:

Although BOCES has made a notewolthy attempt to The court, finding that plaintiff was entitled to show through preliminary discovery that the plaintiffs a preliminary injunction, directed that BOSS be have not suffered any economic loss or impairment of enjoined from furthor videotaping of plaintiffs their market, the plaintiff's affidavits contain allegations to the contrary. These allegations raise substantial qws- educational fdms off&-air but stopped short of tions of fact, which can be decided only after a full trial restraining continued distribution by POCES of record has been developed. Since the burden of establish- tapes already made, As to these latter works, the ing fair use is on the defendant and since the plaintiff in court concluded that: a copyright case is presumed to suffer irreparable injury, the court must assume for purposes of this motion that The interests of the plaintiffs will be adequetely protected the plaintiffs are capable of proving their allegations. if BOCES, in cooperation with the school district, impb ments a plan to monitor the uae of the tapes in the The court did expressly note that the issue of schools and to require their return and erasure within a economic harm, an element of fair use, was not specified time period.

Respectfully submitted,

BARBARA RINGER Register of Copyrights and ASSi~tantLibr~~n of Cong~eS~ for Copyright Savices 106 REPORT OF THE LIBRARIAN OF CONGRESS. 1978

Number of Registrations by Subject Matter of Copyright. Fiscal Year 1978

Completed registrations as of September 30. 1978 1 FY 1978 extrapolation 2 Category of material Published Unpublished Total Published Unpublished Total

Nondramatic literary works Monographs ...... 83. 391 7. 895 91.286 102.909 10.038 112.947 Serials ...... 87.5 18 87. 518 110. 863 110.863 Machine-readable works ...... 342 105 447 495 127 622

Total ...... 171. 251 8. 000 179.251 214. 267 10.165 224. 432

Works of the performing arts Musical works ...... 17.477 73. 427 90904 22. 253 92512 114. 765 Dramatic works. including any accompanying music ...... 552 4.167 4.719 683 5.426 6.109 Choreography and pantomimes .... 2 3 5 2 6 8 Motion pictures and filmstrips .... 6.289 990 7.279 7.384 1.1 28 8.512

Works of the visual arts Two-dimensional works of fme and graphic art. including prints and

-- art reproductions ...... Sculptural works ...... Technical drawings and models .... Photographs ...... Cartographic works ...... Commercial prints and labels ..... Works of applied art ......

Total ...... 20. 558 3. 764 24.322 26.099 4.918 31.017

Sound recordings ...... 5. 994 1.096 7.090 7. 528 1. 533 9.061 Multimedia works ...... 430 18 448 524 25 549 -- Grand total ...... 222. 553 91.465 314.018 278.740 115. 713 394.453

Renewals ...... 17. 924 21. 247 Total. all registrations ...... 331942 415. 700

1 To institute more current accounting practices. the method of reporting has been changed . As a result. statistics for fscal year 1978 cover only eleven calendar monthi. 2 An extrapolated figure has been included in these totals which represents the twelve-month figure under previous reporting practices Also included are an estimated fdty thousand registrations which were in-process and had not compkted the registration cycle on September 30.1978. COPY RIG^ SERVICES

Disposition of Copyrigh t Deposits, fiscal Year 1978 1

Deposited for copyright registration Acquired Added to Forwarded to or deposited copyright other departments without copyright Category of material collection of the Library registration Total

Nondramatic literary works Monographs, including machine-readable works . . 91,524 2 83,153 4.371 179,048 Serials ...... 175.036 12.687 187.723

Total ...... 91324 258,189 17.058 366,771

Works of the performing arts Musical works; dramatic works, including any accompanying music; choreography and pantomimes ...... 93.347 18,200 246 11 1,793 Motion pictures and fhstrips ...... 1.532 3 9,368 10,900 - - Total ...... 94,879 27.568 246 122,693

Works of the visual arts Twodimensional works of fme and graphic art, including prints and art reproductions; sculptural works; technical drawings and models; photographs; commerical prints and labels; works of applied art ...... 33,490 3.689 Cartographic works ...... 8 2.01 2 - Total ...... 33,498 5,701

Sound recordings ...... 6,972 5,876

Total, all deposits 4 ...... 226,873 297,334 5 17,429 541,636

1 To institute more current accounting practices, the method of reporting has been changed. As a result, statisticsbr fiscal year 1978 cover only eleven calendar months. 2 Of this total, 24,600 copies were transferred to the Exchange and Gift Division for use in its programs. 3 Includes motion pictures returned to remitter under the Motion Picture Agreement. 4 Extra copies received with deposit and gift copies are included in these fuures. Totals include transfer of mdtimedia materials in any category. 5 Of this total, 1,569 copies were transferred to the Exchange and Gift Division for use in its programs.