Broadcasting (Jan - Dec 1935)

Copyright Bill Eases Burden on Radio Government Group Strips ASCAP of Much of Its Power In Revising Measure for Senate Subcommittee ADOPTING practically all the recommendations made on behalf of the broadcasting industry by the NAB to lessen hardships imposed by existing copyright laws, the Interdepartmental Committee on Copyright, created by the State Department, on March 28 was ready to submit to the Senate Foreign Relations Subcommittee a revised draft of a proposed bill to amend the copyright laws. The revision was made following a series of conferences before the committee in February, held at the request of the Senate subcommittee. Senator Duffy (D.) of Wisconsin, planned to introduce the bill in the Senate, and have it referred to the Patents Committee, of which Senator McAdoo (D.) of California is chairman. Hearings probably will be held, since such a request from the American Society of Composers, Authors & Publishers, which would be stripped of much of the arbitrary power it now holds, is seen as a foregone conclusion. A copy of the revised bill and a letter analyzing the changes were submitted to Philip G. Loucks, NAB managing director, by Wallace McClure, State Department official and chairman of the Interdepartmental Committee. The proposed amendments are designed so to alter the Copyright Act of 1909 as to permit American entry into the Rome revision of the Convention for the Protection of Literary and Artistic Property. After the original State Department proposal was submitted, protests were filed by numerous organizations, including the NAB, and the whole issue was referred back to the State Department by the Senate Foreign Relations Committee. It was on this instruction that the Interdepartmental committee conducted the conferences, after which the revised draft was submitted. Infringement Fee MOST IMPORTANT of the amendments suggested by the Committee was the elimination entirely of the existing $250 statutory minimum for innocent infringement of copyrighted works — a provision that has been used ruthlessly by ASCAP in imposing arbitrary license fees on broadcasters, hotels, restaurants and others it classifies as copyright performers for profit. Impressed with the argument advanced by the spokesmen for the broadcasting industry that stations should be placed on equal footing with periodicals and newspapers with respect to injunctions, the revised draft would prevent a copyright owner from holding up an entire broadcast by temporary restraining orders for infringement. Also proposed is the NAB suggestion that there be no multiple infringement of the same composition, as in the past. In his letter to Mr. Loucks, Mr. McClure enumerated the changes made in the draft and their effect. Among other things, the measure extends the scope of copyright laws to include literary matter and copyrighted music broadcast over stations; exempts from copyright requirements hotels, stores, restaurants and others who pick up programs on receiving sets for incidental entertainment of patrons, and provides automatic copyright of all foreign copyrights. The stand of the NAB was supported on all controversial points by the American Hotel Association, and the Motion Picture Theatre Owners of America. The National Editorial Association also has approved the general proposal. Removing Abuses THE REVISED measure, according to Mr. Loucks, appears to meet all of the objections the broadcasting industry had to the original measure. "It seems to be the most constructive thing yet attempted to correct the abuses in the music copyright field," he asserted. In writing Mr. Loucks, Chairman McClure said the Interdepartmental Committee has considered "with sympathy the peculiar situation of the broadcasters as a comparatively new industry making very large use of copyright material and not finding in the present copyright law, which was enacted before the advent of broadcasting, any special reference to their needs. You will therefore find, I believe, that the amendments in the new draft have approached closely the requirements of the broadcasting industry as stated in your brief (NAB brief filed on Feb. 23)." Excerpts from Mr. McClure's letter, enumerating the changes which apply to radio, follow: The right of radio broadcasting granted in Section 1 (f) has been enlarged to include other analogous forms of communication to the public, to which it is assumed the broadcasters will find no objection. The word "writings" (revised draft, p. 6, line 9) has been restored in place of the word "works", thus removing any danger as to the adoption of the so-called "oral copyright". The Committee did not believe that oral copyright would be required under the Convention and this opinion has been concurred in by some of the counsel who appeared at the hearings. However, the use of the word "writings" serves to remove any doubt on the question. Careful consideration has been given to the language proposed by you for an amendment in the proviso to Section 8 of the present law (pp. 11-12 of the new draft). It is understood that the broadcasters desired to be certain that they may continue the use of recordings or arrangements of music made for bi'oadcasting from works hitherto in the public domain but to which copyright will accrue after the adherence of the United States to the Convention. It is believed that the language of Section 8, proviso, is broad enough to permit such continued use, but for the sake of better assurance in this respect, certain changes have been made in the language of the final clause. It is not understood that the broadcasters would contend for the right to use an arrangement or recording not made by them but merely purchased. The purpose of the proviso in Section 8 is to afford all equitable protection to persons who have themselves invested money or incurred liability in the direction of performance of works which were not copyrighted at the time when the undertaking began, but not to permit everyone to use a work which was in the public domain, since the Convention requires generally the protection of all works for which copyright exists in union countries. The changes suggested by you in Section 23 (pp. 19-21 of the new draft ) as to the permissibility of other proof of the date of origin of a woi'k only in the absence of notice and registration, have been adopted. You will note also that language has been added providing that the term shall in no case exceed 56 years, so that when an unpublished work has been copyrighted, a new term will not (Continued on page 2U) MERCHANDISING IDEA— WJBC, Bloomington, 111., has been displaying merchandise advertised on its programs in the window of a vacant store. Interest was enhanced by installation of a 30-day clock, with 27,766 persons registering guesses as to the time the clock would stop. .A bedroom suite was given the winner. The local Association of Commerce plans a similar promotion for its members. Government Win,*? ASCAP Skirmish; Granted Motion to Strip Suil Of Irrelevant Questions A SMASHING; victory in the| first preliminarj clash involving adjudication o 1 the Department of Justice antitrust suit againsl the American Socity of Composers, Authors & Mr. Bennett Publishers, was won by the Government March 26 when Federal Judge John C. Knox, of New York, granted the Government's motion to strip the case oi irrelevant matter. Sustaining practically every contention of the Department, as advanced in January by Andrew W Bennett, special assistant to the Attorney General, who has been in charge of the case, Judge Knox at the same time denied a countermotion by ASCAP chief counsel Nathan Burkan, seeking to delay the case through taking of depositions throughout the world. He left the way open, however, for ASCAP to reapply to take testimony on three or four of the relatively minor points, but only if exceptional reasons are advanced. By the court's ruling, the case now is limited to the important issue of illegal price-fixing by ASCAP — the point around which the Government built its case. Mr, Bennett had argued before the court Jan. 11 this was the clear-cut issue, and that the power to fix royalties, exercised by ASCAP, was tantamount to the power to fix prices. Judge Knox sustained this viewpoint. Argument Expedited WITH the issue so restricted, it is now likely that argument of the case before the court will be expedited. In its answer to the original suit, filed last year, ASCAP sought to bring into the case such issues as its difficulty in fighting "piracy", operation of foreign copyright societies, hearings before Congress, and the like, all of wh^ch confused the case. Similarly the motion to take depositions would have delayed action indefinitely, if it had been granted, since ASCAP had proposed to have a commissioner appointed to take testimony in many foreign countries, as well as in the United States. When the case, which alleges violation of the Sherman AntiTrust law by ASCAP and names 132 defendants, will be tried is problematical because of the crowded docket of the Federal District Court for the Southern District of New York. However, with the elimination of extraneous issues, trial will be hastened. In denying the ASCAP motion in its entirety, Judge Knox added that the denial "is without prejudice to the right to renew as to witnesses living in the United States, and who can testify to defensive matter that is relevant and material to the defense. However I may say now that if a renewal motion is made, a strong case for relief will have to be presented." Page 14 BROADCASTING • April 1, 1935