us copyright office: ar-1984

8/14/2019 US Copyright Office: ar-1984

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ANNUAL RE PORT OF THEREGISTER OF COPYRIGHTS

For the fiscal year ending September 30

LIBRARYOF CONGRESS 1WASHINGTON 11985


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Library of Congress Catalog Card Number 10-35017ISSN 0090-2845 Key title: Annual report of the Register of CopyrightsThis report is reprinted from theAnnual Report of the Librarian of Congressfor the fiscal year ending September 30,1984

For d e y the Superintendent of Documenta, U.S. Government Rin t ln~fficeWublngton. D.C. 20402


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ContentsThe Copyright Office 1Reaching Out 1Consultative Management 1Reporting to the U.S. Congress 2Monitoring Intellectual Property Abroad 2semiconductor Chip Protection Act of 1984 2Workload and Production 3Acquisitions and Processing Division 3Examining Division 3Information and Reference Division 3Records Management Division 4Cataloging Division 4Licensing Division 4Copyright Office Regulations 5Cable Television 5Microfilming Documents 5Compendium of Copyright Office Practices 5Legislative Developments 6Record Rental 6Cable and Communications 6Works Made for Hire 6Semiconductor Chips 6Protecting U.S. Intellectual Property Rights 7Other Legislative Activities 7Judicial Developments 7International Focus 14Tables

International Copyright Relations of the United States as of September 30,1984 17Number of Registrations by Subject Matter of Copyright, Fiscal 1984 22Disposition of Copyright Deposits, Fiscal 1984 23Estimated Value of Materials llansferred to the Library of Congress 24Financial Statement of Royalty Fees for Compulsory Licenses for Secondary llansmissions byCable Systems for Calendar Year 1983 25Financial Statement of Royalty Fees for Compulsory Licenses for Coin-Operated Players(Jukeboxes) for Calendar Year 1984 25Copyright Registrations, 1790-1984 26


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


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Report to the Librarian of Congressby the Register of Copyrights

THE COPYRIGHT OFFICE"People serving people," the theme of a photo-montage mounted during fiscal 1984 in the hallsof the Copyright Office, is also the phrase thatbest describes the Copyright Office during thatyear. For it was a year in which the officereached out to the commui~ities t served-toauthors and creators of ariginal works, to the in-ternational copyright community, and to theCongress of the United States, as well as to itsown staff.

REACHING OUTThe Copyright Office was host to many interna-tional visitors this fiscal year. In November 1983,before the Intergovernmental and Berne Conven-tion executive meetings on international copy-right issues, guests arrived at the CopyrightOffice to share their concerns about issues asdiverse as home video and audio recording,computer software protection, and the BrusselsSatellite Convention. In June 1984, when theoffice hosted a symposium on the sources of in-ternational copyright law, distinguished guestsFrom various executive agencies attended as wellas guests from overseas.In February 1984 the Copyright Office, at therequest of the committees of the Senate andHouse of Representatives that deal with issuesrelating to copyright, hosted a CongressionalCopyright and New Technologies Symposiumwhich brought together congressional represen-tatives with futurists, representatives of high-tech industries, and copyright experts. Registerof Copyrights David Ladd welcomed the oppor-tunity to provide a forum where issues could beapproached not polemically, but thoughtfully."The symposium featured exhibits of new tech-nologies ranging from satellite disks to opticaland audio laser-mad disks.

Using new technologies to communicateabout technological issues. the Copyright Officein March 1984 cosponsored a teleconference thatallowed participants in five cities across theUnitecl States to listen and speak via satellite-transmitted video and audio connections. Work-ing together with Legal Times and Law andBusiness, Inc., and in cooperetion with theCopyright Society of the United States of Amer-ica and the American Intellectual Property LawAssociation, the Copyright Office invited par-ticipants to consider 'Software Protection: TheU.S. Copyright Office Speaks on the Computer1Copyright Interface" at the Hall of Flags of theU.S. Chamber of Commerce in Washington,D.C., and in four other cities. Teleconferencepanelists discussed the registration of software,copyrightability of data bases, international pro-tection of computer software. and recent devel-opments in these areas of the law.

In the Copyright Office preparations weremade for a major permanent exhibit displayingthe many contributions that the concept of copy-right has made to American letters, art, and com-merce. Entitled "By Securing to Authors: Copy-right, Commerce, and Creativity in America." theexhibit features landmark copyright cases aswell as unusual items illustrating those cases,one of the most notable of which is the "MalteseFalcon."During the fiscal year the Copyright Officedeveloped and began using a multipmjectorslide show entitled "Authors, Artists, and Copy-right." The show emphasizes both the impor-tance of copyright to authors and artists and thecomplexities of copyright registration.

CONSULTATIVE MANAGEMENTFiscal 1984 was the year in which the CopyrightOffice took major steps toward establishing


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REPORT OF THE REGISTER OF COPYRIGHTS. 1984

consultative management'as the dominant viewamong managers and staff and toward improv-ing productivity based on this model. In July1984. management reprqsentatives of the Copy-right Office signed a three-year agreement withAFSCMELocals 2910 and 2477 to extend the lifeof the hbor/Management Working Group orga-nized to consult weekly on staff concerns.Consultative management, defined as a cleararticulation of employee involvement in an orga-nization's goals and efforts toward those goals,was proposed by the Copyright Office manage-ment team in 1981 as a solution to ongoingbacklogs and other problems related to produc-tivity. Initial workshops held in 1982with Copy-right Office management crystallized a commit-ment to installing consultative management asa modus operandi. The office followed up thatcommitment by offering training in the tech-niques of consultative management to all mana-gers and staff.Task forces organized along the principles ofconsultative management attacked problemsassociated with Copyright Office automation,redesign of application forms, and reorganiza-tion of document registration. A pilot project forrecording documents began in September 1984,and another for handling serials on a product-line basis is scheduled for fiscal 1985.

REPORTING TO THE U.S. CONGRESSIn September 1984 the Copyright Office sub-mitted a report to the United States Congressentitled T o Secure Intellectual Property Rightsin Foreign Markets." The report, requested bySenator Patrick I. Leahy, a member of the SenateSubcommittee on Patents, Copyrights, andTrademarks, Committee on the Judiciary, andCongressman Michael Barnes, chairman of theSubcommittee on Western Hemisphere Affairs,House Committee on Foreign Affairs, dealt withthe piracy of American works. including books,sound recordings, and motion pictures, in vari-ous regions of the world. The report, whichidentified and described problem areas and pro-vided a specific agenda for congressional action,

was presented to the Congress by Register ofCopyrights David Ladd at a hearing on Sep-tember 25.MONITORING INT EUE erV AL PROPERTYPROTECTION ABROADDuring fiscal 1984 the Register of Copyrightsvisited Mexico, Canada, Taiwan, Singapore, andthe People's Republic of China, where he con-ferred with local officials on issues related to theprotection of intellectual property. In MarchMr.h d d delivered a lecture entitled "Securing theFuture of Copyright: A Humanist Endeavor" atthe annual meeting of the International Pub-lishers Association in Mexico City, and in Aprilhe headed a U.S. trade delegation visiting Tai-wan and Singapore. where the progress ofmeasures to curb international piracy was thesubject of much discussion. In the People'sRepublic of China, where he participated in atraining program on copyright sponsored byUNESCO, Mr. Ladd found promising progresstoward the goal of developing a copyright lawin the next five years.

Fiscal 1984 saw the development of protectionfor a new form of intellectual property-thesemiconductor chip. In October Congress gavefinal approval to the Semiconductor Chiph-tection Act of 1984 and sent it to the Residentfor signature. The new act, which becomes partof Title 17 of the United States Code, the titlewhich houses the Copyright Act of 1976, con-fers an entirely new kind of short-term federalprotection to the intricate circuit designs thatcomputerchip manufacturers spend millions ofdollars to develop. Because the new act is to beadministered by the Copyright Office, the officedevoted much effort this year not only to advis-ing the Houseand Senate copyright committeeson the best form of the act, but also to develop-ing in-house procedures for administering thenew law. The new law provides for a ten-year


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REPORT OF THE REGI!XER OF COPYRIGHTS, 984

term of protection after mandatory registrationwith the Copyright Office.

WORKLOAD AND PRODUCTIONAcquisitions and Processing DividonAs the office took steps toward improved con-trol over the registration prucess through instal-lation of an online tracking system dubbedCOINS Ill (Copyright Office In-Process System).the Acquisitions and Processing Division under-took a major reorganization to adapt to the newsystem. Several unite were combined into one ,and certain functions were transferred betweensections so that assignment of ta&a would cor-respond more closely to the COINS processingsequence. The Examining and Scheduling Unitand Master Index Unit are to be combined intoa Data Preparation and Recording Unit that willperform the initial input of information.The first half of COINS III began operation inFebruary 1984 when a full Receipt in Processrecord was created for all deposit account claimsreceived. The cash phase of CON S 111 is to beinstalled in fiscal 1985.

The Copyright Acquisitions Unit continued toadd significantly to the collections of the Libraryof Congress aa new emphasis was placed onworks of local history and genealogy, as well ason Hebraic works. The unit monitors works pub-lished with a notice of copyright of which twocopies by law should be deposited with the Li-brary of Congress. A successful demand for the"Dick Cavett Show" was completed; other caseswere referred to the Department of Justice forlegal action.

Examining DivisionDuring a year in which the number of annualregistrations completed exceeded half a millionfor the first time in the history of the CopyrightOffice, the Examining Division continued toseek ways to increase its efficiency while main-taining a high level of quality. Streamlined pro-

cedures both for examining and for reportingprogress enabled the division to maintain cur-rency in most sections.A pilot project for the recordation of docu-ments related to copyright was introduced in theRenewals and Documents Section and featuredcooperation between the Examining and Cata-loging divisions and an effort to expedment witha product-line approach.The chief of the Examining Division and sev-eral staff members took part in the planning for .the implementation of the Semiconductor ChipProtection Act of 1984 in the Copyright Office.Examining Division staff member8 were respon-sible for procedures, development ofan applica-tion form, and the drafting of a circular.The Examining Division office issued finalpractices and guide letters for works that werepublished without a copyright notice or with adefective notice more than five years beforereceipt in the Copyright Office.Another issue dealt with this year was theproblem of confidential treatment for computerprograms containing trade secrets. Requests forspecial relief from other deposit requirementsalso increased during,theyear, and requests forspecial handling d e d n all-timehigh. Threemajor task groups convened to solve problemsrelated to application forms, examining prac-tices, and staff suggestions. Otherstaff membersserved on interdivisional task groups.The division welcomed Grace Reed, executiveofficer,as interim division chieffrom September1983 to March 1984, and Harriet Oler, formerlysenior attomey-adviser on the s M f the generalcounsel, as chief beginning in March.

Information and Reference DivisionIncreasing both the quality and quantity of ser-vice to the public remained the most importanttask of the Information and Reference Divisionin fiscal 1084. The division handled a 34 per-cent increase in calls to the hotline recorders inthe Public Office and an increase of 17 percentin inquiries made about the services of the Cer-tifications and Documents Section, without an


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Increase n pemmwl. Tod v e hegwblemofcontindy engegd Murmtim Itnss, a con-tract for a phone systemwhicihwtll includeanautomaticcall&tributor withqueutngcapobfl-itieuawasawardedaerrrtheendoftheddys91..Ne-w publicatiam ismaddurbg the yser in-efudedCopyrightReg#&iun f;orSoundRecord-ings, Gopyntshf Reaigtnatfonfo r ComputeFPto-gmms, and TheCopyrightCard Catdogand theW i n eFlks of theCopyrfghtOfPce. rwtificatesofcopyrightmgWmtionwetealsode&$nedandprinted, providing an a l M w to hand-sttunpd or photocopied ce~tifi&-The Referem and Bibliogra hy SectionSrecrtad IWW procedutebtorrtspon to thewquatstef - fdmafweaaOBEice&*including a%li

~ ~ e c t i o n ~ ~ f l s s d o u t n e w ~ ~to dealwith th e i n m i a g number of *miming@mwnw cams.DuFlLns year J- Doherty, assistmM,servedasacting chiduntil the appointmentofWinston Tabb, pieviouely essletmtuhief of th eGemma1 Reading R a ivbion, as ahief inMarch 1984. Both the chfef and crssistant chidm d n arforurmkmUp8Uld W W 8UpOn-sible for aad im t iq wrvsral foceta of a maorCopyrightOffice exhibit scheduled to open in~ 1 8 8 4 . h a p ~ o f t h e S e m i c o n -ducto~hipProtectionActof 1984d a effortapplicationfimmwere alsoao-h?oncern o the division fiffice.

During fiscal 1984 tbe Records MaqsmentMvisian began lmplsmenting its -tionschedde for& p i t s by am$nging fora reselec-tion by Ubmry ofGDngresssewofficialsofCopyaht Office deposits. Coolactdone whfcbware transbmd en mrlsse to the Ubmy in-cludedsheetmusic (to theMusicDivision),earlytitle pages to the RareBookandSgecfelC o l btiom Muision).videofapedcbonmgraphy (totheParformingArts Librarg], and the lastoftheYid-dish dramas (to the Hsbmlc Section). hnothsr

majormow ofdepositsdueim&eyear ilfyolvedthe tnuudar of frundrads of btutss iof duplicateprints and ebels to the Nationel Park Senrice.Evenwith the removalof these d e p d ndothers to the main colEecNom of the LibiapH ofConpssSthe Repwit Copy Stowe Unit grewc b r o itmculg msximum accupgacy af &ti3spaceaarmorethan270,000 depositcopieswerea d d d t e ~ D e p o s i t C o ~ ~ t b e y c s a t .The znkdUmfng of uwhfn deposits con-tinued apace as the FreselY&on Sectionccm.pbed he fihmhgd &c from 1870 to 1885and of unpubifehed iechues. One of tlm moatintmsdng items in tha latter categorywas theoriginal m a n d p t of the I HaveA Dream*spegch of Maah LutherKin& Jr.Tbe~uctf09ofpnwsaEedcertificadepaperin the reg-tion pm m s Impmed the Bfft-dcmq of the CMiBcete Productfon Unit andeabaniced the quality of ita products.

It was a year of cooparation for theCabb@gDidsfon-cooptmth with AFS(AAE 2810 inin-auguratinga new promutfcmplan to allowstaffme* to gain a higherraw after demon-atratfng skills,andcoopdonwith orber did-e i w no~~ aI)ocumstds ilatProjecttopmms d m & n aM n g muary andsystem8equipmentwm u dated aa ei@ty-fawJew terminaIswsre test and instelled in thedivision,Six irnnreaof the Catalog ofCspyr&hRntdes. fa microfiche were published sn dtwenty-seven additional fesues were pparedtor publication.

in copyrt* po~icikegarding corn-'uleory liwnseemade 1984a year of challengeor the ~~ing Divisfon. To deal wtth themajor tate adjuatanent put into effect b heCopyright Royalty Tribunal in late 1982 andupheld bythecourtsinDecember1983,thedivi-


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sian established a Cable TV Task Forci~~hatdeveloped policies, schedules,and formstohan-dle the increased efforts that the speck1 royaltycomputations entailed. The divisiun continuedto be responsible for the morethan$157 millionin royalty fees held for copyrightownerspend.insrprgulatdf.8trtbutbnby theCopyr@t RoyaltyTribunal. Prepamtiom wen3 made dwbg theyear to develop eubmated amounting a d f-cetuciq systems.The Licensing Division also developed anaudiwisual pmntation on the compuIsarylicense systemsto show to publicgroups suchas ukebox owners and cabb television systemoperators. Late in the f b l ear the LibManofCongressatxeptedtheAxnwementand MusicUpBtgtom hsoctation's donatfanofe 1848Rock-Qla vintage jukebox forpetmmentdisplay inLicensing Division.

CableTslmkdonDuri the f f d eax,a e v d egulotfowwerep u b l L pursuant to section 111d he Copy-right Act, whi& prescribssd i t f o n s underwhich cabla aysterms m y oMn r compulsorylicense t~ retnmmtt copyrightgdworks. Obtain-ing a compulaa license requims the filing in&'axe Qppfigftt Cl% e:afNotica of IdentityandSignal CarrbgsCamplem-ent and State- ofAccount, a$ wdl as submission of myaltybes.During the fiscal year, aepemi reguletiam warepublished pursuant t~ section119. nitialtg,onApril 2,1984. the office pu b b h d a final regula-tionmising and clarifyingcerkdnrequbmentsgoverning the form and content of PJotices ofIdentity end SignalCarriage Campiemnt andStatements of Account. A later interim reguia-tion followedonApril 16, is&&, mplementingthe Copyright RoyrrlBty Tribunal's O c t h ~01982,cable mte adjustment. Tfi% nterim regula-tion, notifying cable systems of revised formsand rmaxbesand provfdimnufdance to themas gd ing payment of myalti&: was published,withminorchanges,asaW egulation on June

28,1984, On Augun 20,1984, the cabla tsguh-tions were amended to extend h m 0 to 12 0days, the period following nannal filling dead-lines during whioh tha CopyrfghtoEblm wauldrefund ovenpsyments of myaltlelrat thequestof cable systems for th e acwuntiag period a&Ing rune 30, 1984.

By mtim published in the Fedemf RegisterofAugust 7,1984, theCopytightQfRcei mmmdthat it had decided, effective July 9, 1984, todlacontinue its practice of mimfilmi~q m -manta and any accompanying mtetial, in-cludingtransmittal l a m , upon their m i p t ntheofiwr, T I x e * heofffmwouldmicrofilmonly recarded documents submittedunder sec-tion 20s of Titie 17,U.S. W e . The policy waschanged when the o&ce dettmnhed that theformerpracticewas not and d v e method ofhd i fng hesenuttdds.M e m W of thepublichad experienceddifficulty in wing the miemfilmed documanb, and matsrfel unrelated to arecorded domfmentwasoffenmiclaalmedwiththe docunaeatm that itwaanot possibleto detmm b ewwhatindeedbadbecmrecorded.h a esultof the changeof policy,mrdeddocumentscanF U ~ We made publicly availableonamore timelybe& than was pteviously possible,

On June4,1884, the Copyrtght Office gave thepublicnotice&st it ietemdatoh u ea R6W Com-pendium ofCop@ght Offlw Pmdlarsunder theCopyrightAct sf2976, designatedaa Cornpen-dlum 11. Thepublicwas invited to submitwrit-ten comments on the proposed new edltfan ofthis manual,which fs ntended prlmarffy fortheuse of the staff of the Copyright Officeas a gen-eral guideto its examiningandnerhtd pmtices.Thedrst Compendium wss issued 8 numh~ar fyears ago to reflect office ptactices under theCopyright Act of lQOQ, s amended.


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OnJune27,1064,Wp, Dona d d %Wd@tbeM m k l of rses, H.R.5938, wth Gong., 2d ($9&4), imcasmbilX to H.R. 1027. In Ihs mxxe Coqrtm theSimilar legbhtiora, S. 32.96th. l983E Thsrrebi& aresupparted by the Gop@&t Offfce, w d dd h%fiMla 8alewdoctrine,owlad fn 17U.S.C. sadion lOB(a), mes to n s ~ & thecon-sent af co yrfght ownera bstom sound mrd -in scaulJ' be cowmmi.lIy rented.The Housebit, wblob h.. a B m y u=wb-wt-mEafit1tlanal inastutiom rom induaionandwouldpmmitcop@@ owswneofthe undbtlying musiceld t c t s h s r s p y in the myaltfcw~ r a d . L . ~ ~ W v d w W -fer fn two signfacurtmspectsthe Senatewr-sionwouldbe r perrmmsat am whtchwould apply the arimimal provihm of thsCopyrfghtAct to oiolatiom of the nrcord rentalamen-, while the House wmion is of1lrtrJteddurationanddoeenotpmvideforcrimi-adpenattiasf ~ rnauth- mid or lendingof nppi#a&d sound mmdings. Th9 Sanatav~lrs im as enacted end dgnad into taw as P'L.88-460 byReddtllltit~gannOctober4,1084.

The second semion of the QsthCongrests alsosaw the intmductianofwo .ubsbntiaUy iden-ticalbills, H.R, 8878 andH.R. 164, y Rspre-eentd iws Robert W. W m i e r and JackF.K m p , respectively, which would amsnd thep d I o p 8 of theCopyrightAct mlatfng to theCo yrigbt Roydty T E i b d . s-Ily, tbswould daenus fiwtothms he t--ber of msaabarsof thotrlbuaaf, provide for thea p p u ~ t o h ~ x i d o f a g ~ c o u ~ u e land chisf wscmomfst, and stnmmline judicial&BW oftrfbuneldmiaiun~.hitbilkaXBo can-tain criteria intended to guide the tribuasl in

future adb~tixittntofcopyrigb3mydtyratesforcableteisvision,

wotie-1 - ~taodut~d~IIIM98thto mend the wpyrfgAtlaw rsgeMfiggworke made for hZre. S, 2138, 98th -8.. 1s tSenre, (1883), introducedbySgn.ThadCbdam..and H.R. 5911, BQJtb Cong., 2d Sam. {%384),~ r e d l * ~ ~ . p . P n n l l , w b u l d ~ dthe work made hits m d o nd f i ~LICfWd e ) l s t f n s r p e c f f E c ~ ~ a f w a r t a r . f i o s n t h s i i aof war);s subj- to w f k mads f i r hire agrw-menta. AddWodly, &a tenm o)mpioyminthea twould b&ddfaed to comply with federaltax withhutding laws.Ssmlawd- ChipsSernicoMdtkcW chi e were @imn ntellectuatprapentypm~tbnkrthefbttimeintbSami-conductofr=hipR o t d o nAct of1984.A Senatebill, S. rzQ1,crstlmcbng,,2d Ssw;. (19e4),wouldhave givenchipipscopyright pmtmtim. A Houssbill, H.R.~ 5 2 5 ~ ~ 8 t how,,2d (raw), ycantrerat,plrrrldedbra ruigamds farm,of ro-tectfan.A ~ornpromieevmim Later pmed theSenateesS,lWO and the HouseasR.R. 616s;the httm will goto Praefdant Reagen for signa-turs. Under thh bill, mi gemria pzotectiun is6tccarM=dm the aegis of neitherpatent normpyright. How~yet. heact amends Title 17oftheU.S. Cad% by addinga new Chapter 9, andthe Ibgbta ofCapyd~hbsraf been given thercewpofls%itityof a tbansvw8et.Tht3act pmtects the - Lyersd dr-cuItry d m i p of tleanSMtnduEtotchips,b mas me&d,gaiwt unauthorized dupliw-ticnfor a term often yeam. ProlWanbegimonth e dateofmq&tm~oaof them kd r fhedabdfbt explobthn, w h bocnus earlier. The p W n wnlnatea if anapplbatlan far r&traian is not filed withlnt w o p ~ aA e rhedatsaffirstammmcid ex-phitation. UtlllufiodW duplicationwould be


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us* PnrpartVmghbhe h t a I W mpslrtg.RtBhtcrProtection sadmw~etafi9%4~,. zme, 8thChgwrdSeao* lssrf,p a d t w o ~ ~ b ~ i ~ u c s d i nths %~sB-&R. 5324, ~ g t h one., 2d[$984] BPB H.R. 5634, Saur.f198.4)- woulbcondition stnhuwfth the Untitsd W w , Actof1974, on the protecPTon by certain bedidary0ru.s.pptent.copyx4*t1

w d dembndpbedefiaitXaarofpubkutbn in heCapvrdghtActtoprovide that thepwence af anoticeofcop ghtonaworkdaeenotOnitseUconetitate p2ieation orpublic t i i d - tMebill would fm&m amend the act to pmvide forw m notectf~n0f Com~ubI' & ~ .NO= of thase xmmmws wsn, mected.bn.SbomThurmond htmducledthe NationslM c t i v i t y and Innovation Act of 1983, S.841, ~ 8th ong., 1stM s . iasa). D ~ ~ t h y.W s r , he general counaslof the C~pyright)BEige, twtffiedb d m baSembJudidmyCom-~tttwn support ofthia bill, which would havedfid he mtitpust lawswith zmpedto fhea m h e ofcopyrighted permi- a m -ny undet a rule ofmason inquiry. TheHouse

i n t m d u d a campanbn bill, H.R. 878, Wtt?c q , , (%~e9 ) ,hich U r s d th@senate version. The HQUWamendmat w r d db v e e&&tuted the trnst of H a Oclf, f!wCong,, 2d SP#sar. (2984)!),or theWtC vtnreiw*b-dths twohouee9dted insV ~ Q R ,he Nattenaf C o p ~ t a t f ~M I ~dof1884, igmd into hw asP.L. 9-Z in b eseoond sessionof .thl9gathCongnrrsa.TheZaw pnovl* for slmiXarm l e - a f - m n d p f sf b r ) o ~ ~ a n d d e v e ~ ~limitszmamqr fopan t t W 401ati088 to mtualdamegrtr aad rass~nable t t m q 4 k s f thaU.S.Attorney GeneralandFedaralTasdeCornmtbsionam m e d f the joinO vamre. sen.CharlesW.WtBtas,Jr., also InQadudtheNatfanal t3mmbsionon tbePublic I s n d i q ofBoobAd of1883, . 2185,418tb Conge,st.Sess.(1983), ta establisha candmiont~ ~ d phe6 a e e ~ d m m ~ g ~ t l ~ f a g . * W -h g of heir booi;s fending Instihrffo=The Bruswb~ef b Convemffonadhmmeew o rrs pa o ; rbercS , a ut dt heSema t s F ~~o psm t t s S II S e p W 5,1884,d a~51tti-A e d b y t h s f u U . ~ t e t n t h s t w i 1 ~ t b dthe 98thCkmgmm. Tb0 conventionabI@bs aofmetbadd~btet1mieMtoee6;bstats.'l'he state'@o b w t i o n s cease,howwer, % u bWeat to the authorl&d temsgial dfstributionofaahelfits-derivedsignal.Mamover, thamn-vmtioa ~ r d yoes not apply to signafswhit&'am fatendhd fiPadirnctm a n mmmeltite by the g e n d pubtic."

TheCopyrightOffice Ea involved in three camsthe validityof it41 regulatioaswithliability ofcable systems for &8c-ofprimsry broadcaafs.Inlate 1883, the Court obAppeals for teffs Dfstrictof CoIumbia, in Ndiond Cable Tefevision


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REPORT OFTHEREGISTER OF COPYRIGHTS. 984

Association v. Copyright Royalty Tribunal, 724F.2d 176 D.C.Cir. 1983), pheld the rate adjust-ment of the Copyright Royalty Tribunal (CRT)as applied to distant signal carriage and syn-dicated program exclusivity. The CRT rateadjustments were made under authority of theCopyright Act and resulted from the decision ofthe Federal Communications Commission (FCC)to deregulate those aspects of cable carriage ofdbtant signals. The court held that theCRTusedits expert judgment to devise what it consideredfair and reasonable royalty rates to reflect theFCC rule changes. The Copyright Office thenissued regulations to implement the changes inroyalty rates made by the CRT.In an action for a declaratory judgment. Na-tional Cable Television. Inc. v. Columbia Pic-tures Industries, Inc., Civ. No. 83-2785 D.D.C.1983). he plaintiff asked the court to decide themanner in which royalty payments must be cal-culated under section 111of thecopyright Act,in order for the plaintiff to retain its compulsorylicense to retransmit copyrighted broadcastmaterial owned by the defendants. At issue isthe method of calculating the gross receipts onwhich the cable system musi pay royalties for"tiers" of service that are supplied to subscribersin addition to the "basic service." The additionaltiers of service may contain nonbroadcast pro-gramming, for which the cable system pays afee, as well as distant broadcast signals whichare governed by the compulsory license. Theplaintiff believes that cable systemsarepermit-ted by the Copyright Act to allocate the sub-scriber fees for the additional tiers of servicebetween nonbroadcast and distant broadcast sig-nals and that royalties must be paid only on thatportion of the fees ascribable to the retransmis-sion of distant broadcast signals. The defendantstake the position that all revenues received fromany tier in which any broadcast programmingappears, should be considered "gross receiptswfor broadcast retransmission. The CopyrightOf-fice regulations support this position. Defen-dants also insist that "Form 3" systems, thosewith semiannual "gross receiptsn in excess of$214,000, hould be required to pay a royaltycalculated as though all customers elected to

subscribe to all optional tiers of service contain-ing one or more broadcast signals, even thoughnot all subscribers to the lowest tier subscribeto the optional tiers. In April the defendants'motion to dismiss was denied, and the courtordered plaintiff to join the Copyright Office asa defendant in the action since its regulationsaddress the tiering issue. The Copyright Officehas filed a motion for summary judgment witha supporting brief. In a parallel case, CablevisionSystems Development v. Motion Picture Asso-ciation of America, Inc., Civ. No. 83-1655(D.D.C. 983).plaintiff seeksa declaratory judg-ment that it is correct in its interpretation thatsection 111 of the Copyright Act requires thepayment of royalties based only on the revenuesreceived from its 'basic service" tier to which allits customers must subscribe if they are toreceive any cable service. The defendants' posi-tion is similar to that of the defendants in theNCTA case. The Copyright Office has also beenmade a party defendant in this case. Suit wasbrought against the Register of Copyrights in CoxCable Tucson, Inc. v. David Ladd, Civ. No.84-534 (D.C. Ariz. 1984). for review of theCopyright Office final regulation issued on June29, 1984 (49Fed. Reg. 26722).The regulationwas issued to implement a rate adjustmentauthorized by the Copyright Royalty Tribunal asa result of the FCC's partial deregulation of thecable industry. Plaintiff objected to one par-ticular aspect of the regulations, i.e., the cir-cumstances under which it is permissible to adda new television signal as a replacement for a'grandfathered signal" (a distant signal that acable system was authorized to carry under therules of the FCC before March 31, 1972,whichwas in excess of the distant signal complementauthorized by the 1972 egulations). The Copy-right Office regulations provide that the substi-tuted signal would be considered a "newlyadded signal" and be subject to the new 3.75per-cent rate established by the tribunal for suchsignals. Plaintiff believes that like signalssubstituted for 'grandfathered signals" shouldnot be treated as "newly added signals" since nochange in the number or kind of signal carriageresults. At yeais end, the Copyright Office had


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REPORTOFTHE EGISTER OF COPYRIGHTS,1984

replied to the complaint and submitted inter-rogatories to the plaintiff.During the fiscal year the Copyright Officeentered several cases under the authority of sec-tion 411(a) of the Copyright Act, which permitsthe Register of Copyrights to become a party inan infringement action involving a work whichwas refused registration. Bmndir International.Inc. v. Columbia Cascade Timber Co., Civ. No.84-1411 (S.D.N.Y.), was one such case in whichthe works involved were actually bicycle racksthat had been submitted for registration underthe title Wbbon Sculpture." Earlier in the yearthe court heard arguments on the defendant'smotion for a change in venue, but the year endedwithout any ruling on the motion. Likewise, theCopyright Office has entered Duffey-MosesDesign v. Sunset Productions, Inc. et al., Civ.No. 83-5365 ER (C.D. Cal.), to explain to thecourt its refusal to register a claim to copyrightin a de minimis logo for a television magazine.The Copyright Offlce motion for summary judg-ment was denied without prejudice, and theplaintiff has filed an amended complaint. In allprobability, the Copyright Office will renew itsmotion for summary judgment early next year.The third case in this category in which theCopyright Office is involved is DesignpointIndustries. Ltd. v. Bolivar Arellano TmdingCorp., 83 Civ. 9132 (CLB) (S.D.N.Y.).The work,in this instance, consists of the words "PuertoRicon with two curved lines beneath themprinted on a "muscle" shirt. This case went totrial and after hearing Copyright Office testi-mony the judge held the design not copyright-able and dismissed the copyright isrrue.In a suit brought against the Copyright Office,United Christian Scientists v. David Ladd, Civ.No. 83-3486 (D.D.C. 1984). the plaintiff soughta declaratory jhdgment to declare unconstitu-tional a private law that grants copyright to thetrustees under the will of Mary Baker Eddy invarious editions of the work Science and Healthwith Key to the Scriptures byMary Baker Eddy.Science and Health is the text used for the study,teaching, and practice of Christian Science. Theplaintiffi allege that the private law violates theCopyright Clause, the Fifth Amendment, and the

First Amendment of the Constitution, and thatScience and Health is 'inherently uncopy-rightable" since it embodies the teachings andfaith of Christian Science. The Copyright Officefiled a motion to dismiss on the grounds that thecomplaint failed to state a claim for which reliefcan be granted, fails to join a party required byfederal rules to be joined, namely the copyrightproprietor, and does not allege a case or con-troversy with defendant David Ladd, Register ofCopyrights. The motion to dismiss as to defen-dant David Ladd was granted.As the fiscal year ended The Authors Leagueof America. Inc. v. David Ladd. 82 Civ. 5731(S.D.N.Y. Aug. 30,1982)was still in the prelimi-

naq stage of discovery. The suit was brought bythe plaintiff, questioning the constitutionality,under the First and Fifth Amendments of theU.S. Constitution, of the hanufactwing clause"of the copyright law. The provision in questionprohibits, with certain exceptions, the importa-tion into and public distribution in the UnitedStates of copies of any work consisting prepon-derantly of copyrighted nondramatic literarymaterial in the English language authored by na-tionals or domiciliaries of the United States, ifthe copiesaremanufactured in anycountry otherthan the United States or Canada. The plaintiffalleges that this prohibition violates the FirstAmendment by restricting the importation anddistribution of First Amendment protected liter-ary works and that it violates the Fifth Amend-ment by imposing a discriminatory prohibitionon importation and distribution of a restrictedclass of works.In David Ladd v. Law & Technology Press,Civ. No. 03-6855 TJH (C.D. Cal.), the Registerof Copyrights brought suit to enforce the depositrequirements of section 407 of the CopyrightAct. That section requires, unless excused byCopyright Office regulation, the deposit for useof the Library of Congress of copies of workspublished with notice of copyright in the UnitedStates. The works in question are technical jour-nals. Judgment was entered in favor of the Regis-ter, and the defendant has filed a notice ofappeal. Defendant's position has been that sec-tion 407 violates the First Amendment right of


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REPORTOFTHEREGISTEROF COPYRIGHTS.1984

h peech by imposing a deposit requirementfor the enjoyment of copyright in the work andthat section 407 has been enforced in a discrimi-natory manner.The apyright Office became involved inAmerican Express Credit Corp. V. XRT, Inc..Civ. No. 83-5603 (E.D. Pa.), when thedd~lldentsecured a temporary reet ra ih g order which re-q u i d heoffice to refueeaccess to depositssubmitted for registration of the claims that werebeing litigated betweentha partim.Thedepositsallegedly contained trade secret material. Theparties, including theCopyright Office, reacheda settlement which resulted in cancellation ofthe registrations in question and return of thedeposit copies to the defendant.An omission of the copyright notice was heldto be curable in Innovative Concepts in Enter-tainment, Inc. v. Entertainment Enterprises,Ltd.. 576 F. Supp. 457 (E.D.N.Y. 1983). In thiscase the plaintiff omitted notice of copyrighton its coin-operated miniature hockey gamebecauee its legal counsel did not advise it of theavailability of copyrightprotection. Plaintiff didnot become aware of thepossibility of copyrightprotection until it consulted other counsel afterthe first publication without notice hadoccurred. Notice was then added and copyrightregistrations were made. The court said it wasnot aware of any cases deciding the issue of anomission of notice resulting entirely from a mis-take of law. The court said such an omission is"deliberate" and cited the legislative history ofsection 405(a)(2) of the Copyright Act of 1976for the proposition that a work published with-out copyright notice will still be protected forat least five years, whether theomission was partial or total, deliberate or unintentional. It saidthat the allowance in section 405(a)(2) of aperiod as lengthy as five years in which to curean omission suggests thatCongrewwished to besolicitous of the actual intent of the author.Sherry Manufacturing Co. Inc. v. Towel King ofFlorida. Inc.. 220 U.S.P.Q. 855 (S.D. Fla. 1983),also involved the issue of omission of the copy-right notice, but there the court held that pic-tures of designs printed on towels depicted ina catalog did not constitute a publication of the

designs and. therefore, need not contain noticesof copyright to preserve the copyright. Thecourtdid not elaborate on this conclusion. It said fur-ther tbat in any event plaintiff added notices toits catalog after discovery of its omission, andthat heace the notice was valid in any cam.A district court denied copyright protectionto a telephone company's white-page directoryin Hutchinson Telephone Company v. FmnteerDirectory Company of Minnesota. Inc., 586F.Supp. 911 (D. Minn. 1984). The court said.that, in general, white page listings meet therequirements of tha Copyright Act and am pro-tectible by copyright. It stated, however, thatunder the fscts n thbcase, protection ia notwar-ranted. The court observed that the copyrightlaw was enacted toencourageworksof the intel-lect and to secure the general benefits whichinure to the public though the author's labors,and tbat in the present case the plaintiff's publi-cation of its white pages is a requisite conditionto the operation of its state-guaranteed rnonop-oly. The court said it is guided by the purposesof the law, and must consider these purposes indetermining whether a particular work is copy-rightable and that, because the plaintiff isrequired by law to publish its white pages,allowing copyright protection would onlyextend the benefit of plaintiffs monopoly andwould not serve any purpose of the CopyrightAct; as a result, the court felt compelled to con-clude that plaintiffs white pages do not consti-tute an original work of authorship within themeaning of the act. In another interesting deci-sion, the copyrightability of maps submitted tothe Interstate Commerce Commission as part ofthe filing of statutorily mandated tariff scheduleswas upheld in Rand McNally v. Fleet Manage-ment Systems,CCHCopr. L. Rptr. 25,624(N.D.Ill. Dec. 31. 1983); the defendant argued to noavail that since carriers and shippers areexpected to know the contents of thefiled tariffsthey havethe orceof law, and that consequentlythey are similar to a statute or judicial opinion.both of which am uncopyrightable. The Courtof Appeals for the Fifth Circuit found fault withthe district court's analysis in Apple B a d Ro-ductions, Inc. v. Beard. 730 F.2d 384 (5th Cir.


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1984),whsnt thepI&bt@ h e dOpyt&htitsad* expmsion of the idea bar a countrymusic show performed by children.The plain-tiffaplrliedkooWiSghtm@mtfanfn thaw&as a whole,not in it s componant parts.Thedfa-trict court,however, did not dew tha sBoH aaawholebut divided it into itscurnmimntpa-the show-inita entiretywik not t&j- - -ri@tpm-. am appeal thewurtwith this enelyslsand held tbatdespite the firctthat the ndividual partsof the ahow wtlpe notcopyrightahlela th-lveb, thaworkwas pn*.t d b h asa compilation.Cqjyri&bailftp wasalso the faw nhaftRdnger Televfsion, nc. v.Prcr(prtmRadio Corpodon,CC)ICopr.L.Rptr.25.691(sth b . July26,19M), wbem theoo\Irtfound that the d&ndaatrs dupMcotingg,emix-ing, and distpibutinofplainrsfps-apesco thea f a ck i va t i v~ kbaaed on the undwlyhg cupyrfghted scripu.Raintiffs tapes were mated before the 1972phonamcordamendmentandwem t h d m notpmmttd by fed8281s t a h r ~copy.right.OW-mar.the scri tsonw W leSnt@s tapesweredf#sfd ere qyrightgd. The#But found thatdef6ndant'u activitywsuW innew dmiMtl:u~works baed on the copyrighted scripts la theseune mahnet as If the defbndant had workedfrom thesxiptrr.Copyrightability of a cumputeroparattngprogram was the h u e nApple Cam-puter, hc.v. Fonnuia Intsmati~nd,nc,, 725F.Zd 521 (%h ir. 19843. Thedistrict courthadbsld thbt copyrightprotectsccunptrtut pofdl ypes, w h d ~ ~ ~ t h e y a w o p b n r t i n g p r ~ sorapplicationprograms. TheWndentuquedon appealthetogenstrwptogmm h u m heycontrol the i a t d peratianof the computer,~only'Ydeas"0Pp!tnxHmsmaild h h otcopyrigktable.TheCourt of Appeals seid thatthe hqislatiwe history reveals that defendant's~ t s w g ~ e ~ ~ o n d r e f e c t e d ~ c a n -mawhencopyrightprotaction we9 extendedto computerprugrams. The 1975Find Reportofthe PlotionalC o m M o n onNew Techmlogj-cal Uaes of Copyri ted Works (the CXJEJTUtfepat)&wedhat ere abodd be no dfainc-

tion between progrem which am used in theprcidyctiun of fur&= c6 work8 a ddhose whkh are not. cr Cong~ee8enactedm m ~ecamnrendak~~~n a m d 8 ti^Copytifit A a n 1884 to includecomputerp m~ U Y .m f f s h t t o e x e r c ~ ~ l ~ ~ ~ d w oem hardzsd~~lrsyde~tin5&nga%urki ~ ka*m h u a a nlrmbrof oassr.TheCourtofAppealsfixtheSeoodCirmtitinAJdonAcc~880rfwUd. v. Spfegd, Inc., 738 F.2d 548(2dClr. 1984).uphffId the~~ ivm tothe ~ U F Pin the district court that ?Hi& thescope cif employmest," n tha preaantCopydghtAct. means amrsm actinn undm the dbctfonrvidbn of thehirlig~ t h ~ r ,t thshir-ingTu or's instance andexpem-Thetionmidthat itdoasnomatterwbethsr the"forhim"cre6rnisan nn loymin tbe~ ~ 0 f ~ 1 -iug a regular job witE the hiring author.WhPtmattersIswhather theMthgd o rmusedtheworlrtobededetcercisedthePLghttnditactand s u p c d ~ ehe creation In SchmidBmthem,Inc. v. W.Goetrel Pomllartfabrik K.G., OCHCopr.L ptr. 25,687 (E.D.N.Y. une20,1984)?he bsue WIU wbsfhar Sistm Berta H t m m dcrea~EerUaIn&tdsticworbasaa"~mploymforhfre" of her convent. The court sefd @at thegsoentidWoldetermining whethm B worft ismade by an "employeefor hire''ia whether theemployerhad the right to ddirect andmperpisethe actual performanceof the w d . t aaid fur-ther hateven f her mlab&p to the mventwas one of employee and employer for somepurpoem, her contributionsto the igurines Inquestionwerenot madeasanenaployes for hire&neeshe hadWl m&ttic controlover fh8workswhich bore her name. In a mplevh -ion toreamer p s e s s i o n of photo~~phlcegetivesmadr, at plaintiffs request at her home, andlinoio state court in Sykee v. Roulo, 461 E9 . f .2d480 (Ill. App. Ct. 39841, had todecide tf thephDtagnapbwereworlrs made for hire. It saidthnt the crucial question iswhether the plain-tiff had theAght tocontrol thework even if shedid not e m t. Thscourt noted that hesvi-denceshowed that tEieplshtitVdidB X B ~ ~on-trol o m hemanner i~ which thephotographs


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llgrORTOF THE R E C W OF COPYRK;HTS, 1984

were made and that the inference was that thephotographs were produced by the defendant inthe capacity of an employee for hire. In ArthurRetlaw 6.Associates, Inc. v. Tmvenol Labora-tories, Inc., 582 F.Supp. 1010 W.D. 111. 1984).the plaintiff published a newsletter on behalf ofdefendant. The court said that there is a pre-sumption that the copyright belongs to the per-son at whose instance and expense the work wasdone and that this presumption can only berebutted by an express "contractual reservationto the contrary." Plaintiff claimed there was an"understanding" that it was to own the copy-right. The court said that an "understanding"does not satisfy the requirement of the law thatthe parties must expressly agree to the owner-ship in a written instrument.In 888mingly similar circumetancw, the courtsreached different conclusions on the need torecord a document regarding a transfer of copy-rights before suit can be brought. In NorthernSongs. Ltd. v. Distinguished Productions, Inc.,581 F. Supp. 638 (S.D.N.Y. 1984), defendantsought dismissal of the infringement actionagainst it, contending that plaintiff had failed tocomply with the mhordation requirements fortransfers under the Copyright Act in that therecorded documents did. not. contain the nameof the songs involved in the suit. Thecowt ruledfor the plaintiff, stating that the import of therecordation requirementaof the law is to providerecord notice of transfers before suit is brought.The court said further that the effectiveness oftransfer documents is not related to the questionof notice and that in the present case the defen-dant had actual notice of the transfers and thealleged failure to receive constructive noticeunder the act cannot constitute a bar to an in-fringement suit. In Patch Factory, lnc. v. Broder,586 F. Supp. 132 (N.D.Ga. 1984). the defendantasked for dismissal of the action because plain-tiff had not alleged recordation of the copyrighttransfer document by which it acquired thecopyright. The court said that section 205(d) ofthe Copyright Act explicitly mandates recorda-tion of the transfer of rights in a copyright as aprerequisite for filtng suit where such transferis the basis of the suit. The court refused to per-

mit a supplemental pleading alleging submis-sion of the document to the Copyright Office,reasoning that receipt of a transfer document inthe Copyright Office does not mean the docu-ment is automatically accepted for recordation.The case was dismissed for lack of subject mat-ter jurisdiction. In Meta-Film Associates, Inc. v.MCA, Inc., 586 F. Supp. 1346 (C.D. Ca. 19841,the court said that the literal language of section205(d)of the Copyright Act suggests that recor-dation is a condition precedent to instituting ofa suit. but that the courta have not strictly con-strued the filing requirements of the act. Thecourt stated that subsequent recordation will beallowed to relate back, so that the assigneeacquires a right to sue asof the date of the filingof the action. In a New York state court case,Myers v. Waverly Fabrics, CCH Copr. L. Rptr.25,684 (Sup. Ct. N.Y.May 22,1984), the courtruled that while a nonexclusive license permit-ting defendant to reproduce plaintiffs designwas not required to be in writing under theCopyright Act since it did not constitute a trans-fer of ownership, the nonexclusive license inthis case was required to be in writing under theNew York Statute of Frauds since, by its terms,it could not be performed within one year of itsmaking. The complaint was dismissed.

The much-publicized Supreme Court decisionin Sony Corporation of America v. UniversalCity Studios, Inc., 104 S.Ct. 774 (1984). wasrendered during the fiscal year. The case in-volved the off-air home videotaping for privateuse of television programs, many of which werecopyrighted. The copyright proprietor hadbrought suit against the manufactu.mrs, distribu-tors. and retail vendors of videocassette re-corders used to tape the works off the air. Thedistrict c o d held for the defendants, and theCourt of Appeals for the Ninth Circuit reversedby holding that Congress did not intend to createa blanket exemption for home videorecording,as was done for home sound recording, and thathome videorecording was not a fair use. It heldfurther that the corporate defendants were guiltyof contributory infringement on the ground thathome videotape recordersaremanufactured, ad-vertised, and sold for the primary purpose of


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