Table Of ContentOES ~f -O/ LC 3.1: 9G5
Ms Vitilit:l mit tltatof the
Register of Copyrights
4
POMPLETED
Cc O P YY Rt GH iT oo fF Ftc &
WE VF -O/E SES
98th
ANNUAL REPORT OF THE
REGISTER OF COPYRIGHTS
For the fiscal year ending September 30
1995
LIBRARY OF CONGRESS / WASHINGO‘N, D.C. / 1996
\
Library of Congress Catalog Card Number 10-35017
ISSN 0090-2845 Key title: Annual report of the Register of Copyrights
For sale by the Superintoefn Ddoceumnentts , U.S. Government Printing Office
WashingDt.Co. n20,40 2
CONTENTS
INTRODUCTION 1
DOMESTIC ACTIVITIES 1
INTERNATIONAL ACTIVITIES4
JUDICIAL DEVELOPMENTS
Judicial Review 6
Copyrightability 6
Scope of Protection: Synchronization of Sound Recordings 7
Ownership of Copyright 8
Publication 8
Impoarnd tthe aRightt oif Diostrinbuti on 8
Registration 9
Copyright Deposit 9
Termination Rights: Derivative Works 9
Infringement 9
Criminal Infringement: Wire Fraud 11
Fair Use 11
APPENDICES
Appendix 1 _ International Copyright Relations of the United States as of September 30,1995 13
Appendix2 |§ Number of Registrations by Subject Matter, Fiscal 1995 20
Appendix3 Copyright Registrations, 1790-1995 21
Appendix4 §Non-Fee Information Services to Public, Fiscal 1995 22
Appendix5 Fees ReceiFvisecadl 1,99 5 23
Appendix6 Estimated Vaiueo f Materials Transferred, Fiscal 1995 24
Appendix7 Financial Statement of Royalty Fees for Compulsory Licenses for Secondary Trans-
missions by Cable Systems for Calendar Year 1994 25
Appendix8 Financial Statement of Royalty Fees for Statutory Licenses for Secondary Transmis-
sions by Satellite Carriers for Calendar Year 1994 26
Appendix9 Financial Statement of Royalty Fees for Statutory Obligations for Distribution of
Digital Audio Recording Equipment and Media for Calendar Year 1994 27
w
a promote the Progress of Science end useful Abts. ‘a be
Article 1, Section 8
US. Constitution
1M
Report to the Librarian of Congress
by the Register of Copyrights
THE COPYRIGHT OFFICE
INTRODUCTION vate sector dimensions. Representative domestic
and international activities are discussed in the
Fiscal year 1995 was a challenangd icrenatgiv e following report.
year in the Copyright Office as the new Register
of Copyrights, Marybeth Peters, and her manage- DOMESTIC ACTIVITIES
ment team assumed the increasingly complex
statutory duties of administering the copyright This year, the Copyright Office and the Library
system. Early on, the Register set the tone for her celebrated the 125th anniversary of the registra-
administration by reaffirming the Office’s com- tion system’s placement in the Library of Con-
mitment to increased public service. This goal gress. The union has been a mutually beneficial
provided the framework for executing new legal, one. Each year, copyright transfers more than
legislative, regulatory, and administrative tasks. 800,000 items to the Library for its collections.
The Office approacheeadch with an eye towards Technology will afford even greater possibilities
better public service: it strove to assure the legal to acquire and store electronmiatceraiallsl tyha t
soundness of our decisions while relaxing regu- will enhance the Library’s own digital archives
latory burdens on the public to the greatest extent and will be accessible to the public under con-
possible. trolled conditions.
The Office adopted new short application Since October 1993, the Copyright Office has
forfomr seas y regisotf rneaw wtorikso onwne d been collaborating with the Library of Congress
by a single author and claimant; it sought full Information Technology Services and the Corpo-
comments from all interested parties before issu- ration for National Research Initiatives (CNRI) in
ing new regulations; it created a new, more objec- collaboration with the Advanced Research
tive procedure for appealing rejected claims; it Projects Agency (ARPA) to develop a testbed for
provided thorough and timely responses to Con- the Copyright Office Electronic Registration, Re-
gress on a spate of legislative proposals; and it at- cordation and Deposit System(CORDS). The goal
tempted, as always, to reduce the time for of the project is to develop and test a system for
processing claims to afford better public service. copyright registration and recordation, using
The Copyright Office also played an active role copyright applications, copies of works and
in the Librarian’s proposed National Digital Li- copyright-related documents transmitted in digi-
brary, assessing the myriad copyright ramifica- tal form over communicetions networks such as
tions of posting its vast collections on the the Internet.
Internet. And the Office used automation inter- Durithne ygea r, the Office continutoe add -
nally to improve its work product and to post dress policy questionansd legal issouf aeutshen -
public information on the Internet. tication and integrity of documents and deposits,
At the same time, the Register participateadc - access to records during and after registration
tively in a number of important international and recordation, and electronic certification of
meetings. Acknowledging the global nature of deposit copies and applicaTthei Ooffnicse .als o
copyright concerns, the Office sponsored several continued to work with CNRI to design elec-
training programs to acquaint foreign students, tronic registration forms and instructions, both in
copyright officials and experts with the United standard and in formats. The Office also
States copyright system and its public and pri- began to develop practices and procedures for
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REPORT OF THE REGISTER OF COPYRIGHTS, 1995
processing claims and embarked on outreach and of tracking ownership of rights in copyrighted
training activities within and outside of the works should be a critical component of both the
Copyright Office. At the end of the year, steps national and global information infrastructures.
were completed toward testbed implementation, The Office also plans to assist Congress actively
including software development, hardware pro- as it considertshe legal ramificaotfi thoesne sin -
curement and installation, and other tasks. formation communication systems.
The Copyright Office continued to advise the This year, the Office continued implementing
Library's Digital Library Coordinating Commit- suggestions of the Librarian's 1993 private sector
tee as well as its newly formed National Digital Advisory Committee on Copyright Registration
Library Task Force on the spate of copyright is- anda Deposit (ACCORD) to further improve ser-
sues involved in Digital Library initiatives. These vice to copyright registrants. The results were a
efforts: included advising the Library on neces- number of policy and regulatory changes de-
sary pe. nissions for digitized collections before signed to ease the burden of registering claims to
they were mounted on the Internet and provid- copyright.
ing the necessary copyright analysis for other Li- One step in impprublioc sevrvicee isd the cre-
brary collections selected for digitization. The ation of an interim appeals board to rule on the
Office also offered advice to the Library on Na- second, final agency appeal from a refusal to
tional Digital Library initiatives to test the protec- make registration. Section 410(b) of the Copy-
tion of intellectual property rights in an electronic right Act authorizes the Office to refuse regis‘ra-
networked environment, assisted in developing tion in any case where a claim is invalid because
major educational programs on protection of in- the material deposited does not constitute copy-
tellectual property in digital libraries, and helped rightable subject matter or “for any other rea-
the Library to focus on copyright policy issues en- son.” In the past, appeals were made to the
countered in collecting and offering copyrighted Examining Division, first to the section that de-
works in digital form. nied the claim and, second, to the division chief.
The Office filed extensive comments on the To implement ACCORD’s recommendations,
draft report on Intellectual Property and the Ni- second-level appeals will now be haridied by a
tional Information Infrastructure (NII). The re- formalized board consisting of the Register, the
port was prepared by the Working Group on General Counsel, and the Examining Division
Intellectual Property, of which the Register was a chief, or their designeThee sbo.ar d has met on
member. The report recommended several several cases to date and will issue written opin-
amendments to the Copyright Act to protect ions for each case. The Office is seeking public
copyrighted material on the NII, including ex- commentasn d suggestionsi n an effotor detter -
pansion of the distribution right, amendments to mine the best possible appeal systern.
the definitions of “publication” and “transmis- The new short form applications will make
sion” and excepting transmissions from the first registration easier for individual authors of com-
sale doctrine. The Office concluded that the “criti- pletely new works who have retained copyright
cal copyright issues” were “not yet ripe for reso- ownership in their literary, pictorial, graphic,
lution” and that “fundamental...changes would sculptural, musical or dramatic works. The forms
be premature, creating further instability in a are single paged, with straightforward instruc-
time of major technological change.” tions that hopefully will encourage creators to
The important question of management of avai! themselves of the benefits of registration
rights in a digital environment is in a develop- and further enhance the Office’s database of
mental stage, and the Office’s automated system copyrighted works.
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REPORT OF THE REGISTER OF COPYRIGHTS, 1995
Agawitih an vi ew to imprpoublvic eserdvic e, ee On Marc2h1 , the Of-
the Office relaxed a number of its regulatory re- a notice consolidthae tdiistnrigbu -
quirements. It liberalized deposit requirements en ofthe 1990-1990 cables ovebty fends.R oyalty
for group registrations of contributions to peri- claimants filed notices of their intent to partici-
odicals and for screen display claims and aban- pate in the proceeding and exchanged their cases
doned the requirement that complete print on August 18. Hearings will begin in December
versions of CD-ROM claims must be submitted. and continue for up to six months, after which the
The Office reversed a previous policy to permit CARP wiil deliver its written distribution deci-
registration of claims in pictorial, graphic, and sion to the Librafrori reavinew .
sculptural works for which a design patent has The Office also administered distribution of
been issued and reevaluated registration proce- the 1992, 1993, and 1994 DART funds. These roy-
dures to assure that registration is made when- alties are divided into two funtdhes So:un d Re-
ever a minimal amount of creativity is present. cordings Fund and the Musical Works Fund;
Finally, the Office expanded permissive group each requires distribution. The Office adminis-
registrations to include certain daily newsletters tered a universal settlement among the claimants
by mail or electronic media at least two to the Sound RecoFrundd fior nthesge syear s.
times each week, if the copyright owner and au- The Musical Works Fund is stiil the subject of
thor is the same for all issues. Such tions controversy and may require a CARP proceeding
enja oredyuce d filing fee of $10 per issue and in 199The6 O.ffi ce clafoir rmoyaslti es
automatically allow the Library to acquire two collected under the cable, satellite, and DART li-
censfoer 1s994 .
The Office devoted significant time to assum- An important policy role of the Office is its ad-
ing the complex duties of the former Copyright vice to Congresso n legislation. This
Royalty Tribunal, an independent agency that year the Office advised Congress on several ieg-
had operated since 1978. The Copyright Royalty islative proposals. After many years of congres-
Tribunal Reform Act of 1993 eliminated the Roy- sional hearings, Congress enacted a limited
alty Tribunal and replaced it with a system of ad right to assure that record produc-
hoc Copyright Arbitration Royalty Panels ers and will receive royaltfiore cser -
(CARPs) administered by the Librarian of Con- tain digital transmissions of their sound
gress and the CopyrOffiice gtoh cotndu ct royalty recorodn iNonvemgbesr 1, 1995. The Register’s
distribution and rate adjustment proceedings un- written and oral testfoir bmotho thne yMar ch
der the copyright compulsory licenses. The (Senate) and June (House) hearings supported
CARPs consist of three arbitrators, two of which the bill and stressed the importance of according
are selected by the Librarian, with the third cho- this right in the era of the information
sen by the other two. way, when transmissions of sound
To implement the CARPs, Congress directed have the potential to replace record sales. At the
the Office to publish final regulations governing same time, the Office advocated a full public per-
all royalty distribution and rate adjustment pro- formance right for sound recordings and ques-
ceedings. These new rules, published on Decem- tioned whether the legislation was sufficiently
ber7 , 1994, form a new subchaopf tCheaptrer II broad to permit an internaatgrieeomennta tlha t
of title 37 of the Code of Federal Regulations would allow American nationals to receive for-
(CFR). With the new rules in place, the Office ini- eign royalties.
tiated distribution proceedings for royalties col- Follothwe iEunropgea n UnioJulny 1' exste n-
lected under both the cable and the digital audio sion of the term of copyright protection to life of
3
REPORT OF THE REGISTER OF COPYRIGHTS, 1995
the author plus 70 years, new impetus was given artists and their representot ealictiti ovbjeectsiv e
to two bills to create a similar term in the United information about their experiencwiet h VARA
States. If enacted, the legislation would enable rights and their contractual experience with
American authors to enjoy the longer term both waiver. Finally, it conducted public hearings
at home and abroad. The Register testified in fa- open to all interested parties to comment on their
vor of the extension (except as it appliteo dun - experiencwiet h VARA waivers. The Office will
published works created before 1978) in July and submit a comprerhepoert nansd riecvomemen -
agian Sieptenmbe r. But, the Office suggesteadd- dations toC ongrone Masrcsh 1, 1996.
ditional provistoi saofengusard certain usesb y
libraries and nonprofit educational institutions INTERNATIONAL ACTIVITIES
and to create a licensing system for authors and
owners who cannot be located. With the November publication of final regu-
The Visual Artists Rights Act of 1990 (VARA) lations governing Statements of Intent for the res-
directed the Copyright Office to conduct a study toration of U.S. copyright in certain motion
to assess for Congress the impact of the waiver pictures and their content, the Office fulfilled its
provisions contained in that legislation. Much of responusndeir bthei Nolrthi Atmeriicean sFr ee
the fiscyeaar lwa s spent researching and survey- Trade Agreement (NAFTA) and itsi mplementing
ing in preparation for that report. In 1990, Con- legislation. NAFTA made eligible for restoration
gress for the first time legislated limited moral those motion pictures and their contents that were
rights of attribution and integrity to authors of first fixed in Mexico or Canada that entered the
narrowly defined works of visual arts. They public domain here as a result of their publication
guarantee to authors of so-called fine arts and ex- between January |, 1978, and March 1, 1989, with-
hibition photographs the right to claim or dis- out the required notice of copyright and similar
claim authorship in a work; limited rights to works that were in the public domain because of
prevent distortion, mutilation, or modification of their first publication in Mexico or Canada during
a work; and the right, under some circumstances, the above time period witah notoice uoft cop y-
to prevent destruction of a work that is incorpo- right. Statements of Intent were required by the
rated into a building. Based upon testimony from end of the last calendar year. The Office’s regula-
artists’ representatives, commercial users, and tions governing these filings reflected comments
other interested parties, Congress determined sought from all interested parties, particularly
that the artists’ rights should not be absolute; with respect to identioff irecstoaretd iwoorkns. A
rather, they should be tempered by com nercial list of 349 restored motion pictures was
realities, provided that autwehre olegirslastive ly in the Federal Register on February 13, 1995. The
insulated from giving away their new-found list is also available in the Office’s Public Informa-
rights under undue influence. Thus, the legisla- tion Office, and information about these works is
tion provides for waiver of these moral rights, but avaioln atheb Inlterene t.
only by a signed, written agreement specifying Perhaps the most important internationadle -
the work and the precise uses to which waiver during the fiscal year is the restoration
applies. of U.S. copyright in certain foreign works in ac-
During the year, the Office surveyed earlier cordance with the Uruguay Round Agreements
federal bills, state laws, artists’ contracts, U.S. Act (URAA) on December 8, 1994. Copyright pro-
case law, foreign statutes and case law and the tection is automatically restored on January 1,
history of the Berne Convention with respect to 1996, for eligible works. To he eligible, at least one
moral rights and waiver. It also surveyed visual author on the date of creation must have been a
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REPORT OF THE REGISTER OF COPYRIGHTS19,9 5
citizen or domiciliary of a country, other than the Office will make full information available on
United States, who is a member of the Berne Con- COPICS, which can be accessed on the Internet.
vention, the World Trade Organization (WTO), Fees have been kept as low as possible, and credit
or the subject of a presidential proclamationt;h e cards will be accepted to ease payment in U.S.
work must be under copyright protection in the dollars. Finally, deposit requiremfeorn tURsAA
source country; first publication, if any, must registhravae tbeien orenlasxed .
have occurred in an eligible country and must not Two areas of international copyright activity
have occurred in the United States within 30 in which the has been actiarve eth e
days; and, finally, the work must be in the public Berne Protaondc tohe lNe w Instrumfeorn tth e
domain in the United States for failure to comply Protection of Performers and Producers of Sound
with formal requiremeonft Us.S . copyright law, Recordings. The Bere Protocol addresses several
be a sound recording fixed before February 15, areas of ambiguity and contention about applica-
1972, or for lack of national eligibility. tioofn th e 1971 Paris Act of the Berne Conven-
The Copyright Office is charged with publish- ticn. Topics of discuast sthie aonnnua l meetings,
ing regulations for two Office filings that help the begun in November 1991, include copyright pro-
copyright owner secure remedies, particularly tection for computer programs and databases,
against so-called “reliance parties,” those who the distribution right and the rental right, the
were using the work prior to enactment of the concept of public communicoaf twoirkso, nt he
URAA. The filings comprise Notices of Intent to
Enforce (NIE) restored copyrights and applica-
tions for copyrigitt registfror athtesie owonrks . copyright rights, and the scope of the Berne
The Office must also publish periodic lists in the Convnaetionnal ttreaitmenot obnliga’tionss. The
Federal Register that identify restored works and United States and other participnaattioinsn gar e
their ownership when NIEs have been “led with evaluating the focus of these annual meetings in
the Office. light of the GATT Trade Related Intellectual
To reflect the legitimate concerns of interested Property Agreeinent and issues raised by the
parties in thes / regulations, the Office held a pub- Global Information Infrastructure. The United
lic hearing in March and a con States submitted substantive proposals for dis-
comment period. It also invited comment from cussion at the September 1995 Protocol meeting.
more than 90 artists’ rights organizatiaondn isn - The New Instrument meetings represent the
dustry groups, as well as nearly 200 foreign gov- attempts of the United States and others to secure
ernment agencies with copyright = a higher level of international protection for
Based upon commefrnom tthse 55 sound recordings by bridging the gap in protec-
and its own needs, theO ffice issued a Notice of tion affobyr coudntreiesd th at
Proposed Rulemaking in early July covering both under rights laws and those, such as
filings. The final regulwasa istsueid oonn Se p- the United States, that protect recordings under
tember 29, 1995. That regulation is responsive to copyright law. Efforts are focused on the possible
various concerns that were expressed. For ex- creation of a new instrument to be administered
ample, rather than require a form for NIE filings, by the World Intellectual Property Organization.
the Office issued a format that is available for (WIPO). This has been discussed at four commit-
downlooan tdhei Inntergne t. Only information tee of experts’ meetings, the last held in Septem-
required by the statute must be given; other infor- ber. Issues to be resolved include the scope of
mation that will assist in identifying the work national treatment obligations, retroactive pro-
and the rights being enforced are suggested. The tection for pre-existing recordings, the scope of
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