Page:Copyright Law Revision (Senate Report No. 94-473).djvu/83

 The definitions of “secondary transmissions” and “cable systems” were drafted in part to reflect the special communications problems of the non-contiguous states, territories and possessions. While the systems operating in these areas may not meet the customary definitions of a cable system, it is the intent of this legislation that such systems, for purposes of this legislation, shall be regarded as conventional cable system despite the necessary differences in technology and operating procedures. The application of the provisions of this section to transmissions by “cable systems” not within the boundary of the forty-eight states is fully subject to the rules and regulations of the Federal Communications Commission.

However, the treatment accorded such cable systems is not meant to relieve them of the same obligations and limitations as are imposed by the Federal Communications Commission on cable systems operating in comparable market situations in the contiguous states. For example, cable systems in the contiguous states are subject to certain rules and regulations regarding carriage of signals and program exclusivity protection when they transmit television broadcast signals. It is the intent of the committee that cable systems in the non-contiguous states, territories and possessions should be subject to the same rules and regulations.

With respect to cable systems in Alaska, the intent of this section that their secondary transmissions to the fullest possible extent consist of signals received from primary transmissions by Alaska stations.

Section 112 of the bill concerns itself with a special problem that is not dealt with in the present statute but is the subject of provisions in a number of foreign statutes and in the 1948 Brussels revision of the Berne Convention. This is the problem of what are commonly called “ephemeral recordings”: copies or phonorecords of a work made for purposes of later transmission by a broadcasting organization legally entitled to transmit the work. In other words, where a broadcaster has the privilege of performing or displaying a work either because he is licensed or because the performance or display is exempted under the statute, the question is whether he should be given the additional privilege of recording the performance or display to facilitate its transmission. The need for a limited exemption in these cases because of the practical exigencies of broadcasting has been generally recognized, but the scope of the exemption has been a controversial issue.

Recordings for licensed transmissions

Under subsection (a) of section 112, an organization that has acquired the right to transmit any work (other than a motion picture or other audiovisual work), or that is free to transmit a second recording under section 114, may make a single copy or phonorecord of a particular program embodying the work, if the copy or phonorecord is used solely for the organization’s own transmissions within its own area; after 6 months it must be destroyed or preserved solely for archival purposes.

Organizations covered.—The ephemeral recording privilege is given by subsection (a) to “a transmitting organization entitled to transmit to the public a performance or display of a work.” Assuming that