Page:Copyright Law Revision (Senate Report No. 94-473).djvu/89

 The second sentence of clause (1), which has been the subject of some [debate, provides that “a person may obtain a compulsory license only if his primary purpose in making phonorecords is to distribute them to the public for private use.” This provision was criticized as being discriminatory against background music systems, since it would prevent a background music producer from making recordings without the express consent of the copyright owner, it was argued that this could put the producer at a great competitive disadvantage with performing rights societies, allow discrimination, and destroy or prevent entry of businesses. The committee concluded, however, that the purpose of the compulsory license does not extend to manufacturer of phonorecords that are intended primarily for commercial use, including not only broadcasters and jukebox operators but also background music services.

The final sentence of clause (1) provides that a person may not obtain a compulsory license for use of the work in the duplication of a sound recording made by another, unless he has first obtained the consent of the owner of the original sound recording. The intent of this sentence is to make clear that a person is not entitled to a compulsory license of copyrighted musical work for the purpose of making an unauthorized -duplication of a musical sound recording originally developed and produced by another. It is the view of the Committee that such was the original intent of the Congress in enacting the 1909 Copyright Act, and it has been so construed by the 3rd, 4th, 9th and 10th Circuits in the following cases: Johndora Music Pub. Co. v. Melody Recordings, Inc., 506 F.2d 392 (2nd Cir. 1974) ; Alabama Custom Tape, Inc. v. Fame Pub. Co., Inc., 507 F.2d 667 (5th Cir. 1975); Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir. 1972); Edward B. Markes Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285 (10th Cir. 1974). The last part of the same sentence makes it clear that the compulsory license is available for authorized duplications licensed or approved by the owner of the original sound recording.

That portion of the last sentence, of course, does not in any way require the owner of the original sound recording to grant a license to duplicate the original sound recording; in 1972 the Senate expressly rejected the argument that copyright protection for sound recordings be circumscribed by requiring the owners of sound recordings to grant a compulsory license to unauthorized duplicators or others.

The second clause of subsection (a) is intended to recognize the practical need for a limited privilege to make arrangements of music being used under a compulsory license, but without allowing the music to be perverted, distorted, or travestied. Clause (2) permits arrangements of a work “to the extent necessary to conform it to the style or manner of interpretation of the performance involved,” so long as it does not “change the basic melody or fundamental character of the work.” The provision also prohibits the compulsory licensee from claiming an independent copyright in his arrangement as a “derivative work” without the express consent of the copyright owner.

Procedure for obtaining compulsory license

Section 115(b)(1) requires anyone who wishes to take advantage of the compulsory licensing provisions to serve a “notice of intention to obtain a compulsory license,” which is much like the “notice of