S-0979.1          _______________________________________________

                       SUBSTITUTE SENATE JOINT MEMORIAL 8002

                  _______________________________________________

State of Washington              54th Legislature             1995 Regular Session

By Senate Committee on Energy, Telecommunications & Utilities (originally sponsored by Senator Sutherland)

Read first time 01/30/95.

Requesting amending the Copyright Act to address current situations.

     TO THE HONORABLE BILL CLINTON, PRESIDENT OF THE UNITED STATES, AND TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, IN CONGRESS ASSEMBLED, AND TO THE HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON INTELLECTUAL PROPERTY AND ADMINISTRATION OF JUSTICE, AND TO THE SENATE SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS:

     We, your Memorialists, the Senate and House of Representatives of the State of Washington, in legislative session assembled, respectfully represent and petition as follows:

     WHEREAS, Under the United States Copyright Law, performances of copyrighted music must be licensed; and

     WHEREAS, This copyright protection includes music played over television and radio; and

     WHEREAS, In the 1976 Copyright Act, Congress exempted noncommercial "performances" of copyrighted music if there were no direct or nondirect commercial purpose; and

     WHEREAS, Congress attempted to provide an exemption to businesses whose proprietors merely bring a television or radio onto their premises for their customer's enjoyment if the television or radio was "of the kind commonly used in private homes"; and

     WHEREAS, Licensing organizations representing composers, authors, and publishers of music have traditionally claimed that businesses must pay royalties on music broadcast over sound reproduction equipment "of the kind commonly used in private homes" where that equipment or those businesses meet certain arbitrary criteria such as screen size, speaker configuration, floor size, and the businesses' ability to pay; and

     WHEREAS, Some federal circuit courts have determined that some of these traditional criteria are not valid under federal copyright law; and

     WHEREAS, The Ninth Federal Circuit Court has not yet resolved this issue; and

     WHEREAS, Ambiguities in the law create confusion for Washington businesses who are uncertain whether royalties are owed to licensing organizations; and

     WHEREAS, These ambiguities tend to favor licensing organizations over small businesses when negotiating royalty payments and licensing agreements; and

     WHEREAS, The licensing organization, the American Society of Composers, Authors and Publishers (ASCAP), has construed any television over thirty-six inches, including big screen televisions, to be other than "of a kind commonly used in private homes"; and

     WHEREAS, ASCAP has therefore threatened a Washington state small pizza parlor with a copyright lawsuit because it has a standard forty-inch television set at its establishment tuned solely to a sports channel; and

     WHEREAS, Numerous businesses throughout Washington and the country such as restaurants, taverns, hotels and motels, retailers, beauty parlors, haircutting salons, and airports are at risk of expensive licensing fees or litigation for doing nothing more than making commercial television or radio available to customers; and

     WHEREAS, It is necessary for Congressional intent to reflect the technological and commercial realities of our time;

     NOW, THEREFORE, Your Memorialists respectfully pray that the President and Congress conduct a complete review of the Copyright Act to determine whether it reflects the realities of technology and its goals and policies are in need of revision.

     BE IT RESOLVED, That the Copyright Act be amended to exempt from licensing requirements any noncommercial performance of copyrighted music over television or radio if the performance has only an indirect benefit to the person who permits the performance; and

     BE IT FURTHER RESOLVED, That Congress designate a federal agency to adopt rules to implement the provisions of the Copyright Act; and

     BE IT FURTHER RESOLVED, That copies of this Memorial be immediately transmitted to the President of the United States, the President of the United States Senate, the Speaker of the House of Representatives, each member of Congress from the State of Washington, the House of Representatives Subcommittee on Intellectual Property and Administration of Justice, and the Senate Subcommittee on Patents, Copyrights and Trademarks.

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