Mr. KASTENMEIER. Thank you very much, Mr. Zurkowski. [The prepared statement of Ernest R. Farmer follows:]

STATEMENT OF ERNEST R. FARMER ON BEHALF OF THE MUSIC PUBLISHERS AssoCIATION OF THE U.S., INC., AND THE NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.

Mr. Chairman, my name is Ernest R. Farmer. President of Shawnee Press. Inc., a music publisher located in Delaware Water Gap, Pa. I appear before this Committee today on behalf of the Music Publishers Association of the U.S., Inc., the trade association of the publishers of educational, concert and sacred music, of which I am a past president. I also appear on behalf of the National Music Publishers' Association, Inc., the trade association of publishers of popular, motion picture and theater music. I might add that I am also past president of the Music Industry Council, an auxiliary organization of the Music Educators National Conference which creates a liaison between that organization of music teachers and various components of the music industry.

The provisions of Section 107 are of vital concern to those members of the music publishing business who depend upon the sale of music in printed form as the basis upon which their particular businesses depend. The graphic representation of the creations of composers and authors-printed music-represents a substantial part of such businesses-in many cases almost all of it.

It may be helpful to an understanding of this function to know that the prime markets for printed music are schools and churches for use by their choruses and bands and orchestras. In this sense we are "group music" specialists. For this reason, the unit price of our publications is relatively modest and we look to the purchase of multiple copies of a given publication to make it commercially feasible.

As an illustration, I have here a single copy of one of our choral publications that is widely sung in our Nation's schools. The retail selling price is 35 cents. You will note that in a technical sense it is a relatively simple publication. Two sheets of paper 10%1⁄2 by 131⁄2 inches in size, printed and folded together unbound. Obviously, once the initial music engraving and typography has been done and the initial copies printed, further reproduction by any one of a number of means readily available in today's schools becomes a simple matter.

While I have used a choral publication as an example, the same situation exists relative to band and orchestra works.

This simple matter of unauthorized reproduction by schools or churches is vitally important to our authors and composers and to us as publishers. Widespread, unauthorized photoduplication of our music could sap the lifeblood of our business, deprive authors and composers of their royalties and publishers of their basic source of income. Such a situation does indeed exist under the current U.S. Copyright Law due to misconceptions and misunderstanding and misinformation and in the absence of clear and workable guidelines.

Let me state categorically that my colleagues and I have the highest regard for the music teachers of America. Moreover, the relationship between the music publishers associations and the Music Educators National Conference whose membership of over 50,000 includes most teachers of music in the schools of America serves as a model of understanding and cooperation between educational users of copyrighted materials and the authors, composers and publishers of those works.

As a matter of fact, the Executive Board of the MENC in June of 1973 unanimously supported the following statement of policy :

I. MENC Policy on the Use of Copyrighted Material.

The MENC National Executive Board establishes as the policy of the Music Educators National Conference that the copyright law shall be observed and that improper and unauthorized use of music and other printed materials protected under that law shall be prohibited in all conference activities. Further, all MENC national and state affiliates are urged to adopt a similar position as official policy.

II. Implementation of MENC Copyright Policy.

The MENC National Executive Board directs that official MENC policy on the use of copyrighted materials be implemented in the following ways:

(1) When a director accepts an invitation to appear on a convention program he shall sign a declaration stating that he has read the MENC policy and will not use unauthorized copies of copyrighted materials.

(2) Any participants in an MENC program violating this policy position will be subject to suspension from the program.

(3) The action of the National Executive Board shall be communicated as a matter of general information to all participants in MENC-sponsored activities, Moreover, a number of state organizations of music educators have undertaken similar and in some cases stronger statements on behalf of respect for and observance of copyright.

It is important to recognize that the term "teaching" as it relates to music ultimately carries with it the implication of rendering, interpreting or performing. Although there are certain academic and theoretical aspects of the art that do not require re-creation in the form of sound, the teaching of music as it is generally understood in the schools requires the learning of skills necessary to accurately convert abstract symbols printed on a piece of paper into a given sound within a given time by means of instruments or the human voice. Therefore, copies of printed music such as this are regularly used for the purpose of teaching. In simple, realistic terms duplication of printed music for teaching inevitably means reproduction of multiple copies with disastrous consequences to authors and composers and their publishers.

We are in favor of and support Section 107 as it is set forth in H.R. 2223, but In order that users of music interpret the Section correctly and equitably and avoid inadvertent or intentional misinterpretation of the provisions of Section 107, we believe that repetition of the excellent explanation and interpretation which was included in your predecessor's Subcommittee's Report (Report #2237, 89th Congress, 2d Session) is absolutely essential.

Let me suggest how Section 107 without the support of a comprehensive exposition in an accompanying report might be interpreted by our present customers. Imagine ourselves in the position of a public school music teacher any place in the United States when confronted with the new guidelines. And let us further assume that we are attracted to this particular piece of music and want to teach our classes to sing it.

Subject to the criteria in the proposed wording of Section 107 alone, would it not be reasonable to assume that to a person engaged in "teaching" it would be perfectly proper to make whatever number of "copies" may be necessary to "teach" our singers?

In determining the particulars of this example with respect to guideline (1) in Section 107, the purpose and character of our hypothetical use is for "teaching." And that is proposed to be recognized as a fair use.

As to the second guideline, what is the nature of the copyrighted work? Our hypothetical teacher might well say, "Why, it's a simple little song and there are thousands published every year. As a teacher, I just happen to like this one." In dealing with the third criterion, I must point out that it is not unusual for certain individual songs to be published in collected form. For instance, our previous example is also found as part of the contents of this choral collection which I have here.

If the teacher chooses to reproduce his copies for the purpose of teaching from this collection rather than the separate publication, would it not be reasonable for him to assume that he has satisfied the third requirement: that in selecting one song from 40 the "amount and substantiality of the portion used" is relatively insignificant in relation to this choral collection. Yet in fact, our hypothetical teacher has reproduced a complete work * words, music, melody, harmony, and accompaniment essentially as they appear in the separate edition previously shown.

As to the fourth guideline and "the effect of the use upon the potential markets for or value of the copyrighted work," our teacher might well say, "Why I'm just one teacher who wants to teach a nice song to some youngsters. How could this possibly hurt anyone?"

Now I fully realize that such reasoning as we have outlined in our hypothetical case might not stand up in a court of law. But why must the copyright owner be put in the position of policing such an open-end statute in order to survive in the major market available to him?

In the past the music publishers associations have undertaken to inform music educators on copyright matters as indeed have the educator's national organization's publication and statements of policy. We have confidence that the Music Educators National Conference would join us in a massive under taking after the passage of a new Copyright Law to inform music educators

what they may and what they may not do under the Copyright Law through circulation of the relevant portions of the Law and the Report.

On June 2, 1965 (pp 399 et seq. of the transcript of Hearings on H.R. 4347— 89th Congress) Mr. Charles Gary, Executive Secretary of MENC, testified on the Copyright Revision Bill (H.R. 4347) which then contained only the following section concerning fair use. . . "Notwithstanding the provisions of Section 106 the fair use of a copyrighted work is not an infringement of copyright.” We believe that the problems cited by Mr. Gary in his testimony on that day concerning educators' use of printed music would all be fully resolved by Section 107 as it appears in H.R. 2223 when accompanied and interpreted by and with the Report referred to above.

The members of the Music Publishers' Association and the National Music Publishers' Association are daily and actively involved in attempting to persuade and encourage the best creative individuals to use their imaginations and special talents for the creation of more and better music for America's school children with a resulting improvement in the general cultural climate of our country. As the late, great composer, humanitarian and internationally renowned music educator, Zoltan Kodaly, stated. "We must put an end to the pedagogic superstition which demands that teaching material shall be constituted exclusively by a diluted substitution of art. It is necessary to reverse this thesis: for the child. only true artistic value is good enough. No one is too great to write for children.” If authors and composers and publishers are to work toward the creation of a body of music for schools and indeed for churches with such a purpose as Mr. Kodaly enunciates, they can do so only with the clear assurance that their work will be protected and their efforts will be rewarded and not thwarted. We respectfully urge this Subcommittee to make this possible.

Mr. Chairman, we wish to express our appreciation to you and the members of the Subcommittee for this opportunity to appear before you on this matter, the importance of which I cannot overemphasize. Thank you.

TESTIMONY OF ERNEST R. FARMER, PRESIDENT, SHAWNEE PRESS, INC., DELAWARE WATER GAP, PA.

Mr. FARMER. Mr. Chairman, my name is Ernest R. Farmer, president of Shawnee Press, Inc., a music publisher. I appear before this committee on behalf of the Music Publishers Association of the U.S., Inc., the trade association of the publishers of educational, concert, and sacred music, of which I am a past president.

In opening my remarks, I would like to thank Father Drinan for some of the questions he put to the educator group, which, in my opinion, did an excellent job of pointing out the unique problems of printed music.

For those reasons, the provisions of section 107 are of vital concern to those in the music publishing business who depend on the sale or music in the printed form as the basis for staying in business. The graphic representation of the creations of composers and authorsprinted music-represents a substantial part of such businessesin many cases, almost all of it.

The prime markets for printed music are schools and churches for use by their choruses and bands and orchestras. In this sense, we are group-music specialists, and the unit price of our publications is relatively modest. Therefore, we look to the purchase of multiple copies of a publication to make it commercially feasible.

As an illustration, I have here a single copy of one of our choral publications widely sung in our Nation's schools. The retail selling price is 35 cents. Obviously, once the initial music engraving and typography has been done. and the initial copies printed-at the sole expense of the publisher-further reproduction by any one of a num

ber of means readily available in today's schools becomes a simple matter.

This technologically simple matter of unauthorized reproduction by schools or churches is vitally important to our authors and composers and to us as publishers. Widespread, unauthorized photoduplication of our music could sap the lifeblood of our business, deprive authors and composers of their royalties, and publishers of their basic source of income. Such a situation does indeed exist under the current U.S. copyright law due to misconceptions and misunderstanding and misinformation, and the absence of clear and workable guidelines.

Let me state categorically that my colleagues and I have the highest regard for the music teachers of America. Moreover, the relationship between the music publishers' associations and the Music Educators National Conference serves as a model of understanding and cooperation between educational users of copyrighted materials and the authors, composers, and publishers of those works.

As a matter of fact, the executive board of the MENC, in June of 1973, unanimously issued a statement on use of copyrighted material, and the full text of their statement appears in my prepared remarks. With this relationship with our primary customer group as a background, it is important to recognize that the term "teaching" as it relates to music ultimately carries with it the implication of rendering, interpreting, or performing.

The teaching of music, as it is generally understood in the schools, requires the learning of skills necessary to accurately convert abstract symbols printed on a piece of paper into a given sound within a given time by means of instruments or the human voice. Therefore, copies of printed music, such as this, are regularly used for the purposes of teaching.

In simple, realistic terms, unauthorized duplication of printed music for teaching inevitably means reproduction of multiple copies with disastrous consequences to authors, composers, and publishers.

We are in favor of, and support, section 107 as it is set forth in H.R. 2223, but in order that users of music interpret this section correctly, we believe that the explanation and interpretation which was included in your predecessor's subcommittee report-Report No. 2237 of the 89th Congerss, 2d Session-is absolutely essential.

In my prepared statement I have attempted to demonstrate how the proposed criteria of 107 can be susceptible to all sorts of misinterpretations, particularly with respect to the so-called criteria.

I must point out that it is not unusual for individual songs to be published in collected form. For instance, our previous example is also found as part of the contents of this choral collection.

If a teacher chooses to reproduce his copies for the purpose of teaching from this collection, rather than from the separate publication, would it not be reasonable for him to assume that he has satisfied the third requirement-that is, in selecting one song from 40, the amount and substantiality of the portion used is relatively insignificant in relation to this choral collection. In fact, our hypothetical teacher has reproduced a complete work-words, music, melody, harmony and accompaniment, essentially as they appear in the separate publication previously shown.

57-786-76-pt. 1-23

The members of the Music Publishers' Association and the National Music Publishers' Association are daily and actively involved in attempting to persuade and encourage the best creative individuals they know to use their imaginations and special talents for the creation. of more and better music for America's schoolchildren, with a resulting improvement in the general cultural climate of our country.

If the authors and composers and publishers are to work toward the creation of a body of music for schools, and indeed for churches with such a purpose in mind, they can do so only with the clear assurance that their work will be protected and their efforts will be rewarded and not thwarted.

We respect fully urge this subcommittee to make this possible.

Mr. Chairman, I thank you for the opportunity to present this point of view. If I may add one further observation regarding section 108.

It is my understanding there was testimony given yesterday attacking the exemption given to musical works in the proposed language of 108. May I say, this was news to us due to the fact this language has been on the record presumably without prior objection for some years. Therefore, we would like to respectfully request the opportunity to prepare, and file for the records, a statement in rebuttal to the remarks made yesterday concerning 108(h).

Mr. KASTEN MEIER, Such additional comment with respect to that question, Mr. Farmer, without objection, will be received.

Mr. FARMER. Thank you.

[Subsequent to the hearing the following statement was received:]

SUPPLEMENTAL STATEMENT OF ERNEST R. FARMER ON BEHALF OF THE MUSIC PUBLISHERS ASSOCIATION OF THE U.S., INC. AND THE NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC. RELATIVE TO SECTION 108 of H.R. 2223

This statement is submitted pursuant to permission granted me by the Chairman of the Subcommittee on Courts, Civil Liberties and the Administration of Justice, on May 14, 1975, when I testified with regard to Section 107.

The purpose of this statement is to rebut that portion of the testimony of Dr. Edmon Low testifying on behalf of various library associations in which he urged the deletion of subsection (h) of Section 108 from H.R. 2223.

Subsequent to the oral testimony we received a copy of a letter dated May 1st, 1975, to your Subcommittee from the Music Library Association (MLA) which also urged the deletion of "musical works" from that section of the Bill.

We are certain that it was not an arbitrary decision nor an accident which led to the inclusion of subsection (h) of Section 108 in the Bill as passed by the Senate last September. The decision, we are convinced, is based upon recognition of the fact that musical works differ materially from most other types of works in library collections. A musical work is created primarily for performance by an instrument or instruments or the human voice or voices.

To paraphrase language included in my statement before your Subcommittee on May 15th relative to Section 107 of H.R. 2223, music consists of abstract symbols printed on a piece of paper which are to be converted accurately into a given sound within a given time by means of instruments or the human voice. Thus, as I emphasized, the primary purpose of music is performance,

In its letter of May 1st, the MLA emphasizes the uses of musical works in scholarship and sets down in considerable detail the nature of the works which might be used for scholarship and the manner in which they are used for scholarship.

We submit that there is a further special peculiarity of music which is that the same works which are used for scholarly purposes may be and indeed are used for the purposes of performance. Thus, there is no distinction which could be made as to the use to which a photocopy would be made. And it is our belief and contention that those copies made for the purposes of performance would be overwhelmingly more numerous than those copies which might be made for scholarship or similar purposes. Moreover, even in scholarly works prepared and