"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries?"

Thank you.

[The prepared statement of Mr. Copland follows:]

STATEMENT OF Aaron Copland, COMPOSER, MADE on Behalf of thE AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS

Mr. Chairman and members of the committee. My name is Aaron Copland, and I reside in Peekskill, New York.

I am a composer, author, conductor, and teacher and a member of the National Institute of Arts and Letters and the American Academy of Arts and Letters.

I appear today as a spokesman for the 23,000 members of the American Society of Composers, Authors and Publishers, on whose Board of Directors I have served since 1973. However, I believe I speak for all composers, authors, and publishers of music and, indeed, that the point of view I shall express is, in fact, the point of view of everyone who has looked at the juke box question, with the sole excep‐ tion, of course, of the juke box industry.

First, Mr. Chairman, I would like to express my personal appreciation of your extraordinary efforts on behalf of authors and composers over the past dozen years. I believe all creators owe you a large debt.

I hope my statement will accomplish two things: first, to state succinctly ASCAP's position on the juke box issue and, second, to set forth briefly some facts about the world of music which are not generally known.

For many years ASCAP and other organizations representing composers sought a change in the 1909 copyright law so that royalties would be earned when the public paid to hear our music played on juke boxes. Fortunately, we no longer have to concern ourselves with the basic question in dispute over those many years whether juke box operators should pay any performance fees. They now agree to pay $8 per year per juke box.

Thus, the only question now is whether the $8 fee should be frozen by statute or subject to periodic review and adjustment, up or down, as the facts may warrant. Last year the Senate Judiciary Committee recommended such review by the Copyright Royalty Tribunal, subject to veto by either House of Congress. We favor that approach.

The origin of the $8 per year provision in the present bill is well-known. In 1967, for the first time, the prospects for enactment of a general Copyright Revision Bill were good, but there were two problems-the fee to be paid for juke box performances and how cable television should be treated. To resolve the juke box issue, we and other licensing organizations agreed with the juke box industry that their fee would be $8 per box per year-substantially less than the $19 to $20 fee recommended by this Subcommittee in 1966.

The bill, as so amended, passed the House-with the cable television provisions deleted-but the Senate failed to act. The $8 fee for the 500,000 juke boxes then in use would have produced $4 million per year in license fees. That's a total of $28 million for the period 1968 through 1974. Because the bill was not enacted, not a penny has been paid for performance fees.

Your bill, Mr. Chairman, is the same as the bill passed by the Senate in September, 1974. As a result of a last-minute amendment on the Senate floor, the juke box provision (§ 116) was changed so that the $8 fee would not be subject to periodic review and adjustment by the Copyright Royalty Tribunal.

ASCAP's position, then, is that we support H.R. 2223 with a single change: we urge that § 116 be amended and restored to the form in which it won Senate Judiciary Committee approval. The juke box fee should not be frozen by statute. It should be treated the same as the other statutory fees-the mechanical fee (§ 115) and the cable television fee (§ 111). Congress is too busy to be burdened with periodic review and adjustment of copyright royalty rates as economic conditions change. Such adjustments are best left to the Copyright Royalty Tribunal.

Mr. Chairman, it would not surprise or disappoint me if, when my name was listed as a witness on this issue, you and the other members of the committee were puzzled as to why my fellow composers would call on me, or why I would agree, to speak for them when I am better known to concert audiences than to

57-786 - 76 pt. 1 25

those who drop their quarters, half-dollars and, I am told, even their dollar bills, into juke boxes.

The answer is that the world of serious music is much closer to, and more dependent on, the world of popular music than is generally realized. To appreciate why this is so and how "serious" composers stand to share in royalties paid by juke box operators-it is necessary to understand how ASCAP and similar licensing organizations function.

We must start with the reason for ASCAP's existence. Since 1914 ASCAP has provided an essential public service. It is a clearinghouse through which composers, authors and publishers, and users of copyrighted music, come together to issue or to obtain licenses for performance of music. ASCAP provides the mechanism through which performance rights can be marketed in bulk at enormous savings over the costs that individual negotiations would necessarily entail.

ASCAP's members grant the Society the nonexclusive right to license their works to all who perform them publicly for profit. ASCAP's licensing arrange ments now extend to over 35,000 users of music, ranging from the tavern owner who may use records, tapes, a single instrumentalist or an orchestra, to the three television networks.

To ensure that the various license fees are fair, ASCAP has voluntarily entered into a Consent Judgment in United States v. ASCAP (Civ. 13-95, March 14, 1950, S.D.N.Y.), which provides for judicial determination of a reasonable license fee if ASCAP and any user fail to reach agreement. Our counsel, Mr. Bernard Korman, can give you details on how this provision has worked over the past twenty-five years.

ASCAP licenses are valuable to users precisely because they cover many compositions-the works of all of ASCAP's members and the works of tens of thousands of music creators who belong to similar foreign societies with which ASCAP is affiliated in all parts of the world.

ASCAP members include composers of serious music, rock n' roll, the great American standards, music from Broadway shows, film music, religious music, jazz, country and western-indeed, all music.

The wide diversity of ASCAP membership is reflected not only in the different types of music, but also in the different degrees of achievement: membership is open to any writer who has had one composition published or recorded, and to any publisher who assumes the normal financial risk of the business. Accordingly, the membership includes the most commercially successful, those who have only one or two successful works over their lifetimes, and those who never write a single successful work. The publishers, too, range from the most successful to the struggling operation which may never show a profit.

ASCAP is not a corporation. We are an unincorporated, nonprofit membership association-really, a kind of cooperative. After operating expenses are deducted, amounts are set aside for foreign societies to pay their members. All remaining revenues are distributed to the members, 50% to the writers and 50% to the publishers. The distributions are based on an objective survey of performances. Again, our Counsel can explain this distribution system in more detail if you wish.

Many of us who create music rely primarily on our copyright royalties for our livelihood. In addition to our performance royalties, we also receive record royalties. But it is important for you to realize that record sales benefit record companies and performers more than they benefit writers and publishers. Consider the mechanical royalty income earned by writers and publishers from a record that sells one million copies-there are not many-and remember that at the present maximum statutory fee of 2¢ per record, the publisher would receive $10,000 and $10,000 would be divided among the writers.

Other sources of income for composers, such as sheet music, are small. The fact is that careers in music would often be impossible without performance royalties. They are the mainstay for many composers.

I have mentioned the many different kinds of music in the ASCAP repertory. The Society has a complex distribution system whose purpose is to reward each member fairly for the contribution his works make to the repertory.

In deciding how to apportion the writers' share of ASCAP's revenues, the most successful popular writers do something unique as far as I know-they encourage the development of other writers by a distribution system which channels money from those who earn most to those who earn less.

Specifically, the one hundred or so writers who receive the most "performance credits" in the ASCAP survey of performances receive less than the amount they

would receive if they were paid on the same basis as all other writers. These sums "flow down" to writers whose works do not enjoy equal commercial success. Money, after all, is the essential encouragement one must have. It permits the writer, especially the beginner, to keep writing when, otherwise, he might have to give up his profession.

ASCAP's writers also set aside up to 5% of their share for special awards to writers whose works have unique prestige value for which adequate compensation would not otherwise be received. These awards are made by special panels consisting of nonmembers who are music experts.

I have mentioned some aspects of the ASCAP distribution system which promote and encourage authorship. Writers of popular music have also decided that it is important to encourage writers in my area, usually spoken of as classical or serious music.

ASCAP's members have agreed to distribute ten times as much to writers and publishers of serious music as this music earns from licensing performances in concerts and recitals. The money used for this purpose obviously comes from ASCAP's other licensees. These include "general" licensees, such as restaurants, hotels and taverns, and would include receipts from juke box operators. Accordingly, the fees ASCAP would receive for juke box performances under the general revision bill are of vital interest to me and to other serious composers.

And there are other reasons. There is the international aspect-we Americans receive far more for foreign performances of our works than we pay to foreign creators for American performances. Juke box performances abroad earn money for our composers; why should we do less for theirs?

Why, indeed, should we be parsimonious toward our creators in any aspect of our copyright law? As one who has devoted his life to the creation of music, I am deeply concerned about the term of copyright protection. I am told that some witnesses have appeared before this Committee to argue against the term of life plus 50 years which you have proposed, Mr. Chairman, in your bill, and which is consistent with the terms in virtually all civilized countries.

My first work was published in 1921. In the absence of enactment of this bill, or of a further extension bill, this work will go into the public domain in the United States in 1977. Elsewhere in the world, its copyright term will run at least 50 years after my death. I submit that the United States should protect works of authorship at least as long as most other nations.

Mr. Chairman and Members of the Committee, the achievements of Americans in literature, painting and music are measures of the greatness of our nation. They are honored around the world and we can all be proud of them.

You have a rare opportunity: Most people are not in a position to offer more than lip service to the nation's creators, men and women in every state, large and small. On this eve of our bicentennial you can carry out the intention of the framers of our Constitution. In considering each of the solutions to the complex issues confronting you, the questions I should like you to repeat to yourself are: Is it fair to authors? Does it, in fact, carry out the famous Constitutional mandate "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries?"

Thank you.

Mr. KASTEN MEIER. We thank you, Mr. Copland, for that fine statement. Your gift for composition is not limited to music apparently. Mr. COPLAND. Thank you, sir.

Mr. KASTEN MEIER. If you wish to summarize, Mr. Korman?

Mr. KORMAN. If I may, Mr. Chairman. Mr. Mercer has a statement in which he refers at page 2 to a list of organizations which in the past have urged repeal of this so-called jukebox exemption. And this, as the chairman knows, has been going on for a very long time. The only people supporting the jukebox position have been the jukebox industry itself.

The issues now are two. Mr. Mercer says, at the bottom of page 3, they are: What is a fair performance fee; and should that fee be subject to periodic review and adjustment as economic conditions change?

As you know, the Senate back in 1958 concluded that a fair fee would be between $19 and $20, and 8 years later, in 1966, the Hos Judiciary Committee came to the same conclusion. The bill as passed by the House in 1967 provided for a fee of only $8, and that was agreed to as a compromise because authors and composers recogiazed the overriding public importance of general copyright revision.

I think it is important to stress that last year the Senate comme stayed with the SS fee only after providing a mechanism for periode review and adjustment. That mechanism is the Copyright Roya t Tribunal, which would be empowered to review periodically are adjust all of the compulsory license fees in the bill, the mechan a license fee, the cable television license fee, and the jukebox le fee.

ASCAP supports the Senate committee's approach. We believe a strong case could be made for a fee higher than $8, but we w": accept the $ fee provided it is subject to periodic review and adjustment by the Copyright Royalty Tribunal.

Indeed, we can see no justification otherwise for any statutory fee, and certainly not for a fee of only $ for jukeboxes. Fees shot, d be arrived at by the normal bargaining process and, if special or cumstances are believed to require compulsory licenses and statutory fees, a mechanism for adjustment must be provided. Both sides should know that if they fail to reach agreement on a reasonable fee, an 'm partial body stands ready to adjust the statutory fee on the basis of a full record.

I might interject here that ASCAP has had 25 years of experience under a consent judgment entered in the District Court for the South ern District of New York where the court has stood ready to fix fees. Perry Patterson, who will be appearing later for the jukebox manufacturers, has represented clients who would have been, in turn, represented by all industry groups who have petitioned the court to determine reasonable license fees. The court has never had to deter mine a license fee after a full hearing on the merits because the parties have always reached an agreement.

The Music Operators of America has said in the past that sn.a" operators could not be expected to bargain equally with the hig organizations like SESAC, BMI, and ASCAP. The fact is, that MOA would represent the industry, and we would sit down with MOA. as I envision the procedure, and work something out with them on the basis of what the current economic conditions are at the time. 1:.. is the way things are done in other industries, and I see no reason why the same procedure would not apply here.

There has also been talk in the past about how the rates would drive jukebox operators out of business. Mr. Mercer says at the top of page 6 of his statement:

Creators prosper when users prosper We certainly have no incentive to seek fees which would drive users out of business. With the Copyright Royalty Tribunal available to adjust statutory fees to reasonable levels as conditions change subject always to veto by either House of Congress, we anticipate that the parties would engage in good faith negotiations and reach fair agreements, in the same way that business is normally conducted between buyers and sellers. Congress surely should be very wary of writing into the new copyright law any provision which may not only be unfair at the time of enactment, but which is bound to become unfair later, as economic conditions change.

The choice is simply whether Congress wishes to continue to bear the burden of hearing repeated arguments for changes in copyright fees, or whether it would be more efficient to adjust these fees by the Tribunal mechanism. The latter is clearly preferable, in our view.

Moreover, Mr. Chairman and members of the committee:

If the jukebox fee is not subject to adjustment by the Copyright Royalty Tribunal, we may be sure that the cable television and record industries will als seek the same treatment. If the point is won by one such large industry, carefully worked out compromises involving other large industries may well fa l apart and much of the progress made in the spirit of compromise will be lost. As a matter of principle, no composer, author or publisher would favor any compulsory license permitting users to perform our works without conling us as to a fair price. But we have tried to see the point of view of others and to cooperate in reaching a workable compromise in the higher interest of securing enactment of this legislation.

HR 2223 is not a perfect bill, but we urge its enactment with one change: It is essential that the jukebox fee, like the other statutory fees, be subject to adjustment by the Copy right Royalty Tribunal.

Thank you.

[The prepared statement of Johnny Mercer follows:]

STATEMENT OF JOHNNY MERCER, COMPOSER-AUTHOR, MADE ON BEHALF OF THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS

Mr. Chairman my name is John H Mercer. I was born in Savannah, Georgia, and have spent most of my professional life as a songwriter in California where I now reside.

I appear before you today on behalf of ASCAP but, like Mr. Copland, I belove I speak for all creators of music, whatever their affiliation

I am honored to appear before you today, but of course I am disappointed That this important jegislation has not yet been enacted. I appeared before the Senate Copyright Subcommittee in 1967 to urge passage of a bill similar HR 2223 I earnestly hope that the efforts of this Subcommittee will bear fru.t

I have been fortunate in writing songs the public has liked, among them, On The Afchilmon Topeka and Santa Fe" (1976) "In the Cool, Cool Cool of the Evening' (1951), “Moon River' (1961) and "Days of Wine and Roses" $21, each of which won a Motion Picture Academy Award Of course, like a'l other songwriters. I have written many works that have had no success Ï'q'm so cotilon it cant even be call d unfortunate What is unfortunate is Dat when my songs were most popular many jukebox operators made a good deal of money from members of the public who paid to hear them I received P g for those performances

My hope is that the brilliant young writers of today the Carole Kings, Net Diamonds Stevie Wonders and John Denvers whose works are now The raw material of the juke box industry will be more fairly treated than 1* * generat, tas of » ngwriters

There is, fortunately, no need to repeat in any detail the arguments made woften in the past as to why the so called bike box exemption should be Prgeted Rather we should consider what all of the following meant when they biged to retal

American Bar Association

Attericnti Patent Law Association

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Authors League of America Ine

Caif in Bar Association

Cpyright offer

Impartir ent of State

Foders Bar Assortation of New Y–rk New Jersey and Connecticut

General þederation of Women » Clubs

Library of Cot gresa

National Federation of Music Clubm

National Music Council