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The choice is simply whether ('ongress wishes to continue to bear the turtro of hearing repented arguments for changes in copyrixht fees, or whether It wild be more tient to adjust these fees by the Tribunal mechanism. Ile latter is clearly preferable, in our view.

Worrier, Jr. (hairman and members of the committee: 18 the Jukebox fre is not subject to adjustment by the Copyright Royalty Trilhal. we may be sure that the cable television and record industries will * w the same treatment. If the point is won by one such large industry.

tuing worked out cumprumis involving other large industries may well lai ajart and much of the propre made in the spirit of compromise will be lost.

a natter of principle, no compor, author or publisher would favor a.) prepory litu r mitting Users to Brorm our work without (**

2:0 u ax to a fair price. But we have tried to see the point of view of 11!!.n and to e n te in praching a workable compromise in the higher 18* 4ef of ruriik ehartment of this legislation. HR is not a jmrfeyt ball, but we urge its enactment with one change : It is partial that the jukebox fee, like the other statutory fees, be subject tv alatment by the copyright Royalty Tribunal.

Thank you.
11 the prepared statement of Johnny Merrer follows:)

H:ATMINT OF JOHTYY M R. ('OMPOSER-AITHOR, MADE ON BEHALE OF THE

AMIRICAN SOCIETY OF ('Omropu, AT THORN, AND PUBLISHERS Mr (.airman my name is John H Mercer I was born in Savannah, Georgia, and have afwat most of my professional life as a songwriter in California where I ta trside

I aftwartfore you today on behalf of ASAP but, like Mr. Copland. I kwelmsr 1 **k for all creators of musie, whatever their athlinton

I am hetond to amear tfore you today, but of course I am disappointed at this important legislation has not yet in phaited Impared more the fate copyright Ni mmiffo in 1'*7 to urer page of a bill *mlar " HR13 I wrestly hate that the efforts of this Sulkutaittee will war

I have been fortunate in writing wings the publie has like a trung them. In The Alin Towka and Santa " 11910, "In the tel. (**»! (wolor 1 ) . 171). "Sfoon Rivera (1 ) and "Days of Wine and Roses" 1***, amit of whith won Motion Picture indemy Award Of uur like a't of pure wongwriter I have written many work that have had a sn (*** T . 11.01:00 lt (ant pirn inll d 01.feftit. What is unfortunata 1

y! W*-1 tr y m * wer mont wprolar. fan Jukebox operaton made a gxd An f.*** frumri mrt! of the title w a id to bear tax" ta I rrried

V pete is that the brilliant young writer of tray tbe (arele Kinks, Vil D. tir le Weeran Jalan Wirts bewurkart 1. 1** Trial of the Jum ss Industry will be trere fairly treate than

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These disinterested parties, together with the interested ones---ASCAP BXI SESAC, the American Guild of Authors and Composers, and the Natal Music Publishers Association-all urged repeal of this unfair exemption Wa! we all meant, of course, is simply that the juke box industry, like all othen who profit from performing music, should pay fair and reasonable here.

Let me mention brieily two points and then turn to the real inntje ter First, the fact that the so-called exemption developed as a historical acus. rather than as a conscious decision of Congress applicable to the modern, box industry, is well-known to this committee and is diwuwd in the 1.* Committee Report (H.R. Rep. No. 2237, with Cong., 20 Sex.).

Second, it is equally well-established that, under arrangements between Ameri can and foreign performing rights organizations, American authors and an posers are paid for performances of their works on juke box+* in other (vuline The anomalous fact that we do not pay foreign autliers and cum firma performances of their works on juke boxes has caused friction in our interna tional copyright relations

Now that the juke box industry agrees that it should pay for its perfom.' two questions remain: What is a fair performance fee? And should that it subject to periodic review and adjustment as economic conditions chaudes

In considering what fee is fair, we recall that in 1958 the Senate J9. A Committee concluded that a fair fee would be between $19 and $20 announ fer juke box. Eight years later, in 1936, the same conclusion was reactord by the House Judiciary Committee. But when the House passed the General Rita BMI in 1987, the tee was *N, Authors and composers acreed to this much luart fee as a compromise, because they recognized the overriding public infrac of general copyright revision.

Last year, the Senate Judiciary (ommittee considered this question and et cluded that a fee higher than $ per year was warranted. Nerertheless, the mittee "endeavored to facilitate the progress of this general resisjon! in tion by preserving ... the rate adopted by the House of Representatres i Rep. No. 93 (

43, 3d ('ong. 20 Sa , 1974, at 152), It is important to stress that the Senate Committee stayed with the fire only after providink a mechanism for frivie review and adjustment That mechanism is the Copyright Royalty Tribunal, which would be empowered to review priodically and adjust all of the prompulsory license for in the A:the mechanical license fee, the cable television license fee and the juke box licras fre. At the last moment, on the Senate theor, juke box fees were exempted fra Tribunal review,

We mupport the Senate ('ommitter approach. We beliese s strong caso be made for a free higher than $* But we would accept the $ fer, przede ! were subject to periodic review and adjustment by the Copyright Rogaily Tribunal

Indeed, we can no justification otherwise for any statutory fee, a'd (of tainly not for a fee of only $for juke boxes. Fees should be arrived at by tbe normal training proc., and, if peal ein un tady** are twlleird to run pompulsory linenses and statutory fees, a mehaninin for adjust 1*nt must be provided Besth sides mhould knit that if they fail to reach arterbett reliable for an injartial in tands rrady tudium toe mtatutory fee at the basis of a full reord.

We have no bard current data on which to promise a traustalle juar te! maliy f* What we $u** is that the $* frp te keppted put b ine it is m

#sable but jumtart miste de The murt u d tlieretter wit du 3 and work out a rentable for on the l * of turretat av

landets Orratur pr*** wlardi un primer, We (ertality have no intoliir far spek f4* which would drive User (ut of business AN AP and winailar orantı.1.",& Also barnligations to the creators wereforent task for tafe time that valuable rikh 211** With the texturi la Ribly Tralattial available to

to veta kat either Home of 4 *, We antis: jute that the parties M111* ** in eww fritt tekotiallops and rent fair agrrth.rnt in the w e say that the

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Mr (hairman, if the past is any guide, the juke box industry will continue for art that it is an industry of small businessmen who are baving a difficult 10:* surviving The same may fairly be Nid of many music creators and pubben. And whether the operators are large or small really is irrelevant to the tuese questions here. We mus they should pay, we say the amount should be fair

:d wr way it should be subject to adjustment by a simpler method than amendHot of the copyright Lan.

Mareuter, if the juke box fee is not subject to adjustment by the Copyright Ralty I ribunal, we may be sure that the able television and mord industrien

als wrh the same treatment in the point is won by one such large industry. (trimy worked out compromi***** inolving other larke industrien may well fui apart and much of the progres* made in the spirit of compromise will be

As a matter of principle, we do not favor any compulsory bien e permitting toets tu ferform our works without (tisultats dis as to fair priet. But we have tried to the wint of view of others and to (w rate in rochin a workable ( fotiup ito tlor likher interet of 4 urin inactilient of this legislation

II B

i ll Dot a imrfert bill but we urge its enactment with one change: It is setitoni that the juke mos fee, like the other statutory fees, subject to adl'esetzt by the cops right Royalty Tribunal Titok 31.. ( S quent to the hearing the following correspondence was reered for the record.)

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other hand, are often itinerant or even "pick-up" groupe, constantly reforma with new personnel, who often play in one location for only a short peridad then move on to another or disband. Finding and licensing them would be * more difficult and, of course, much more expensive than the present system.

ASSAP bases its license fees for performances in establishments surh as the rooms, taverns, and restaurants on objective factors, including matirka; type and frequency of musical entertainment, admission, cover, or similar art and drink prices. Because these factors, which constitute the estabi.ahmet:: "operating policy", are fairly constant and can be easily determined in the pre of change ASCAP is able to keep its costs of licensing down, and cu maintain low license fees. The enclosed form of agreement shows tbe fartuts and the rates which start at only $70 per year.

Under the proposed amendment, as it has been described to me, it would be necessary for ASAP to license the bands. It would be very dithcult to be! and keep track of the constant movement of all the different bands acto! country. Similarly, it would be necessary to determine the operating policy each establishment when a given band played, and base a license fee on the tour during the period of the band's engagement. The higher cost of licensing the baxis would have to be passed along in higher license fees,

Licensing musicians would also create difficulties with the insirtane' tr. 2 the American Federation of Musicians (AFM). Article 23, Section 16 of the All By-Laws (1973) provides :

*Leaders and members of the Federation are prohibited from ante ** any responsibility for the payment of license (ops for any pumpurillon ! play and from assuming or attempting to assume any liability whatsopet for royalties, fees, damage suits, or any other claims arising out of

playing of copyright composition." I think the question really comes down to who is most responsible for the performance and who derives the principal benefit. (ertainly, the band Drake derive the benefit they are paid to play. That payment, from the owner of the establishment, is usually an amount less than the increased revenues to be 0xner resulting from one of music The port of this is found in the frequal practice of "testing" 1 e of music: if business picks up, it is kept: if it d. pick up and do not earn more than the (vt of the music.it is disav' Erd In this sense, the use of music is for profit* or it is not used at all

Arvordingly, the owner of the establishment deride whether use will be performed at all and, if it is, obtains a more significant return than the musik Therefore we think it is fair that the owner bould pay for the right to per mm the music. With best wishes for a pleasant summer, Respectfully,

BERNARD KORXAY. Enclosure

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Anrrrmont bror AMIRKAN SXT or (OMPIMIS ALTORS AND PL OLARAS (SITY"),

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