public. Congress intended, I believe, to broadly define public performance so that it would include exhibition in a theater, on TV, on an airplane, and in every other public setting in which a substantial number of persons outside of a normal circle of family and its social acquaintances gather. I cannot exaggerate the extent to which copyright owners rely on this right. Any erosion of this right is of overriding concern to us. If the Congress were to cut back on the scope of public performance, there is no way of knowing what that impact might be around the world. You have heard conversation this morning, as always, about the impact on Berne and the impact on other countries. I would note that with the changes in Eastern Europe, a number of negotiations and studies are going on now as to what the copyright law should be in those countries. Poland, I believe, has recently signed a treaty on intellectual property generally, and public performance, as always, is a hotly contested and important part of those copyright laws. A signal from Washington that we're prepared to cut back on performance rights I think would be the wrong signal. Because film producers and distributors have decided not to request a public performance license from nursing homes, the problems that prompted this legislation, I believe, simply no longer exist. No nursing home is being threatened with legal action. This being the case, we hope you will agree that there is no need for congressional action. We believe the Congress should postpone any further consideration of the pending legislation and see if these private sector proposals work. We would be happy to come back in 1 year or in 18 months, 2 years, whatever you request, to see if there are any problems or any complaints with the voluntary proposal that we've put on the table. I suspect that there will not be, and I know that Warner Home Video, the largest home video company in the world, is prepared to make our program work. I would be happy to respond to any questions that you might have. Mr. KASTENMEIER. Thank you very much, Mr. Boggs. [The prepared statement of Mr. Boggs follows:] Testimony of Timothy A. Boggs Vice President, Time Warner Inc. Courts, Intellectual Property, and the Administration of Justice Mr. Chairman, members of the Committee, I am Tim Boggs, Vice President of Time Warner Incorporated. It is a pleasure to appear before you today on behalf of Warner Bros. Inc, a major producer and distributor of motion pictures.1 The Subcommittee has asked for Warner Bros.' view of H.R. 3158 and S. 1557, legislation that would exempt nursing homes from the need to acquire a public performance license to show copyrighted films on videocassettes in a common living area. We agree with the objectives of the bill and want to join in Congress' efforts to make sure that elderly citizens who live in "nursing homes" enjoy films on videocassette as they would in their own private homes. At the same time, we want to do so in a manner that does not in any way undermine America's commitment to copyright protection -both domestically and internationally. 1 Warner Bros. is a member of the Motion Picture Association of America, a trade association made up of eight of the largest producers The protections and incentives provided by the U.S. Copyright Law are the lifeblood of those who create, produce and distribute motion pictures. America's copyright community owes a great deal of its success to the members of this Committee who have invested countless hours crafting a carefully balanced law that reflects the needs of many and diverse interests. Warner Bros. struggled to devise a program that would satisfy the goals of this legislation without injuring the integrity of our copyrights or setting a precedent that could have serious adverse consequences for copyright law around the world. I would like to thank Congressman Cardin and Senator Roth for actively encouraging us to find a nonlegislative proposal that would satisfy both those objectives. In response, we prepared a letter to Mr. Cardin and Mr. Roth stating that Warner Bros. will not require a public performance license from any "nursing home" that provides long term or permanent care. As a result, the nursing homes targeted by this legislation are free to show to their residents a copy of Batman, The Accidental Tourist, The Color Purple or any of the twelve hundred films from the Warner library that are now available on videocassette. They will be able to show all future Warner releases including, before long, the Oscar winning Driving Miss Daisy. Attached for the record is a copy of that letter. Further, if any individual nursing home would prefer, we would be pleased to provide them with a written license for such performances without charge. Warner is not the only major film producer and distributor to assure the nursing home community that it will not require a public performance license to show one of its movies on a VCR in a common I understand that Paramount Pictures, Columbia Pictures Entertainment, Inc., Buena Vista Distribution, Inc. - the distributor for Disney films -- MCA, Inc., Orion Pictures, and Turner Home Entertainment -- which owns a large number of the classic films from the MGM library -- have adopted similar policies. These commitments cover thousands of additional titles of popular films, from old favorites to contemporary hits. In excess of 600 titles from Paramount, 550 from Columbia, 150 from Buena Vista, another 500 from MCA, and hundreds - The different film producers and distributors may present different approaches some offer a royalty-free license agreement, others offer assurances that a license is not required for their titles. But despite these different approaches the private sector has responded with a selfexecuting and self-enforcing policy that preserves the copyright owners' public performance right while meeting the entertainment needs of elderly citizens who reside in nursing homes. People have asked about those films that are distributed by the motion picture producers who have not announced a royalty-free or license-free policy. Most of those films are covered by similar commitments from the entities responsible for the day-to-day licensing of films in the "ancillary markets." Those entities are the Motion Picture Licensing Corporation, Swank Motion Pictures Inc., and Films, Inc. These three companies license public performances in "supplemental" markets on behalf of the movie industry. As a result of these commitments, no nursing home should have any hesitation about showing a film on videocassette. The only limitations are that the performance occur in a common area of a longterm health or health-related facility for the elderly which provides temporary or permanent care and which does not make any charge to residents for viewing. |