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for nursing homes covered under the terms of the "proposed agreement"I, MPLC will not seek licenses, and, if a license is required, MPLC will grant one at no charge to the full extent of the various rights which MPLC may have.

a

a

1.

Where a performance or display is by means of a video cassette recorder and a television set of a kind commonly used in a private home, and:

A. The institution serves as the home for its residents.

B. The institution affords private quarters to each resident or nucleus of residents consisting of no more than bedroom,

bath,

kitchen, and a small sitting area insufficient in size to accommodate group of the occupant's social acquaintances or family. C. No direct charge is made to

hear such performance or display.

D. The performance of display is not further transmitted by closed-circuit television or by any other means.

If an institution provides living quarters some of which meet the (above) requirements and some of which do not, those quarters which do not shall not be licensed under this agreement.

see

or

Mr. KASTENMEIER. Let me just ask you one or two questions for clarification. Am I correct in assuming that you are one of perhaps—maybe the major, I don't know-but one of about three companies that do this sort of licensing business nationwide?

Mr. KUYPER. There are three of what we would call subdistributors representing various rights in these nontheatrical areas. The rights are fragmented to the extent that I believe we were the primary company dealing with blanket licenses for the use of home videocassettes. Swank Motion Pictures & Films, Inc., the other companies, possess somewhat parallel rights, not always allowing for home videocassettes, but in the same general markets.

Mr. KASTENMEIER. Are you able to be the distributor in terms of granting those rights for all major studios?

Mr. KUYPER. No. Are we able? Yes, we are able-I'm sorry-but we do not at the moment have the rights to all the studios.

Mr. KASTENMEIER. That's helpful to understand what your role is.

If, for example, whether by voluntary agreement or otherwise, this comes to fruition, you will still be in a position of licensing many other institutions other than these particular nursing homes; is that correct? It doesn't put you out of business, so to speak, does it?

Mr. KUYPER. No, but it threatens to.

Mr. KASTENMEIER. Well, next we would like to hear from Dr. Willging.

STATEMENT OF PAUL R. WILLGING, PH.D., EXECUTIVE VICE

PRESIDENT, AMERICAN HEALTH CARE ASSOCIATION Dr. WillGING. Thank you, Mr. Chairman. With your permission, I would submit my written comments for the record and briefly summarize them today.

I am Paul Willging, executive vice president of the American Health Care Association, which represents some 10,000 nursing homes across the country. More importantly, in terms of today's discussion, we represent over one million residents of those nursing homes.

We are here in support of H.R. 3158, although I would emphasize at the outset, Mr. Chairman, that we too would be willing to work toward a nonlegislative, binding agreement to resolve this issue.

I think what I would like to do very briefly, Mr. Chairman, is talk about what this issue is not. I have listened with some interest to the testimony preceding, and an impression may have been created that this is somehow an issue of dollars and cents. This is clearly not an issue of dollars and cents. I would take very strong exception to Mr. Kuyper's suggestion that that is exactly what it is. We know what the fees are; we know that they average one-half of 1 cent per individual viewing a video film within an institution. That's not our concern.

I think our concern is also not one of facility type, as was suggested by the Register of Copyrights. This is not again as Mr. Kuyper suggested, an issue of nonproprietary versus proprietary facilities. This is a resident-driven issue. This is an issue concerning

Roth suggested, the way residents in other homes are treated. It is not, as has been suggested by many of the preceding witnesses, a choice on the part of an individual to reside in a nursing home. It is an act of God which propels individuals into nursing homes.

What we are talking about, quite simply, is what was so eloquently stated by the residents in the Bissell home in Delaware: 'Why is a nursing home not a home?" I think that's the issue we are talking about.

Indeed, I find it fairly intriguing, to follow the analogy suggested by Mr. Kuyper, that past policy by the Motion Picture Licensing Corp. suggested that if, indeed, an individual were to watch a film in the bedroom of the nursing home, that that was fine, that was acceptable, but that going out to the common room was not acceptable. What the residents of nursing homes are saying is why don't you apply that same basic approach to people in their own homes? Is it all right if your VCR is in your bedroom, but the minute you move to the living room the Motion Picture Licensing Corp. would begin to suggest that licensing fees are appropriate? Is the home a home, and is the home in a nursing home a home?

I think Congress to a considerable extent resolved that issue on December 22, 1987, when it passed, as a part of the Omnibus Budget Reconciliation Act of 1987, the most dramatic nursing home reform legislation ever enacted since the advent of medicare and medicaid. It recognized in that legislation that nursing homes have made considerable progress in terms of the quality of care provided residents in facilities across the country.

The next step, so argued the Congress in that legislation, was to deal with the issue of quality of life, to enhance the home-like atmosphere within facilities, to enhance residents' rights within facilities, and to make sure they are not treated as though they were in an institution but treated, rather, with the same dignity, the same rights, the same respect as though they were in their own homes. That is the essential, underlying premise of the nursing home reforms included in the Omnibus Budget Reconciliation Act of 1987.

We suggest that, to some extent, that is the issue we are dealing with here today and that is the issue we are asking the Congress to deal with. If the motion picture industry feels that the law in place today violates the concept that the nursing home is the home, we are simply suggesting that that law be brought into synch with what we hope every one of our residents, those one million people we represent throughout the country, can, in fact, in all aspects of American society, feel confident that the nursing home in which they live is their home, that there are no exceptions to that basic concept.

That said, Mr. Chairman, again we would support a nonlegislative compromise in this arena. We have, in fact, since last August been working with countless proposals, including proposals in writing, which would take the basic premise outlined by Congressman Cardin and Senator Roth this morning, a compromise which at least had three basic components—that it be comprehensive, that it be uniform, and that it be binding. Unfortunately, all we have up to this point in writing from the movie industry and the licensing corporation are promises to sue. That is in writing. That's what we have up to this point. I would look forward to serious discussions with the motion picture industry in proposals which, in fact, would meet the basic purposes of the proposed legislation.

But again, in conclusion, to us the issue is not dollars and cents. To us, the issue is not the needs of operators, the needs of administrators. The issue is, is the nursing home a home? We contend it is and we contend it should be.

Thank you very much, Mr. Chairman.
Mr. KASTENMEIER. Thank you very much, Dr. Willging.
[The prepared statement of Dr. Willging follows:)

STATEMENT OF PAUL R. WILLGING, Ph.D.

EXECUTIVE VICE PRESIDENT OF
THE AMERICAN HEALTH CARE ASSOCIATION

TESTIMONY BEFORE THE HOUSE JUDICIARY COMMITTEE
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY
AND THE ADMINISTRATION OF JUSTICE

ON H.R. 3158 AND S. 1557

MR. CHAIRMAN:

I am Paul Willging, Executive Vice President of the American Health Care Association. AHCA is the largest national nursing home association, representing 10,000 non-profit and forprofit nursing homes in all 50 states and the District of Columbia. These 10,000 facilities provide long-term nursing and convalescent care for nearly one million elderly and disabled Americans.

The issue before this Committee today is an important one, for it focuses attention on the need for better public understanding of the role nursing 'acilities play in our society. What many people fail to understand, but what each of us here must bear in mind, is that nursing facilities face a unique challenge: they strive to provide a high quality of care while at the same time offering a high quality of life to their residents. Nursing homes provide not only medical and nursing services to their patients, they also provide social services and activity programs that are necessary in long term care. The nursing home is not simply a medical care facility, it is also a home. And in a home setting, the quality of a patient's life is often defined by a patient's freedom to make choices -- and to remain active and involved in the community around them.

Increasingly, consumers and providers have worked to make the creation and preservation of a high quality of life a top priority for nursing home managers. A large part of this effort has focused on the development of a homelike atmosphere in which residents not only feel comfortable, but also exercise choice. Residents are encouraged to participate in decisions about their care plans and their therapeutic programs; in short, nursing home staff work to ensure that residents retain as much control as possible over the way they live their lives. Members of the American Health Care Association feel strongly that limiting a nursing home resident's access to movie videos actually limits the rights of these individuals to make choices about the way

Because the nursing home environment differs greatly from other health care settings both in practical and philosophical terms, it is essential to outline some basic facts about this category of health care:

Approximately 1.5 million people live in the
nation's 19,000 nursing homes.

The average nursing facility in this country cares for 100 residents.

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The typical nursing home resident is an 85-year-old
woman with several disabilities and has limited
ability to function independently.
In a study published in the health care journal
Medical Care, nursing home residents were placed in
two categories based on their length of stay: the
short st yer who spends an average of 1.8 months in
the facility, and the long stayer who spends an
average of 2.5 years.

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All licensed nursing homes offer residents a wide
range of activity programs that are designed to
keep both mind and body agile.
The activity room of a nursing home is akin to a
living room in an individual's home.

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Keep in mind that the vast majority of nursing home residents are disabled and, therefore, leaving the facility to see current movies may be difficult; for many it is impossible. Yet, many nursing home residents have been denied access to movie videos because the facilities in which they live have been threatened with costly copyright infringement lawsuits. Companies licensed by many of the major motion picture producers in the United States have demanded that nursing homes obtain costly licenses before showing video cassettes of movies to residents in facility activity rooms. These licensing companies claim incorrectly, we believe that showing these movies in a nursing home activity room constitutes a public performance under the copyright laws, entitling the licensing company to royalties.

The motion picture industry, in our opinion, does not understand the nature of the nursing home resident or the nursing home mission. As I'm sure you are aware, a nursing home activity

and should not be equated with a commercial movie theatre. A movie shown to nursing home residents in a facility's activity room is nothing more that a private showing of a movie in an individual's home.

room cannot

It is important to point out that the only people viewing these movies are the residents of the facility and, occasionally,

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