their personal guests. The general public is neither invited nor permitted to attend. Furthermore, unlike a commercial movie theatre, nursing home residents are not, and never have been, charged admission fees. I also feel that it is important to reiterate that a facility's activity room is the factual and legal equivalent of each resident's living room. For the vast majority of residents, the nursing home in which they live is their legal residence for purposes of voting, for income and estate taxes, for probating their will, and for determining their state of citizenship for purposes of diversity of citizenship lawsuits filed in federal court. There is no legal or common sense reason why a nursing home should not also be considered their residence for so basic a right as viewing movies. - - Members of the American Health Care Association believe that current law supports us. We believe that, as a matter of federal copyright law, such showings of video cassettes are private not public performances. We also believe that nursing homes have no obligation to pay royalties for showing movies. And we believe that the U.S. Court of Appeals decision in the LaMancha case, decided in 1989, supports us. Unfortunately for 1.5 million frail and elderly people in the nation's nursing homes, the motion picture industry disagrees. If this matter were litigated we are confident that we would be successful in court. But litigation is very expensive, and it is an interminable process. Rather than litigate, we would prefer to legislate and ensure that this apparent ambiguity in the copyright law is clarified. In fact, AHCA strongly supports legislation (H.R. 3158/S. 1557) introduced by Representative Benjamin Cardin and Senator William Roth, which would state explicitly something we believe to be implicit in the Copyright Act: a showing of a movie video cassette in a nursing home at no charge to the resident and with the audience limited to residents, facility staff and an occasional guest is a private performance requiring no payment of royalties associated with public performances. - Although we feel that legislation is called for, AHCA, along with other concerned parties, has been willing to work with the motion picture industry to reach an agreement that would make legislation unnecessary. For months, the American Health Care Association, the American Association of Homes for the Aging, and the National Association of Activities Professionals, with the help of Senator Roth and Representative Cardin, have been negotiating with representatives of the motion picture industry. We were optimistic that a non-legislative solution could be found that would ensure that the nation's nursing homes could screen video cassette movies for their residents without fear of letters from several film production companies offering various promises that are neither uniform nor binding do not provide the secure assurances that our association's member facilities need. Therefore, AHCA continues to support enactment of H.R. 3158/S. 1557. The nursing home industry regards this legislation as an essential means of protecting the quality of life and the freedom of choice for 1.5 million elderly and disabled nursing home residents. Therefore, I urge you to enact the Roth-Cardin legislation as quickly as possible. Thank you. Mr. KASTENMEIER. Let me ask you just one question before turning to the last witness. Is a hospital a home? Dr. WILLGING. If it is a chronic hospital, it can be a home. If it is, in fact, the primary residence of the individual, it can be a home. We are interested in those who, in fact, do look to the facility as their residence. In fact, if you exclude those who are in a nursing home for a very brief rehabilitative stay, not only is it their home, it's their last home. We have to be honest. Most people who are in a chronic, degenerative condition-which is what most nursing home residents are in-are not ever going to live anywhere other than in that facility. Mr. KASTENMEIER. I was trying to test the scope of this bill. The bill doesn't just mention nursing homes. Obviously, it mentions other facilities of various types, some which, in fact, may not be a home at all. Hospitals don't keep you in there very long; they don't keep you in there a week. They'll keep you in there 2 or 3 days and then try to get you out, for example. The question is whether your home concept, which you aptly apply to nursing homes, would apply to these other facilities as well. Dr. WILLGING. I think that's what's important, to go back to the conditions that Congressman Cardin suggested in his testimony. That is, there are clear caveats as to what can be considered a home. It has to be a residence; it has to be considered the residence. And why the word "hospital" is in there is that there are, indeed, some chronic hospitals across the country which would meet those conditions. I don't think that acute care hospitals fall under the provisions of H.R. 3158, which talk of residence. When you move into a hospital for a typical stay today, which is about 6 or 7 days, you're not changing the residence. So that's what the hospital is all about. No, that hospital would not be considered under this legislation to meet the criterion. You have got to be in a home, essentially. The vast majority of residents in American nursing homes are there in terms of voting rights and all the other concommitant legal requirements and circumstances of residence. Mr. KASTENMEIER. Thank you for that clarification. Now I would like to call on Mr. Michael Rodgers, senior vice president for policy and government affairs, American Association of Homes for the Aging. STATEMENT OF MICHAEL F. RODGERS, SENIOR VICE PRESIDENT FOR POLICY AND GOVERNMENT AFFAIRS, AMERICAN ASSOCIATION OF HOMES FOR THE AGING Mr. RODGERS. Thank you, Mr. Chairman. We appreciate the opportunity to testify before this subcommittee this morning on behalf of H.R. 3158, Congressman Cardin's legislation, which would provide protection to homes for the aging in showing videos to their residents. I would also like to publicly recognize for the record Senator Roth for his legislation, Senate bill 1557. We certainly appreciate his efforts, as well as the efforts of both Congressman Cardin's staff forts have been very helpful to us in presenting our viewpoints on this legislation. I am here today representing the American Association of Homes for the Aging, which is a national organization of not-forprofit nursing homes, low income housing programs, and retirement homes. Seventy-five percent of our members are religiously affiliated; the remaining membership is composed of civic and fraternal organizations. We serve approximately 600,000 older people in our facilities. I would request that my prepared statement be included in the record and will attempt to summarize. As I mentioned, we are here to support Congressman Cardin's legislation, H.R. 3158. In our testimony, we would like to make three points. First, homes for the aging are different from other residential settings. We are not like college dormitories or hotels. Second, we believe that the legislation is narrow enough to afford protection to both nursing homes as well as the motion picture industry. We think the legislation does attempt to clarify and preserve the intent of the original copyright legislation. Finally, we think that the legislation as proposed affords the uniformity and clarification that our members require in order to carry out effective and sensitive activities programs for the elderly that they serve. Let me expound on a few of those points, Mr. Chairman. My colleague, Dr. Willging, has talked about the enactment of the Omnibus Budget Reconciliation Act of 1987, the nursing home quality reform legislation, through which Congress passed some of the most sweeping reform legislation for nursing homes. One of the essential aspects of that bill was that nursing homes must move to establish home-like environments for older people. The recognition of residents' rights within that bill was greatly enhanced. The performance of films, we believe, is one of the rights which should follow the resident from his or her own home to a nursing facility. The films have therapeutic benefit. All films help the elderly avoid isolation by socialization in smaller groups. Before our homes were threatened with lawsuits from the motion picture industry, our members assumed that their performance of these films was private. The facilities were not open to the public, certainly not open to the public in the same sense that clubs or hotels or lodges were open to the public, and the films were not shown to groups where a substantial number of persons outside a normal circle of family and its social acquaintances were gathered. For residents who have lived together-for years in many casestheir fellow residents in those facilities do constitute their social acquaintances. On the second point-that is, the fact that the legislation, we believe, is narrowly defined-we appreciate the fact that Congress, and certainly the motion picture industry, both are sensitive to compromising the Copyright Act and to opening a kind of flood gate to further amendments of that act. It is not our intent to create that result. However, H.R. 3158 and its companion Senate bill, 1557, are clear and narrowly drawn. Both ensure that the technology used to perform the film does not exceed that available to ordinary homes, and both restrict coverage to those facilities which provide regular, long-term health or health-related care and services to individuals whose temporary or permanent home is the facility itself. Finally, we think that the legislation provides our membership with the uniformity and the clarification that they require in order to show these videos. Unfortunately, attempts to reach a uniform agreement with the motion picture industry short of legislation have been unsuccessful. Although several studios have indicated an interest in modifying their position with regards to nursing homes, they have been unable to reach an agreement which is consistent with its terms and binding on all parties. I am encouraged by Mr. Boggs' testimony here this morning and would be more than happy to continue dialog with him and his organization. Anything less, however, than a consistent binding agreement perpetuates the confusion among our membership. The American Association of Homes for the Aging believes that H.R. 3158 and its companion bill clarifies this issue for the group of narrowly defined facilities which serve the special needs of a readily identifiable population. These pieces of legislation provide certainty for both nursing homes and the motion picture industry without unduly curtailing the protections of the Copyright Act offered to copyright owners. Let me conclude my remarks by sharing with you a letter that we received from a resident of one of our facilities in Washington. The letter reads as follows: "I think it would be greatly unjust to deny us the privilege of seeing films in our home simply because the motion picture licensing organization fails to recognize that a retirement or nursing home is the only home many of us senior citizens have and that watching a movie is truly a family affair for us in our communal living room. It would be unfair to deny us the home use exemption to the copyright licensing laws. "I am a widow in a wheelchair. The family movie is a highlight of my week." If the motion picture industry is concerned that additional persons, other than the normal circle of family and friends in the facility, will view the film, we can provide them with a great deal of reassurance to the contrary. We have never had the problem of too many people visiting nursing homes. Mr. Chairman, we thank you for this opportunity to testify. Mr. KASTENMEIER. We're delighted to have your testimony, Mr. Rodgers. |