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health or health care related services. It has to be in lieu of a home, not merely a hospital service or something else.

I think, proceeding from there, it will be necessary to further define this. Doubtless the lion's share of Mr. Rodgers' organizations would certainly qualify, but there may be some that will not. I think people will need to know that, one way or the other.

All four of you have been kind enough to wait to testify at this late hour. It's almost 1:30, and I know you have certainly stayed around for a long time today. As this develops, I may wish, on behalf of the committee, to contact all of you at one point or another.

I appreciate the position, for example, that Mr. Boggs is in. As far as he is concerned, his company has made a public commitment. He feels that is a commitment that is not revocable. But at the same time, I hope he understands that beyond what he has done on behalf of Warner Brothers, we do need some further uniformity with respect to other companies. We need to know the degree of participation and what the binding relationship shall be.

I want to express my thanks to Mr. Boggs and to Mr. Kuyper, for coming. And certainly to Dr. Willging and to Mr. Rodgers for their testimony this morning. I think we have a consensus to build on, and I would hope I could be of assistance to those of you here on this panel and to others, including the Senator and the Congressman, who are deeply interested in this question.

As it relates to the nursing home/VCR legislation, the committee has received a number of written statements from interested parties and associations, including the National Association of Activity Professionals, Manor Care, Inc., and Films, Inc. We have received those statements and they, too, will be made a part of the record.

[The documents follow:]

National Association Of
Activity Professionals

1225 EYE STREET, N.W. • SUITE 300 • WASHINGTON, D.C. 20005 • 202-289-0722

The National Association of Activity Professionals (NAAP) welcomes the opportunity to express to the Subcommittee our wholehearted support for H.R. 3158.

When enacted, this legislation will remedy what we believe to be an unintended consequence of the copyright law -- discrimination against the frail and isolated elderly residing in long-term care facilities, retirement homes and similar settings, who wish to enjoy motion pictures on videocassette. The 2,100 members of the NAAP are the care professionals working in these facilities whose responsibility is to ensure through activities planning that all residents enjoy the richest, most fulfilling life experience consistent with their physical and mental capacities. These activities are designed within the context of individual care plans to preserve as much of the quality and diversity of normal life as is possible in an institutional environment -- encouraging residents to vote, facilitating access to cultural offerings, making available occasions for social and spiritual refreshment. Certainly the enjoyment of motion pictures is an important element in the lives of most of us not simply as a recreational pursuit but also, more importantly, as a participation in the cultural life of our country. It might almost be said that the availability of motion pictures comes close to being a right. How much more important such activities of daily living become when a person enters a nursing home and begins to encounter the inevitable barriers to their enjoyment -- barriers posed by physical frailty, lack of access to means of individual transportation, limited funds, and the like. The advent of the technology that has brought us the VCR and the videocassette movie has helped overcome many of these barriers and made it possible for the institutionalized elderly to view films of their choice, ranging from the most recent video releases which keep them abreast of current film trends to the "old classics" which provide opportunities for reminiscence having a therapeutic value. Along with this benefical technology, however, a significant problem has arisen. The federal copyright law is now being widely interpreted to provide that the showing of video movies in nursing homes constitutes a public performance and consequently requires the purchase of a license. As a result, licensing companies have been aggressively marketing nursing homes to purchase such licenses, some threatening legal action if facilities do not comply. The fees charged for such licenses, while perhaps not large in themselves, would nevertheless be added to the already escalating cost of nursing home operations. Would it not be more appropriate to spend this money on improving quality of life in conformity with the mandate of Congress in the 1987

All of these difficulties have arisen because the showing of video movies in nursing homes is considered to be a public performance. Yet we believe it is quite clear that nursing homes are in fact what their names imply -- homes. They are the homes of the residents, and just as the copyright law protects you and me from having to buy a license to watch a video movie in our home, we believe it should do the same for the institutionalized elderly in their homes. Let me quote to you from a letter written to us by an activity director in lowa which I think sums up the issue very clearly from the standpoint of the residents and the people who serve them:

I feel that nursing homes are a place of residence for those who must live in them. This is considered their home by law as it is their voting address. I also feel the elderly that are confined to nursing homes lose so much of their freedom, independence and dignity, when for physical reasons, they must be in a home.

What possible harm can be done by showing a group a movie? The benefits from it are tremendous. If our homes are forced to pay a license fee two things may happen: either the socialization they receive from this event will be stopped because we will no longer be able to show movies; or the cost of this license will be passed on to our residents who are already paying high

costs for care... When do we as a society say enough is enough? There is a good deal of uncertainity, even fear, among nursing homes around the country as a result of some marketing contacts made by iicensing companies. In many cases facilities have opted to stop showing copyrighted films rather than risk legal action or buy the licenses. The elderly, of course, are the ones who suffer the consequences of these decisions, by being deprived of current films in their own homos.

It may be that some of these tears are groundless. We have heard rumors that the copyright holders do not intend to seek licenses from nursing homes. Yet the marketing contacts made in the past have had a chilling effect that must be acknowledged and dealt with. That is why we support H.R. 3158 so strongly. It is a clear, unambiguous, binding solution to the problem -- unlike the range of non-legislative solutions we have seen and worked on in recent weeks.

We respect and understand the need of the film industry to protect itself from copyright infringement. We simply do not believe that showing video movies in nursing homes should constitute infringement. We urge your support for this legislation -- not for ourselves as activity professionals but on behalf of the elderly residents we work with. They deserve as much of life's pleasures as they can get, just like the rest of us. Enacting this legislation is a simple and effective way to restore to them one of those pleasures, and keep them as fuily engaged in living as they can be.

Manor Care, Inc.

10750 Columbia Pike, Silver Spring, Maryland 20901

(301) 681-9400 Telex 90-8148

Statement of
Stewart Bainum, Jr., Chairman of the Board

to the
Subcomittee on Courts, Intellectual Property,

and the Administration of Justice

Committee on the Judiciary
U.S. House of Representatives

April 5, 1990

Manor Care appreciates the opportunity to offer testimony in support of H.R. 3158. We would like to extend our sincere thanks to Representative Cardin for sponsoring these bills on behalf of the institutionalized elderly.

care

By way of background, Manor Care is the fifth largest long term

provider in the country. Our 157 nursing homes, which specialize in skilled and rehabilitative care, provide service for over 18,000 residents. Our company standards and procedures in areas ranging from quality assurance to resident assessment have long been recognized as leading the industry.

Representative Cardin and the 23 House cosponsors should be congratulated on their efforts to eliminate the ambiguity in the copyright law which effectively discriminates against residents in long term care settings. In Senate, companion legislation has been introduced by Senator Roth as S. 1557.

use

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The last few years we have witnessed a virtual explosion in the video industry. Videocassette recorders today are as popular as televisions, and the frequency in their has made them permanent fixture in the American lifestyle. Parents use videos

an easy, inexpensive form of recreation for themselves and their children. In short, videos are a highly popular form of home entertainment.

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Manor care contends that our nursing centers and assisted living facilities function as homes for the residents we serve. Thus, we believe we should not be required to pay royalties for showing

Statement of Stewart Bainum, Jr.

are

Yes, videos a cost-effective style of entertainment. But they also provide a valuable therapeutic role for our residents. Movies bring humor into their lives, uplifting their spirits and heightening their optimism. They broaden the resident's horizon, stimulating the person intellectually and emotionally. Movies also serve a tool for socialization, encouraging residents to interact and learn more about each other.

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In 1987, Manor Care supported the landmark federal legislation to improve the quality of care for all nursing home residents. fundamental goal of the legislation was to better meet

the individual psychosocial needs of our residents. We believe video movies offer a means to help us achieve that goal.

Manor Care met with members of the Motion Picture Licensing Corporation in 1988 to discuss the use of videos in our homes. MPLC proposed at that time that Manor Care secure a license to allow our homes to show videotaped movies throughout the year. The fee for the license was estimated to be in excess of $50,000.

I would like to assure members of the Committee that Manor Care has no intention of using video movies for public or commercial purposes.

Delivering quality nursing care is difficult enough these days; we have no desire to enter into the movie theater business.

Our activities directors estimate that if legally permitted, videos would be shown once a week to an audience of 30 to 50 people. The audience would consist primarily of nursing home residents, with a few family members and volunteers.

In conclusion, we would like Committee members to recognize that nursing centers and assisted living facilities indeed are homes for our residents, albeit non-traditional. Our residents use our facilities as their legal residence for voting and tax purposes; the same consideration should apply to the copyright law. All of you are aware of the demographics of aging. I imagine many of you have close family members residing in long term care facilities. Our nursing centers attempt to

a home-like environment for our people to enjoy. Please help us in our efforts to deliver quality care to your loved ones and the million other institutionalized elderly in

country by supporting the Cardin-Roth legislation.

create

our

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