hours of long meetings and discussions, even into the wee hours of the morning, to try to come up with a nonlegislative solution. Senator Roth's staff person, Frank Polk, who is here, and my staff person. Shelly Hettleman, have all worked very hard. I personally appreciate both of their efforts, as well as Mike Remington from this staff.

I would appreciate it if the subcommittee would carefully consider the remarks made today. We have all been working in good faith to try to bring about a solution to this problem. Because of your actions in scheduling this hearing, I believe that we're closer to reaching that agreement.

I thank you very much for this time.

Mr. KASTENMEIER. We appreciate your remarks. I hope that your last conclusion is true.

[The prepared statement of Mr. Cardin follows:]

I

Thank you for holding this hearing on the issue of the viewing of video cassettes in nursing homes and similar institutions. appreciate the opportunity to testify before my old subcommittee.

Many months ago I was approached by the health care trade associations you will hear from today. I was told about a nursing home chain in my district that had received a letter from a business called the Motion Picture Licensing Corporation. MPLC, as they are known, offered an umbrella licensing agreement to that chain of nursing homes. The purpose of this licensing agreement was "to allow you to 'publicly perform, as that term is used in Sections 101 and 106 of Title 17 USC, copyrighted pre-recorded video cassettes and videodiscs which are otherwise by law for home use only." From August 1, 1988 through July 31, 1989, MPLC offered this chain coverage for a licensing fee of $16,975, not an insignificant fee.

When this matter was brought to my attention, I was surprised to

learn that MPLC had taken the position that the showing of a video at a nursing home to the residents of that home should be treated

differently than showing a video in one's own home. I did not believe

that the nursing home viewing was a "public performance" within sections 101 and 106 of the Copyright Act. However, it seemed like the easiest way to alleviate any dispute was to pass legislation clearly exempting such viewings.

Mr. Chairman and Members of the Subcommittee, during this hearing you will hear a lot about the meaning of "public performance." According to the House report that accompanied the Copyright Act of 1976 (94-1476), a public performance "takes place 'at a place open to the public or at any place where a substantial number of persons outside the normal circle of a family and its social acquaintances is gathered.'" While a nursing home or similar facility may not be considered to be open to the public, friends, family and fellow patients would be in the audience. According to the Copyright Office, which delivered a memorandum to the subcommittee commenting on the proposed legislation, an amendment to the Copyright Act of 1976 would be required to exclude nursing homes and similar facilities from coverage under the public performance provisions of the law. The Copyright office has noted in their memo that they would "be inclined to support" H.R. 3158.

The purpose of H.R. 3158 is very specific and clearcut. We will all grow old eventually. Some of us will be healthy enough to remain in our homes throughout our lives. Some of us will be able to afford to hire health care professionals that will come to our homes. Some of us will choose to move to a nursing home; others of us will not have

home is not a hotel, it is not a dormitory in which to live for a year. A nursing home is a home for the elderly who need special attention and care. It is an individual's home and residence in the fullest sense of the word. It is a different kind of home from an apartment, condominium, townhouse or detached house, in the sense that one will live among peers, not family members. This is not reason enough to

penalize the elderly and ailing.

I believe we are proposing a modest change in copyright law. The motion picture industry has asserted to me that they do not collect a significant amount of money from copyright royalties in nursing homes. So, the issue is not money. They have asserted that allowing nursing

homes to be exempted from the public performance doctrine would set a precedent for other groups to ask for exemptions. I am sympathetic to their concerns and, along with Senator Roth, have been working to find a non-legislative solution to this problem.

As a

First, let me state the purpose for filing H.R. 3158. I believe as a matter of public policy hospitals, hospices, nursing homes, retirement homes or other such group homes that provide long-term health or health-related care and services to individuals on a regular basis and serve as a temporary or permanent home for such individuals should be allowed to show videos without paying a royalty fee. result of negotiations that have taken place over the past two months between the health care community, the motion picture community and congressional staff, I am pleased to tell this subcommittee today that substantial agreement has been reached to accomplish the purpose of H.R. 3158. Attached to this statement are seven letters from different motion picture companies. And although they differ in the approach taken to solve the problem, each letter agrees with the purpose for

which H.R. 3158 was filed, namely permitting videos to be shown in nursing homes without payment of a royalty. We have come a long way. We are almost there..

However, as I see it, there are three essential elements any solution must have. First, the agreement should be binding. Nursing homes have been threatened before and are fearful that they will be sued if they view video cassettes in their common areas. You may hear from the industry that they have presented the nursing home community with a "gift," that they have altered company policy so as to exclude the necessity of a license to perform copyrighted material. Mr. Chairman, the industry asserts that this is a public performance, so how can we, as legislators, justify non-enforcement of the law as good public policy?

Second, any non-legislative solution should be uniform across the industry. It makes little practical sense to force activity directors to check each company policy before renting a video. In addition, some letters are broader than others in their definition of the type of facility covered, while another leaves open the option of rescinding the policy should their "voluntary actions produce additional demands to impose limitations upon our ability to license previously recognized non-theatrical markets." In my conversation with representatives of the motion picture industry, I am impressed by their willingness to work with Members of Congress to develop an industry standard of uniformity. I am hopeful that additional progress may be made during

this hearing.

I believe any solution must be virtually transaction free. If