opera company, concert hall, night club, television or radio studio, motion picture production lot, and the other places which have traditionally used the talents of American musicians.16 No Music Can Be Recorded Without Musicians Yet no one has devised a better way to play music than by the performing musician. The phonograph record, the motion picture sound track, the radio and television transmitter do not immaculately conceive nor spontaneously procreate musical performance. Without performers there can be no phonograph records for discotheques, motion picture sound tracks for theatres, or taped radio and television programs for broadcasters. The Federation therefore suggests that these performing musicians must be saved and that the possibility of economic survival of the generations of musicians to come must be assured. They constitute an irreplaceable cultural resource and they must be dealt with as such -much the same as we strive to preserve our shore lines against the ravages of erosion, our wild life against the rapacious poacher, our wood lands against the despoiling forester, and our gold supply against the international raider. Democratise The Copyright Law The enactment of a copyright law which will provide for the performing musician a modicum of economic incentive and participation in the profits derived from recordings will be an important recognition of this public responsi bility for the conservation of American talent. In the spirit with which we wage the war against poverty and strive to open the doors of opportunity to those whom our affluent society has neglected, let us, by democratizing the copyright system of this land, bring an end to the special privilege and immunity which thwarts the efforts of the American performer to live by his talents. No Wild Dream This is no wild dream or theoretical proposal. Various programs of recognition of some degree of participation in the public dissemination of records by the performer or the manufacturer or both are to be found in the laws of many nations-with, perhaps, the more notable exceptions of the U.S.S.R., Albania, Bulgaria, Cambodia, Cuba, Haiti, Indonesia, Rumania, Yugoslavia and the United States. For more than 15 years, international conferences have urged the adoption of domestic legislation by their participants which would give recognition to so-called "neighboring rights" directly in the performer or through the record producer. A detailed compilation of these laws and of the development of international efforts toward recognition of this protection is to be found in Study No. 26 prepared for the Senate Subcommittee on Patents, Trademarks and Copyrights.2 The dire predictions and projections of those who oppose any degree of performer participation in the fruits of recorded broadcasts have not occurred in those places which have recognized the right, and performers have benefited, without public disadvantage, to a marked degree from a sense of recognition and participation as well as from the additional performance receipts. Good Morals Make Good Laws In the Federation's view, the performers' claim to recognition in the proposed copyright law poses a sharp moral issue which will not disappear because its opponents have chosen thus far silently to ignore it. Good morals, we suggest, make good laws. We suggest that the moral right of performers to receive just compensation from the broadcast of their phonograph records is not to be persuasively condemned by those who for forty years and more have built a vast industry on huckstering in the intervals between the broadcasting of those phonograph records, and who today devote eighty percent of their radio programing to records for which they pay nothing. We suggest that composers and authors, who so fervently condemn the juke box exemption in the present law as an invidious trespass upon their rights, do not convincingly oppose the aspirations of performers to participate to some extent in the fruits of the public performance of their records. We suggest that the opposition of the music publisher, whose catalogues are traded in the nation's financial.markets for millions of dollars in mergers with interests in waterworks, electric power and other utilities," against admitting anyone else, much less performers, to participation in the 6 billion dollar "copyright industry"18 merits no more than the wary attention given the special pleader who argues only for the preservation of his monopoly. We suggest that phonograph record manufacturers, who rush weekly offerings of free records to broadcasters with whom many are affiliated and who do not exercise the right, even in those jurisdictions where they have it, should not be heard to assert that they, not the performers, are the proper custodians of this moral right of the performer. The Mechanics of The Performers' Right If this purely moral issue is squarely faced and fairly resolved, the mechanics of implementation can easily be provided as has been done in other countries. Neither the complications and difficulties of administration and distribution of benefits nor the limitations imposed in protection of the public interest have prevented our great performing rights societies from asserting and enforcing the similar right of their constituents. The mere existence of such problems should no longer be permitted to provide an easy refuge for those who have consistently, cynically and thus far successfully resisted the legitimate aspirations of performers to participate in the fruits of their toil and genius. Those of good will stand ready to suggest methods and solutions. High Time For a Revaluation In an electronic world which bears little resemblance at home or abroad to that of the William Howard Taft administration, it is high time to forge new legal tools to replace the 1909 Copyright Law made in and for the era of the hand-cranked talking machine. It is high time to liberate copyright revision from the trades and deals of the conferences. It is high time for a full and fair Congressional revaluation of the competing participants in the copyright industry and for the enactment of a new "system for the protection of intellectual property that gives those who create an economic incentive to do so" and which has due regard for the public interest. April, 1965 FOOTNOTES 1. H.R. 4347 and S. 1006, 89th Congress, 1st Session. See Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, House Committee Print, 87th Congress, 1st Session (1961). 2. For the legal debates and a history of the efforts to achieve legislative recognition of protection for recordings see the following: Bass, Interpretative Rights of Performing Artists, 42 Dick. L. Rev. 57 (1938); Diamond & Adler, Proposed Copyright Revision and Phonograph Records, 11 Air. L. Rev. 29 (1940); Rights of Performers in Broadcasting, Television and the Mechanical Reproduction of Sound, Report III Advisory Committee on Salaried Employees and Professional Workers, International Labor Organization 1951; Kaplan, Performers Rights and Copyright: The Capitol Records Case, 69 Harv. L. Rev. 409 (1956); Diamond, Copyright Problems of the Phonograph Record Industry, 8 Bull. Copyright Society, 337, 347-355 (1961); Ringer, The Unauthorized Duplication of Sound Recording, February 1957, Study No. 26 of Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary, U.S. Senate, U.S. Gov't Printing Office 1960. 3. "No single American voice heard throughout the world can begin to compare in impact with American music. This communication of people to people-this communication of good will-this interchange of music of our feelings, our emotions, is due entirely to the fact that we have a system for the protection of intellectual property that gives those who create an economic incentive to do so." Statement of President of Broadcast Music Inc. before American Patent Law Association, Washington, D. C., January 23, 1964, following a program of musical performances presented by B.M.I. This tribute to musical creation was echoed by The American Society of Composers, Authors and Publishers, celebrating its first half century of prosperity by acclaiming "America's Best Loved Export," its music, which "[r]egardless of race or ideology ... is sought after and cherished by people of widely divergent cultures . . . a benign influence in a world filled with malignancies," and which is brought to millions overseas by live performers and to billions abroad through the mass media of |