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change, and the text of any amendments you would have to the proposal, so that we could see concretely how your presentation would relate to the proposal.
Mr. TENZER. Thank you, Mr. Chairman.
As you know, we have had other witnesses representing other branches of both the publishing and music industry who have made proposals, and we would like to have your specific proposal, so that when we are in executive session, we may have them before us, when you will not be there for us to question.
Mr. ADLER. Thank you for the invitation. We will be very happy to submit it.
Mr. TENZER. Thank you. No further questions, Mr. Chairman.
As I understand the thrust of your testimony, you would not assert a copyright against a school which used a recording for instructional purposes, because this would not constitute a public performance for profit.
Mr. BALLARD. That is correct.
Mr. POFF. Similarly you would not assert a right against an ETV station.
Mr. BALLARD. That is correct.
Mr. Poff. I am a little unclear about your fourth paragraph on page 3. _Would you like to turn to that, please?
In reading that paragraph, it would appear that broadcasters are getting a free ride on records which they play, 80 percent of the time. Do I understand by that that on the free records which the broadcaster receives, he is not required to pay any performance fee?
Mr. BALLARD. We receive no performance fee.
Mr. POFF. That wasn't the question. I say, is it true that he does not pay a performance fee?
Mr. BALLARD. Well, he pays performance fees to ASCAP and to BMI.
Mr. PoFF. That is my question. In other words, when you use the word "free" you have reference to the fact that the musician is uncompensated.
Mr. BALLARD. From our viewpoint, he gets a free ride.
Mr. HUTCHINSON. Going back into history, back in the days when any performing artist simply performed before an audience. just one time, this problem of copyrights apparently didn't appear. It is only since the days when they have taped TV shows, and recorded vour performances upon records for replaying and resale that the problem has arisen. Is that right?
Mr. BALLARD. It goes back quite early, almost to the beginning of the recording industry. Maybe not as far back as 1909, but shortly thereafter the jukebox came into being, in a rather rudimentary form.
Mr. HUTCHINSON. Well, you get right to the point of my question. I was wondering about the situation in 1909, and whether at that time there was any effort on behalf of your organization or a predecessor organization to get some recognition in that law then?
Mr. BALLARD. Well, as far back as I have any knowledge, the American Federation of Musicians has been trying to get an amendment to the 1909 law which would permit us to get some sort of benefits for the unauthorized use, commercial use, of recordings made by our members.
Mr. HUTCHINSON. But you don't have an information as to any effort made at the time that the Congress was considering and enacting the 1909 act.
Mr. BALLARD. No; in the very early days of the phonograph record it was fully intended for home use. In the early days it was used for no other purpose. And my recollection of the history of it is that the penny arcade, where you dropped a coin in the slot in order to hear a phonograph record, came after the 1909 act. That is my recollection.
Mr. HUTCHINSON. Back in 1909, performing artists, whether they were musicians or dancers, or singers, or any other group of performing atists, back in those days were totally involved in performing just once, before a fixed audience.
Mr. BALLARD. That is true. Just the one time.
Mr. HUTCHINSON. And so it is fair to assume that at that time your organization had no idea about any copyright for your performance?
Mr. BALLARD. That is correct.
Mr. Kaiser, you said it was clear that the constitutional provision applied to these musical performances. I would like to read it into the record. Article I, section 8, paragraph 8, reads that Congress shall have the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I take it “discoveries” applies to the field of patent law, and you have to come in under “writings.
Mr. KAISER. That is right.
Mr. KAISER. Indeed we do. Mr. Fuchs, we believe that the thrust of the constitutional provision is specifically addressed to the phenomenon of recording, whether it be in print or in any other form, and as Congressman Hutchinson just pointed out, it became a problem for the performer only as the electronic miracle developed.
The fact is, gentlemen—a fact that I am sure you are aware of—that throughout the world, the performer has become the most obvious and the most pathetic victim, economically, of this otherwise happy phenomenon. He has been cruelly victimized in his job opportunities. Whereas a great orchestra would once travel around the country and perform for pay before separate live audiences, you can now make a recording of its works which can be played endlessly by commercial exploiters without any compensation to the performers. We are not talking now about home use, as has been several times reiterated. This is a problem acutely confronting musicians and other performers throughout the world. I daresay it is the most poignant problem they have. They have received no relief in our country.
Let me go beyond that, gentlemen. Because of the economic and political power of the industries involved, most notably the broadcasting industry, when the American Federation of Musicians tried to resort to traditional means of protecting lucrative employment they were able to persuade the Congress, back in 1947, to pass what is known as the Lea Act under which we may not bring any pressure against any licensee for not hiring live musicians. We have been eliminated from the radio field completely.
We have, as the older ones among you will recall, been eliminated from the motion picture theater. We are being eliminated from the nightclubs by the recordings, jukeboxes, discotheques, et cetera. And what we have been confronted with, I repeat, is a problem that is universal; a problem to which several European countries have responded by legislation and a problem to which this country, for reasons that I think do not heighten the glory of our traditions, has been totally insensitive.
Mr. KASTENMEIER. If counsel will yield, does 270,000 members, does this represent a diminishing membership?
Mr. KAISER. No. It does not. It does not represent a diminishing membership. But while our membership increases slowly, by no means as dramatically as many other unions, our work content does diminish with alarming rapidity.
Mr. Fuchs. Well, I hope, Mr. Kaiser, in your submission, that you will briefly explain to the committee how the performances of your members are embraced in the constitutional term "writings."
I do have one other question. I thought that when you responded to Congressman Tenzer, you said that the pre-emption provision of the bill prevented your members from making any claim to participation in the proceeds of commercial performances.
Mr. KAISER. You mean as a collective bargaining matter?
Mr. Fuchs. It doesn't prevent you from seeking through economic pressure to get
Mr. KAISER. Certainly not, but let me make it clear that while we do have economic power in the recording industry, among the record manufacturers, because they still need live musicians to make the first record, our power in the radio industry is nonexistent. It can get along without us by using the product that we have made without legal protection.
Mr. Fuchs. Thank you.
Mr. KASTENMEIER. Without particularly wanting to forge any deeper into the thicket on this question, I am nonetheless compelled to ask, following what Mr. Fuchs said, as to authorship. There may be a division—I don't know whether you recognize it or not—between what is obviously authorship or creation, and performance of the work. So in music, you may have a distinction between a group or a musician who performs someone else's authored work, and those musicians who perform spontaneously—that is, jazz—and create at that moment their own work, where, in fact, they not only perform but author their music.
Do you legally recognize any distinction between these two things, Mr. Adler?
Mr. ADLER. I would think not, from the standpoint of copyright. I think the bill already, in section 112, recognizes that there is no constitutional impediment to protecting a record in some form, because it is preventing dubbing, and if that doesn't derive from the constitutional power to pass copyright laws, then where does it derive from?
And, also, I think in the Capitol Records case, the court very clearly faced the old problem which had been raised many times before, as to whether a recording was a writing, and said there is no doubt-even Judge Learned Hand in his dissent agreed with this proposition and he had written the court's opinion in the Whiteman case that a performance is susceptible of statutory copyright protection. So I think that is an old bogeyman that died sometime in the middle thirties.
Mr. FUCHS. Mr. Chairman.
Mr. Fuchs. But who owns the copyright in the record under existing law?
Mr. ADLER. There is no copyright in the record under existing law.
Mr. Fuchs. But the recording is a subject for copyright. A proper subject.
Mr. ADLER. Not under existing law.
Mr. ADLER. No one. The Copyright Office has rejected any attempt to record a record as an embodiment of a matter subject to copyright.
Mr. Fuchs. But you have to insist that the act of performing is, itself, a right.
Mr. ADLER. That the act of performing creates a right, and the physical recordation of the performance constitutes the embodiment of a subject matter of copyright.
Mr. FUCHS. Thank you.
Mr. TENZER. Does our committee counsel have the "helpful precedents” referred to in Mr. Ballard's statement on page 4 which refers to "successful methods of collection in foreign countries"? Do we have these precedents?
Mr. Fuchs. I don't have them at hand, Mr. Tenzer, but they are available.
Mr. TENZER. We have them available?
Mr. TENZER. If not, I was going to ask that they be furnished or incorporated by reference in the memorandum that you are submitting
Mr. HUTCHINSON. Mr. Chairman, will they also furnish us with the citations of the Whiteman case and the Waring case?
Mr. ADLER. Yes. You will find all that material very admirably collated in Miss Ringer's report; pamphlet No. 26, I think it is.
Mr. KASTENMEIER. Thank you. Thank you very much, gentlemen, for testifying (Subsequently, the following were submitted :)
VAN ARKEL & KAISER,
Washington, D.C., August 31, 1965. Mr. HERBERT FUCHS, Counsel, Subcommittee No. 3, Committee on the Judiciary, House of Representatives, Fashington, D.C.
DEAR MR. Fuchs: In accordance with the request of Congressman Kastenmeier made at the hearing on June 30, 1965, we enclose five copies of a memo randum of the specific changes which the American Federation of Musicians proposes in H.R. 4347. We have tried to the extent possible to remain within the structure and text of the pending bill.
In broad outline, our proposal would grant the right of public performance in a sound recording to the performing artist. The duration of this right would be 10 years from the date of publication of the recording. The right would be subject to a compulsory license so that any public performer upon payment of a “just and reasonable" royalty might perform the recording. The rate of royalty would be fixed by the Register of Copyrights after hearing, and such rate would be reexamined at least at 10-year intervals. All performers on a specific record, as a condition of enforcing the peforming right, would be re quired to vest the collection of the royalty in a single entity so as to facilitate collection and distribution of the proceeds of public performance.
As AFY Secretary-Treasurer Ballard stated to the subcommittee, we are ready and anxious to participate in the formulation of a copyright law revision which, with due regard to the public interest, will give creative performers long-denied participation in the fruits of their labors and will require users to pay a just and reasonable fee for what they have so long taken for nothing and used for great profit.
I should like once again, on behalf of the federation, to thank the chairman and members of the subcommittee for their courteous consideration of the suggestions and the testimony presented by Secretary Ballard, Mr. Adler, and myself. Sincerely yours,
PERFORMING RIGHTS IN SOUND RECORDINGS
Changes in H.R. 4347, S. 1006 (89th Congress, 1st Session) proposed by American Federation of Musicians of the United States and Canada : 1. Section 106(a)(4)
“(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, and sound recordings, to perform the copyrighted work publicly." 2. Section 106 (6) (1)
“(1) To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a sound recording, to make audible the sounds fired in it, or in the case of a motion picture, to show its images or to make the sounds accompanying it audible.” 9. Section 109
Add “sound recording" to each of subdivisions (2), (3) and (4). 4. Section 112(a)
“(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (3), and (4) of section 106(a)."
"(c) This section does not limit or impair the erclusive right to perform publicly any of the works specified by section 106(a)(4) other than by performing publicly sound recordings embodying such works. The erclusive right to perform publicly the work uchen embodied in a sound recording is independent of the esclusive right specified by section 106(a)(4) to perform the sound record).