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o be contributed, certainly the copyright owner ought not to be forced o make a contribution where everybody else need not. Mr. NIMMER. I must say, I find that rather persuasive. Mr. POFF. I certainly agree with what he has said. He has said much better than I have been able to
it. The copyright owner, according to the Department of Commerce vitness, should be spared the involuntary act of having his property ontributed to a charity of which he might not approve.
I think that is essentially the point involved. Mr. NIMMER. If I may say, sir, I can see that-particularly where, et us say, the actors are being paid, and the stagehands are being paid, but only the author is not being paid, as would be possible, perhaps, under this language.
Mr. KASTENMEIER. Yes; if the gentleman will yield, of course, the anguage is the “proceeds after deducting the reasonable cost of prolucing the performance," and why should not the author's royalties be | reasonable cost of producing the performance? - Mr. NIMMER. I think it should be, but by virtue of this exemption, [ don't think it would be so construed.
Mr. HUTCHINSON. No further questions, thank you.
Mr. KASTENMEIER. Professor Nimmer, the committee is indebted to you for coming this morning and giving us the benefit of your experience and your enlightenment on this question.
Again, let me say we appreciate your appearance.
Mr. KASTENMEIER. The Chair would like to announce that this concludes this morning's hearings. Further, we will have 2 days of hearings next week, and thereby hope to conclude the hearings for the session.
On Wednesday next, we will hear from organized team sports, the National Football League, the American Football League, and from organized baseball, on certain aspects of copyright revision. On Thursday next, we will hear from the author of the bill, our distinguished chairman, Mr. Celler, and the Register of Copyrights, Mr. Kaminstein, and that, hopefully, will conclude the hearings for 1965 on revision.
Mr. POFF. Mr. Chairman, I think we ought to strike that adverb from the record. It might leave an unintended connotation there.
Mr. KASTENMEIER. No; I mean the word "hopefully" from the standpoint of bringing them to a conclusion, although I think that we recognize it is always possible for something to arise which may defer the actual conclusion to a slightly later date.
Mr. POFF. Yes, sir.
Mr. KASTENMEIER. Accordingly, the subcommittee stands adjourned until 10 o'clock on Wednesday morning.
(Whereupon, at 12:02 p.m., the subcommittee recessed, to reconvene at 10 a.m., Wednesday, September 1, 1965.)
COPYRIGHT LAW REVISION
WEDNESDAY, SEPTEMBER 1, 1965
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE
Washington, D.O. The subcommittee met at 10 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier, Tenzer, Poff, and Hutchinson.
Also present: Herbert Fuchs, counsel, and Allan Cors, associate counsel.
Mr. KASTENMEIER. The subcommittee will come to order.
We will continue hearings on the general revisions to the copyright law. This morning we are pleased to hear from the organized professional sports, and the first witness is the National Football League, represented by Hamilton Carothers and Mr. Pete Rozelle, commissioner of the National Football League. Is Mr. Carothers here and Mr. Rozelle?
STATEMENT OF HAMILTON CAROTHERS ON BEHALF OF THE
NATIONAL FOOTBALL LEAGUE
Mr. CAROTHERS. Hamilton Carothers. Mr. Rozelle will make his own statement.
Mr. KASTENMEIER. You are both welcome to the committee, gentlemen.
Especially at this time of year when you are entering into a new season. We are happy to have you here. Do you have a formal statement yourself, Mr. Carothers?
Mr. CAROTHERS. No, I do not. Mr. Rozelle will speak for the National Football League.
Mr. KASTENMEIER. You may proceed, Mr. Rozelle.
STATEMENT OF PETE ROZELLE, COMMISSIONER, NATIONAL
Mr. ROZELLE. Mr. Chairman and members of the committee, my name is Pete Rozelle. I am commissioner of the National Football League, an association of 15 professional football clubs located through the United States. National Football League teams are located in Atlanta, Baltimore, Chicago, Cleveland, Dallas, Detroit, Green Bay, Los Angeles, Minnesota, New York, Philadelphia, Pittsburgh, St. Louis, San Francisco, and Washington, D.C.
The National Football League has requested this opportunity to appear before the committee because the NFL has a vital stake in the provisions of H.R. 4347. As presently written, the bill does not appear to deal specifically with one matter which is of great concern to us. This is the question of whether so-called community antenna television systems should be permitted to pirate sports programs which are necessarily televised on a live, unrehearsed basis.
This committee has already heard testimony about CATV systems and their method of operation, and has heard the Copyright Office and others demonstrate why CATV systems should be covered under the bill and should not be given a free ride at the expense of program producers and broadcasters. I do not propose to cover this ground again, except to say that the NFL is in complete accord with the conclusion of the Copyright Office. My purpose today is to urge that this committee not permit live and unrehearsed sports telecasts to be carved out for separate treatment. We urge that such telecasts be given the same protections as other television programs are given under H.R. 4347.
The member clubs of the National Football League stage professional football contests at considerable expense to themselves-in player payrolls, stadium expenses, travel costs, and a host of other items. They are rewarded for this effort in two fashions—through the sale of tickets to these games and through the sale of rights to televise them. Although ticket sales continue to be of primary importance to our clubs, television has become an increasingly important source of income in recent years. In each of the last 2 years,
for example, National Football League clubs sold their regular and postseason television rights for over $16 million. The total annual sales of sports programs to TV interests amounted to $100 million in 1965, according to the authoritative magazine Broadcasting. Sports programs on television have become a major source of American entertainment.
In conducting their television programing, NFL clubs must reconcile their two sources of income: gate attendance and TV. The primary objective of an NFL club must be to keep its stadium filled with interested fans to avoid following the path of professional boxingwith teams playing in comparatively empty arenas before national television audiences. At the same time, the National Football League is interested in bringing its games to the widest possible television audience. To protect gate attendance, however, the National Football League exercises controls over the place and the time and the manner in which its games are telecast. În essence, these controls are designed to avoid conflicts between home game attendance and simultaneous telecasts of NFL games in the particular locality involved.
The courts have determined that these controls are wholly proper. (United States v. National Football League, 116 F. Supp. 319 (E.D. Pa. 1953).) The controls have been endorsed by Congress in legislation enacted in 1961 which permits the NFL to prohibit the telecasting of NFL games "within the home territory of a member club of the league on the day when such club is playing a game at home.” (Public Law 87-331, 75 Stat. 732.) This committee, itself, termed the NFL program a "reasonable” oné.
We are now witnessing a complete breakdown of these controls. With modern techniques, CATV is now capable of bringing into a community television programs broadcast hundreds of miles away. They ask the consent of neither the program producers nor the stations or networks which have purchased the rights. They do not honor our restrictions as to time or place of telecast. It will not be long before New York football telecasts will be available for a fee in Philadelphia or other eastern cities—and vice versa. CATV's are mushrooming throughout the country--a recent estimate is that there are over 1,600 CATV systems now operating in 48 of the 50 States. Hardly a major city is free of local applications for new charters,
The result of this CATV activity is an ever-increasing loss of control by sports leagues of the manner in which their sports contests are telecast. Direct and unlicensed interference with home game attendance is becoming an increasing concern. Indeed, many CATV's are soliciting subscribers with the sales argument that this is the only way to secure access to "blacked out” sports contests. Moreover, by reason of CATV, leagues such as the NFL can no longer guarantee exclusivity or freedom from unlicensed competition to stations or networks which purchase the television rights to sports contests. Television values can therefore be expected to go down.
This is an unwarranted situation. We have produced these programs at great expense to ourselves, and total strangers to our league and to its interests do with them as they will. We must have copyright protections if we are to reestablish our right to sell and to broadcast our programs in accordance with our proper ownership rights.
Indeed, we cannot even carry out the mandate of Congress as estab lished by existing legislation. The law which gave us the privilege of selling our games as a package placed certain restrictions on our method of doing so. We cannot, for example, telecast games on Saturday in competition with local college games. Congress is now considering extending this protection to high school games played on Friday. How do we meet this directive when we are unable to prevent a CATV from bringing a distant NFL telecast into local areas where college football games are being played?
H.R. 4347 does deal with the unlicensed appropriation of television signals by CATV's. As the bill has been interpreted by the Copyright Office, full copyright protection will be given by the bill to scripted and prerecorded television programs. The problem confronting sports leagues, however, is that their programs are—and must necessarily continue to be—unscripted and not prerecorded. Sports programs must be presented simultaneously with the action on the playing field if fan interest is to be maintained. There is no escape from this.
The bill is unclear as to whether this broad and important area of programing is to be protected against unauthorized pickup by CATV systems. We ask that this committee close this loophole and provide effective remedies against infringements of these telecasts. There is no reason why this cannot be done. Modern copyright laws should offer protection against all modern forms of piracy of the work product of others.