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I know the hearing time before this committee is limited. Our technical language amendments are therefore offered as an attachment to this statement. We also include in this statement some discussion of the remedial problem with respect to live, unscripted telecasts. But we want this committee to know that a major and increasingly important area of television programing does not appear to be covered by this bill and that we, as major producers of sports programs, need and want the same protections against unlicensed use of our programs as do the producers of any other type of television entertainment.
Mr. KASTENMEIER. Mr. Rozelle, did you want to give your supplemental statement as well?
Mr. ROZELLE. All right.
SUPPLEMENTAL STATEMENT OF PETE ROZELLE, COMMISSIONER,
THE NATIONAL FOOTBALL LEAGUE
Mr. ROZELLE. The simplest method of insuring that live telecasts of sports events will have copyright protection is to include such telecasts within the definition of motion pictures." This will offer sports programs, when recorded simultaneously with their original transmission, the same protections as the bill already provides for television programs which are scripted or prerecorded.
The National Football League therefore recommends the addition of the following language to the definition of "motion pictures” in section 101 of H.R. 4347 :
The term “motion pictures" includes live telecasts of sports events which are recorded simultaneously with their original transmission.
There is also a need for more effective remedies against CATV infringement of sports program copyrights. Such programs do not appear to be “published within the meaning of the bill. Accordingly, the award of stautory damages and attorneys' fees, as authorized by sections 504 and 505 of the bill, may not be available to the holders of sports program copyrights under section 411 of the bill. Consideration should be given to amendment of section 411 to permit the award of statutory damages in instances where there is an infringe ment of a sports program copyright occurring simultaneously with the original transmission.
It would also be desirable to insure that the remedy of injunction is available in instances where a pattern of infringement can be established. This may require amendment of section 502(a) to cover the situation where, as in the case of live sports telecasts, infringement of copyright in any particular telecast will not be repeated, but continuing copyright infringements may be anticipated with respect to future programs.
The committee will note that these suggested amendments deal only with live telecasts of sports events. The committee may wish to con, sider whether all live telecasts should be granted copyright protection to prevent their unauthorized use by CATV systems.
Mr. KASTENMEIER. Thank you, Mr. Rozelle. The party with whom you are principally in contract is Columbia Broadcasting System?
Mr. ROZELLE. Through the balance of the year.
Mr. KASTEN MEIER. Through the balance of this year. Would they not have the same interest as the NFL in what might be termed "piracy” of these telecasts or would you describe it as a slightly different interest?
Mr. ROZELLE. In some areas it could be different, yes.
Mr. KASTENMEIER. Do you feel, going to page 4 of your statement, that you-namely, the NFL-would need to guarantee exclusivity to the Columbia Broadcasting System from the piracy of their programs?
Mr. ROZELLE. I am not certain that we would have to make such a guarantee to them. I am merely saying that, through indirection, the value of our rights could diminish. Through CATV systems you could have several telecasts brought into a given community and television ratings would therefore suffer by the dilution of audiences.
Mr. CAROTHERS. To make that point clear, sir, the NFL does not sell a single game per Sunday. It sells individual games for television in individual areas. If games from other areas are brought in, you may have a pattern of three or four telecasts of entirely different games with a divided audience in each particular community.
Mr. KASTEN MEIER. But if you did not specifically authorize them would
you be responsible, let's say, for their telecasting? Mr. ROZELLE. No, but the ratings would go down appreciably if this became widespread. When the contract came up again, I do not feel we would have the interest, perhaps, that we did before this started.
Mr. CAROTHERS. When the NFL sells its rights to a network it puts in the contract of sale certain restrictions, as authorized by Congress, on where and when the network can carry those games. It also forces the network to comply with the statutory restrictions on competition with college games, and so on. Those restrictions exist solely in the contract with CBS. CATV need pay no attention to those restrictions whatever.
Mr. KASTENMEIER. Has the NFL appeared before the Commerce Committee-which committee is also, I understand, considering the question of CATV in Congress either before the Senate or House committee, relevant to CATV?
Mr. ROZELLE. No, we have not.
Mr. KASTENMEIER. The question of live telecasts is a question we have not really dealt with in detail in the subcommittee, it seems to me. Ought events like the sinking of a ship, and so forth, be protected by copyright, would you think?
Mr. ROZELLE. That would not be in our area. I realize that there are a number of broad issues involved. Naturally we are concerned with game telecasts.
Mr. KASTENMEIER. The point is that we would have to define what type of live telecasts ought to be offered copyright protection, not just all live telecasts.
Mr. CAROTHERS. Our proposal, of course, is to include live telecasts of sports events. We have limited our proposal to sports events, because, (1) that is where our interest lies, and (2) those are of a nature as to require that they be transmitted live. We have no choice. You cannot run a football game on television from a tape when radio has carried the results of that game, say, a half hour before. It would cost the programing its television interest.
Mr. KASTEN MEIER. It has been argued earlier in connection with CATV that those who pirate and retransmit telecasts increase your audience substantially and that as a result advertisers either ought to be or are willing to pay additional amounts because the total audiences have been enhanced by virtue of the CATV. But you feel that this is not the case ?
Mr. ROZELLE. We feel this definitely does not hold for sports events on television.
Mr. CAROTHERS. When a CATV exists in a community which does not have access to a clear television signal, it performs a public service. It performs a useful service to the broadcaster of that program also. But when a CATV, for example, exists in Washington and carries into Washington the same game for which we are selling tickets at the District of Columbia Stadium, it is in direct competition with that home game.
It is taking our property as transmitted somewhere else in the country and bringing it back into Washington to compete with our own ticket sales. That is not an extension of our TV coverage in a fashion that appeals to us.
Mr. KASTENMEIER. There are at least two cases now pending in the courts on this question. I take it that the NFL is not a party in interest to either case.
Mr. ROZELLE. We are not.
Mr. KASTENMEIER. But you feel we ought not await the result of these cases as a guide for what the Congress might do in connection with resolving this question?
Mr. CAROTHERS. Those cases would not, I think, affect our situation. They are dealing with prerecorded tapes, motion picture material objects. The copyrighting of those is a different problem from the one for which we seek protection-simultaneous infringement. Mr. KASTENMEIER. Thank you. Mr. Tenzer.
Mr. TENZER. Just one question, Mr. Chairman. On page 4, the last sentence says: Television values can therefore be expected to go down.
Do you mean the value to the producer of a sports event, so that when you sell the rights for television broadcast, the value of such rights might go down?
Mr. RoZELLE. The rights, yes; the rights income to us.
Mr. TENZER. The rights income to you. Is that because there would be others who did not acquire such rights by contractual arrangement who would be able to rebroadcast that event without paying for same!
Mr. ROZELLE. And divide the audience watching our events by having perhaps several in one community.
Mr. TENZER. Thank you. No other questions.
Mr. Poff. Mr. Chairman, may I say I am in sympathy with the problem that faces the NFL. Having said that let me explore a little more the ramifications of the amendment which you propose in the supplemental statement. While in the last paragraph of that supplemental statement you indicate that the amendment would deal only
with live telecasts of sports events, and clearly that is included, wouldn't the amendment, if adopted, confer upon the broadcast all the prerogatives that a motion picture would enjoy under the copyright law?
Mr. CAROTHERS. Yes, it would.
Mr. CAROTHERS. In effect it can be viewed as a procedural change. We do not have the privilege of pretaping our games and then dealing with a fixed material object from which that game is transmitted. We can create that only simultaneously with our transmission. When it is created it exists in tangible form and may be copyrighted.
Mr. Poff. As a matter of fact, do you copyright that tape that is made simultaneously with the broadcast.
Mr. CAROTHERS. We would if it
Mr. CAROTHERS. No, because I don't think there would be any legal significance in that effort.
Mr. PoFF. I would assume that you might have the same interest that any person would have in filming an athletic contest. I don't need to suggest what all those interests may be, but I am sure you know that many civic clubs use films of high school and college ball games to show sometimes for purely charitable purposes and sometimes for profit purposes. Only this morning in my newspaper I find a new device is available for sale now in the retail shops which records television broadcasting in video and audio, and I can imagine that that tape recorded in the home might be put to some profit use. I wonder if this is in your mind when you make this suggestion.
Mr. CAROTHERS. No; we are interested primarily in reaching the question of a tape that is created by us simultaneously with the transinission of that game and in the retroactive privilege of taking that tape into the Copyright Office and having that tape copyrighted. What people who obtain access to the stadium wish to do or what people wish to do in their own homes with the signal as received is an entirely separate problem.
Mr. POFF. I use the home as the most simple example. They may be doing this in a very elaborate, multimillion-dollar studio downtown for multiple copying and redistribution.
Mr. ROZELLE. This could become a problem, but the basic problem is the protection of the live transmission.
Mr. Poff. This is what you are interested in right now?
Mr. PoFF. The amendment you suggest to make it possible for you to collect statutory damages revolves around your belief that the taping of the game does not constitute a publication and that if it were so declared, that is to say, if it were declared that this did constitute a publication, then you would be eligible for the statutory damages. Is this correct?
Mr. CAROTHERS. Yes, if the time sequence as provided for in that section was met.
Mr. POFF. That is all, Mr. Chairman.
Mr. TENZER. In your statement you refer to program ownership rights. You don't extend that to your football schedules, do you?the printed or listed schedules of your season games-because last year 1 printed about a hundred thousand of them and I wonder if I infringed on your copyright protection.
Mr. RoZELLE. We encourage such printing.
Mr. KASTENMEIER. The committee wants to thank you both, Commissioner Rozelle and Mr. Carothers, for your appearance here this morning.
Mr. CAROTHERS. Thank you.
Mr. KASTENMEIER. The Chair should like to announce that our colleague, Mr. Edwards, cannot be here this morning because he is testifying before Subcommittee No. 5, of our parent committee relating to judgeships.
Next we would like to call the American Football League, represented by Mr. Harold O. Lovre, and Governor Foss, commissioner of that league.
Mr. Lovre, do you have a statement for us, or just the commissioner?
STATEMENTS OF JOE FOSS AND HAROLD O. LOVRE, ON BEHALF OF
THE AMERICAN FOOTBALL LEAGUE
Mr. LOVRE. No, I don't, Mr. Chairman. Governor Foss will testify for the American Football League.
Mr. KASTENMEIER. You are both welcome. Governor Foss, would you care to proceed, sir?
Mr. Foss. Thank you, Mr. Chairman and gentlemen, I will read part of this statement here and then just talk extemporaneously.
Mr. KASTENMEIER. In which case we can accept your statement and without objection it will be made part of the record.
STATEMENT OF JOE Foss, COMMISSIONER, AMERICAN FOOTBALL LEAGUE Mr. Chairman and members of the subcommittee, my name is Joe Foss and I am the commissioner of the American Football League. Our offices are in New York City and we currently have professional football teams in Boston, Buffalo, Houston, New York, Denver, Kansas City, San Diego, and Oakland. We have just recently granted a franchise to Miami.
We of the American Football League thank the members of the subcommittee for giving us this time to present to you a problem, which has arisen, which we feel you can help us solve. Our interest in H.R. 4347 arises as a result of televised professional football games by our league teams and their relation to the community antenna systems which are springing up throughout the country. We would like to have copyright protection for our live telecasts. Perhaps some background would be appropriate at this time.
Professional football leagues to protect attendance at home games provide in their bylaws that no club shall be permitted to televise a game into the home territory of another team when the latter team is playing at home. In 1963, the Department of Justice brought an action against the National Football League contending that such "blackouts” violated the Sherman Act in that they restrained televising and radio broadcasting of professional football games.