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Mr. KAMINSTEIN. Bear in mind that these are not profits in the ordinary sense. However, I can't argue with that, because I rather agree with the feeling.
Mr. KASTENMEIER. In the area of the jukebox exemption, I gather you feel that at least it is possible we could write a statutory fee as we do in the mechanical fee section, using some other formula, some formula which the committee would arrive at.
Mr. KAMINSTEIN. Mr. Chairman, I think it is possible. There are other possibilities that I think should be explored on both sides. All of them raise very complex difficulties of enforcement, and the experience of this subcommittee a few years ago in trying to write a bill that would adequately protect the jukebox operator indicates some of those difficulties.
You get to such a complex structure that the whole thing falls of its own weight, and what we really need is something that is fairly simple to operate and will be fair to both sides.
Mr. KASTENMEIER. Mr. St. Onge?
Mr. St. ONGE. I have no questions, Mr. Chairman, but I want to commend the Register very highly for his statement this morning. I think that it has been very helpful and that the picture of the forest is beginning to emerge, and I look forward to the synthesis and comparisons that his office is preparing. I think they are going to be very helpful to the committee.
Mr. KAMINSTEIN. Thank you, Mr. St. Onge. Mr. KASTENMEIER. Mr. Tenzer? Mr. TENZER. As the witness stated, we have had the testimony of 163 witnesses to date, and of course, we are delighted to have the views of the distinguished chairman of our full committee, and the views of the dedicated Register of Copyrights. But in view of the fact that there is some possibility of accommodation, as has been suggested, between some of the conflicting interests, I would rather reserve my questions to some future time when perhaps we will have the pleasure of having Mr. Kaminstein and his staff again appear before our subcommittee at executive sessions. At such time we will be able to inquire into his views on some of the controversial and conflicting matters and then we will be better able to consider them in the light of the accommodations which may have been achieved during our recess and by January or February 1966.
If that is going to be our procedure, I would reserve any further questions. There was one reference on page 18 of the testimony to a "new suggestion” made at the Senate hearings. I don't know whether our committee has any information about the suggestion, and I am wondering whether copies of the proposal are available to the members of this subcommittee, so that we are able to review it and have some understanding of the alternative proposal which has been made.
Mr. KAMINSTEIN. Thank you, Mr. Tenzer, for the original suggestion. Of course we are available to the committee at any time. As to the proposal on the jukebox problem, it was not an elaborate, specific proposal. What I was trying to say, and as I have tried to say this morning, is that the proposal advanced by the jukebox operators, while difficult, is not something that should be brushed aside by anybody. I believe it can be made to operate with additional features, but we ought to consider all the alternatives.
Mr. TENZER. Thank you.
Mr. KASTENMEIER. I appreciate your suggestion, which we can take up in executive session, Mr. Tenzer, as to whether we might have Mr. Kaminstein appear at any future date, and the other suggestions you made.
Mr. POFF. Mr. Chairman, I am in my 13th year in the Congress, and during the course of that time I have been privileged to participate in many congressional investigations and hearings, some of which have lasted for as long as 2 years. But I can say candidly and honestly that this has been the most objective, and instructive, and constructive of any hearing in which I have participated.
I think we are deeply indebted to all of the witnesses who have approached their advocacy without rancor and bitterness, and particularly indebted to the witnesses now before us who have had the most responsibility for this very difficult and delicate legal craftsmanship. I pay special tribute to you and to Mr. Cary, who testified earlier, and in so doing, of course, I do not intend to endorse nor to criticise anything or all of what you have said. But I do say that it has been most inspiring and stimulating to me, and I would press the point only that all congressional hearings could be so dispassionate, and learned, and so free of partisan bitterness.
I might close now, Mr. Chairman, by indicating something that should be indicated for the record in further amplification of what I said earlier. The witness has posed certain rhetorical questions which probably should be answered. For that reason I hope, Mr. Chairmen, that, while this may be the last day of formal hearings, we will not close the official record at this point. I think the committee may later want to consider the advisability of incorporating in the printed volume definitive responses to some of the questions which remain unanswered at this point.
I say again that this reinforces the point I made earlier that we will not be able to finish this legislation at this session of Congress and still give all concerned the opportunity they need to help us in final draftsmanship.
Mr. KAMINSTEIN. I can't tell you how much I appreciate what has been said, and how much is due to the people who have worked with me over
the years in preparing this bill. Mr. KASTENMEIER. Mr. Hutchinson.
Mr. HUTCHINSON. Mr. Chairman, I have nothing further to add, except to express this thought. I am sure it has been expressed before. I am certain that the members of this subcommittee recognize the great help and assistance that the Register and his office have rendered to us in this matter. If it hadn't been for their work over the past several years, these hearings certainly could not have progressed as smoothly and in a dispassionate, informative manner as they have. Certainly without the help of the Register's office and the Register, we wouldn't be at the place we are today in this admittedly technical, but also very controversial, subject.
Mr. KAMINSTEIN. Thank you, Mr. Hutchinson. I have had some doubts over the years as to the kind of legislative history we were building up. When we issued the report in 1961, we proceeded to a
series of meetings of a panel of experts, through which the bill itself was hammered out. I think this is, if not unique, then a somewhat different approach to the legislative process. But I think the long preparation, and the panel meetings, and the constant working with people who are interested in the measure, have made it possible to present to you something that is less confusing than it might have been if it were thrown at you originally. And I really would like to thank the committee for the kind of consideration that has been given to this bill.
Mr. KASTENMEIER. I appreciate your remarks and those of my colleagues on this subcommittee, and I concur in the hopes expressed by Mr. Poff of Virginia, with reference to the record. The Chair would like to announce that the record will be kept open for submissions, for rhetorical questions, or otherwise, until 2 weeks from this date. The reason for this is that we may get an early printing because there are many, many people who will want a printed record. The subcommittee may consider after that point whether there are any subse quent submissions which warrant a supplemental report from this committee.
May I say in conclusion, then, that one cannot have gone through these hearings without the feeling that they must have some historical importance, not merely for those who are interested specifically in copyright, but indeed for the whole society.
We are, of course, indebted to the witnesses who have appeared during these months. The hearings started, you will recall, in late May, and we hope that the legislative result of these hearings and our deliberations will meet with the approval of all reasonable men. We also hope that, even though this is a time of transition and change, the bill ultimately produced will have some enduring qualities about it. And if that is the case, it will be due in large measure to the Register of Copyrights and his staff, and to the many witnesses who have appeared before this committee.
We are grateful, then, not only for the contributions made, but also, may I say, for the good will expressed toward the committee during all these deliberations by one and all.
Mr. St. ONGE. Mr. Chairman, before you pound the gavel, it would not be out of place, I am sure, at the present time to point out that if praise has been heaped on this subcommittee as a result of these hearings, a great deal of it has been due to the way in which the subcommittee has been chaired during these many days of hearings. And I personally want to commend you and say that I think you have done an excellent job as chairman of the subcommittee.
Mr. TENZER. And I share those sentiments, Mr. Chairman.
(Whereupon, at 11:45 a.m., the subcommittee adjourned subject to call.)
STATEMENT OF Hox. SEYMOUR HALPERN, MEMBER OF CONGRESS, ON H.R. 4347,
SUBMITTED TO THE HOUSE JUDICIARY COMMITTEE Jr. Chairman, it is one of the many blessings of the American Constitution that it gave Congress the power to protect the rights of authors and inventors. This Nation's economy, as well as its Government, is based on the principle of individual freedom-freedom for man to pursue his interests and ideas as well as to elect his Governors. The crux of this economic freedom is private enterprise. Each individual has the right through his endeavors to establish his own business, to own this business, and to enjoy the fruits it produces. Likewise, each individual has the right to develop his own ideas, to own his inventions or artistic works, and to enjoy the fruits of these endeavors.
However, in this latter case these fruits can be quickly dissipated by imitation. Only a few have the talent for innovation, but once the book has been written, the machine has been assembled, and the notes have been recorded, it is a simple matter to copy the innovation and to market it as one's own. In order to protect the innovator from the "theft” of his ideas and thereby “To promote the Progress of Science and Useful Arts," the Constitution gave Congress the power to enact legislation “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
What is the situation today? It is obvious that times have changed and that the reasons for the jukebox exemption are long since outdated. The jukebox as we and our children know it, the electronic phonograph which provides such entertainment for our teenagers, did not make its appearance until the 1930's. The coin-operated machine of 1909 was the player piano or the hand-cranked phonograph. These present-day curiosities were at that time found in penny parlors. I am sure there are some Members of Congress who can remember the penny parlors of 1909. They could tell you better than I of the relative equality of the machine recordings of 1909 and of 1965. They could tell you of the improvement and increased complexity of today's machines, which makes the playing of records truly a “public performance.” They, and all of us who played records prior to 1930, can testify as to the improvement in the durability of records, for phonograph records used to last only 50 to 70 plays. As for the present role of jukeboxes in advertising music, in 1958 the Senate Committee on the Judiciary concluded:
"The evidence indicates that while there is some testimony to the effect that in certain instances the jukebox does popularize music, that on the whole this is a very minor gain to the composers and authors in the overall picture and that as a matter of fact disk jockeys, television, and radio programs are the biggest mediums for the popularizing of musical compositions. The committee does not believe that the jukebox industry as such popularizing the untried music of a composer to the extent that such popularization should counteract and discharge the jukebox owner from any requirement to pay the author and composer a fair return for the use of his composition."
Today, the coin-operated music machines are no longer small business. In 1961 there were an estimated 10,000 jukebox operators in the United States, with the average operator owning 56 machines. Just as radio and television have revolutionized the music industry since 1909, so has the coinbox machine business been revolutionized. Indeed, the resemblance between today's jukebox industry and that business for which the exemption was made in 1909 is only nominal.
Congress has provided this protection through a system of patents for inventions and copyrights for literary and artistic works. The first U.S. Government patent was issued way back in 1790, and the first copyright law was passed in