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Finally, there is no definition of the term “transmitting organization.” There are definitions of “transmission program” and “transmit” but not for a “transmitting organization.” Query: does it include a satellite? Is it limited only to radio and television stations! These are all questions that are left open.
These are the criticisms of the structure of 112(c), which I hope will become immaterial when this subcommittee has fully evaluated the issues involved and has deleted the section in its entirety. There is absolutely no justification for this section 112(c) exemption from copyright infringement which in effect treats the creator of religious works as a second-class citizen.
One who creates a religious copyright and desires to live from the profits gained therefrom has the same expenses as one who creates a nonreligious copyright. He must pay the same amount for a loaf of bread or a bottle of milk.
Why then the distinction in allowing the author of a nonreligious work å broader earning base than the creator of a religious copyright? Why allow a program producer to distribute 4,000 copies of taped programs to broadcasters throughout the country, that is one to each broadcaster, without payment being made to those creators whose religious
music is being used ? With Public Law 92–140, this Congress in 1971 has expanded the area of copyright protection, as it relates to the right to reproduce sound recordings, when it passed what is commonly referred to as the antipiracy legislation. The protection accrues to the benefit of the company that owns the physical sound recording itself and guards against its unauthorized duplication. It covers all sound recordings, not just sound recordings of works of a nonreligious nature.
It does seem somewhat incongruous and unjust to extend such a right to a person other than the author in sound recordings of a religious nature while at the same time enacting 112(c) which would limit the author's right to mechanically reproduce the work if it be of a religious nature.
We agree with the antipiracy legislation. In fact, as chairman of committee 301 of the American Bar Association, I had the pleasure of sponsoring a resolution which was ultimately passed by the American Bar Association in favor of such an extension of copyright.
I can only hope that this subcommittee will recognize the contradiction and inconsistency of 112(c) which would limit, dilute, and erode the copyright proprietor's rights. Again, why should the author of a religious work be treated as a second-class citizen?
As a member of committee 304 of the ABA, I would like to advise the subcommittee that committee 304 has passed the following resolution which it will submit to the American Bar Association at its annual meeting in Washington next week:
Resolved, That the section of Patent, Trademark and Copyright Law opposes in principle any statutory limitation which would exempt from infringement the making by a non-profit organization of recordings of broadcast programs containing non-dramatic musical works of a religious nature for use in a single broadcast by a licensed broadcaster.
Senator MCCLELLAN. Your time has expired, but you may continue for a couple of minutes.
Mr. CIANCIMINO. Thank you, Mr. Chairman.
Specifically, the section of patent, trademark, and copyright law opposes in its entirety section
112(c) of S. 1361. am pleased to report that on July 17, 1973, in Chicago, the above resolution was approved by the council of the patent, trademark, and copyright law section subject to ratification by the section at the annual meeting. Once approved by council, it is fair to say that it is virtually assured of passage as an ABA resolution next week.
Mr. Chairman, I would like to submit as part of my written statement letters from 23 outstanding publishers of gospel and sacred music asking this subcommittee to delete section 112(c). I would also like to take a few moments at this time to read the following brief letters, some in part endorsing our position.
Senator McCLELLAN. Would you not like to have those letters printed in the record, or excerpts?
Mr. CIANCIMINO. Yes, Mr. Chairman. I would, however, like to read brief excerpts from them at this time.
"From the Harry Fox Agency, we agree with the positions of SESAC that inclusion of Section 112(c) of S. 1361 would be detrimental and contrary to the legitimate interests of publishers and others," Albert Burman.
From the National Music Publishers Association, and again, these are publishers that go far beyond the scope of religious music, Mr. Chairman.
“The National Music Publishers Association agrees with the position taken by SECAC concerning Section 112(c) of S. 1361." Leonard Feist.
From the Music Publishers Association:
At a board meeting of this association on April, the following resolution was passed unanimously.
“Resolved that MPA supports the SESAC in its efforts to eliminate the proposed exemption for the making of copies of tapes of religious broadcasters."
From the Church Music Publishers Association: This letter is to certify that the Church Music Publishers Association proudly endorses the position of Mr. Albert F. Ciancimino on the total deletion of Section 112(c) of the bill, S. 1361.
Although the supporters of proposed Section 112(c) are undoubtedly well intentioned, it is relatively apparent that they have not studied the existing copyright law, its history or the proposed revision in its entirety. Clearly, there is no justification for the imposition of those limitations contained in Section 112(c)Edward Cramer.
From ASCAP: I have been authorized by the American Society of Composers, Authors, and Publishers on behalf of its members, who advise you that they join the writers and publishers of religious works that you represent in opposing enactment of Section 112(c) of S. 1361.-Herman Finkelstein.
From the American Guild of Authors and Composers:
Together with the members of the music industry, we have sought to have enacted a revision of the existing copyright act, which would expand the benefits of copyright act, which would expand the benefits of copyright protection to our 3,000 members. It is for this reason that we wish to record our opposition to Section 112(c) of S. 1361, and to associate ourselves with the remarks of Mr. Albert F. Ciancimino—by Mr. Ervin Drake.
Senator McCLELLAN. Can you place the rest of it in the record ?
Mr. CIANCIMINO. From the International Gospel Publishers Association:
As attorney for the International Gospel Publishers Association, I wish to go on record on behalf of the association as being emphatically opposed to any copyright provision granting religious broadcasters any exemptions for the paying of performance or mechanical rights pursuant to the Copyright Act of the United States.
Specifically, we are opposed to the proposed copyright amendments contained in Senate bill 644, and 112(c)-Mr. David Ludwig.
In conclusion, Mr. Chairman, I ask this subcommittee to consider and weigh the practical necessities for such an exemption against the far-reaching and negative effects which it will have, not only on trade industry practice as it currently exists, but on the unwarranted dilution of the rights originally granted to the copyright proprietor by Congress in 1909.
Only by allowing the copyright proprietor of religious works equal rights and an equal opportunity to earn a living, will we continue to enjoy the kind of music which has contributed to and hopefully will continue to contribute to the moral fiber of our great country.
Thank you, Mr. Chairman.
Senator McClELLAN. I just want to ask you one question. I want to see if I can focus very sharply upon the issue here by this illustration.
Reverend Billy Graham, an internationally known minister, holds many meetings where his sermon, in fact, the whole service is recorded. In such a service, no doubt they do sing hymns, that are copyrighted, play music that is copyrighted; is that correct? Mr. CIANCIMINO. Yes, they do.
Senator McCLELLAN. Now, what you are objecting to is or what you are insisting upon is that if a recording is made at the time of the original program and that recording is sent to another station later to be replayed and rebroadcast, then if I understand you, you say that the composer, or proprietor of a song that may have been sung in that service is entitled to a copyright fee.
Mr. CIANCIMINO. That is correct, Mr. Chairman. In fact what happens is Mr. Graham will syndicate programs in which he is using copyrighted music to many stations.
Senator McCLELLAN. Now, does he pay a copyright fee on it originally when they are singing it? He is holding a service here and they sing “Rock of Ages” or something, which is copyrighted, at that time is a copyright fee earned, or is it payable?
Mr. CIANCIMINO. Here, Mr. Chairman, we are speaking of a performance fee for the initial performance of the work.
Senator McCLELLAN. That's right. Initially, in the service, they sing a song that has been sold and is copyrighted ?
Now, no copyright fee attachments are legally levied against that if he sings from a book that is copyrighted?
Mr. CIANCIMINO. In the performance there, Mr. Chairman, there is a for-profit limitation; in other words, a public performance has to be for profit, as specified in the copyright law.
Senator MCCLELLAN. They take up a collection sometime.
Mr. CIANCIMINO. That is very true, and they charge admission many times. It depends on the preacher involved. Whether or not it is for profit, of course, is many times questionable. And it is our position as a performing rights organization that if they are paying for their musical accompaniment and for the stadium and for whatever other material they need to put on that performance; then it is a performance for profit.
Senator McCLELLAN. Now, let me see if I can get this so I can understand this, at least. Billy Graham comes to Washington, D.C., goes out here in the stadium and puts on a series of meetings, at which they sing religious hymns, hymns that are copyrighted. It is performed and it is all recorded.
Now, does he have to pay any copyright fee? Does any fee attach?
Mr. CIANCIMINO. We would contend that a fee would attach in that situation.
Senator McCLELLAN. If it does attach; then you also contend that if a recording of that is subsequently sent to a broadcasting station and it uses it, that a further fee would attach.
Mr. CIANCIMINO. That would be a mechanical reproduction fee. Senator McCLELLAN. That would be a mechanical reproduction fee? Mr. CIANCIMINO. That's right.
Senator McCLELLAN. Now, if a cable system picks it up somewhere, would it be entitled to another copyright fee for that?
Mr. CIANCIMINO. Let me use the example-
Now, I want to know what this all means. Do you contend then that the cable system would also have to pay another copyright fee?
Mr. CIANCIMINO. That would be true, and if a broadcaster picked it up and broadcast it, they would also pay a performance fee; anyone who performs the work for profit, whether it be the original singer or whether it be the broadcaster or the cable operator.
Senator McCLELLAN. But, first, as I understand you, Billy Graham, or whoever gave the performance when they sang this song that is copyrighted; first, he would owe a copyright fee to the author of that music.
Is that right?
Mr. CIANCIMINO. Yes. Mr. Chairman, in order to be clear on the matter, whether or not be himself would pay the fee, that would not necessarily be so. Many times the stadium within which
Senator McCLELLAN. Would it be so, or would it not?
Mr. CIANCIMINO. The stadium in which he is performing would carry with it a blanket performance license to perform any works that he would present within its confines.
Senator MCCLELLAN. Suppose they're holding it out in the cow pasture?
Mr. CIANCIMINO. Then he would pay a fee.
Senator McCLELLAN. Then he would owe a fee. If they held it in a church, then he would owe a fee.
Mr. CIANCIMINO. If it were for profit, yes.
Senator McCLELLAN. Unless the church secured a blanket license depending on the songs that were sung, would he owe a fee?
Mr. CIANCIMINO. It would be a question of whether or not it would be for profit, if it were done in a church.
Senator McCLELLAN. So that could be three copyright fees; first, the original service; second, the broadcaster of it again, or the rebroadcast of it again by some other station; and third, by the cable system that picked it up and distributed it to a community.
Mr. CIANCIMINO. That is correct, and it is not at all unusual, nor is it terribly surprising. This happens quite often in today's music world.
Take for example, your football games, which have half time entertainment. The band performing that music secures a license or the stadium in which it is played has a license. If it is picked up by a network and broadcast over the facilities of the airways, then that network or the station receiving it has to have a license.
Senator McCLELLAN. I am not arguing. I am just trying for the moment to get the facts.
Mr. CIANCIMINO. Yes.
Mr. CIANCIMINO. I am directing my remarks, Mr. Chairman, specifically to the 112(c) issue, which is the right to mechanically reproduce. And we have licensed many of the program producers of religious programs.
Senator McCLELLAN. I am just trying to find out if the exemption provided for or proposed rather in this bill if it pretty much ratifies a practice that has been followed or if we are changing what has been the practice heretofore by this proposed legislation.
Mr. CIANCIMINO. I would submit, Mr. Chairman, that it would be a radical change. It would be an erosion of a right that has existed since 1909.
And secondly, it would affect an actual trade practice where we do license the program producers of religious programs that syndicate these
programs, and in many instances to 200 and 300 stations. So that there would be an actual impact on the trade industry practice today, and it would deny to the creator of religious copyrights a source of income, which does exist today.
Senator McCLELLAN. Well, I think I have seen instances I am sure I have—where I saw Billy Graham live, his service live, and thereafter, I have seen rebroadcasts at other times. I have seen rebroadcasts of services in which, as we say, religious hymns were sung. And I am sure they were copyrighted.
Now, have you been able to collect anything on those rebroadcasts so far?
Mr. CIANCIMINO. From the station, Mr. Chairman?
Mr. CIANCIMINO. Yes. The station is covered, again, by a blanket performance license. And there is case law that has held that a program, a sustaining program whether it be of a religious nature or of a civic nature, does contribute overall to the commercial quality of the station; and therefore, any sustaining program of that type, a religious program, would be considered
Senatoi MCCLELLAN. Well, you are losing money now. And where would be the change if you are now collecting from them?
Mr. CIANCIMINO. I think, Mr. Chairman, there may be some confusion between the performing rights and the mechanical reproduction rights, or the right to record. The performing right area would remain