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unaffected. The broadcasters would still be responsible for the performance of these programs. The arenas would still be responsible for the performance of this kind of music.
The changes would be in the right to mechanically reproduce the work by program producers, somebody 'who puts together a program of a religious nature or of a nonreligious nature, but uses religious music in that program. As of now, they must pay a mechanical reproduction fee. 112(c) would say no, there would be an exemption, and that producers can make 4,000 copies of that program even if it be not of a religious nature, but containing religious music and can distribute 4,000 copies free without the author, composer, or publisher of that music receiving any royalties whatsoever.
And this is what we feel is unjust.
Senator MCCLELLAN. That is what I am trying to do. Just get the facts in the record. I wasn't trying to argue with you.
Mr. CIANCIMINO. No. I'm just trying to clarify the rights, Mr. Chairman. In one area, it would remain unaffected, in the performing rights area. But it would affect the mechanical reproduction rights area.
Senator McCLELLAN. Thank you very much.
PREPARED STATEMENT OF ALBERT F. CIANCIMINO, COUNSEL FOR SESAC, INC.
With regard to the legislative history of S 112(c), it first appears on the scene as late as February 8, 1971 with the introduction of S 644 by the Chairman of this Sub-Committee. It was not included in any prior legislation nor was it the subject of any study by the Copyright Office nor any other governmental or nongovernmental body, nor to my knowledge was such a provision ever contemplated by any legislative or administrative body until shortly before February 8, 1971.
The announcement from the Copyright Office relating to the introduction of S 644 in the 92nd Congress in 1971 describes the differences between S 644 in the 92nd Congress, and S 543 in the 91st Congress as "technical amendments and a few minor additions of substantive detail." One of the "few minor additions of substantive detail" was the insertion in Section 112 of the new Sub-Section (c), which has now been carried over to the current S 1361.
Just about every significant section of S 1361 has been the subject of intense study and analysis. Not so with 112(c). Lo and behold, in 1971 without any prior notice or knowledge on the part of those representing the interests of copyright proprietors of music, it sprang into existence and became part of the copyright revision bill. Prior to today, there has never been any testimony at any prior hearings concerning the merits or pit-falls of this Sub-Section. I therefore urge this Sub-Committee to weigh carefully the following reasons why 112(c) should not be enacted into law.
NO PRIOR PRECEDENT IN MECHANICAL RIGHTS AREA
Section 112(c) would exempt from infringement the making by a non-profit organization of no more than one copy or phono-record of broadcast programs containing non-dramatic musical works of a religious nature for use in a single broadcast by a licensed broadcaster. In short, it places a limitation upon the copyright proprietor's right to mechanically reproduce the work, which to my knowledge, does not appear in prior case law or statute. There is no precedent for limiting the creator's rights in the area of mechanical reproduction of his work just because of the type of work he creates.
The current copyright law in Section 1(e) clearly grants to the copyright proprietor the exclusive right to make ". any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.” To the extent that Section 1(e) may limit this broad and exclusive grant, it does so in terms of securing the “. . . copyright controlling the parts of instruments serving to reproduce mechanically the musical work ...", and, finally, Section 1(e) refers to extending to the copyright proprietor copyright "... control to such mechanical reproductions ..." Several things are immediately clear from this language. Firstly, there was no intention on the part of Congress at the time Section 1(e) was enacted to in any way limit the copyright proprietor's right in the form of recording because of the type of work which the copyright proprietor creates, e.g., a religious work.
Secondly, there was no intention on the part of Congress to limit the author's rights to certain kinds of recording, since the statute states "any form of recording" and these are not words of limitation but rather words of all inclusiveness. It would clearly refer to not only phono-record, but also any type of magnetic tape or other reproduction of the musical composition. To the extent therefore that the National Religious Broadcasters has circulated a non-legal position which states in part that “The Copyright Law of 1909 on which SESAC's claims are based, does not refer at all to magnetic tapes since these did not come into existence until much later," we submit that such a non-legal position is both misleading and inaccurate.
RIGHT TO MECHANICALLY REPRODUCE AS DISTINGUISHED FROM OTHER RIGHTS Proponents of 112(c) have also asserted that they are paying twice for the same copyrighted music, since the copyright proprietor receives performance fees as well as mechanical reproduction fees. It is clearly stated in Copyright Law that the right to mechanically reproduce is a distinctly separate right from the other rights granted copyright owners (M. Witmark & Sons v. Jensen, 80 F. Supp. 843 D.C. Minn. 1948). The issuance of a performance rights license does not therefore, in and of itself, grant to the licensee the right to mechanically reproduce (Foreign & Domestic Music Corp. v. Licht 196 R. 2nd 627, 2nd Cir. 1952). Conversely, a license to mechanical reproduce does not carry with it the right to perform the work (Famous Music Corp. v. Melz 28 F. Supp. 767 WD La. 1939).
Further, the mechanical reproduction license is issued to and the fee paid by the program producer. The performance of the program comes within the scope of the broadcaster's performance license agreement and is paid for by the broadcaster. It is therefore somewhat misleading for the proponents of 112(c) to allege that they are paying twice for the same music.
With regard to the structure of 112(c) itself, we submit that it is unclear, ambiguous, and will, if enacted, be the cause of extended litigation. Section 112(c) exempts a work of a religious nature. The term "work of a religious nature” is of extraordinary breadth. There is no definition in the statute of such a term and indeed it may very well be impossible to come up with a definition. Must a song refer to God or a supernatural being to be of a religious nature? Can a composition extolling the virtues of nature be considered a religious composition? A theme which simply fosters the concept of clean living and moral value, can this be a work of a religious nature? It would seem that whether a musical work is of a religious nature in many instances will be, not in the eyes of the beholder, but most certainly, in the ears of the listener.
Further, sub-section (c) refers to a “musical work of a religious nature or of a sound recording ...". It would therefore appear to apply to any sound recording which meets the subsequent conditions of the section regardless of whether or not the musical work is of a religious nature. Again, the lack of prior study and analysis is evident. I am rather certain that this Sub-Committee does not intend to apply 112(c) to all musical compositions regardless of nature. This I hare gathered from the announcement of the copyright office and introductory remarks of the Chairman when S 644 was introduced in 1971, which referred to works of a religious nature.
Finally, there is no definition of the term “transmitting organization”. There are definitions of "transmission program" and "transmit" but not for a "transmitting organization".
The above are criticisms of the structure of 112(c) which I hope will become immaterial when this Sub-Committee has fully evaluated the issues involved, and has deleted 112(c) in its entirety. There is absolutely no justification for this 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 non-religious 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 non-religious work a broader earning base then the creator of a religious copyright? Why allow a program producer to distribute 4,000 copies of taped programs to broadcasters throughout the country without payment being made to those creators whose religious music is being used ?
With Public Law No. 93–140, 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 Anti-Piracy 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 and not just sound recordings of works of a non-religious 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 anti-piracy 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 ABA in favor of such an extension of copyright. I can only hope that this Sub-Committee 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 secondclass 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 ABA at its annual meeting in Washington next week :
“Resolve, 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,
"Specifically, the Section of Patent, Trademark and Copyright Law opposes in its entirety Section 112(c) of S 1361, McClellan, 93rd Congress, First Session."
As part of the discussion on this resolution, the Committee felt that in order to continue to foster and nourish writers of gospel, religious and sacred works, Congress should not create a barrier to such creators' earnings in the area of mechanical reproduction rights. I am pleased to report that on Tuesday, July 17, 1973 in Chicago, the above resolution was approved by the Counsel of the Patent, Trademark and Copyright Law Section subject to ratification by the Section at the annual meeting. Once approved by Counsel 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 endorsing our position.
In conclusion, I ask this Sub-Committee to consider and weigh the practical necessities for such an exemption against the far-ranging 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,
NEW YORK, N.Y., August 13, 1973. THOMAS C. BRENNAN, Chief Counsel, Old Senate Office Building, Washington, D.C.
DEAR Tom: You may recall that Senator McClellan asked me to submit the letters of support which I read from as part of my presentation on August 1st. May I enclosed copies of said letters for inclusion in the Record. If you need additional copies, please let me know. Sincerely,
ALBERT F. CIANCIMINO, Counsel.
HARRY Fox AGENCY, INC.,
New York, N.Y., July 29, 1973. ALBERT F. CIANCIMINO, Esq., Sesac, Inc., New York, N.Y.
DEAR MR. CIANCIMINO: We agree with the position taken by Sesac that inclusion of Section 112(c) in S. 1361 would be detrimental and contrary to the legitimate interests of publishers and authors. Sincerely,
NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.,
New York, N.Y., July 29, 1973. ALBERT F. CIANCIMINO, Esq., Sesac, Inc., New York, N.Y.
DEAR MR. CIANCIMINO: The National Music Publishers' Association agrees with the position taken by Sesac concerning Section 112(c) of S. 1361.
We have read your statement to be presented before the Senate Sub-Committee on Patents, Trademarks and Copyrights on August 1, 1973. Undoubtedly because of the necessary brevity of the statement, other significant and relevant material has not been included. Therefore, we shall ask permission of the SubCommittee to submit a statement dealing with certain additional important points and problems involved. Sincerely,
MUSIC PUBLISHERS ASSOCIATION OF THE UNITED STATES,
New York, N.Y., April 17, 1973. Mr. ALBERT CIANCIMINO, Sesac, Inc., New York, N.Y.
DEAR AL: At a Board Meeting of this association on April 11, the following resolution was passed unanimously :
"Resolved, That MPA supports SESAC in its efforts to eliminate the proposed exemption for the making of copies of tapes of religious broadcasts."
Would you kindly keep me up-to-date as to your efforts and also send me copies of any statements or documentation relating to your efforts which may be available.
For your information enclosed is a statement I submitted respecting Section 108(d). Kindest regards. Sincerely,
PHILIP B. WATTENBERG.
CHURCH MUSIC PUBLISHERS ASSOCIATION,
July 24, 1973. Mr. ALBERT F. CIANCIMINO, Sesac, New York, N.Y.
DEAR MR. CIANCIMINO: This letter is to certify that the Church Music Publishers Association heartily endorses the position of Mr. Albert F. Ciancimino on the total deletion of Section 112C of the Bill S1361. Cordially yours,
STEVEN R. LORENZ, President.
BROADCAST MUSIC INC.,
New York, N.Y., July 25, 1973. ALBERT F. CIANCIMINO, Esq., Sesac Inc., New York, N.Y.
DEAR AL: Although the supporters of proposed section 112(c) are undoubtedly well-intentioned, it is readily 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). Sincerely,
EDWARD M. CRAMER.
AMERICAN SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS,
New York, N.Y., July 25, 1973. ALBERT F. CIANCIMINO, Esq., Sesac, Inc., New York, N.Y.
DEAR MR. CIANCIMINO: I have been authorized by the American Society of Composers, Authors and Publishers on behalf of its members to advise you that they join the writers and publishers of religious works whom you represent in opposing enactment of § 112(c) of S. 1361.
That provision, if enacted, would create a new exemption previously unknown to the copyright law. It would exempt the unauthorized manufacture and distribution of recordings of performances of works of a religious nature for use by organizations having a license to perform the work. Organizations such as ASCAP make their entire repertory available at very little cost to organizations that have very little commercial income. If these performance licenses must carry with them an involuntary recording license with respect to works of a religious nature, it would be necessary to increase the performance license fees to make up for an invasion of the recording right. Thus, one who is not interested in obtaining recording rights would have to pay for a privilege desired by someone else. This is contrary to the entire spirit of the copyright law which expressly provides for a separation of rights. It would be contrary to the public interest because the public would suffer by discouraging writers and publishers of religious works from making those works generally available at modest rates. There is no reason for exempting recording manufacturers merely because they do not seek a profit. They pay for electricity, telephones and other services; they certainly should pay the composers of religious works.
In sum, it is submitted that enactment of g 112(c) would be contrary to the public interest as set forth in the Constitution, which empowers Congress to promote that interest by securing to authors the exclusive right to their writings (U.S. Cons., Art. I, § 8). To the extent that compulsory recording licenses are believed appropriate, there is ample safeguard in Section 115 of S. 1361. That provides for a nominal payment with respect to works of which phonorecords have been distributed to the public under the authority of the copyright owner. No further invasion of the authors' exclusive rights should be permitted. Sincerely,
BARKSDALE, WHALLEY, LEAVER, GILBERT & FRANK,
Nashville, Tenn., July 23, 1973. Re Senate hearings of August 1, 1973–National religious broadcasters copy.
right exemption. Mr. AL CIANCIMINO, Sesac, Inc., New York, N.Y.
DEAR AL: As attorney for the International Gospel Music Publishers Association, I wish to go on record on behalf of the Association as being emphatically opposed to any copyright revision granting religious broadcasters any exemption from the paying of performance or mechanical rights pursuant to the Copyright Act of the Untied States. Specifically, we are opposed to the proposed copyright amendments contained in Senate Bill 644, $$ 112-B and 112-C.
Please find enclosed a resolution adopted by the International Gospel Music Publishers Association in January of 1973. Also please find enclosed a listing of