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the membership and sympathizers of the Association, representing substantialīy every aspect of gospel and sacred music industry throughout the United States.
The approach of the National Religious Broadcasters is an unwarranted at. tack upon the copyright citadel of the United States, wholly unjustifiable, without merit, and an erosion of the property rights of copyright holders. Very truly yours,
R. DAVID LUDWICK.
RESOLUTION OF INTERNATIONAL GOSPEL MUSIC PUBLISHERS' ASSOCIATION
OPPOSING PROPOSED § 112B AND § 112C, AMENDMENTS TO COPYRIGHT ACT Whereas an amendment to the Copyright Act has been proposed in Senate Bill S644, $$ 112B and 112C, which seeks to grant to the "Government" and non-profit organizations an exemption from payment of fees for mechanical reproduction of "sacred" musical works; and
Whereas International Gospel Music Publishers' Association consists of publishers of musical works of gospel and sacred nature devoted to the dissemination of religious messages; and such publishers have a duty to protect the copyrights on such musical works for the benefit of the composers against infringement of copyrights and to collect from all users of such works the fees required by the Federal Copyright Act for mechanical reproduction of such copyrighted works and to pay the composers their prorata shares of such fees; and
Whereas such musical works constitute literary property protected under the Copyright Act by a requirement for payment of fees as compensation for compulsory licensing of usage of such musical works for mechanical reproduction thereof; and such statutory protection constitutes a valuable property right of the composers and publishers of such copyrighted works; and
Whereas the proposed statutory exemption from payment of fees for mechanical reproduction of such works by the "government" and non-profit organizations would constitute an unconstitutional taking of valuable property rights without condemnation proceedings and without due process of law; and
Whereas no reasonable basis exists for a special classification of "sacred" musical works distinct from any other musical works; and
Whereas the proposed amendment exempting "sacred" musical works contains no standard from which a determination may be made as to which musical works are classified as "sacred" musical works; hence such statutory exemption of "sacred" musical works is too indefinite and uncertain to constitute a valid legislative enactment; and
Whereas the proposed amendment exempting "sacred" musical works contains no definition of the nature or limitation of usage to be made by the “government" or non-profit organizations in such mechanical reproductions of such musical works and hence such statutory exemption is too indefinite and uncertain to constitute a valid legislative enactment capable of any practical application to any particular works or any certain usage by such mechanical reproductions: Now, therefore, it is hereby
Resolved, That the Internation Gospel Music Publishers' Association is opposed to the adoption of such amendment to the revision of the Copyright Act, and is specifically opposed to the adoption of $ 112B and 112C as contained in Senate Bill S644 for the proposed revision of Copyright Act; be it further
Resolved, That a copy of this resolution unanimously adopted at the meeting of International Gospel Music Publishers' Association in Washington, D.C. on January 30, 1973, be recorded as part of the minutes of said meeting; and
Resolved further, That copies of this resolution be mailed to the members of the Subcommittee on Patents, Trademarks and Copyrights of the Judiciary Committee of the United States Senate, and to Thomas C. Brannan, Chief Counsel, United States Senate, Committee on the Judiciary, Subcommittee on Patents, Trademarks and Copyrights, Washington, D.C. 20510, and to Miss Barbara Ringer, Assistant Register of Copyrights, Copyright Office, The Library of Congress, Washington, D.C. 20540. Beasley and Barker, Les Beasley, Pensacola, Florida. John T. Benson Publishing Co., John T. Benson III, Nashville, Tennessee. Blackwood-Marshall Music, Inc., The Blackwood, Nashville, Tennessee. Cedarwood Music Publishing Co., Bill Denney, Nashville, Tennessee. Eternal Music Co., George Younce, Stow, Ohio. Faith Music Co.. Don Butler, Atlanta, Georgia. Gaither Music Co., Bill Gaither, Alexandria, Indiana.
Gospel Quartet Music Co., J. D. Sumner, Nashville, Tennessee.
Senator McCLELLAN. Call the next witness.
Dr. Nelson. Yes, my name is Wilbur E. Nelson. I live in Long Beach, Calif., and I am accompanied by Mr. John Midlen, counsel for National Religious Broadcasters, and Dr. Ben Armstrong, executive secretary of National Religious Broadcasters.
Senator McCLELLAN. All right, Dr. Nelson, you may proceed.
STATEMENT OF REV. DR. WILBUR E. NELSON, SECRETARY, NA.
TIONAL RELIGIOUS BROADCASTERS; ACCOMPANIED BY: JOHN H. MIDLEN, COUNSEL; AND DR. BEN ARMSTRONG, EXECUTIVE SECRETARY, NATIONAL RELIGIOUS BROADCASTERS
Dr. NELSON. I am an ordained minister of the Evangelical Free Church. I am the minister and director of the Morning Chapel Hour. And incidentally, I am a composer of religious music under contract of Zondervan, an inspirational music publishing company.
I present this testimony as secretary of National Religious Broadcasters and as chairman of its copyright committee concerning section 112(c) of S. 1361.
National Religious Broadcasters-NRB—is a nonprofit association formed in 1944 in order to contribute to the improvement of religious broadcasts, better to serve the public interest, and more effectively to minister to the spiritual welfare of this Nation. The association has approximately 550 members organizations distributed among the 50 States of the United States, the District of Columbia and Puerto Rico.
The membership of National Religious Broadcasters consists of: first, broadcast station licensees and their associates; second, performing artists and others related to broadcasting; and third, those producing religious programs for broadcast stations. There are more than 425 organizations, including those who are not NRB members, which produce religious programs on a nonprofit basis for presentation on a number of broadcast stations.
Additionally, it is conservatively estimated there are more than 1,500 pastors and rabbis having individual programs on local broadcast outlets.
Among the more widely known religious programs produced by NRB members for broadcasting are Billy Graham's Hour of Decision, The Lutheran Hour, The Baptist Hour, Methodist Hour, Back to the Bible, Light and Life Hour (Free Methodist), Revivaltime (Assemblies of God), Morning Chapel Hour, Herald of Truth (of the Church of Christ), and many, many others.
Other religious programs utilizing religious music and having extensive broadcast dissemination include the Hour of St. Francis, Ave Maria Hour, Sacred Heart Hour, The Protestant Hour, Voice of Prophecy of the Seventh-Day Adventist, Lamp Unto My Feet (ecumenical), Jewish Dimension, The Eternal Light, and Jewish Community Hour.
These and practically all religious program producers are vitally concerned that there be enacted to the present provisions of section 112(c) of the pending S. 1361 for general revision of the copyright law clarifying the right of nonprofit organizations under certain circumstances to make for distribution to licensed transmitting organizations phonorecordings of religious music for usage in religious programs.
The religious music used in religious programs creates an appropriate devotional mood as well as serves as a musical bridge between the spoken words with the degree of usage of religious music varying from program to program. The format for the various religious programs differs, of course, in degree, but the production and distribution principles are relatively uniform.
The programs are produced either on tape or disc for distribution by mail of one copy only to each broadcast station carrying the program. The programs then are broadcast at the time and day agreed upon between the station and the program producer. None of these programs is produced for profit by the religious producers.
In fact, the religious program producer usually pays the broadcast station to carry the program or furnishes the religious program without charge to the broadcast outlet. The broadcast stations customarily have performance, rights licenses covering this religious music with ASCAP, BMI, and SESAC. NRB supports the rights of the copyright owners to compensation for performances of religious music under these performance rights licenses with the broadcast outlets. NRB also supports the rights of the copyright owners to compensation for mechanical reproductions of religious music made for sale or other profit.
There presently exists confusion and contradiction with respect to claims for mechanical reproduction fees for musical works of a religious nature included in religious programs produced by nonprofit organizations for broadcasting purposes. Religious program producers have reported no problems in this respect with ASCAP or BMI.
Only SESAC, according to frequent reports, has pressured certain of the religious program producers to make such payments. Further, there is a basic division in the ranks among Gospel or religious music publishers with some seeking to assert mechanical reproduction claims and others considering that they are not appropriate.
Any law requiring or leaving open the possibility that mechanical reproduction fees be paid for such use could make this music too expensive in the average religious broadcast since the financial resources of these program producers are not adequate to accommodate such cost as documented by an NRB study. In this study, National Religious Broadcasters conducted a questionnaire survey among its membership in the spring of 1973.
The effect of the potential of unlimited mechanical reproduction fees among these responding organizations preponderantly ranged from: First, using only religious music in the public domain with such disadvantage for the listening or viewing audience to; secondly, substantial curtailment of the number of broadcast outlets used; or thirdly, even total discontinuance of the religious program.
Such a result would be a loss to all concerned, the composer, publisher, broadcaster, and most important the listening American public—since it could place a substantial part of modern religious music financially out of reach so far as religious broadcasting through use of mechanical reproduction means is concerned.
Responsible religious broadcasting is a nonprofit activity, carried on as a ministry no less viable than the worship services of a church or a synagogue. Essentially the taping or recording of programs not for profit and for a single release is simply a means of producing such programs for convenience.
It obviates the necessity of releasing the program live utilizing the more expensive and totally impractical method of telephone lines from the program producer to the individual broadcast stations, a procedure which would be undeniably exempt from any claim for mechanical reproduction fees.
The proposed mechanical reproduction exemption would cause no measurable injury to religious music copyright owners, their publishers or agents. The creators of religious music derive their income primarily from publishing and selling hymnals, Gospel songbooks, and sheet music. This is supplemented by income from performing and synchronization rights licenses.
Moreover, only a small percentage of the repertoire of religious music is ever broadcast. There is a tendency to emphasize the music that is or has been popular so that a majority of the songs in hymnals, Gospel songbooks, and sheet music are never presented in religious programs on radio or television stations.
Nor can these religious music copyright owners really complain that the proposed section 112(c) in the copyright bill deprives them of existing income. To the best of our knowledge, only a small handful of religious program producers succumbed to SESAC's pressures for payment for mechanical reproductions in nonprofit religious programs for broadcasting, and some of those have since terminated such payments.
In short, the religious music copyright owners and their associates, who have been financially successful without mechanical reproduction income from nonprofit religious programs, can make no claim for loss of income that they have never really had.
In addition, mechanical reproduction fees for religious music in programs produced by nonprofit organizations for broadcast stations could present substantial practical problems. Much of the music is not listed in catalogs of copyright owners so that there would be added the burden of seeking to ascertain to whom any such payments would be made.
Copyright legislation has rightly sought to protect copyright holders from mechanical reproduction of their literary property by
those who do so for profit, whether large or small. Religious program producers, however, clearly are not doing so for profit, but for the purpose of using religious music for religious inspiration.
That the use made of religious music in a conventional religious broadcast is not for profit is demonstrated by the fact when the recorded program has been broadcast, the tape is returned to the program producer or the disc destroyed. Its contents then are erased so that the tape may be utilized for subsequent broadcasts.
Copyright owners can make no claim that the recordings are offered for sale since the tapes for religious broadcasts are not sold. In fact, the reverse takes place with the program producer paying the broadcast station to carry the program, or furnishing it without charge.
The present copyright exemption language of paragraph 112(c) is carefully designed to cover only mechanical reproductions with limitations for nonprofit religious programing. The program producer must be : first, a nonprofit organization, or governmental body; second, only one copy of the program can be distributed to the broadcast or transmitting outlet; third, the musical work is of a religious nature; fourth, the program producer receives no direct or indirect compensation for making or distributing such tape or recording; fifth, there is only a single transmission to the public by the broadcast station or other transmitting organization having a license therefor; and sixth, except for one copy reserved for archival purposes, the tapes or records are destroyed within a year from the date of the public transmission.
The responsible religious programers meet these criteria, and their position clearly justifies the proposed exemption.
Mr. Chairman, the position here stated is supported by a resolution adopted by the National Association of Evangelicals, representing 36.000 churches at its convention in May 1973.
In conclusion, the proposed provisions of section 112(c) will be equally beneficial to Protestant, Catholic, and Jewish nonprofit religious program producers. There is a need to improve the moral tone and well-being of our Nation. Increased religious broadcasting for this purpose is a definite need.
And we urge the enactment in its present form of section 112(c) of S. 1361.
Senator McCLELLAN. May I ask if demands have been made upon you in the past for copyright fees?
Dr. Nelson. Yes, they have.
Senator McCLELLAN. Does section 112(c) in any way change the practice and the custom that has prevailed in the past?
Dr. NELSON. I think its adoption would continue the situation as it is.
Senator McCLELLAN. That's what I'm asking.
Does it legalize, finalize as the law, the custom that has prevailed in the past with respect of rebroadcasting religious services?
Dr. NELSON. Yes, sir. I think it ratifies the principle that religious music should be used for religious purposes without strictures of this kind.