Mr. KAYE. It would give you no right whatsoever except to continue. to have and to hold that copy and to use it for your own purposes. Mr. LANHAM. Then if I should purchase sheet music and pay for it, the piece of music being copyrighted, I would have no right, having purchased that copy, to perform that without permission? Mr. KAYE. Not to perform publicly for profit. You could perform privately, or not for profit, under the present law. Mr. LANHAM. If there are no further questions, thank you very much, Mr. Kaye. Mr. KAYE. Thank you, sir. Mr. LANHAM. Now, Mr. Caldwell, the time left is not very long and would you prefer to start now or would you prefer to be heard the first thing tomorrow morning? Mr. CALDWELL. Mr. Chairman, I cannot possibly finish; although I have made every endeavor to confine myself in as narrow limits as I can, I do not think I will need more than half an hour at the outside. I would rather not start now; and if I do, I cannot complete it. (After informal discussion the committee adjourned until tomorrow, Thursday, Mar. 19, 1936, at 9:30 a. m.) REVISION OF COPYRIGHT LAWS THURSDAY, MARCH 19, 1936 HOUSE OF REPRESENTATIVES, The committee met at 9:30 a. m., Honorable Fritz G. Lanham presiding. Mr. LANHAM. The committee will come to order. When we adjourned yesterday we were to hear this morning Mr. Caldwell with further reference to the broadcasting features of the bills before us, and we would be glad to hear Mr. Caldwell at this time. I suggest that as usual with the witnesses, Mr. Caldwell be permitted to complete his statement before being interrogated by members of the committee. Mr. Caldwell. STATEMENT OF LOUIS G. CALDWELL, ATTORNEY FOR NATIONAL BROADCASTERS' ASSOCIATION Mr. CALDWELL. Mr. Chairman and gentlemen of the committee, my name is Louis G. Caldwell. My office is in the National Press Building, Washington, D. C., and I am a lawyer, a member of a Chicago law firm. Together with Mr. Kaye, I am here as counsel for the National Association of Broadcasters. In view of the courtesy which the committee extended to me yesterday, which I thoroughly appreciate, the least I can do is to be as brief, and to avoid as much repetition, as I can. I have before me a prepared statement, which is very lengthy, and which I would not have the heart to impose upon the committee, in view of the matters which have already been covered. So that, with some reluctance and sacrifice of author's pride, I am going to surrender my grand performing rights on this manuscript and confine myself to a few of the small rights. Mr. LANHAM. Would you like to have it included in the record? Mr. CALDWELL. I would, Mr. Chairman, if it is permissible. Mr. LANHAM. In addition to your remarks, without objection, the statement prepared by Mr. Caldwell will be inserted in the record. (The document above referred to will be found in the appendix to the hearing.) Mr. CALDWELL. In dividing the presentation of the broadcasters' case between us, Mr. Kaye and I foresaw that there would be some repetition and duplication, but the extent of it was somewhat exceeded when some of your questions led Mr. Kaye into some fields which I had anticipated covering. Consequently, the greater por tion of what I intended to cover, I am going to omit entirely and confine myself to a summary, rather than a full presentation of the other parts. I think I can be of best service to you by going to the background of facts in the light of which the broadcasters' case must be viewed, and particularly the independent broadcasters' case, if there is to be a sound legislative treatment of the problems. I want to say at this point that my experience has been entirely in the representation of independently owned stations, and I naturally look at their problems entirely from their viewpoint yet I hasten to assure you that Mr. Kaye has outlined and fairly stated their position, as well as the position of the networks. In other words, his statements have been a fair reflection of the position of the entire industry. In treating this background, I want to treat particularly two objections, the two which I think bear most directly on the problems of innocent infringements and the borderline between innocent and guilty infringement, as well, of course, as on the $250 minimum penalty. One fallacy which underlay a good part of the testimony during the first two weeks, and which has been partly touched upon, is the idea that the two networks are the entire industry or the greater part of it. The fact is that there are 638 broadcasting stations in this country. That figure represents the latest compilation of the Federal Communications Commission as of February 1, 1936. It includes some 15 or 20 stations authorized or under construction, but the rest are all in full-fledged operation. Out of the 638 stations, 277 have power of 100 watts or less. None of them owned by the two major networks, and I believe almost none of them taking network programs. Out of the total of 168, only 67 have power in excess of one kilowatt at night. I emphasize the night-time power because you realize, of course, that those are the valuable hours of operation, and there are some daytime stations which have a larger amount of power, which might be deceptive unless you realize that the operation is confined to daytime. The two networks, as you have been told, have a total of 21 stations which they own, control, or direct the programs over, one of them having 14 stations and the other 7. They have about 160 stations affiliated in one way or another, slightly under 80 in one case and slighty over 80 in the other. By an affiliate station, I need not tell you I mean a station which takes network programs during part of its hours of operation. It may be a fairly large part, as it is in a few cases, or it may be a rather small part, as it is in most cases. The affiliate station is independently owned and operated, and for the rest of its hours of operation must put on its own programs, and take its own responsibility in all the issues in which we are interested today. These two networks are not the only networks. To mention a few in the list there is the Mutual, Yankee, Michigan network, Don Lee; I think there are two in Texas, a couple in California, Virginia State, and many others. Some of these have a few large stations connected with them, but most of them consist of groups of small stations operating in a rather limited area, such as the territory of one State or perhaps a slightly larger region. Many of them are groups of simply 100-watt stations hooked up occasionally or regularly by wire. There are quite a few stations which get programs from two networks, maybe more, but there are a number which carry two. It is a daily practice for stations not connected with any network to hook up by wire for the giving of a particular program and for the time being to be engaged in the simultaneous transmission of the same program which proceeds from one or the other of them. There are a number of small stations that engage in rebroadcasting, that is, that pick up the programs of larger stations by radio sets and send it out from their own station. Under the law, this cannot be done without the consent of the originating station, but this consent has been rather frequent and in some cases regularly given. To add to the complicated web of wires all over the country, there are of course the international programs. Daily programs come back and forth over the boundaries to the north, from Canada, and to some extent over the boundary to the south, and then radio programs are coming with increasing frequency from Europe and Asia. To look at this complicated web from another viewpoint, the program of a station, whether it is performed in the studio of a station or elsewhere, may be made up of live talent or of phonograph records. If it is the latter case, it means that the original performance took place somewhere else, in the studio usually of the manufacturer of the phonograph record. As to live talent, it may be at the station's studio, it may be at the night club, it may be from a hotel orchestra, or from a restaurant orchestra, it may be at some public auditorium, or it may be in front of the Palazzo Venezia in Rome. The stations putting on these various performances-and I want to remind you all the stations and not merely the networks are involved in one way or another in this situation-you have a great majority that are located in small towns and cities, some in larger cities amidst sparsely settled territory, where the advertising support is, to say the best, precarious at times, and in some cases precarious all the time. At any one time in the evening you have no more than a maximum of 421 stations operating in the evening in this country, in spite of the total of 638. This is because over half of the stations operate part time. Some of them divide time with two, three, or four on the same wave lengths, others can operate only until sunset and others perhaps a few minutes or an hour beyond sunset. That type of station has, to a large extent, the same overhead as your full-time station, and only a proportionate opportunity of gaining revenue. Overhanging all this is the short-term licensing, under which all these stations are operated. Under the rules of the Federal Communications Commission, they must renew their right to exist twice a year. Now, to turn to a second line of thought, on which there was a great deal of misconception inherent in the evidence during the early 53579-3628 |